The Sovereignty of the Sea / An Historical Account of the Claims of England to the Dominion of the British Seas, and of the Evolution of the Territorial Waters

by Thomas Wemyss Fulton

Baldus seems to have gone a step further than Bartolus by including sovereignty (potestas) as well as jurisdiction (jurisdictio) among the rights of the neighbouring prince, and he declared that the proximal sea pertained to the territory of the adjoining state, which, as in the case of Venice, had power to impose taxes for the use of it.[972] Much the same opinion was expressed by Bodin, a French lawyer who wrote about the middle of the sixteenth century. When speaking of the taxes or tolls that might be imposed by a state, he said that though the sea was incapable of appropriation, it was in a measure accepted that for a distance of sixty miles from the shore the prince of the adjoining country could impose law on those who approached the coast, and that it had been so adjudged in the case of the Duke of Savoy.[973] Gentilis, writing at the beginning of the next century, stated that it was laid down by the civilians that not only jurisdiction, but dominion, pertained to the neighbouring state as far as one hundred miles from the coast, and even further unless the proximity of another state interfered.[974]

It is thus clear that long before the beginning of the seventeenth century, the original simplicity of the Roman law regarding the appropriation of the sea had undergone a change at the hands of its commentators, and that the doctrine of sovereignty or dominion over a very considerable maritime zone was widely held by jurists. But there is no evidence that either of the boundaries prescribed by Bartolus or Baldus was sanctioned by the general usage of nations. They do not appear ever to have been adopted by any state of northern or western Europe as the limits of its territorial sea or maritime sovereignty; although they were occasionally used in arguments in State Papers, as when the Earl of Salisbury justified to the Spanish Court King James’s proclamation of 1609 against unlicensed fishing, on the ground that maritime jurisdiction was “generally received to be about one hundred miles at the least into the seas.” The actual application of these large boundaries appears to have been confined to parts of the Mediterranean, where the doctrine took its rise, and where it survived till the eighteenth century.[975] A more recent and a curious survival of the old boundary of Bartolus is to be found in the abortive Russian Ukase of 1821, by which foreigners were prohibited from navigating in Behring Sea within one hundred Italian miles of the coast, a claim which was revived by the United States as late as 1891.[976]

Another general principle for the demarcation of the seas belonging to a state had even wider currency than the above. It consisted in the transference to the sea of the principle of the mid-channel, or thalweg, as applied to rivers in apportioning the waters pertaining to either bank,—a doctrine laid down in Roman law and in vogue among the Anglo-Saxons as early at least as the seventh century.[977] The thalweg or mid-channel was not infrequently a boundary between contiguous states, and it was not a great step to transfer its application in theory from wide rivers and estuaries to intervening seas. In this way the mid-line in the sea lying between the coasts of two states was held to be the boundary of their respective maritime jurisdiction or sovereignty. The whole extent of a sea stretching between territories belonging to the same state, however far apart these territories might be, was looked upon as being under the sovereignty of that state. This principle, therefore, covered most extensive claims to maritime dominion, since it left hardly any part of the sea unappropriated. The mid-line as an international boundary was in the case of narrow seas logically derived from the tenets of the Italian lawyers, but there are grounds for believing that it may have been much older. An ancient example of its use in a limited way is to be found in King Cnut’s charter, in 1023, granting the port of Sandwich, in Kent, to the Church at Canterbury, by which certain rights of wreck up to the middle of the sea were conferred on the monks. After mentioning “the great sea without the port,” it provided that half of whatever was found “on this side of the middle of the sea,” and brought to Sandwich, should belong to the monks and half to the finder.[978] Cnut’s charter cannot be taken as expressing any direct claim to jurisdiction to the middle line, but as wreck was a prerogative of the crown—and this is the first grant of it—the limit assigned seems to imply a differentiation of authority. More pertinent is the statement in the Mirror of Justice, a law-book written about the end of the thirteenth century, and attributed to Andrew Horn, who was Chamberlain of London in the reign of Edward II., that the king’s sovereign jurisdiction extended as far as the middle line of the sea surrounding the land.[979] Plowden, the Elizabethan lawyer, believed that this work contained the law as it existed before the Norman Conquest, but it is now declared to contain much that is spurious. Whether that be so or not, there is no doubt that this principle of maritime delimitation was adopted by many of the lawyers and scholars of Elizabeth’s time, as Dee and Plowden.[980] Even well on in the next century no less a personage than Lord Chief-Justice Hale, in an early unpublished treatise on the law of the customs and seaports, maintained that the king had “right of jurisdiction or dominion of so much at lest of the sea as adjoines to the British coast nearer then to any forren coast.”[981] From internal evidence this tract appears to have been written about 1636, and the influence of Selden’s Mare Clausum, which was published at this time, and in which the mid-line was repudiated as a boundary of the British seas, was shown in Hale’s later treatise. In it the mid-line was abandoned, and the “narrow sea, adjoining to the coast of England,” was declared to be “part of the waste and demesnes and dominions of the King of England,” who had in it the double right of jurisdiction and property or ownership, “Master Selden” being referred to as authority.[982]

There is no evidence that the principle of the mid-channel as applied to the sea was ever homologated by an English sovereign or Government. Notwithstanding its currency in the reign of Elizabeth, we know that it was explicitly disavowed by the queen herself in diplomatic controversy with the King of Denmark, who, in virtue of it, claimed the whole of the sea between Norway and Iceland. Still earlier the English Parliament vainly petitioned the victorious Henry V., fresh from his conquests in France, to impose tribute on vessels passing through the Channel, on the ground that he possessed both shores, and therefore had a legal title to the intervening sea.[983] But although the mid-line appears never to have been clearly adopted, there are two circumstances, both referring like Cnut’s charter to the Channel, which may point to its ancient usage there. One is that an important fishing-bank, the Zowe or Sow, extending about one-third across the Channel between Rye and Dieppe, was recognised by France as within the English jurisdiction, and French fishermen for a very long period were in the habit of procuring licenses from the Warden of the Cinque Ports for permission to fish there ([see p. 65]). The other is that when the question was raised as to how far the jurisdiction of the Cinque Ports extended into the sea—in connection apparently with complaints against French fishermen towards the end of the reign of Charles II.—the Trinity House, while avowing their own ignorance, stated that the Sergeant of the Admiralty within the Cinque Ports claimed to exercise his authority “half seas over or further.”[984]

The methods of delimitation hitherto mentioned consisted in drawing imaginary lines in the sea, usually at a considerable distance from the coast. Another principle, which probably originated among seafaring men and was capable of being made use of in a rough-and-ready fashion, depended on the range of vision on a fair day, seawards from the shore, or usually from the sea to the land. The space of sea between the coast and the horizon, or vice versâ, was regarded as belonging to the adjoining state. This was the principle adopted in Scotland, but it was not confined to that country. It was employed in olden times in England to determine whether a bay or arm of the sea was within the body of a county, inter fauces terræ, and therefore under common law, or part of the high sea and under the jurisdiction of the Admiral.[985] An early instance of its adoption as a boundary of international jurisdiction is to be found in the nautical laws prescribed for the Netherlands in 1563 by Philip II. of Spain, by which it was forbidden, on pain of death, for any violence to be done by reason of war, or for any other cause, to his subjects or allies, or to foreigners, on the sea within sight of the land.[986] Grotius also referred to the range of vision as a boundary, when he said that the controversy respecting the freedom of the sea was not about bays or straits, or “so much of the sea as might be seen from the shore.”[987] We have already seen that in Scotland the fisheries within sight of the coast, or a “land-kenning,” were claimed as belonging exclusively to the Scottish people. In this case the range of vision was from the sea to the land, and it was to be determined from the main-top of the fishing smack.[988] The extent of a land-kenning was stated to be fourteen miles, and this was the distance expressed in the Draft Treaty of Union in 1604, and pressed upon the Dutch by King James in 1618; but sometimes twenty-eight miles, or two land-kennings, was claimed; and it is to be noted that in the case of bays and firths the distance was measured from a base-line drawn between headland and headland. The range of vision, or land-kenning, as the boundary of the reserved fishing waters, was embodied in Scottish law as well as claimed against other nations by the Privy Council, the Parliament, and the king.[989]

It was also conceded to Denmark, for in 1618 the Privy Council prohibited Scottish fishermen from fishing within sight of land at the Færöe Isles. The King of Denmark, indeed, assigned the same limit in a decree of 1691 with regard to places where he did not possess the opposite coasts.[990] Although the principle was not formally acknowledged by the Dutch in determining their fishing on the British coasts, they agreed to adhere to it ([see p. 193]); and there is evidence to show that the British cruisers caused them to respect this limit, at all events in connection with the herring-fishing at Yarmouth.[991] A later example of the adoption of this limit is to be found in a treaty concluded in 1740 between the Porte and the King of Naples, by which it was stipulated that neither party would permit vessels to be pursued or molested on their coasts within a distance at which ships could discern the land.[992]

The method of determining the extent of the territorial sea by the range of vision was vague and open to obvious objections, even though it was ascertained only on a fair day. The distance, as Bynkershoek pointed out, would vary according to the position of the observer, the keenness of his vision, the climate, and many other circumstances, and it was inapplicable to narrow seas, such as the Channel, where the opposite coasts belonged to different states. It is, however, questionable whether, under proper rules, it would have furnished a zone much less definite than that of the range of guns. It has been proposed by some modern publicists, as Rayneval, Azuni, Heffter, and Godey, as a boundary of territorial waters; and if it had been generally adopted as a principle of delimitation, there is no doubt that the equivalent distance of fourteen miles as used in Scotland would have proved more satisfactory in several respects than the ordinary limit of three miles, which was supposed to represent the range of guns.

Still less definite was another principle, if such it can be called, which was proposed as a guide in allotting the space of sea within which exclusive rights of fishing should belong to the adjacent state. Welwood, Selden, and many others, held, in opposition to Grotius and his school, that the fisheries along a coast might be exhausted or injured by promiscuous fishing, and that the inhabitants of the coast had a primary right to the fructus of the adjacent sea, as against the intrusion of foreigners—a principle which lay at the root of the Scottish claims to the “reserved waters.” Sarpi, an Italian author of the early part of the seventeenth century, in a work defending the claims of Venice, formulated the opinion that the extent of territorial sea should not be fixed everywhere in an absolute manner, but should be made proportionate to the requirements of the adjoining state, without violating the just rights of other peoples. Thus a country or city which possessed large and fertile territories that provided adequate subsistence for the inhabitants, would have little need of the fisheries in the neighbouring sea, while one with small territories that drew a large part of its subsistence from the sea ought to have a much greater extent of sea for its exclusive use.[993] This doctrine, though obviously difficult of application internationally, has much to recommend it on grounds of reason and justice. It is one of the fundamental principles on which Norway claims at the present day an unusually large extent of territorial sea.

With regard to bays, straits, and arms of the sea, the general usage from the earliest times has included them within the jurisdiction of the neighbouring state. They have been always regarded as differing from the sea on an open coast, the only disputes about them referring to the size of such areas that might justly be looked upon as territorial. By the old common law of England, which Hale dates as far back at least as the reign of Edward II. (1307-1327), bays, gulfs, or estuaries, of which one shore could be “reasonably discerned” from the other shore, were regarded as inter fauces terræ, and within the body of the adjacent county or counties, so that offences committed there were triable at common law. But along the coast, on the open sea, the jurisdiction of the common law extended no farther than to low-water mark; beyond that it was high sea, or altum mare, and under the jurisdiction of the Admiral.[994] Here we see a sharp distinction drawn between bays and the open coast, the former being included within the realm as part of the territory. It seems reasonable on many grounds that the waters lying in view between two parts of the same continuous territory should have been regarded as pertaining to that territory, and it may be noted that in early times the navigation of a vessel along a coast was conducted from headland to headland, and thus a distinction was likely to arise between the open sea lying outside a line joining the headlands, as a waterway common to all, and the sea inside the headlands as an access to the territory. The distinction was maintained from an early period with regard to international relations. Reference has already been made to the treaty arranged by Cardinal Wolsey in 1521, in which it was stipulated that English harbours, bays, rivers, and roads should be exempt from hostilities between belligerents, and to the proclamations of King James in 1604, and of succeeding sovereigns, defining the extent of the King’s Chambers, or bays, according to ancient custom, for purposes of neutrality.[995] It is interesting to note that the rights exercised within the King’s Chambers, or bays, on the coasts of England referred only to neutrality and had nothing to do with fishing, while in Scotland it was exactly the opposite. The large bays and firths on the Scottish coast were reserved for fishing, without any specific reference to the rights or obligations of neutrals. The differentiation of bays and arms of the sea from the territorial belt on open coasts has persisted to the present day, both in the writings of publicists and in the practice of nations, although the introduction of another principle of delimitation has tended to keep the claims to bays within moderate bounds.

The various methods of determining the territorial waters of a state referred to above were more or less arbitrary, and did not rest upon a natural basis capable of universal application. During the seventeenth and eighteenth centuries another principle was gradually evolved, and was ultimately accepted as furnishing such a natural basis, so that it may now be regarded as an established part of international law. It was, that the maritime dominion of a state ended where its power of asserting continuous possession ended. The belt of sea along the coast which could be commanded and controlled by artillery on shore thus came to be regarded as the territorial sea belonging to the contiguous state. Beyond the range of guns on shore the sea was common.