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

This principle was of slow growth. It did not even receive definite expression among jurists until the beginning of the eighteenth century; but as previously stated ([see p. 156]), the Dutch ambassadors who came to London in 1610, to endeavour to induce King James to withdraw his proclamation against unlicensed fishing, made use of it in their conferences with the English Ministers, not improbably at the instigation of Grotius. But whether or not Grotius was the person who enunciated the principle in 1610, it is in his writings that we first meet with it, although in a veiled form. It is not mentioned in Mare Liberum, but in his greater work, the Law of War and Peace, which was published in 1625, he said that a state might acquire sovereignty over parts of the sea, in regard to persons by an armed fleet, and “in regard to territory, as when those who sail on the coasts of a country may be compelled from the land, just as if they were on the land.”[996] The principle of compulsion from the land is clearly enough expressed, and though Grotius did not define the nature of the compulsion to be exercised, modern writers have generally held that what he meant was compulsion by artillery. If Grotius was the author of the dictum of 1610, he must have had reasons for expressing it in a less definite form in 1625,—perhaps owing to his employment at that time by the Queen of Sweden, to whom the naked doctrine would have been no more attractive than to James.

For a long time, however, the doctrine was equally neglected by publicists and statesmen. This may have been partly due to the somewhat obscure and incidental way in which it was advanced, but probably mainly to the fact that the time was not ripe for its acceptance. It represented much too stringent a limitation of the territorial sea to receive general assent. Selden does not refer to it, and it was passed over by the authors, such as Pontanus,[997] Burgus,[998] Shookius,[999] Conringius,[1000] and Strauchius,[1001] who favoured more or less extensive claims to maritime dominion, while even writers who opposed such claims, as Stypmannus[1002] and Graswinckel,[1003] do not adopt it.

The opinions of Grotius with respect to the appropriation of the sea had, indeed, comparatively little influence among jurists in the seventeenth century. The views which prevailed in the latter part of the period are rather represented in the works of two of the writers whose reputation was greatest, Loccenius and Puffendorf. Loccenius, a Swedish author who wrote about the middle of the century and is still quoted as an authority, declared that while a nation could not acquire a universal dominion over the sea, it might possess sovereignty in a particular sea as far as it was under its power or dominion, subject to the rights of innocent passage and navigation by others; and he cited as examples Sweden and Denmark, which exercised sovereignty in the Baltic.[1004] As a general rule, however, Loccenius held that states had jurisdiction only in the waters adjacent to their coasts, for the preservation of peaceful navigation; but no attempt is made by him to lay down any fixed rule or limit as to the extent of such jurisdiction. He merely contrasts the opinions of those, as Baldus and Bodin, who contended for a wide limit of sixty miles, or two days’ journey, with those who argue for a narrow but undefined space in the neighbouring sea.

The celebrated Puffendorf, whose authority later was only second to that of Grotius, dealt with the question in his great work on the Law of Nature and Nations, and with even less precision than Loccenius.[1005] On the general question of the appropriation of the sea he discarded the objection that its fluidity rendered it incapable of possession, but held that it would be morally impossible for one nation to possess the ocean. He also set aside the moral objection in the absolute form in which it was put forward by Grotius, that the use of the sea was inexhaustible. On the contrary, he held with Selden and Welwood that fisheries in the sea might be exhausted by promiscuous use. “If all nations,” he said, “should desire such a right and liberty (of fishing) near the coasts of any particular country, that country must be very much prejudiced in this respect; especially since it is very usual that some particular kind of fish, or perhaps some more precious commodity, as pearls, coral, amber, or the like, are to be found only in one part of the sea, and that of no considerable extent. In this case there is no reason why the bordering people should not rather challenge to themselves this happiness of a wealthy shore or sea, than those who are situated at a distance from it.”[1006] On this ground, the right of exclusive fishing, and also for the security and defence of the state, a nation was justified in claiming dominion in the neighbouring sea. The extent of this territorial sea, he says, cannot in general be accurately determined; but it is clear that he thought it might be very considerable. We had the power to abridge others of the use of the sea by forts on shore, in narrow creeks and straits, or by armed fleets; but it would, he thought, show unreasonable jealousy to claim “some hundreds of leagues.” The true bounds could only be discovered either from “the right of possession” of a state, or from its treaties with its neighbours. Gulfs, channels, or arms of the sea, on the other hand, were “according to the regular course” supposed to belong to the state which had possession of the shores. If the shores belonged to several peoples, the sovereignty was distributed to the middle line, unless treaties directed otherwise, or one people had obtained the exclusive sovereignty by convention, conquest, or prescription.

We thus perceive that the opinion of jurists at the end of the seventeenth century with regard to the appropriation of the sea was very much what it was at the beginning. With the exception of the clear and terse declaration of the Dutch ambassadors in 1610, and the somewhat dubious dictum of Grotius in 1625, the principle that the maritime sovereignty of a state was limited by the range of guns from the shore does not appear to have been advanced throughout the century.

Nor does an examination of the usage of nations during the period show that the opinions of publicists were at variance with the actual practice. All maritime countries enforced an unquestionable jurisdiction, more or less extensive, in the neighbouring seas, and several of them exercised dominion over particular regions. The extravagant pretensions of Spain and Portugal had long since vanished; but Venice, while sadly fallen from her former greatness, still asserted her sovereignty over the Adriatic. Sweden and Denmark possessed a joint sway over the Baltic; and Denmark maintained her claim to the northern seas between Iceland, Greenland, and the coast of Europe. Moreover, the pretensions of England to the sovereignty of the so-called British seas, although in abeyance, had not been withdrawn. The striking of the flag was still enforced by English men-of-war, and there was nothing to prove that the other phases of the pretension might not be revived at any time.

With regard to the extent of neutral waters, it would appear that the boundaries were as a rule vague, and that general considerations determined jurisdiction in particular cases. In connection with the declaration of war by the United Provinces against France in 1689, a placard was issued by the States-General in which both Dutch and foreign vessels were exhorted to keep out on the high seas; and it was declared that any vessels suspected of having contraband goods on board and found “on the coast of France, or of other countries, islands, and places under the dominion of the King of France, and particularly in the bays and gulfs on the coast of the said kingdom,” would be seized and brought to trial.[1007] On the English coast the limits of jurisdiction were better defined, but still, in many cases, without precision. Within the King’s Chambers, as specified by James I. in 1604, “or other places of our dominion, or so near to any of our said ports, or havens, as may be reasonably construed to be within that title, limit, or precinct,” the hostile acts of belligerents, captures of the enemy’s vessels, and the hovering of foreign ships of war were forbidden. The injunction with respect to the neutral waters was renewed in 1633, 1668, and 1683, and it was in no case confined strictly to the “chambers.” In the proclamations of 1668 and 1683, which were drawn up by Sir Leoline Jenkins, the definition was merely “within our ports, havens, roads, and creeks, as also in every other place or tract at sea that may be reasonably construed to be within any of these denominations, limits, or precincts.”[1008] These limits were upheld by the decisions of the High Court of Admiralty during the greater part of the century. Sir Leoline Jenkins, it may be noted, although in questions of international policy advocating the most extreme pretensions of the English crown to the sovereignty of the seas, was careful in his judicial decisions to restrict jurisdiction within the terms of the royal proclamations. If a capture was made in one of the chambers or beyond them by a foreign privateer which had issued from an English port and had been hovering in the neighbourhood, the vessel was ordered to be restored. So also if the prize was taken, in any case, outside a chamber, but near enough the coast to be “reasonably construed” to be within the king’s jurisdiction. This usually happened on the east coast, where the chambers were small. In one such case the vessel was taken between half a league and one league off Orfordness (the headland of a chamber); in another instance the vessel was seized eight leagues at sea off Harwich, and presumably four leagues from the boundary of the nearest chamber.[1009]

At the end of the seventeenth century, while the old pretensions of various nations to the appropriation of particular seas had not been withdrawn, they had in many cases become by the force of circumstances to a large extent nominal or were in abeyance. There was moreover a tendency, as we have seen ([p. 526]), to substitute fixed boundaries in place of a wide and vague sovereignty, and to arrange by treaty defined limits for special purposes. In the historical retrospect we can now perceive the main influences which led to the modification of the claims and practice in the century that followed. The juridical controversies on the subject between the writers of various nations were doubtless not without effect. The repeated decisions of the High Court of Admiralty in this country, going counter to the English pretension even in the Channel, and fixing limits for neutrality, must also have had an important influence. But the chief causes were probably twofold. One was the moral and material victory of the Dutch Republic in its long and persistent struggle against the exorbitant claims to maritime dominion, first, of Spain and Portugal, and then of England and Denmark. The other was the great extension of commerce and navigation, in which England secured an ever-increasing share, so that in the next century we find her taking the part of Holland in opposing the Danish claims to mare clausum. As maritime commerce extended and the security of the sea became established, it was felt more and more that claims to a hampering sovereignty and jurisdiction were incompatible with the general welfare of nations; and as the states interested in this commerce had the greatest power, the assertion of a wide dominion was gradually abandoned, surviving only in remote regions or in enclosed seas, like the Baltic.

At the beginning of the eighteenth century the question of the appropriation of the sea was placed on another footing. The principle of delimiting the territorial sea which is now generally accepted was first expounded in 1703 by a distinguished publicist, Cornelius van Bynkershoek, who, like Grotius, was a Dutchman, and held the office of Judge in the Supreme Court of Appeal of Holland, Zealand, and West Friesland. In his early work on the dominion of the sea,[1010] and in a later treatise published in 1737,[1011] he dealt with the subject with much acumen. With respect to the general question as to the capability of appropriation, he agreed with Puffendorf rather than with Grotius. While holding that the open ocean could not be wholly brought under dominion, he admitted, with Selden, not only that large parts of the sea are susceptible of appropriation, but that various nations had at different times enjoyed such dominion: the fluidity of the sea was not a bar to its occupation, and by taking possession of it the same right was acquired as by taking possession of the land. But he declared there was no instance at the time he wrote of any ruler possessing maritime dominion of that kind, unless when the surrounding territory belonged to him, and that the general freedom of the seas for navigation had been established both by usage and by various treaties. He denied that England had the dominion of the so-called British seas, mainly on the ground of the want of uninterrupted possession, pointing out that all the neighbouring nations freely navigated them without paying any tribute or requiring any permission.

It was, however, with regard to the delimitation of the territorial sea immediately adjacent to the coast that Bynkershoek’s teaching had its chief results. He showed how uncertain and unsatisfactory were the limits previously proposed, and, following Grotius, he laid down the principle that the dominion of a state extended over the neighbouring sea as far, and only as far, as it was able to command and control it from the land. But he went further and showed how the principle was to be carried into practice. The dominion of the territory extended as far as projectiles could be thrown from the shore by artillery, so that exclusive possession might be taken of the part so commanded: “the dominion of the land ends where the power of arms terminates.”[1012] Thus Bynkershoek assigned the dominion of the adjacent sea (mare proximum) to the neighbouring state, within the range of a cannon-shot from the shore. Besides the general reasoning on which the limit was based, he cited in support of it an Act of state. He was apparently unaware of the clear declaration made by the Dutch ambassadors a century earlier; but he referred to an edict of the States-General in 1671, which enjoined that the commanders of their ships should give the salute on the coasts of a foreign Power when they were within the range of the guns of a town or fort, in such manner as the Government of the country should require, leaving to its discretion the return of the salute, and adding that every Government was sovereign within its own jurisdiction and every foreigner a subject there.[1013]