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RESULTS OF BRITISH NAVAL SUPREMACY

537 Scarcely able in 1690, even with powerful help from the Dutch, to fend off a French invasion in force, she had at first to play a waiting game, striking hard in 1692 when occasion offered. Then she bided her time while the French guerre de course gradually demoralised that navy. In this war, as in that of 1702-13, Louis XIV dissipated his resources on land; William and Anne used their armies wisely and sparingly, but steadily built up their navies. Thus, by 1713, England had gained a clear superiority in force and in strategic position, which enabled her to surpass the Dutch in the carrying trade. The merchant service proved an invaluable reserve for the Royal Navy when war came; and this advantage carried her on the whole successfully through the tortuous shifts of the next struggle (1739-48); but not until the genius of Pitt roused her spirit and guided her policy did she gain a marked superiority over her chief rival.

Commerce, the vital sap of the Empire, registered the increasing efficiency of naval protection, as appears from the tonnage of British ships cleared outwards in the following years-in 1688, 190,000; 1697, 144,000; 1701, 273,000; 1738, 476,000; 1755, 451,000; 1763, 561,000; 1777, 736,000.1 Thus, while the Navy was comparatively weak, commerce declined during war: but in that of 1702-13 it increased by one-fifth and in the Seven Years' War by one-fourth, thereafter rising by leaps and bounds. These statistics also illustrate the growth of the Empire. In 1689-97 it was almost nil; in 1702-13 the accessions were Gibraltar, Minorca, Nova Scotia and Hudson Bay. As the naval successes of the third war only balanced the military failures, the result was little better than stalemate. The combined naval and military triumphs of the Seven Years' War brought acquisitions unexampled both for extent and solidity. By unique good fortune, they occurred just before the vast accession to human energies due to the Industrial Revolution. In these facts lies the secret of the rapid growth and astounding vitality of the Old Empire.

1 Cunningham, W., Growth of English Industry, п, 696.

CHAPTER XIX

THE GROWTH OF INTERNATIONAL LAW. MARITIME RIGHTS AND COLONIAL TITLES 1648-1763

THE Peace of Westphalia, 1648, may be described as the door leading from the Middle Ages to the modern world. It terminated the wars which for thirty years had been ravaging Europe and placed all independent States whether Protestant or Catholic upon a footing of equality. It formed the basis of the treaty law of Europe for the next century, and though there were important changes in the political geography of Europe, there were but few that sprang from the divisions resulting from the acceptance of the doctrines of the Reformation.

The period from 1648 to 1763 is of vital importance in the growth of the British Empire, it is also a period in which international law, especially that relating to maritime affairs, was developing. The struggle for the freedom of the seas continued, and England and other European States still had difficulties with Spain who endeavoured to keep the vast riches of her American possessions for herself, and to prohibit other States from trade with them. The influence of sea power on history and on law is strikingly emphasised during this period, and English policy had important effects on the rules of international maritime intercourse. In sea warfare especially, rules of international law, which were to receive more definite shape in later days, were being formed, and in the process the influence of British policy and British Prize Courts was very powerful. Though some British practices called forth strong neutral protests, the foundations were being laid of those rules regarding enemy property and neutral rights which were developed and applied by great judges during the wars of the Napoleonic era when Great Britain's second colonial Empire was won.

The rivalry of the Dutch, and their growing reluctance to render any respect to the English flag, precipitated the First Dutch War in 1652. Both republics, the English Commonwealth and the StatesGeneral of Holland, were sensitive as to their dignity, but the former was more insistent and effective than Charles I had been in asserting sovereignty over the English seas. Van Tromp, the Dutch Admiral, was left without definite instructions from his Government in relation to the salute to the flag, but he was ordered to prevent Dutch vessels from being visited and searched by English ships in the narrow seas. Having met a Dutch vessel which reported that a Dutch convoy had been recently attacked for not striking their flags and that homeward bound vessels with valuable cargoes had been captured, he turned

ENGLISH PRETENSIONS TO SOVEREIGNTY OF SEAS 539

his squadron towards the English coast. He met Admiral Blake with his fleet, and the latter fired a gun across Tromp's bows to make him strike his flag. Thereupon a fight ensued in which Tromp was defeated and withdrew with a loss of two vessels.1 The First Dutch War was the result of this encounter. As has often been the case the actual cause of the war was not the immediate incident which led to its outbreak. The real cause was commercial rivalry.

The war continued with varying fortunes and fierce battles for two years, and in its course attacks were made on Holland's most vulnerable and most valuable possessions, its commerce and fishing. The English Parliament meantime reasserted and popularised the claim to the sovereignty of the seas by publishing an English translation of Selden's Mare Clausum. Holland was not behind in the revival of the controversy, and books appeared there assailing the English claims. Dutch commerce, the life-blood of the nation, found the English fleet across its path. Negotiations were opened for a settlement and finally the Dutch agreed, in 1654, to render homage to any English warship in the narrow seas. Cromwell gained but little by this war; the Dutch maintained their rights of fishery on the British coasts while their agreement as to the striking of the flag conceded nothing more than they had already done in the past, and could not be taken as an acknowledgment of England's sovereignty of the seas.

Under Charles II the pretensions to the sovereignty of the seas were maintained, the wars of 1664 and 1672 ensued, and in the peace of 1674 Holland was compelled to "honour" the King's flag from Cape Finisterre to Van Staten in Norway but still without acknowledging his sovereignty over the seas. This claim of Britain was losing its importance, and Holland's commercial rivalry was diminishing, but instructions ordering the enforcement of the salute continued to be issued and enforced.2 Circumstances were changing and the freedom of commerce in peace time on the sea was progressing in Europe. Claims over straits persisted much longer; thus Danish claims to levy tolls in the Sound continued till the middle of the nineteenth century and the Dardanelles and Bosphorus have remained subject to important restrictions until modern times.

By the end of the seventeenth century English claims to jurisdiction over large portions of the sea were becoming less rigorous. States were moving in the direction of fixing definite limits over the portions of the sea adjacent to their territories. Holland, which had fought English pretensions, was equally vigorous in repelling the claims of Denmark over the northern and Arctic seas, but by the end of the seventeenth century Denmark also began to fix limits to the areas in which she claimed exclusive jurisdiction.3

1 Fulton, T. W., The Sovereignty of the Sea, pp. 770, 771.
2 Marsden, R. G., Law and Custom of the Sea, 11, 86, 165.
3 Fulton, p. 528.

Grotius, writing in 1625, had put forward the view that "the empire of a portion of the sea is, it would seem, acquired in the same way as other lordship; that is, as above stated, as belonging to a person, or as belonging to a territory; belonging to a person, when he has a fleet which commands that part of the sea; belonging to a territory, in so far as those who sail in that part of the sea can be compelled from the shore as if they were on land".1 But this doctrine had, at first, little influence on the practice of States in the seventeenth century, nor was it adopted by jurists. States asserted their rights to inviolability of their territory when they were neutral, and for the purpose of better defining them they issued proclamations warning belligerents not to engage in hostilities within certain vaguely described areas around their coasts. James I issued, in 1604, a proclamation forbidding belligerent acts within any places in his dominions or "so near to any of our said ports and havens as may be reasonably construed to be within that title, limit or precinct". He further defined the lines of neutrality at sea as "a straight line drawn from one point to another within the realm of England". The areas so enclosed by lines drawn from headland to headland round the coasts were called the "King's Chambers" and tables and charts showing their positions were prepared under the direction of Trinity House.2 Proclamations in similar terms made by Charles II in 1668 and 1683 vaguely specified maritime areas adjacent to the English shores within which hostilities were prohibited, and the decisions of the English Admiralty Court restricted jurisdiction to their terms. Vessels captured within the "place or tract at sea that may be reasonably construed to be within any of these denominations, limits or precincts" outside the limits of the King's Chambers were restored to the owners "if they came within the jurisdiction of the King's Court". These decisions, which were in contrast with previous English claims, were of importance as showing the direction in which opinion was moving. One of the chief reasons for the recognition by England of greater freedom of navigation even on the seas surrounding the British Islands must be found in her increasing commerce. The greater that became, the more irksome all restrictions on the free navigation of the high seas were felt to be until ultimately they were abandoned, leaving only a shadowy claim to the salute of the flag. Holland had led the way, England and nearly all other maritime States were now prepared to follow. Grotius's "natural law” doctrine on the subject of freedom of intercourse was beginning to bear fruit, and another Dutchman, Cornelius van Bynkershoek, in 1703, and 1737,5 turned his attention to the delimitation of the maritime areas adjacent to the territories of States over which, for 1 De jure belli ac pacis (tr. Whewell), lib. п, cap. iii, s. xiii, 2.

2 Fulton, pp. 120, 553.

Wynne, W., Life of Sir Leoline Jenkins, 11, 727, 732, 755, 780, 783.
4 De Dominio Maris.
5 Quaestiones juris publici.

THE THREE MILE LIMIT

541 purposes of defence, fishing and revenue, protection was required. Bartolus, an Italian jurist who died in 1357, declared that a State's jurisdiction extended to 100 miles from the coast, while Baldus Ubaldus, who died in 1400, while limiting the extent to sixty miles, or one day's journey, included sovereignty as well as jurisdiction among the rights of the neighbouring prince.2 Grotius had enunciated the principle of control over such waters so far as it could be exercised from the land,3 and Bynkershoek applied it to the use of artillery: Quare omnino videtur rectius, eo potestatem terrae extendi, quousque tormenta exploduntur, extenus quippe cum imperare, tum possidere videmur; Imperium terrae finitur ubi armorum potestas.5 The practice regulating the salute of a vessel coming within range of a battery on a foreign coast had prepared the way for the acceptance of the doctrine of cannon-range; it was the rule in England that "the sea should salute the land", and the range of guns determined the limit within which the salute ought to be rendered. Thus it was largely through English action regarding the salute that the acceptance of cannon-range limit was facilitated. The same limit had for a long time been accepted in connection with visit and search at sea, and many treaties stipulated that the visiting warship should not approach nearer than within cannon-shot and should stay there while a boat was sent for the purpose of examining the merchant ship. Bynkershoek's views were by no means immediately adopted by States, though subsequent writers generally followed them. Vattel, whose Droit des gens, published in 1759, exercised a great influence on international law for a century, contended that a nation might acquire exclusive right to navigation and fishery in certain tracts of the sea by treaties, and he did not limit the area to that which might be protected from shore. As regards neutrality, he adopted the cannon-shot principle. The fixing of a definite limit as the range of cannon-shot at one marine league, or three sea miles, appears to be due to an Italian jurist, Galiani, in 1782, though King Adolf Frederik of Sweden had asserted the three mile limit in connection with the restriction of privateering off the coast of Sweden as early as 1758.7 So during the period under examination the practice of States bore witness to the diminishing claims to sovereignty over large areas of the ocean; Admiralty Courts were recognising limited areas in which their jurisdiction was exercisable in relation to neutrality, and national ordinances were beginning to be issued recognising the marine league as the extent of neutral waters.

England's claim to trade with the Spanish colonies in the West

1 Fenn, P. T., The origin of the right of fishery in territorial waters.

2 Fulton, pp. 539, 540..

De jure belli ac pacis, lib. п, cap. iii, s. xiii, 2.

De Dom. Maris, cap. ii.

557.

5 Quaestiones, lib. 1, cap. viii.

• Fulton, C., The law of territorial waters, pp. 6, 36; Rostad, A., La mer territoriale,

7

Jessup,

p. 132.

8 Fulton, p. 568.

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