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 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. 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. 4 2 Fulton, pp. 120, 553. Wynne, W., Life of Sir Leoline Jenkins, 11, 727, 732, 755, 780, 783. 3 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,1 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, 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. Fulton, pp. 539, 540. De jure belli ac pacis, lib. I, cap. iii, s. xiii, 2. De Dom. Maris, cap. ii. Fulton, p. 557. 5 Quaestiones, lib. 1, cap. viii. 8 Fulton, p. 568. 'Jessup, P. C., The law of territorial waters, pp. 6, 36; Rostad, A., La mer territoriale, p. 132. Indies continued to be pressed during this period. There was constant fighting against Spanish ships and forts and this was encouraged by the issue of letters of marque to privateers who were instructed to force trade on the Spaniard. From instructions issued by Charles II in 1662 we can see how and why this was to be done, since the Spaniards "were engrossing to themselves the riches of the Indies contrary to the use and custom of all governments and the laws of nations".1 France was similarly engaged in endeavouring to obtain freedom of commerce and in 1701 received from Spain the monopoly of the supply of slaves or Asiento.2 By the Peace of Utrecht, 1713, this privilege was transferred to an English company. In passing judgment on the claims of Great Britain to trade freely in the Spanish colonies it is well to recall that the policy of Spain was not dissimilar from that of other European Powers at the time, including England, whose Navigation Acts were passed with the object of retaining her colonial trade. "C'est encore une loi fondamentale de l'Europe, que tout commerce avec une colonie étrangère est regardé comme un pur monopole." After the secession of the American colonies Great Britain found herself in much the same position as Spain had been, as the Americans continued to claim the rights to trade with British colonies which they had enjoyed before the War of Independence. The disputes with the Dutch over the fisheries in the North Sea and off the British coasts gradually died down, and in the eighteenth century, largely owing to the wars in which Holland was engaged, the Dutch fishing fleets diminished while those of Great Britain increased till they have become to-day larger than those of all the other States combined. Interest in fishing rights was removed to North America. Disputes were raised between England and France in the latter part of the seventeenth century, and, by a treaty of 16 November 1686 between James II and Louis XIV called "A Treaty of Peace, Good correspondence and Neutrality in America", British and French subjects were required to abstain from fishing or trading "in the havens, bays, creeks, roads, shoals or places" belonging to the other, though the freedom of innocent navigation was not to be disturbed. There was an attempt at definition of boundaries, which though vague in terms corresponded to the principles applicable to neutral waters laid down in the English proclamations of 1668 and 1683, in which the definition was "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". By the same treaty French subjects received permission to fish for turtles in the islands of Cayman. 1 Marsden, R. G., 1, 41. 3 See chapter XI. 5 Fulton, p. 553. 2 Dumont, Corps diplomatique, vш, i, 83. FISHING RIGHTS 543 The beginning of grants of fishing off the coasts of North America is found in the Treaty of Utrecht, whose interpretation and operation were the sources of fruitful dispute until the Anglo-French settlement in 1904. By this treaty, which ceded Nova Scotia and Newfoundland to Great Britain, French subjects obtained the right to fish in the seas, bays and other places to thirty leagues from the south-east coast of Nova Scotia and to have certain privileges as to landing and drying fish.1 By the Treaty of Paris, 1763, these rights were reaffirmed, though Canada and Cape Breton Island were ceded to Great Britain. In addition the right of fishing was also granted to French subjects in the Gulf of St Lawrence on condition that they did "not exercise the said fishery, except at a distance of three leagues from all the coasts belonging to Great Britain, as well those of the continent as those of the islands situate in the said Gulf of St Lawrence". The Islands of St Pierre and Miquelon were ceded to France for the use of the French fishermen.2 The grant of rights of this nature both to the French and subsequently to the Americans in 1783 is quite exceptional, and can only be explained by the peculiarity of the circumstances in each case. The British Government successfully contended before the Hague Tribunal in 1910, in the North Atlantic Fisheries Arbitration, that the claim of a State for its citizens to fish in the territorial waters of another can rest only on a special agreement. Its further contention that, on the separation of one State from another, the inhabitants of the former cannot continue to be entitled to exercise rights formerly enjoyed by them was also upheld by the Award. It must be remembered that at the time of the grants both to France and to the United States the limits of territorial waters had not been settled. The struggle between the English and French in North America ended with the termination of the Seven Years' War and the final expulsion of the French power from Canada in 1763. Disputes as to boundaries, as to interpretation of treaties, and the absence of the observance of such rules of international law as were gradually emerging in Europe in relation to the laws of war, appear to be the chief characteristics of this important fight for predominance on the North American continent. French settlements in Canada in the middle of the seventeenth century had made but slow advance. This was partly due to the methods of colonisation which were largely based on military principles, partly to the rigours of the winter climate and partly to the hostility of the Indian nations under the leadership of the Iroquois. But from 1669 onward the French spirit of enterprise was brilliantly exemplified in the expedition of La Salle, who finally navigated the 1 Dumont, VII, i, 341. 2 Martens, Recueil, 1, 109. Wilson, G. G., The Hague Arbitration Treaties, pp. 134-205. |