- Category: Court of the Ekklesia
OF THE SEA
§ 279. The sea, and its use.(76)
In order to complete the exposition of the principles of the law of nations with respect to the things a nation may possess, it remains to treat of the open sea. The use of the open sea consists in navigation, and in fishing; along its coasts it is moreover of use for the procuring of several things found near the shore, such as shell-fish, amber, pearls, &c., for the making of salt, and finally, for the establishment of places of retreat and security for vessels.
§ 280. Whether the sea can be possessed, and its dominion appropriated.
The open sea is not of such a nature as to admit the holding possession of it, since no settlement can be formed on it, so as to hinder others from passing. But a nation powerful at sea may forbid others to fish in it and to navigate it; declaring that she appropriates to herself the dominion over it, and that she will destroy the vessels that shall dare to appear in it without her permission. Let us see whether she has a right to do this.
§ 281. Nobody has a right to appropriate to himself the use of the open sea.
It is manifest that the use of the open sea, which consists in navigation and fishing, is innocent and inexhaustible; that is to say — he who navigates or fishes in the open sea does no injury to any one, and the sea, in these two respects, is sufficient for all mankind. Now, nature does not give to man a right of appropriating to himself things that may be innocently used, and that are inexhaustible, and sufficient for all. For, since those things, while common to all, are sufficient to supply the wants of each, — whoever should, to the exclusion of all other particpants, attempt to render himself sole proprietor of them, would unreasonably wrest the bounteous gifts of nature from the parties excluded. The earth no longer furnishing, without culture, the things necessary or useful to the human race, who were extremely multiplied, it became necessary to introduce the right of property, in order that each might apply himself with more success to the cultivation of what had fallen to his share, and multiply, by his labour, the necessaries and conveniences of life. It is for this reason the law of nature approves the rights of dominion and property, which put an end to the primitive manner of living in common. But this reason cannot apply to things which are in themselves inexhaustible; and consequently, it cannot furnish any just grounds for seizing the exclusive possession of them. If the free and common use of a thing of this nature was prejudicial or dangerous to a nation, the care of their own safety would authorize them to reduce that thing under their own dominion, if possible, in order to restrict the use of it by such precautions as prudence might dictate to them. But this is not the case with the open sea, on which people may sail and fish without the least prejudice to any person whatsoever, and without putting any one in danger. No nation, therefore, has a right to take possession of the open sea, or claim the sole use of it, to the exclusion of other nations. The kings of Portugal formerly arrogated to themselves the empire of the seas of Guinea and the East Indies;1 but the other maritime powers gave themselves little trouble about such a pretension.
§ 282. The nation that attempts to exclude another, does it an injury.
The right of navigating and fishing in the open sea being then a right common to all men, the nation that attempts to exclude another from that advantage does her an injury, and furnishes her with sufficient grounds for commencing hostilities, since nature authorizes a nation to repel an injury — that is, to make use of force against whoever would deprive her of her rights.
§ 283. It even does an injury to all nations.
Nay, more, — a nation, which, without a legitimate claim, would arrogate to itself an exclusive right to the sea, and support its pretensions by force, does an injury to all nations; it infringes their common right; and they are justifiable in forming a general combination against it, in order to repress such an attempt. Nations have the greatest interest in causing the law of nations, which is the basis of their tranquillity, to be universally respected. If any one openly tramples it under fool, they all may and ought to rise up against him; and, by uniting their forces to chastise the common enemy, they will discharge their duty towards themselves, and towards human society, of which they are members (Prelim. § 22).
§ 284. It may acquire an exclusive right by treaties:
However, as every one is at liberty to renounce his right, a nation may acquire exclusive rights of navigation and fishing, by treaties, in which other nations renounce in its favour the rights they derive from nature. The latter are obliged to observe their treaties; and the nation they have favoured has a right to maintain by force the possession of its advantages. Thus, the house of Austria has renounced, in favour of England and Holland, the right of sending vessels from the Netherlands to the East Indies. In Grotius, de Jure Belli et Pacis, lib. ii. cap. iii. § 15, may be found many instances of similar treaties.
§ 285. but not by prescription and long use. (77)
As the rights of navigation and of fishing, and other rights which may be exercised on the sea, belong to the class of those rights of mere ability (jura meroe facultatis), which are imprescriptible § 95), they cannot be lost for want of use. Consequently, although a nation should happen to have been, from time immemorial, in sole possession of the navigation or fishery in certain seas, it cannot, on this foundation, claim an exclusive right to those advantages. For, though others have not made use of their common right to navigation and fishery in those seas, it does not thence follow that they have had any intention to renounce it; and they are entitled to exert it whenever they think proper.(78)
§ 286. unless by virtue of a tacit agreement.
But it may happen that the non-usage of the right may assume the nature of a consent or tacit agreement, and thus become a title in favour of one nation against another. When a nation that is in possession of the navigation and fishery in certain tracts of sea claims an exclusive right to them, and forbids all participation on the part of other nations, — if the others obey that prohibition with sufficient marks of acquiescence, they tacitly renounce their own right in favour of that nation, and establish for her a new right, which she may afterwards lawfully maintain against them, especially when it is confirmed by long use.(79)
§ 287. The sea near the coasts may become a property.
The various uses of the sea near the coasts render it very susceptible of property. It furnishes fish, shells, pearls, amber, &c. Now. in all these respects, its use is not inexhaustible; wherefore, the nation, to whom the coasts belong, may appropriate to themselves, and convert to their own profit, an advantage which nature has so placed within their reach as to enable them conveniently to take possession of it, in the same manner as they possessed themselves of the dominion of the land they inhabit. Who can doubt that the pearl fisheries of Bahrem and Ceylon may lawfully become property? And though, where the catching of fish is the only object, the fishery appeals less liable to be exhausted, yet, if a nation have on their coast a particular fishery of a profitable nature, and of which they may become masters, shall they not be permitted to appropriate to themselves that bounteous gift of nature, as an appendage to the country they possess, and to reserve to themselves the great advantages which their commerce may thence derive in case there be a sufficient abundance of fish to furnish the neighbouring nations? But if, so far from taking possession of it, the nation has once acknowledged the common right of other nations to come and fish there, it can no longer exclude them from it; it has left that fishery in its primitive freedom, at least with respect to those who have been accustomed to take advantage of it. The English not having originally taken exclusive possession of the herring fishery on their coasts, it is become common to them with other nations.
§ 288. Another reason for appropriating the sea bordering on the coasts.(80)
A nation may appropriate to herself those things of which the free and common use would be prejudicial or dangerous to her. This is a second reason for which governments extend their dominion over the sea along their coasts as far as they are able to protect their right. It is of considerable importance to the safety and welfare of the state that a general liberty be not allowed to all comers to approach so near their possessions, especially with ships of war, as to hinder the approach of trading nations, and molest their navigation. During the war between Spain and the United Provinces, James I., king of England, marked out along his coasts certain boundaries, within which he declared that he would not suffer any of the powers at war to pursue their enemies, nor even allow their armed vessels to stop and observe the ships that should enter or sail out of the ports.2 These parts of the sea, thus subject to a nation, are comprehended in her territory; nor must any one navigate them without her consent. But, to vessels that are not liable to suspicion, she cannot, without a breach of duty, refuse permission to approach for harmless purposes, since it is a duty incumbent on every proprietor to allow to strangers a free passage, even by land, when it may be done without damage or danger. It is true that the state itself is sole judge of what is proper to be done in every particular case that occurs; and, if it judges amiss, it is to blame: but the others are bound to submit. It is otherwise, however, in cases of necessity, — as, for instance, when a vessel is obliged to enter a road which belongs to you in order to shelter herself from a tempest. In this case, the right of entering wherever we can, provided we cause no damage, or that we repair any damage done, is, as we shall show more at large, a remnant of the primitive freedom of which no man can be supposed to have divested himself; and the vessel may lawfully enter in spite of you, if you unjustly refuse her permission.
§ 289. How far this possession may extend. (81)
It is not easy to determine to what distance a nation may extend its rights over the sea by which it is surrounded. Bodinus3 pretends, that according to the common right of all maritime nations, the prince's dominion extends to the distance of thirty leagues from the coast. But this exact determination can only be founded on a general consent of nations, which it would be difficult to prove. Each state may, on this head, make what regulation it pleases so far as respects the transactions of the citizens with each other, or their concerns with the sovereign: but, between nation and nation, all that can reasonably be said is, that in general, the dominion of the state over the neighbouring sea extends as far as her safety renders it necessary and her power is able to assert it; since, on the one hand, she cannot appropriate to herself a thing that is common to all mankind, such as the sea, except so far as she has need of it for some lawful end (§ 281), and, on the other, it would be a vain and ridiculous pretension to claim a right which she were wholly unable to assert. The fleets of England have given room to her kings to claim the empire of the seas which surround that island, even as far as the opposite coasts.4 Selden relates a solemn act,5 by which it appears, that, in the time of Edward I., that empire was acknowledged by the greatest part of the maritime nations of Europe; and the republic of the United Provinces acknowledged it, in some measure, by the treaty of Breda, in 1667, at least so far as related to the honours of the flag. But solidly to establish a right of such extent, it were necessary to prove very clearly the express or tacit consent of all the powers concerned. The French have never agreed to this pretension of England; and, in that very treaty of Breda just mentioned, Louis XIV. would not even suffer the channel to be called the English channel, or the British sea. The republic of Venice claims the empire of the Adriatic, and every body knows the ceremony annually performed upon that account. In confirmation of this right we are referred to the examples of Uladislaus, king of Naples, of the emperor Frederic III., and of some of the kings of Hungary, who asked permission of the Venetians for their vessels to pass through that sea.6 That the empire of the Adriatic belongs to the republic to a certain distance from her coasts, in the places of which she can keep possession, and of which the possession is important to her own safety, appears to me incontestable: but I doubt very much whether any power is at present disposed to acknowledge her sovereignty over the whole Adriatic sea. Such pretensions to empire are respected as long as the nation that makes them is able to assert them by force; but they vanish of course on the decline of her power. At present the whole space of the sea within cannon shot of the coast is considered as making a part of the territory; and, for that reason, a vessel taken under the cannon of a neutral fortress is not a lawful prize.(82)
§ 290. Shores and ports. (83)
The shores of the sea incontestably belong to the nation that possesses the country of which they are a part; and they belong to the class of public things. If civilians have set them down as things common to all mankind (res communes), it is only in regard to their use; and we are not thence to conclude that they considered them as independent of the empire: the very contrary appears from a great number of laws. Ports and harbours are manifestly an appendage to and even a part of the country, and consequently are the property of the nation. Whatever is said of the land itself will equally apply to them, so far as respects the consequences of the domain and of the empire.
§ 291. Bays and straits. (84)
All we have said of the parts of the sea near the coast, may be said more particularly, and with much greater reason, of roads, bays, and straits, as still more capable of being possessed, and of greater importance to the safety of the country. But I speak of bays and straits of small extent, and not of those great tracts of sea to which these names are sometimes given, as Hudson's Bay and the Straits of Magellan, over which the empire cannot extend, and still less a right of property. A bay, whose entrance can be defended, may be possessed and rendered subject to the laws of the sovereign; and it is important that it should be so, since the country might be much more easily insulted in such a place, than on the coast that lies exposed to the winds and the impetuosity of the waves.
§ 292. Straits in particular. (65)
It must be remarked, with regard to straits, that, when they serve for a communication between two seas, the navigation of which is common to all, or several nations, the nation which possesses the strait cannot refuse the others a passage through it, provided that passage be innocent and attended with no danger to herself. By refusing it without just reasons, she would deprive those nations of an advantage granted them by nature; and indeed, the right to such a passage is a remnant of the primitive liberty enjoyed by all mankind. Nothing but the care of his own safety can authorize the owner of the strait to make use of certain precautions, and to require certain formalities, commonly established by the custom of nations. He has a right to levy a moderate tax on the vessels that pass, partly on account of the inconvenience they give him, by obliging him to be on his guard — partly as a return for the safety he procures them by protecting them from their enemies, by keeping pirates at a distance, and by defraying the expense attendant on the support of light-houses, sea-marks, and other things necessary to the safety of mariners. Thus, the king of Denmark requires a custom at the straits of the Sound. Such right ought to be founded on the same reasons, and subject to the same rules, as the tolls established on land, or on a river. (See §§ 103 and 104).
§ 293. Right to wrecks. (86)
It is necessary to mention the right to wrecks — a right which was the wretched offspring of barbarism, and which has almost everywhere fortunately disappeared with its parent. Justice and humanity cannot allow of it, except in those cases only where the proprietors of the effects saved from a wreck cannot possibly be discovered. In such cases, those effects belong to the person who is the first to take possession of them, or to the sovereign, if the law reserves them for him.
§ 294. A sea enclosed within the territories of a nation.
If a sea is entirely enclosed by the territories of a nation, and has no other communication with the ocean than by a channel of which that nation may take possession, it appears that such a sea is no less capable of being occupied, and becoming property, than the land; and it ought to follow the late of the country that surrounds it. The Mediterranean, in former times, was absolutely enclosed within the territories of the Romans; and that people, by rendering themselves masters of the strait which joins it to the ocean, might subject the Mediterranean to their empire, and assume the dominion over it. They did not, by such procedure, injure the rights of other nations; a particular sea being manifestly designed by nature for the use of the countries and nations that surround it. Besides, by barring the entrance of the Mediterranean against all suspected vessels, the Romans, by one single stroke, secured the immense extent of their coasts: and this reason was sufficient to authorize them to take possession of it. And, as it had absolutely no communication but with the states which belonged to them, they were at liberty to permit or prohibit the entrance into it, in the same manner as into any of their towns or provinces.
§ 295. The parts of the sea possessed by power are within its jurisdiction. (87)
When a nation takes possession of certain parts of the sea, it takes possession of the empire over them, as well as of the domain, on the same principle which we advanced in treating of the land (§ 205). These parts of the sea are within the jurisdiction of the nation, and a part of its territory: the sovereign commands there; he makes laws, and may punish those who violate them; in a word, he has the same rights there as on land, and in general, every right which the laws of the state allow him.
It is, however, true that the empire and the domain, or property, are not inseparable in their own nature, even in a sovereign state.7 As a nation may possess the domain or property of a tract of land or sea, without having the sovereignly of it, so it may likewise happen that she shall possess the sovereignty of a place, of which the property or the domain, with respect to use, belongs to some other nation. But it is always presumed, that, when a nation possesses the useful domain of any place whatsoever, who has also the higher domain and empire, or the sovereignly (§ 205). We cannot, however, from the possession of the empire, infer, with equal probability, a coexistent possession of the useful domain; for, a nation may have good reasons for claiming the empire over a country, and particularly over a tract of sea, without pretending to have any property in it, or any useful domain. The English have never claimed the property of all the seas over which they have claimed the empire. (88)
This is all we have to say in this first book. A more minute detail of the duties and rights of a nation, considered in herself, would lead us too far. Such detail must, as we have already observed, be sought for in particular treatises on the public and political law. We are very far from flattering ourselves that we have omitted no important article; this is a slight sketch of an immense picture: but an intelligent reader will without difficulty supply all our omissions by making a proper application of the general principles: we have taken the utmost care solidly to establish those principles, and to develop them with precision and perspicuity.
(76) As to the dominion of the main seas, and right to limit the passage thereon, and the claim of the English in the British seas and elsewhere, in general, see the authorities collected in 1 Chitty's Commercial Law, 88 to 108. With respect to the view taken by the English law of rights in and connected with the sea and sea-shore, the doctrine is, that the sea is the property of the king; and that so is the land beneath, except such part of that land as is capable of being usefully occupied without prejudice to navigation, and of which a subject has either had a grant from the king, or has so exclusively used it for so long a time as to confer on him a title by prescription. In the latter case, a presumption is raised that the king has either granted him an exclusive right to it, or has permitted him to have possession of it, and to employ his money and labour upon it, so as to confer upon him a title by occupation, the foundation of most of the rights to property inland. This is the law of England, and also of Jersey, and some other islands belonging to Great Britain. Benest v. Pipon, Knapp's Rep. 67; Blundell v. Cotterall, 5 Bar. & Ald. 268; and The King v. Lord Yarborough, 3 Bar. & Cres. 91, and 1 Dow's Appeal Cases, New Series, 178. In the first mentioned case, it was decided that the lord of a manor cannot establish a claim to the exclusive right of cutting sea-weed on rocks below-water marker, except by a grant from the king, or by such long and undisturbed enjoyment of it (viz. at least for twenty years continuously) as to give him a title by prescription must be uninterrupted and peaceable, both according to the law of England, the civil law, and those of France, Normandy, and Jersey. But, where artificial cuts or recesses have been made on the sea-shore, into and over which the sea afterwards flows, then, in the absence of proof as to acts of ownership, the soil of these recesses is to be presumed to have belonged to the owner of the adjacent estate, and not to the crown. Lowe v. Govett, 3 Bar. & Adol. 863. — C.
1. See Grotius's Mare Liberum, and Selden's Mare Clausum, lib. i. cap. vii.
(77) See observations and authorities, 1 Chit. Com. L. 287, n. 4, 5.
(78) As to the effect of twenty years' uninterrupted use, and what interruption not successfully litigated will prevent a right, see the judgment in Benest v. Picon, Knapp's Rep. 67. — C.
(79) See further, 1 Chit. Com. L. 94, n. 1; ib. 98, s. 1. — C.
(80) See further, 1 Chit. Com. L. 92, n. 2; ib. 94.1; ib. 95, n. 1; Puffnd. 3. c. 3, s. 6, p. 69. — C.
2. Selden's Mare Clausum, lib. ii. (81) See further, Puff. b. 4, c. 5, s. 9. pp. 167, 8; 1 Chit. Com L. 99, n 1; b. 100, n. 1; ib. 101, n, 2; ib. 101, n. 4; ib. 287, n. 7: ib. 441, n. 5.
3. In his Republic, book i. c. x.
4. See Selden's Mare Clausum.
5. Ibid. lib. 2. cap. xxxviii.
6. See Selden's Mare Clausum, lib. i. cap. xvi.
(82) Post, b. 3, c. 7, § 132, p. 344 — C.
(83) See further 1 Chitty's Commercial Law, 100, n. 2. The sea-shore, below low-water mark. prima facie belongs to the king and all his subjects, and no subject can claim an exclusive right to cut seaweed on rocks situated below low-water mark, but by express grant from the king, or uninterrupted presumption. Benest v. Pipon, Knapp's Rep. 67.
(84) See 1 Chitty's Commercial Law, 100. n. 3. — C.
(85) See 1 Chitty's Commercial Law, 101, n. 1. — C.
(86) The right to wreck is not infrequently the subject of litigation in the Municipal Courts of Great Britain; see in general modern cases. Ship Augusta, 1 Hagg. Rep. 16; and The Bailiffs, &c., of Dunwich v. Sterry, 1 Barn. & Adolph 831. — C.
(87) See further, 1 Chitty's Commercial Law, 95, n. 3: Grotius, b. 2, c. 3, s. 13, p. 166. — C.
7. See Book II. § 83.
(88) As to the British seas, and the claims of the English of empire over the seas in general, see Selden's Mare Clausum, b. 2. c. 1, p. 182, and other authorities collected 1 Chitty's Commercial Law, 101, 2, 3. As to the duty of the flag, or the obligation upon other nations to pay a particular mark of respect to British men-of-war, by striking their flag or lowering their topsail, formerly claimed, and so obnoxious to foreign shipping, see id. 101, 2; Molloy, b. 1, c. 5, ss. 11; and see Postlewaite's Did. tit. Sea, British; Marten's L. Nat. 168-9 — 172, 175. Com. Dig. Navigation, A. And, as to the French view of the right of the sea. and of the respects to be observed between ships see Cours de Droit Public Interne et Externe, tom. 2, p. 80 to 84, and id. 396 to 406. — C.
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