learn whether there are enemy's goods concealed on board," etc.d It is evident that this examination of the ship's papers cannot take place without the exercise of the right of visitation and search. This passage consequently shows what, in the opinion of this eminent jurist, was the approved practice of nations on this subject at the period referred to; and that the right of visitation and search was actually asserted by his country when belligerent, appears from the testimony of history, although they often sought to exempt their own flag from its operation, when neutral, in order to secure to themselves the carrying trade under their favorite maxim of free ships free goods. That principle was finally ? conceded to them by England in the treaty of 1666, confirmed by that of 1673, which treaties are both entirely silent upon the question of convoy; which expressly except contraband articles from the general freedom of the neutral flag; and which require certain documentary evidence respecting the national character of the ship. Passports and other papers may be falsely and fraudulently assumed as well as the flag, and it is not to be supposed that the protection of the treaties was meant to extend to a neutrality falsely and fraudulently assumed in order to cover and conceal enemy's interests in the ship as well as the cargo. The period of which we are now treating was fruitful in minion of the international controversies respecting the sovereignty of the seas. The question how far the open sea, or main ocean, beyond the immediate vicinity of the coasts, may be appropriated by one nation to the exclusion of others, had exercised the pens of the most eminent European publicists during the former part of the seventeenth century. The extravagant claims of Spain and Portugal to the exclusive dominion both of the lands and seas of the new world under the famous papal grant of Pope Alexander VI, founded on § 18. Do seas. a Bynkershoek, Q. J. Pub. lib. i. cap. xiv. Grotius, the right of discovery and conquest, were contested by the Dutch who had shaken off the political yoke of Spain and the religious yoke of Rome. Their great public jurist and Mare liberum. statesman, Grotius, took the lead in maintaining the common rights of mankind to the free navigation, commerce, and fisheries of the Atlantic and Pacific oceans against these pretentions. His treatise De Mare Libero was published in 1609. In his subsequent work De Jure Belli ac Pacis, first published in 1625, he hardly admits more than the possibility of appropriating the waters immediately contiguous; though he adduces a number of quotations from ancient authors, showing that a broader pretention has been sometimes sanctioned by usage and opinion. But he never intimates that any thing more than a limited portion could be thus claimed; and he uniformly speaks of pars or portus maris, always confining his view to the effect of the neighbouring land in giving a national jurisdiction and property of this sort.f Albericus Gentilis, the forerunner of Grotius in the sci- Albericus Gentilis, Adence of international law, and professor of Roman law in vocatio His the university of Oxford, had supported the claim of sove- panica. reignty asserted by the kings of England over the British seas in his Advocatio Hispanica published in 1613.g sum. In 1635, the learned Selden published his Mare clausum, under the patronage of Archbishop Laud, in which the Mare general principles maintained by Grotius in his Mare liberum are called in question, and the claim of England more fully vindicated than by Gentilis. The first book of Selden's celebrated treatise is devoted to the proposition that the sea may be made property; which he attempts to show, Selden, clau ⚫ Hugonis Grotii Mare liberum, seu de jure, quod Batavis competit ad Indicana commercia, Dissertatio. It was first published anonymously at Leyden in 1609, and afterwards at the same place with the author's name in 1616. f Grotius, de J. B. ac P. lib. ii. cap. iii. §§ viii, xiii. Advocatio Hispanica, lib. i. cap. viii. Opinion of Puffendorf. be Disputes tween Great not by reasoning, but by collecting a multitude of quotations from ancient authors, in the style of Grotius but with much less selection. He no where grapples with the arguments by which such a vague and extensive dominion is shown to be repugnant to the law of nations. And in the second part, which is indeed the main object of his work, he has recourse only to proofs of usage and of positive compact, in order to show that Great Britain is entitled to the sovereignty of what are called the Narrow seas.h Puffendorf, whose work on the law of Nature and Nations was published in 1672, lays it down that in a narrow sea the dominion belongs to the sovereigns of the surrounding land; and is distributed, where there are several such sovereigns, according to the rules applicable to neighboring proprietors on a lake or river, supposing no compact has been made, "as is pretended," he says, "by Great Britain." But he expresses himself with a sort of indignation at the idea that the main ocean can ever be appropriated.i The claim on the part of the English kings to a right of Britain and sovereignty over the seas, was asserted by them principally in attempting to exclude other nations from fishing, and in specting the sovereignty of requiring all foreign vessels, public or private, to salute their ships of war within the four seas surrounding the islands of Great Britain and Ireland. The exclusive right to the fisheries within these seas and near the coasts of the British islands had been occasionally acknowledged by the Dutch in the form of annual payments and taking out licenses to fish; and was again suspended by treaties between the sovereigns of England and the princes of the Holland re the British seas. Joh. Seldeni, Mare clausum, sive de dominio maris, Libri ii. Primo, mare ex jure naturæ sive gentium omnium hominum non esse commune, sed dominii privati sive proprietatis capax pariter ac tellurem esse demonstratur; Secundo, Serenissimum Magnæ Britanniæ Regem maris circumflui ut individuæ atque perpetuæ Imperii Britannici appendicis dominum esse asseritur. i Puffendorf, de Jure Naturæ et Gentium, lib. iv. cap. v. § 7. house of Burgundy. The naval honours claimed for the royal flag from the earliest times became a perpetual subject of contest with other maritime nations, and the pretext, if not the real cause, of several wars with Holland in the timeof the English Commonwealth and under the later kings of the house of Stuart. England and Holland, being rivals for naval and commercial ascendancy, naturally attached the point of honour to this claim, which the oneexacted and the other refused as a badge of superiority. Sir William Temple, in his memoirs, speaking of the negotiations preceding the treaty of peace concluded at Westminster in 1674, states that one of the principal "points of greatest difficulty was that of the flag, which was carried. to all the height his majesty could wish; and thereby a claim of the crown, the acknowledgment of its dominion. in the Narrow Seas, allowed by treaty from the most powerful of our neighbours at sea, which had never yet been yielded to by the weakest of them that I remember in the whole course of our pretence; and had served hitherto but for an occasion of quarrel, whenever we or they had a mind to it, upon either reasons or conjectures."k Britain resist France never formally acknowledged the British preten- Claim of G. sion. Louis XIV published an ordinance on the 15th of ed by France. April, 1689, not only forbidding his naval officers from saluting the vessels of other princes bearing a flag of equal rank, but on the contrary enjoining them to require the salute from foreign vessels in such a case, and to compel them by force, in whatever seas and on whatever coasts they might be found. This ordinance was plainly levelled at England. Accordingly in the manifesto published by William III on the 27th of May, 1689, he alleged as one Temple's Memoirs, vol. ii p. 250. Treaty of Westminster, 1674, art 4. Dumont, Corps Diplomatique, tom. vii. p. i. p. 254. Bynkershoek re marks upon this concession of his country: "Usu scilicet maris et fructu contenti Ordines, aliorum ambitioni, sibi non damnose, haud difficulter cedunt." Q. J Pub. lib. i, cap. xxi. of the motives for declaring war against France "quele droit de pavillon, qui appartient à la couronne d'Angleterre, a été disputé par son ordre (de Louis XIV); ce qui tende à la violation de notre souveraineté sur la mer, laquelle a été maintenue, de tout temps par nos predecesseurs, et que nous sommes aussi résolus de maintenir pour l'honneur de notre couronne et de la nation Angloise." The historian Hume, speaking of the attack made by the English fleet on the Dutch herring-busses in 1636, says: "They (the Dutch) openly denied, however, the claim of dominion in the seas beyond the friths, bays, and shores; and it may be questioned whether the laws of nations warrant any further pretensions."m Sir Leoline Jenkins, judge of the English court of admiralty in the reigns of Charles II and James II, in several official reports to those sovereigns, reduces their maritime jurisdiction to these limits, beyond which nothing more was required from other nations than the naval honours due to the royal flag, except that foreign cruizers were prohibited from hovering so near the coasts as to disturb or threaten the security of English vessels, or those of other friendly states navigating the Narrow Seas. This moderate and reasonable definition shows that the maritime sovereignty then claimed by England was not of that extensive, absolute character which might be supposed; since if it had been so, it would not have been found necessary to limit that protection to which foreign persons and property belonging to states in amity with England were entitled within her neutral jurisdiction. He particularly insists upon the immunity of what are called the King's Chambers, (i. e. portions of the sea cut off by strait lines drawn from one promontory to another,) from any acts of foreign 1 Valin, Commentaire sur l'Ordonnance, liv. 5, tit. 1, de la liberté de la pêche. m Hume, History of England, vol. vi. ch. 52. |