hostility committed therein. In every case of capture by a foreign cruizer within these limits he uniformly decides that the property should be restored to the original owner as having been made in violation of the neutral territory." Bynkershoek, in his treatise De Rebus Bellicis, also extends the protection of the neutral territory to the shores along the coast within the reach of cannon shot, and to the ports, rivers, bays, and other enclosed parts of the sea. He therefore condemns the conduct of different belligerent nations, among others his own, who had committed acts of hostility within these limits during the maritime wars of the ⚫ seventeenth century. The only exception that he makes to this rule is where the attack upon an enemy has been commenced without the neutral territory, in which case he holds that it is lawful to continue it there in the heat of action, dum fervet opus; with this qualification, that should any injury be done to the persons or property of the neutral state, such an act would constitute an unlawful aggression. He admits, however, that he had never seen this distinction mentioned in the writings of the publicists, or among any European nation, the Dutch only excepted; although he justifies it on the ground of reason and the historical examples he cites of its application. De Dominio Maris. Bynkershoek had commenced his splendid career as a Bynkershoek, public jurist by the publication, in 1702, of his treatise De Dominio Maris. In this work he admits that certain portions of the sea may be susceptible of exclusive dominion. These are, 1. Those portions near to the land, mare terræ proximum, such as are within range of cannon shot along the shores, beyond which the territorial jurisdiction does not in general extend.P 2. Such seas as are completely n Sir L. Jenkins' Life and Letters, vol. ii. pp. 727, 732, 755, 780. D P Alioquin generaliter dicendum est, potestatem terræ finiri, ubi finitur armorum vis; etenim hæc, ut diximus, possessionem tuetur. (Bynkershoek, de Dominio Maris, cap. ii.) § 19. Sovereignty claimed by Den mark over the Sound and surrounded by the adjacent territory of any particular state, with an outlet into the ocean, both shores of which seas are exclusively occupied by it. Such was the Mediterranean sea in the time of the Roman empire, and the Black sea at the time when he wrote, all its surrounding shores, and the outlet into the Mediterranean, then belonging exclusively to the Turks. But he asserts that there was no instance at the time when he wrote, in which the sea was subject to any particular sovereign, where the surrounding territory did not belong to him. He denies especially the claim of the English kings to the seas surrounding the British isles, and of the republic of Venice to the Adriatic, on the ground of the want of uninterrupted, exclusive possession. He does not consider the naval honours conceded by the Dutch republic to the royal flag of England as implying an acknowledgment of the sovereignty over the British seas claimed by the latter.9 The sovereignty asserted by the kings of Denmark over the Sound and the two Belts which form the outlets of the Baltic into the North sea, is rested by the Danish public jurists upon immemorial prescription, sanctioned by a long succession of treaties with foreign powers. According to 9 Ut tamen regiis Britannorum navibus, tanquam Principi, reverentia haberetur, obtinuerunt in pacis pactionibus, quæ illis nobiscum intercesserunt anno 1654, 1662, 1667, et 1674, et in § 4, pacis inter Carolum II. Angliæ Regem et Ordines fæderati Belgii illo anno 1674, 19 Feb'r, facta expressum est, Ordines agnoscere, jus esse regiis Anglorum navibus, ut iis Ordinum etiam totæ classes summum aplustre et supparum submittant in omni isto mari, quod Septentriones et promontorium, quod Finis terræ dicitur, interjacet. Sed quod ita accipiendum est, ut omnes pactiones quas, ut bello abstineatur, pasciscimur, nempe Anglis id competere, quia in id convenit, par se enim nihil in eo mari habent, præcipium. Porro ut ita hoc accepi velim, ut ne credamus Belgas eo ipso Anglis concessisse illius maris dominium, nam aliud est se subditum profiteri, aliud majestatem alicujus Populi comiter conservare, fit hoc, ut intelligamas, alterum Populum superiorem esse, non ut intelligamus, alterum non esse liberum. (De Dominio Maris, cap. v.) these writers, the Danish claim of sovereignty has been exercised, from the earliest times, beneficially, for the protection of commerce against pirates and other enemies, and against the perils of the sea, by the establishment of landmarks. But the right to levy tolls on foreign vessels and their cargoes passing through these waters is not claimed as an equivalent for these services. It is considered as incident to the territorial sovereignty over the coasts on both sides of the sound, (which belonged exclusively to Denmark until the province of Scania was ceded to Sweden in 1658,) and over the adjacent islands with the peninsula of Jutland which still belong to Denmark. This claim appears to have been recognized by a treaty with the Hanseatic league as early as 1368; and by that of 1490 with Henry VII, king of England, which prohibits English vessels from passing the Great Belt unless in case of unavoidable necessity; in which case, they were to pay the same duties at Wyborg as if they had passed the Sound at Elsinore. The treaty concluded at Spires in 1544 with the Emperor Charles V, which has commonly been referred to as the origin, or at least the first formal recognition of the Danish right to the Sound duties, merely stipulates in general terms that the merchants of the Low Countries, frequenting the ports of Denmark, shall pay the same duties as formerly. The tariff of duties thus levied having been arbitrarily increased by the Danish kings gave rise to several maritime confederacies in the latter part of the sixteenth, and beginning of the seventeenth century, between Holland, the Hanseatic republics, and Sweden for the mutual protection of their commerce in the Baltic sea. The disastrous result of the war between Sweden and Denmark compelled the latter to release the Swedish navigation from the payment of these duties by the treaty of peace concluded at Bromsebro in 1645. By another treaty concluded in the same year at Christianopel with Holland, the amount of duties to be levied on Dutch vessels and cargoes on the passage of the Sound and the Great Belt was definitely ascertained. A tariff of specific duties on certain articles therein enumerated was annexed to this treaty, and it was stipulated "that goods not mentioned in the list should pay according to mercantile usage and what has been practiced from ancient times." In 1649, the Dutch purchased the total exemption of their vessels and cargoes from the Sound duties by ten annual payments of 350,000 guilders each. This arrangement was called the redemption treaty. From the vast extent of the Dutch commerce at that period, there is no doubt this was a very favorable bargain for the republic, coupled as it was with a treaty of alliance with the crown of Denmark. Hostilities having subsequently broken out in 1652 between the Dutch and English republics, the States General demanded from Frederick III the succour stipulated by the treaty of alliance. But the Danish exchequer being found quite inadequate to answer this demand, a new arrangement was proposed by Denmark as more advantageous to herself, and perhaps equally beneficial to Holland, by which the former power engaged to keep up a fleet of twenty vessels in the Sound for the purpose of excluding the English flag from the Baltic. For the support of this squadron the States General agreed to pay an annual subsidy of 193,000 rix dollars, the redemption treaty was annulled, and the Dutch trade again subjected to the Sound duties imposed by the treaty of Christianopel. In 1701, a treaty was concluded at Copenhagen between the two countries, by which the obscurity in that of Christianopel as to the non-specified articles was meant to be cleared up. By the third article of the new treaty it was declared that as to the goods not specified in the former treaty, "the Sound duties are to be paid according to their value, that is, they are to be valued according to the places from whence they come, and one per centum of their value to be paid." The two treaties of 1645 and 1701, may be said to form to this day the conventional law respecting the Danish Sound duties. They are constantly referred to in all subsequent treaties with other nations as furnishing the standard by which these duties are to be paid. Thus by the treaty of alliance between Denmark and England of 1661 it was stipulated that British subjects should not "pay other or higher duties, than what are paid by the inhabitants of the Netherlands, or by other foreigners there trading, and who pay the lowest, the Swedes only excepted." This last exception refers to the total exemption of the Swedes from the payment of these duties by the treaty of Brömesbro' 1645, and by that of Roeskild 1658, by which last all the Danish provinces beyond the Sound were ceded to Sweden with a confirmation of their former exemption from the Sound duties. This was again confirmed by the definitive treaty of peace concluded at Copenhagen in 1660, by which the Danish government agreed to pay to Sweden the annual sum of 3,500 rix dollars out of the moneys collected at Elsinore for the light houses on the Swedish side of the Sound, whilst Sweden renounced all claim to any share in the Sound duties. The tide of fortune at last turned in favour of Denmark, and by the treaty of peace between the two crowns concluded at Stockholm in 1720, Sweden paid the penalty of the mad ambition of Charles XII, by renouncing the exemption she had enjoyed for seventy-five years, and stipulating to pay the same duties on Swedish vessels and goods as were paid by the English, Dutch, and other the most favoured nations. In 1663 France concluded a treaty with Denmark, by which she adopted the tariff of 1645 as the rule by which the cargoes of French vessels were to pay duties on the articles specified therein; and as to non-specified articles, they were put on the footing of the most favoured nation. 21 |