In the short and troubled reign of James II. little was heard of the claims of England to the sovereignty of the sea. Bad king as James was, he rescued the navy from the deplorable condition into which it had sunk in the later years of Charles,—of which Pepys has left so graphic a picture,938—and the naval officers continued to enforce the routine duty of the flag; but the domestic troubles with which he was surrounded prevented him from turning it to account against any of his neighbours, even if he had been so inclined. And with the Revolution of 1688 the whole aspect of the question was changed. The English pretension, as we have seen, had been specially directed against the United Provinces, but when the Prince of Orange was called to the English throne as William III., and was thus the ruler in both countries, it was not to be expected that he would show much zeal in continuing the policy of the Stuarts against his own countrymen.
It is true that in the treaty which was concluded between England and the Dutch Republic in 1689, the article on the flag in the treaty of Westminster was repeated and confirmed. This, however, was very much a matter of routine and formality, though it must be said the Dutch ambassadors in London complained that William was as obstinate and punctilious about the question of the flag as any purely English sovereign could have been.939But from this time until well on in the next century England and the United Provinces were united asallies in the great wars with France. There was thus little room for serious disputes with them about the flag, the right to the herring fishery, or the sovereignty of the sea, even if the desire had existed. Against France, however, William made use of the customary language as to the English sovereignty of the sea. In the spring of 1689, after William had been proclaimed King of England, Louis XIV. foresaw the formidable coalition that would be formed against him, and he boldly issued what was virtually a challenge to England on the subject. He published an ordinance on 15th April in which he not only prohibited his officers from giving the first salute to ships of other nations carrying flags of equal rank to their own, but ordered them to demand the salute from foreign vessels on whatever seas or coasts they might encounter them, and to compel them by force if they refused.940That this challenge of Louis to dispute the sovereignty of the sea was not too presumptuous was shown in the following year, when the combined fleets of England and Holland were defeated by the French off Beachy Head. In the declaration of war against France, in May 1689, the ordinance of Louis was made one of the reasons for hostilities. “The right of the flag,” said William, “inherent in the crown of England, has been disputed by his orders, in violation of our sovereignty of the Narrow Seas, which in all ages has been asserted by our predecessors, and which we are resolved to maintain, for the honour of our crown and of the English nation.”941They were strange words to come from the mouth of one who was Prince of Orange as well as King of England, but the times were changing and such phrases were soon to become merely empty forms.
With respect to this ceremony of the flag, which the English professed to regard as an acknowledgment of their sovereignty on the sea, it may be said that from this time on it ceased to have much importance in international affairs. The instructions issued by the Admiralty to the naval officers continued to be explicit enough, and they indeed suffered but little change for another century. The commander of one of his Majesty’s ships, on meeting with any ship or ships belonging to any foreign prince or state within his Majesty’s seas (which, it was explained,extended to Cape Finisterre, Van Staten not being mentioned), was to “expect” such ship or ships to strike their top-sail and take in their flag, “in acknowledgment of his Majesty’s sovereignty of those seas,” and if they refused or offered to resist, they were to be compelled to do so. Within his Majesty’s seas his Majesty’s ships were in no wise to strike to any; and in other parts only if the foreign ship struck first or at the same time, except in a foreign harbour or in a road within gunshot of a fort or castle, in which case a salute with guns was to be given if the commander of the fort agreed to answer gun for gun. If any British ship was so far forgetful of its duty as not to salute the king’s ship by striking the top-sail as it passed by, when it might be done without loss of the voyage, they were to be “brought to the Flag” to answer their contempt, or reported to the Admiralty for proceedings to be taken.942Similarinstructions were issued in succeeding reigns, the injunction to compel by force those who refused to strike being limited to flag officers and commanders.943
Disputes as to striking appear to have been much less common in the latter part of the seventeenth and in the eighteenth century than they were previously, but they sometimes occurred; and the ceremony seems to have been enforced on Dutch ships, though they were allied with the English fleet at the time. At all events, the Lords of the Admiralty in 1694 wrote to the Duke of Shrewsbury saying that the instructions required the respect of the flag from all nations whatsoever, without any distinction, and that Sir Cloudesley Shovel had been advised to that effect.944At this period, as indeed always, the Danes were very punctilious as to Kronberg Castle on the Sound being saluted with proper respect by foreign ships, and in 1694 Shrewsbury advised the Admiralty that the king had signified his pleasure that all ships of war sent to the Sound should salute Kronberg with three guns only, upon assurance that their salute would be returned by the castle with a like number of guns.945
Early in the reign of Anne, in 1704, a sanguinary encounter took place with reference to the striking of the flag that equalled if it did not surpass in brutality any case that happened under Charles. An English squadron under the command of Admiral Whestone fell in with a Swedish man-of-war convoying some merchant vessels. The Swedish commander refused to strike to the English admiral, on the ground that he had received strict injunctions not to do so to any flag whatever, even in the Channel, and thereupon the English proceeded to compel him by force. After about 150 Swedes had been killed or wounded, as well as many English, the unlucky man-of-war, with all the merchantmen, was brought into Yarmouth Roads.946Another case of a different kind happened in 1728, early in the reign of George II. A French man-of-war, theGironde, under the command of Mons. de Joyeux, on goinginto Plymouth Sound on 23rd November, was hailed by an English frigate, which demanded that he should salute the fortress and the frigate. The Frenchman replied that the bad weather had prevented his sending an officer to the governor to agree about a salute, but that he owed none to the frigate, which carried a pennant only, it being usual to salute none but flags; and he passed quickly into the port, where the captain of another frigate sent to ask him if he would not salute the commodore, who carried a bare pendant, and he returned the same answer. On coming out again on the 29th the frigate called upon him to strike his pennant, and on his refusal threatened to fire upon him. M. de Joyeux, feeling that it was by no means proper to hazard his ship under the cannon of the castle and the batteries, then complied, and also saluted the fort with eleven guns, as previously arranged. This “insult” was made the subject of complaint by France, and when all the papers had been submitted to the king he instructed that the officer responsible, Lieutenant Thomas Smith of theGosport, should be forthwith dismissed the service as having in this particular exceeded his instructions.947
In the writings of the naval historians of last century one may find expressed the views which were then prevalent in naval circles as to the striking of the flag and the sovereignty of the sea generally. They claimed for the crown of England an exclusive propriety and dominion in the British seas, both as to the right of passage and the right of fishing, and the widest limits were assigned to those seas. Thus Burchett, who was Secretary to the Admiralty, defined them as follows in 1720: On the east they extended to the shores of Norway, Denmark, Germany, and the Netherlands, so as to include the North Sea; on the south they were bounded by the shores of France and Spain to Cape Finisterre, and by a line from that Cape westwards to meet the western boundary, thus comprising the Channel, the Bay of Biscay, and part of the Atlantic Ocean; on the west they extended to an imaginary line in the Atlantic in longitude 23 degrees west from London,passing from the southern boundary to latitude 63 degrees north; and on the north they were bounded by this parallel to the middle point of Van Staten. These were declared to be the British seas proper, in which the crown had the most absolute dominion and the right to the honour of the flag from all other nations; but in addition, it was stated that on the north and west as far as America and Greenland the crown had also “most ample rights” in virtue of first discovery and occupation.948
No doubt much of the claim put forward by these writers on behalf of the maritime dominion of England was stereotyped, and had more form than substance. Entick, indeed, in 1757, although asserting the right of Great Britain to an absolute sovereignty of the sea, and to the striking of the flag as an acknowledgment of it, himself described this duty as “but an indifferent honorary ceremony.” The changed point of view in which the matter was regarded was shown also in the declaration of war by Great Britain against the United Provinces in 1780, because they had joined the Armed Neutrality. It contained nothing referring either to the flag or to the sovereignty of the sea; and it was doubtless as a mere matter of form and precedent that a brief article relating to the striking of the flag was inserted among the preliminary articles of peace, drawn up at Paris in 1783, and in the definitive treaty of peace concluded with the United Provinces in the next year.949The time was approaching when this ceremony was to pass away altogether as a symbol of our maritime sovereignty, even in the eyes of Englishmen. There was little need ofclaiming it as an acknowledgment of our actual naval supremacy during the greater part of the eighteenth century, for it was obvious to all the world that British sea-power was supreme. From the reign of Anne onwards the naval force of Great Britain was overwhelming, and formed a determining factor in the history of Europe. This country was undisputed mistress of the seas,—or tyrant of the seas, as our enemies preferred to put it,—and our old rival, the Netherlands, was left far behind in the race for naval power as well as in commerce.950Nor was it longer necessary to insist on the honour of the flag in order to stimulate the valour of our seamen, to keep alive the spirit of maritime glory in the nation, or to evoke the reverence of foreign peoples. The forcing of all foreign ships to strike in the British seas became a political encumbrance unsuited to the times. It was allowed to fall into disuse when its inconvenience had long outgrown any utility it had possessed, and the battle of Trafalgar, in 1805, gave the opportunity of departing from the ancient claim. The naval power of France and Spain having been humbled, it was thought a convenient time spontaneously to abandon a pretension which “could not probably have been maintained much longer except at the cannon’s mouth.”951The Admiralty, with the approbation of the Government, accordingly omitted the arbitrary article from their instructions for the fleet.952
In the closing years of the seventeenth century and the earlier part of the next there were many signs that the era of claiming an exclusive sovereignty over extensive regions of the sea was passing away; and that, on the other hand, the policy of fixing exact boundaries for special purposes, either by international treaties or national laws, was taking its place. Such signs may be observed in the writings of public men, as in the letter of recantation which Evelyn indited to Pepys in1682 (see p. 514), which included a long reasoned argument against the English pretensions. Still more to the point was the appearance of an extremely able work by Sir Philip Meadows in 1689, immediately after the Revolution, in which these pretensions were subjected to the most destructive criticism.953Meadows had considerable experience of public affairs. As Latin Secretary to Cromwell’s Council—an office to which he was appointed in 1653 in order to relieve the poet Milton, whose blindness interfered with his duties—he was conversant with the negotiations then proceeding with the Dutch; and later, as ambassador to Denmark and then to Sweden, he had opportunities of acquainting himself with the claims to maritime sovereignty put forward by those countries. The keynote of Meadows’ work was, that as the dominion of the seas was apt to become a specious pretence to a war between England and Holland, while the real causes of such a war were hidden and remote, nothing would conduce more effectually to preserve a lasting peace than a true knowledge and right understanding of the matter. If the claim of England as expounded by Selden was to be considered the proper standard of right and wrong between us and other nations, “if what was well written must be fought for too, not being to be gained but by a longer tool than a pen,” then the King of England would be cast upon this hard dilemma—either of being involved in endless and dangerous quarrels with all his neighbours abroad, or of having his honour and reputation prostituted at home, as tamely suffering “the best jewel of his crown to be ravished from it.” The English pretension, he pointed out, differed from that of Venice, inasmuch as it related not to a bay or gulf, but to a sea open on both sides which formed the passage of communicationfor the northern and southern nations of Europe. Persistence in the pretension would therefore result in war between the island and the Continent, as to whether the island should have the sea to herself, or whether the Continent should have a share of it with her. No nation had ever acknowledged the claim of England, which, moreover, was not enforced, because if one foreigner did violence to another, outside the King’s Chambers, but in the Channel or any part of the so-called British sea, he did not come under the jurisdiction of the King of England but under that of his own state.
While strenuously opposing the pretensions to the sovereignty of the sea, Meadows agreed with all other authors in holding that every country had an exclusive right to certain parts of the sea adjoining its coasts: the difficulty was to fix the bounds. “If there is no certain standard in nature,” he says, “whereby to ascertain the precise boundaries of that peculiar Marine Territory I am now speaking to, which belongs to every prince in right of his land, yet, by treaty and agreement, they may easily be reduced to certainty. For, as to the judgment and opinion of private persons, we cannot fetch from thence any true measure; for though they all agree unanimously that there is something due of right, yet they vary in thequantum, or how much. Therefore the surest way is to prescribe the limits of fishing betwixt neighbouring nations by contract, and not by the less certain measure of territory. For, if no bounds be fixed, how many inconveniencies, and what a licentious extravagance, may such a liberty run into?” The Dutch, he said, unless boundaries were fixed, might dredge for oysters on the coast of Essex, as they did formerly; or fish within the mouth of the Thames, or in our creeks, havens, and rivers; and it was unreasonable not to draw a distinction as to fishing between natives and aliens. Meadows therefore, foreshadowing modern practice, urged that the boundaries of exclusive fishing should be determined by treaty, and he prepared a draft article for the consideration of those concerned.954In a later unpublished treatise he advocated much the same method of mutual agreement with France, with respect to the striking of the flag, as had been formerly proposed by Richelieu—that in our half of the Channel they should strike to us, and that in the half next France we should strike to them.955
Whether or not the writings of Meadows had any influence upon the practice, or, what is more likely, merely reflected the change in opinion that had begun, it is from about this time that we find instances of definite boundaries being fixed, usually in connection with the rights of fishery, instead of the vague claims that commonly prevailed. The first case of the kind happened indeed a few years earlier. In a treaty between James II. and Louis XIV., which was concluded in 1686, concerning the rights of trading and fishing in the British and French possessions in America, it was agreed that the subjects of each were to abstain from fishing or trading “in the havens, bays, creeks, roads, shoals or places” belonging to the other, and the liberty of innocent navigation was not to be disturbed.956Though no definite limit was laid down in this treaty, the meaning of the terms used was well understood; they were practically the same as those used in the proclamations as to neutral waters in 1668 and 1683.They are interesting as being the first definitions of the kind which apply to the coasts of America, and they do not materially differ from the terms used in the treaty of 1818, the interpretation of which has given rise to so much dispute. Another example for a different purpose is to be found in a convention between France and Algeria in 1689, which established a limit of ten leagues along the Mediterranean coasts of France in connection with the operations of the Barbary corsairs.957
In the treaty above referred to, between Great Britain and France, the rights of trading and fishing went together. This was a very common thing in those times, particularly in remote seas, where the two pursuits were often combined, and it was especially the case in the northern seas which were supposed to be under the sway of the King of Denmark. The disputes which occurred between Denmark and the United Provinces of the Netherlands are of interest in this regard, since they reveal the methods and the stages by which a defined boundary was eventually substituted for a general claim to maritime dominion. They show, moreover, that at the end of the disputes Great Britain stood by the side of Holland in opposing the Danish pretension tomare clausum, and was altogether in favour of the free sea. It was apparently the assertion of James I. to a monopoly of the whale-fishing at Spitzbergen (see p. 181) that induced Denmark to put forward a similar pretension with regard to Greenland. As early as 1615 a Danish man-of-war demanded a contribution from Dutch whalers for liberty to fish there, and the King of Denmark complained to the States-General that their subjects were carrying on the fishery without his license and contrary to his rights. The Dutch opposed this claim and sent armed ships to the scene, which kept the Danes from active interference. A little later, in 1623, Denmark raised fresh complaints in connection with the fishing at Jan Mayen, an island discovered by the Dutch, and which, therefore, according to the charter of the Dutch Arctic Company, belonged to them. In 1639 Danish men-of-war again interfered with Dutch whalers, this time at Spitzbergen, in virtue of a decree prohibiting fishing without a license from the Kingof Denmark; but the firm attitude of the States-General, whose fleets were then all-powerful, cooled the ardour of the Danes. Denmark also raised difficulties in connection with the cod-fishing in the northern seas. In 1616 foreigners were prohibited from fishing either at Færöe, Iceland, or on the coast of Norway, an injunction renewed in 1636 and 1639, and various limits were assigned with respect to the cod-fishing at Iceland. In 1636 the Norwegian Government declared that the exclusive right of fishing pertained to subjects within a distance of four to six Scandinavian leagues from the coast, which is equal to from sixteen to twenty-four geographical miles. The Danish claim tomare clausumalso included a monopoly of trade in those remote regions, and the Hanseatic towns as well as the Dutch were forbidden to carry on traffic with the natives. But the efforts of Denmark to preserve a monopoly of fishing and trading in the Arctic seas were intermittent and ineffectual. The great Dutch Arctic Company (Noordsche Compagnie), by their charter granted in 1614, were entitled not only to the exclusive right, so far as concerned Dutchmen, “to trade and fish from the United Provinces on or to the coasts of the lands between Nova Zembla and Davis’ Strait,” including Spitzbergen, Barent’s Island, and Greenland, but also to the possession and fishery of any islands they might discover in those seas. The rights granted to this powerful company were thus directly opposed to the Danish claim tomare clausum, and owing to the preponderating naval force of the United Provinces, which was behind them, they eventually prevailed. In February 1691, after the defeat by the French of the allied British and Dutch fleets off Beachy Head and the suspension of the Dutch whale-fishing by reason of the war, King Christian V. issued another decree prohibiting whale-fishing at Greenland to all but Danish subjects; and in the following year Hamburg was forced to conclude a treaty with Denmark to enable her citizens to carry on fishing and navigation in Davis’ Strait.
It was at this time, nevertheless, that Denmark substituted a fixed limit at other parts of her dominions for her previous vague and general claim to maritime sovereignty. By a decree of 26th June 1691, the sea between the south coastof Norway and the coast of Jutland, within a straight line drawn from Cape Lindesnæs to Harboore in Rinkjobing, a distance of over a hundred geographical miles, was declared to belong to Denmark; and it was further ordained that in places where the king possessed only one of the coasts, the sea was under his dominion up to the distance at which the land was lost sight of—i.e., within the range of vision. At the end of the following year (3rd December 1692) another edict was issued declaring that no one without royal authority would be allowed to carry on whale-fishing within ten Norwegian leagues, or forty geographical miles, of the coast.958This tendency of Denmark to formulate defined boundaries in the seas along her coasts was carried further, as we shall see, in the eighteenth century.
Within the areas above mentioned, Denmark enforced her authority with considerable vigour. In 1698 a Dutch ship was seized and confiscated for fishing at the Færöes; and in the period 1738-1740 great energy was displayed in repressing violations of the Danish decrees. Several Dutch ships were fired on by Danish men-of-war for trading at Greenland; the crews were turned adrift in open boats, and the vessels taken to Copenhagen, where they were condemned as prize in the Admiralty Court. In retaliation, a Danish ship was seized at Amsterdam, and then Danish men-of-war fell upon the Dutch doggers fishing around Iceland, about a hundred in number, captured four, and dispersed the others without, it was alleged, offering to molest the British and French smacks fishing along with them. While bringing the captured doggers to Denmark, one of them managed to escape, and carried off to Holland the prize crew on board, consisting of a Danish midshipman and three seamen—an episode that recalls John Brown’s experience in 1617. These occurrences were naturally followed by diplomatic controversies. Denmark at first based her action in seizing the doggers on a decree of 1733, reserving to her own subjects the exclusive rightof fishing and navigating within four leagues of the coast of all Danish possessions in the Arctic seas; and the Dutch were accused of carrying on an extensive illicit trade at Iceland, under cover of fishing. The States-General used the familiar arguments about the freedom of the seas for fishing and navigation, urged long-continued possession, and cited an old treaty of 1447 which gave the Dutch the right to navigate “usque ad Boreæ oras.” Then Denmark placed her case on its ancient basis, declaring that the kings of Denmark and Norway had enjoyed from time immemorial the dominion of the northern seas, and were therefore entitled, even according to the teaching of Grotius, to the exclusive fishing. They denied that the Dutch had ever possessed the right of fishery in these seas, alleging that clandestine acts, punished as soon as discovered, could not be construed into possession. This revival ofdominium mariscalled forth an energetic protest from the States-General, and affairs took a bellicose turn. Denmark sent a squadron north to maintain her claims, and Holland provided an armed convoy for her whalers and Iceland cod-smacks, “to defend themselves against the pretensions of the Danes.” Hostilities were averted by the intercession of Sweden, and of the British and French Ministers at Copenhagen, in favour of the Dutch Republic and the freedom of the seas.
Occasional disputes of the same kind occurred between Denmark and the United Provinces later in the century. In 1757 a Dutch ship was arrested—it was said in the open sea—on the ground that it had been trading in Davis’ Strait, and the matter was adjusted a few years later by an undertaking that the Dutch vessels would refrain from trading within the precincts of the Danish possessions. The States-General in 1762 issued a placard to this effect, and they also sent a ship of war to enforce it. In 1776 an English brigantine and two Dutch vessels were seized for trading at Greenland, and condemned by the Danish Admiralty Court, and although on the protests of the British and Dutch Governments the vessels were released, compensation for detention was refused.959
Other and later examples of the tendency alluded to, of fixing definite limits for the rights of the state in the seas washing its territories, may be found in the international treaties, which were concluded during the eighteenth century, concerning the rights of fishery on the coasts and islands of the British possessions in North America, a region of the world which has furnished numerous examples of agreements of the kind. One of these, in 1686, has been already mentioned. By the great treaty of Utrecht in 1713, following Marlborough’s successful campaigns on the Continent, France ceded Newfoundland and Nova Scotia to Great Britain; but certain concessions were made to French fishermen, who, of course, previously enjoyed the right of fishing there, which subsequently for a long period formed a fertile source of trouble and dispute. In addition to certain privileges as to landing and drying fish, French subjects were to be free to fish in the seas, bays, and other places to thirty leagues from the south-east coast of Nova Scotia.960Half a century later, by the treaty of Paris in 1763, at the conclusion of the seven years’ war, Canada was ceded to Great Britain, and the concessions to French fishermen at Newfoundland were confirmed, with some modifications. Liberty of fishing was also granted to them in the Gulf of St Lawrence, subject to the 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 situated in the said Gulf of St Lawrence.” On the coasts of the island of Cape Breton, outwith the Gulf, they were not to fish within fifteen leagues of the shore.961These provisions concerning the fishery in the Gulf of St Lawrence and at Cape Breton were confirmed twenty yearslater by the treaty of Versailles in 1783, the article regarding Newfoundland being at the same time modified.962
In these various treaties the fisheries were dealt with in a special and exceptional manner, in connection with the cession of the adjacent territories by France to Great Britain. The French fishermen had always enjoyed the right of fishing in these seas in virtue of the ownership of the land; and though full sovereignty over the latter was acquired by Great Britain, the liberty of fishing, under certain restrictions, was continued notwithstanding the transference of territory. The fisheries of Newfoundland and Canada were of great importance. They were highly valued by France as forming nurseries of seamen for her navy, and for this reason the preliminary treaty of 1762 was severely criticised by the Opposition in the British Parliament, and especially by Pitt, who perceived that the concessions with respect to the fisheries would enable France to revive her naval power.963
A concession still more extensive, on the same principle, was granted by Great Britain to the newly-established United States of America in the treaty of 1783, by which their independence was recognised. The question of the rights of fishery was very fully discussed in the negotiations which preceded the treaty; and though Great Britain did not deny the right of American citizens to fish on the Great Banks of Newfoundland, or in the Gulf of St Lawrence, or elsewhere in the open sea, she denied their right to fish in British waters, or to land on British territory for the purpose of drying or curing their fish. A compromise was arrived at, and the treaty provided that the people of the United States should continue to enjoy, unmolested, the right to take fish of all kinds on the Newfoundland Banks, in the Gulf of St Lawrence, and at “all other places in the sea where the inhabitants of both countries used at any time heretofore to fish”; also on such parts of the coast of Newfoundland as British fishermen should use, and “on the coasts, bays, and creeks” of all other parts of the British-American dominions. They were further permitted to dry and cure their fish onunsettled parts of the coast of Nova Scotia, the Magdalen Islands, and Labrador, so long as these parts remained unsettled.964It will be observed that by this treaty the liberty of fishing in the territorial waters of the British possessions in America was conceded to the citizens of the United States, who had exercised the fishery before their independence was declared. They continued to enjoy the right which they had had as British subjects after they had ceased to be British subjects, and they did so until the war of 1812.
With regard to the fisheries at home, in whose interest James I. had originally raised the question of the sovereignty of the sea, the clamour against the Dutch gradually died out, or was only heard at intervals and received but scant attention. Pamphleteers continued to denounce the liberty allowed to foreigners to fish along the British coasts, and drew the usual picture of the great national advantage that would flow from the creation of native fisheries to rival those of the Dutch.965Under James II., William, Anne, and the Georges, the policy of fostering the fisheries by protective legislation and by means of organised societies or associations was continued, with but little good result. The most serious attempt was made in the middle of the eighteenth century, when an Act was passed966for the incorporation of “The Society of the Free British Fishery,” giving power to raise a stock of £500,000, and guaranteeing 3 per cent interest on the sum raised within eighteen months,—which amounted to £104,509,—as well as conferring various privileges and immunities, including a tonnage bounty to encourage the equipment of busses. This society, which was incorporated in the autumn of 1750, with the Prince of Wales as Governor, had a chequered career. Its headquarters were pitched at Southwold, Suffolk, where docks were built andbuildings erected. In 1756 it possessed thirty busses and six “yagers” to carry the pickled herrings to Hamburg and Bremen, the masters of the busses being Dutch or Danish, and the crews chiefly from Orkney, the fishing being carried on at the Shetlands and down the coast to Yarmouth. Financial and other difficulties were encountered, some of the vessels being taken by French privateers, and all the remaining busses and effects were sold in 1772 for £6391. Half a century later, the relics of some of the discarded busses were dug out of the mud at Southwold.
The Act above referred to was the parent of many others designed to encourage the fisheries, chiefly by providing bounties; but probably more effective than such measures in stimulating the native industry was the decay which overtook the fisheries of the Dutch. This decay was no doubt due to several causes, but among the chief must be reckoned the frequent maritime wars of the eighteenth century in which the United Provinces were engaged. Their herring-busses were often captured or destroyed, sometimes in large numbers at a time, as in 1703, when a French squadron fell upon them at Shetland and burned many of them—variously stated at from 150 to 400.967Not infrequently their herring fishery was entirely suspended, it might be for a series of years, owing to the inability of the States-General to protect the fishing vessels from the French or the British cruisers; and such interruptions told seriously upon a business which depended so largely on the export trade of the cured herrings. From these repeated blows the Dutch fisheries never recovered, and the fleets of busses gradually dwindled. In 1703, 500 of them fished at the Shetlands and southwards along the coast; half a century afterwards there were but little over 200; and in the later years of the century the number sank as low as 120, which scarcely exceeded the vessels from Denmark, Prussia (Emden), and Belgium. Thus the part of the pretension to the sovereignty of the sea which related to the fisheries along the British coasts was gradually solved, the British fisheries, now the greatest in the world, rising on the ruins of the Dutch.
From what has been said in previous chapters, it is apparent that the extensive claims which were formerly made to the dominion of the English or British seas were practically abandoned in the eighteenth century, and the pretensions of other states to a similar and more effective dominion in particular seas long ago shared the same fate. It is now settled as indisputable, both by the usage of nations and the principles of international law, that the open ocean cannot be appropriated by any one Power. But it is also as firmly established that all states possess sovereign rights in those parts of the sea which wash their shores, although there is not, and has never been, universal agreement as to the precise nature of those rights, or as to the extent of the sea that may be thus appropriated. While the general movement of opinion and practice in modern times has thus been from themare clausumto themare liberum—from the sea held to be appropriated by particular nations to the sea under no sovereignty, but free and open to all for all purposes,—there has been another movement in the opposite direction, by which the exclusive rights of maritime states in the waters immediately adjoining their coasts have come to be more clearly recognised and definitely incorporated in international law. To this extent all maritime countries now possess a sovereignty of the sea.
It is desirable to trace the evolution of this limited sovereignty over what is now known as the territorial waters or territorial sea (also named the neighbouring, proximal, adjacent, or littoral sea—mare proximum,mare vicinum,mer territoriale,nächstangrenzendes Meer), and to consider inparticular the two main aspects it presents,—first, the actual practice of nations on the one hand, and, second, the opinions of the accredited writers on international law.
The sovereignty over the so-called territorial sea has sometimes been regarded as the direct remnant of a sovereignty which was previously asserted by particular nations over whole seas or large parts of them.968This is true in a general sense, but in tracing the historical evolution of the territorial waters it is found that the steps by which the transference was effected varied in different cases. The pretensions of Denmark, for example, to a wide dominion over the Norwegian Sea and the North Atlantic, were slowly curtailed by gradual concessions to the opposition of other Powers, so that the extensive territorial waters at present pertaining to Norway may be looked upon as the residuum of the ancient claim. The exclusive rights have persisted, while the area over which they are exercised has dwindled. In like manner, the equally extensive territorial waters of Sweden may be regarded as an abridgment of her old claims in the Baltic. The same process may have operated in the case of Spain and Portugal, both of which Powers now claim maritime sovereignty to a distance of six miles from their coasts; but here the successive stages of contraction are not obvious. The territorial sea now held to pertain to Great Britain, so far as it has been defined, did not originate in this way, by direct descent from the old claim to the dominion of the British seas. That claim simply died out and vanished in the lapse of time, without apparently leaving a single juridical or international right behind it. The British territorial waters, as usually defined, are of modern origin, and were derived from the international jurisprudence of the Continent, and especially from the doctrine of Bynkershoek, to be referred to later.
Even during the time when some nations were asserting a wide maritime dominion, and other nations were opposing such pretensions, there was a general recognition that every maritime state was entitled to exercise jurisdiction over some extent of the neighbouring sea. This was admitted by the most thoroughgoing advocates of themare liberum, as by Grotius himself, and it was acknowledged by the common usage ofnations. The rights exercised by the crown of England, for instance, in the so-called King’s Chambers in the seventeenth century were apparently not challenged by foreign Powers. But while the sovereign rights of a state over a part of the adjacent sea were recognised by the usage of nations and the opinions of publicists, there was no agreement as to the extent which might be appropriated, and various limits or boundaries have from time to time been proposed or adopted, by which the sea pertaining to a state might be divided off from that which was open and free to all. From an early date attempts were made by jurists to discover some general principle or to lay down rules which might be applied in all such cases. Some of these rules were of such a nature as to assign to states an extent of sea almost as great as any comprised under the widest claims to maritime sovereignty, and none of them received a general assent. The early English lawyers of the twelfth and thirteenth centuries, Glanville, Bracton, Britton, and “Fleta,” merely followed the Roman law with regard to the sea—that is to say, they held that it is by its nature common, like the air, and they did not suggest any limit within which the prince of the adjoining state had exclusive jurisdiction or dominion (see p. 66).
It is in the writings of the early Italian jurists, who lived after the time when Venice by force of arms had established her sovereignty over the Adriatic, that we first meet with proposals to assign legal limits to the maritime jurisdiction of the neighbouring state. Bartolus of Saxo-Ferrato, a great Perugian jurist who died in 1357, and whose authority in the middle ages was very great, declared the law to be that jurisdiction extended to a distance of one hundred miles from the coast, or less than two days’ journey from it. Within this space the ruler had power to apprehend and punish delinquents just as he had on land.969Baldus Ubaldus, another eminent Italian jurist, who was a pupil of Bartolus and died in 1400,also allotted a wide limit to the maritime rights of the prince of the adjoining territory; but he reduced the space from one hundred to sixty miles, a distance which was supposed to be equal to one day’s journey from the coast.970The boundaries assigned by these jurists, or sometimes the equivalent of one or two days’ voyage from the coast, were very generally accepted by civilians later, although frequently with qualification, more particularly as to the nature of the rights to be exercised.971Bartolus confined the rights of the prince to jurisdiction and the appropriation of islands, and since the distance prescribed included the space within which navigation in those times was almost entirely restricted, it is probable that the primary idea was the maintenance of order and the suppression of piracy. The underlying principle was the range of navigation from the coast or from a port, just as later it was the range of guns.
Baldus seems to have gone a step further than Bartolus by including sovereignty (potestas) as well as jurisdiction (jurisdictio) among the rights of the neighbouring prince, and he declared that the proximal sea pertained to the territory of the adjoining state, which, as in the case of Venice, had power to impose taxes for the use of it.972Much the same opinion was expressed by Bodin, a French lawyer who wrote about the middle of the sixteenth century. When speaking of the taxes or tolls that might be imposed by a state, he said that though the sea was incapable of appropriation, it was in a measure accepted that for a distance of sixty miles from the shore the prince of the adjoining country could impose law on those who approached the coast, and that it had been so adjudged in the case of the Duke of Savoy.973Gentilis, writing at the beginning of the next century, stated that it was laid down by the civilians that not only jurisdiction, but dominion, pertained tothe neighbouring state as far as one hundred miles from the coast, and even further unless the proximity of another state interfered.974
It is thus clear that long before the beginning of the seventeenth century, the original simplicity of the Roman law regarding the appropriation of the sea had undergone a change at the hands of its commentators, and that the doctrine of sovereignty or dominion over a very considerable maritime zone was widely held by jurists. But there is no evidence that either of the boundaries prescribed by Bartolus or Baldus was sanctioned by the general usage of nations. They do not appear ever to have been adopted by any state of northern or western Europe as the limits of its territorial sea or maritime sovereignty; although they were occasionally used in arguments in State Papers, as when the Earl of Salisbury justified to the Spanish Court King James’s proclamation of 1609 against unlicensed fishing, on the ground that maritime jurisdiction was “generally received to be about one hundred miles at the least into the seas.” The actual application of these large boundaries appears to have been confined to parts of the Mediterranean, where the doctrine took its rise, and where it survived till the eighteenth century.975A more recent and a curious survival of the old boundary of Bartolus is to be found in the abortive Russian Ukase of 1821, by which foreigners were prohibited from navigating in Behring Sea within one hundred Italian miles of the coast, a claim which was revived by the United States as late as 1891.976
Another general principle for the demarcation of the seas belonging to a state had even wider currency than the above. It consisted in the transference to the sea of the principle of the mid-channel, orthalweg, as applied to rivers in apportioning the waters pertaining to either bank,—a doctrine laid down in Roman law and in vogue among the Anglo-Saxons asearly at least as the seventh century.977Thethalwegor mid-channel was not infrequently a boundary between contiguous states, and it was not a great step to transfer its application in theory from wide rivers and estuaries to intervening seas. In this way the mid-line in the sea lying between the coasts of two states was held to be the boundary of their respective maritime jurisdiction or sovereignty. The whole extent of a sea stretching between territories belonging to the same state, however far apart these territories might be, was looked upon as being under the sovereignty of that state. This principle, therefore, covered most extensive claims to maritime dominion, since it left hardly any part of the sea unappropriated. The mid-line as an international boundary was in the case of narrow seas logically derived from the tenets of the Italian lawyers, but there are grounds for believing that it may have been much older. An ancient example of its use in a limited way is to be found in King Cnut’s charter, in 1023, granting the port of Sandwich, in Kent, to the Church at Canterbury, by which certain rights of wreck up to the middle of the sea were conferred on the monks. After mentioning “the great sea without the port,” it provided that half of whatever was found “on this side of the middle of the sea,” and brought to Sandwich, should belong to the monks and half to the finder.978Cnut’s charter cannot be taken as expressing any direct claim to jurisdiction to the middle line, but as wreck was a prerogative of the crown—and this is the first grant of it—the limit assigned seems to imply a differentiation of authority. More pertinent is the statement in theMirror of Justice, a law-book written about the end of the thirteenth century, and attributed to Andrew Horn, who was Chamberlain of London in the reign of Edward II., that the king’s sovereign jurisdiction extended as far as the middle line of the sea surrounding the land.979Plowden, the Elizabethan lawyer, believed that this work contained the law as it existed before the Norman Conquest, but it is now declared to contain much that is spurious. Whether that be so or not, there is no doubt that this principle of maritime delimitation was adopted by many of the lawyers and scholars of Elizabeth’s time, as Dee and Plowden.980Even well on in the next century no less a personage than Lord Chief-Justice Hale, in an early unpublished treatise on the law of the customs and seaports, maintained that the king had “right of jurisdiction or dominion of so much at lest of the sea as adjoines to the British coast nearer then to any forren coast.”981From internal evidence this tract appears to have been written about 1636, and the influence of Selden’sMare Clausum, which was published at this time, and in which the mid-line was repudiated as a boundary of the British seas, was shown in Hale’s later treatise. In it the mid-line was abandoned, and the “narrow sea, adjoining to the coast of England,” was declared to be “part of the waste and demesnes and dominions of the King of England,” who had in it the double right of jurisdiction and property or ownership, “Master Selden” being referred to as authority.982
There is no evidence that the principle of the mid-channel as applied to the sea was ever homologated by an English sovereign or Government. Notwithstanding its currency in the reign of Elizabeth, we know that it was explicitly disavowed by the queen herself in diplomatic controversy with the King of Denmark, who, in virtue of it, claimed the whole of the sea between Norway and Iceland. Still earlier the English Parliament vainly petitioned the victorious Henry V., fresh from his conquests in France, to impose tribute on vessels passing through the Channel, on the ground that he possessed both shores, and therefore had a legal title to the intervening sea.983But although the mid-line appears never to have been clearly adopted, there are two circumstances, both referring like Cnut’s charter to the Channel, which may point to its ancient usage there. One is that an important fishing-bank, the Zoweor Sow, extending about one-third across the Channel between Rye and Dieppe, was recognised by France as within the English jurisdiction, and French fishermen for a very long period were in the habit of procuring licenses from the Warden of the Cinque Ports for permission to fish there (see p. 65). The other is that when the question was raised as to how far the jurisdiction of the Cinque Ports extended into the sea—in connection apparently with complaints against French fishermen towards the end of the reign of Charles II.—the Trinity House, while avowing their own ignorance, stated that the Sergeant of the Admiralty within the Cinque Ports claimed to exercise his authority “half seas over or further.”984
The methods of delimitation hitherto mentioned consisted in drawing imaginary lines in the sea, usually at a considerable distance from the coast. Another principle, which probably originated among seafaring men and was capable of being made use of in a rough-and-ready fashion, depended on the range of vision on a fair day, seawards from the shore, or usually from the sea to the land. The space of sea between the coast and the horizon, orvice versâ, was regarded as belonging to the adjoining state. This was the principle adopted in Scotland, but it was not confined to that country. It was employed in olden times in England to determine whether a bay or arm of the sea was within the body of a county,inter fauces terræ, and therefore under common law, or part of the high sea and under the jurisdiction of the Admiral.985An early instance of its adoption as a boundary of international jurisdiction is to be found in the nautical laws prescribed for the Netherlands in 1563 by Philip II. of Spain, by which itwas forbidden, on pain of death, for any violence to be done by reason of war, or for any other cause, to his subjects or allies, or to foreigners, on the sea within sight of the land.986Grotius also referred to the range of vision as a boundary, when he said that the controversy respecting the freedom of the sea was not about bays or straits, or “so much of the sea as might be seen from the shore.”987We have already seen that in Scotland the fisheries within sight of the coast, or a “land-kenning,” were claimed as belonging exclusively to the Scottish people. In this case the range of vision was from the sea to the land, and it was to be determined from the main-top of the fishing smack.988The extent of a land-kenning was stated to be fourteen miles, and this was the distance expressed in the Draft Treaty of Union in 1604, and pressed upon the Dutch by King James in 1618; but sometimes twenty-eight miles, or two land-kennings, was claimed; and it is to be noted that in the case of bays and firths the distance was measured from a base-line drawn between headland and headland. The range of vision, or land-kenning, as the boundary of the reserved fishing waters, was embodied in Scottish law as well as claimed against other nations by the Privy Council, the Parliament, and the king.989
It was also conceded to Denmark, for in 1618 the Privy Council prohibited Scottish fishermen from fishing within sight of land at the Færöe Isles. The King of Denmark, indeed, assigned the same limit in a decree of 1691 with regard to places where he did not possess the opposite coasts.990Although the principle was not formally acknowledged by the Dutch in determining their fishing on the British coasts, they agreed to adhere to it (see p. 193); and there is evidence to show that the British cruisers caused them to respect this limit, at all events in connection with the herring-fishing at Yarmouth.991A later example of the adoption of this limit is to be found in a treaty concluded in 1740 between the Porte and the King of Naples, by which it was stipulated that neither party would permit vessels to be pursued or molested on their coasts within a distance at which ships could discern the land.992
The method of determining the extent of the territorial sea by the range of vision was vague and open to obvious objections, even though it was ascertained only on a fair day. The distance, as Bynkershoek pointed out, would vary according to the position of the observer, the keenness of his vision, the climate, and many other circumstances, and it was inapplicable to narrow seas, such as the Channel, where the opposite coasts belonged to different states. It is, however, questionable whether, under proper rules, it would have furnished a zone much less definite than that of the range of guns. It has been proposed by some modern publicists, as Rayneval, Azuni, Heffter, and Godey, as a boundary of territorial waters; and if it had been generally adopted as a principle of delimitation, there is no doubt that the equivalent distance of fourteen miles as used in Scotland would have proved more satisfactory in several respects than the ordinary limit of three miles, which was supposed to represent the range of guns.
Still less definite was another principle, if such it can be called, which was proposed as a guide in allotting the space of sea within which exclusive rights of fishing should belong to the adjacent state. Welwood, Selden, and many others, held, in opposition to Grotius and his school, that the fisheries along a coast might be exhausted or injured by promiscuousfishing, and that the inhabitants of the coast had a primary right to thefructusof the adjacent sea, as against the intrusion of foreigners—a principle which lay at the root of the Scottish claims to the “reserved waters.” Sarpi, an Italian author of the early part of the seventeenth century, in a work defending the claims of Venice, formulated the opinion that the extent of territorial sea should not be fixed everywhere in an absolute manner, but should be made proportionate to the requirements of the adjoining state, without violating the just rights of other peoples. Thus a country or city which possessed large and fertile territories that provided adequate subsistence for the inhabitants, would have little need of the fisheries in the neighbouring sea, while one with small territories that drew a large part of its subsistence from the sea ought to have a much greater extent of sea for its exclusive use.993This doctrine, though obviously difficult of application internationally, has much to recommend it on grounds of reason and justice. It is one of the fundamental principles on which Norway claims at the present day an unusually large extent of territorial sea.
With regard to bays, straits, and arms of the sea, the general usage from the earliest times has included them within the jurisdiction of the neighbouring state. They have been always regarded as differing from the sea on an open coast, the only disputes about them referring to the size of such areas that might justly be looked upon as territorial. By the old common law of England, which Hale dates as far back at least as the reign of Edward II. (1307-1327), bays, gulfs, or estuaries, of which one shore could be “reasonably discerned” from the other shore, were regarded asinter fauces terræ, and within the body of the adjacent county or counties, so that offences committed there were triable at common law. But along the coast, on the open sea, the jurisdiction of the common law extended no farther than to low-water mark; beyond that it was high sea, oraltum mare, and under the jurisdiction of the Admiral.994Here we see a sharp distinctiondrawn between bays and the open coast, the former being included within the realm as part of the territory. It seems reasonable on many grounds that the waters lying in view between two parts of the same continuous territory should have been regarded as pertaining to that territory, and it may be noted that in early times the navigation of a vessel along a coast was conducted from headland to headland, and thus a distinction was likely to arise between the open sea lying outside a line joining the headlands, as a waterway common to all, and the sea inside the headlands as an access to the territory. The distinction was maintained from an early period with regard to international relations. Reference has already been made to the treaty arranged by Cardinal Wolsey in 1521, in which it was stipulated that English harbours, bays, rivers, and roads should be exempt from hostilities between belligerents, and to the proclamations of King James in 1604, and of succeeding sovereigns, defining the extent of the King’s Chambers, or bays, according to ancient custom, for purposes of neutrality.995It is interesting to note that the rights exercised within the King’s Chambers, or bays, on the coasts of England referred only to neutrality and had nothing to do with fishing, while in Scotland it was exactly the opposite. The large bays and firths on the Scottish coast were reserved for fishing, without any specific reference to the rights or obligations of neutrals. The differentiation of bays and arms of the sea from the territorial belt on open coasts has persisted to the present day, both in the writings of publicists and in the practice of nations, although the introductionof another principle of delimitation has tended to keep the claims to bays within moderate bounds.
The various methods of determining the territorial waters of a state referred to above were more or less arbitrary, and did not rest upon a natural basis capable of universal application. During the seventeenth and eighteenth centuries another principle was gradually evolved, and was ultimately accepted as furnishing such a natural basis, so that it may now be regarded as an established part of international law. It was, that the maritime dominion of a state ended where its power of asserting continuous possession ended. The belt of sea along the coast which could be commanded and controlled by artillery on shore thus came to be regarded as the territorial sea belonging to the contiguous state. Beyond the range of guns on shore the sea was common.
This principle was of slow growth. It did not even receive definite expression among jurists until the beginning of the eighteenth century; but as previously stated (see p. 156), the Dutch ambassadors who came to London in 1610, to endeavour to induce King James to withdraw his proclamation against unlicensed fishing, made use of it in their conferences with the English Ministers, not improbably at the instigation of Grotius. But whether or not Grotius was the person who enunciated the principle in 1610, it is in his writings that we first meet with it, although in a veiled form. It is not mentioned inMare Liberum, but in his greater work, the Law of War and Peace, which was published in 1625, he said that a state might acquire sovereignty over parts of the sea, in regard to persons by an armed fleet, and “in regard to territory, as when those who sail on the coasts of a country may be compelled from the land, just as if they were on the land.”996The principle of compulsion from the land is clearly enough expressed, and though Grotius did not define the nature of the compulsion to be exercised, modern writers have generally held that what he meant was compulsion by artillery. If Grotius was the author of the dictum of 1610, he must have had reasons for expressing itin a less definite form in 1625,—perhaps owing to his employment at that time by the Queen of Sweden, to whom the naked doctrine would have been no more attractive than to James.
For a long time, however, the doctrine was equally neglected by publicists and statesmen. This may have been partly due to the somewhat obscure and incidental way in which it was advanced, but probably mainly to the fact that the time was not ripe for its acceptance. It represented much too stringent a limitation of the territorial sea to receive general assent. Selden does not refer to it, and it was passed over by the authors, such as Pontanus,997Burgus,998Shookius,999Conringius,1000and Strauchius,1001who favoured more or less extensive claims to maritime dominion, while even writers who opposed such claims, as Stypmannus1002and Graswinckel,1003do not adopt it.
The opinions of Grotius with respect to the appropriation of the sea had, indeed, comparatively little influence among jurists in the seventeenth century. The views which prevailed in the latter part of the period are rather represented in the works of two of the writers whose reputation was greatest, Loccenius and Puffendorf. Loccenius, a Swedish author who wrote about the middle of the century and is still quoted as an authority, declared that while a nation could not acquire a universal dominion over the sea, it might possess sovereignty in a particular sea as far as it was under its power or dominion, subject to the rights of innocent passage and navigation by others; and he cited as examples Sweden and Denmark, which exercised sovereignty in the Baltic.1004As a general rule, however, Loccenius held that states had jurisdiction only in the waters adjacent to their coasts, for the preservation of peaceful navigation; but no attempt is made by him to lay down any fixed rule or limit as to the extent of such jurisdiction. He merely contrasts the opinions of those, as Baldus and Bodin, who contended for a wide limit of sixty miles, or two days’journey, with those who argue for a narrow but undefined space in the neighbouring sea.
The celebrated Puffendorf, whose authority later was only second to that of Grotius, dealt with the question in his great work on the Law of Nature and Nations, and with even less precision than Loccenius.1005On the general question of the appropriation of the sea he discarded the objection that its fluidity rendered it incapable of possession, but held that it would be morally impossible for one nation to possess the ocean. He also set aside the moral objection in the absolute form in which it was put forward by Grotius, that the use of the sea was inexhaustible. On the contrary, he held with Selden and Welwood that fisheries in the sea might be exhausted by promiscuous use. “If all nations,” he said, “should desire such a right and liberty (of fishing) near the coasts of any particular country, that country must be very much prejudiced in this respect; especially since it is very usual that some particular kind of fish, or perhaps some more precious commodity, as pearls, coral, amber, or the like, are to be found only in one part of the sea, and that of no considerable extent. In this case there is no reason why the bordering people should not rather challenge to themselves this happiness of a wealthy shore or sea, than those who are situated at a distance from it.”1006On this ground, the right of exclusive fishing, and also for the security and defence of the state, a nation was justified in claiming dominion in the neighbouring sea. The extent of this territorial sea, he says, cannot in general be accurately determined; but it is clear that he thought it might be very considerable. We had the power to abridge others of the use of the sea by forts on shore, in narrow creeks and straits, or by armed fleets; but it would, he thought, show unreasonable jealousy to claim “some hundreds of leagues.” The true bounds could only be discovered either from “the right of possession” of a state, or from its treaties with its neighbours. Gulfs, channels, or arms of the sea, on the other hand, were “according to the regular course” supposed to belong to the state which had possession of the shores. If the shores belonged to several peoples, the sovereignty was distributed to the middle line, unless treaties directed otherwise, or onepeople had obtained the exclusive sovereignty by convention, conquest, or prescription.
We thus perceive that the opinion of jurists at the end of the seventeenth century with regard to the appropriation of the sea was very much what it was at the beginning. With the exception of the clear and terse declaration of the Dutch ambassadors in 1610, and the somewhat dubious dictum of Grotius in 1625, the principle that the maritime sovereignty of a state was limited by the range of guns from the shore does not appear to have been advanced throughout the century.
Nor does an examination of the usage of nations during the period show that the opinions of publicists were at variance with the actual practice. All maritime countries enforced an unquestionable jurisdiction, more or less extensive, in the neighbouring seas, and several of them exercised dominion over particular regions. The extravagant pretensions of Spain and Portugal had long since vanished; but Venice, while sadly fallen from her former greatness, still asserted her sovereignty over the Adriatic. Sweden and Denmark possessed a joint sway over the Baltic; and Denmark maintained her claim to the northern seas between Iceland, Greenland, and the coast of Europe. Moreover, the pretensions of England to the sovereignty of the so-called British seas, although in abeyance, had not been withdrawn. The striking of the flag was still enforced by English men-of-war, and there was nothing to prove that the other phases of the pretension might not be revived at any time.
With regard to the extent of neutral waters, it would appear that the boundaries were as a rule vague, and that general considerations determined jurisdiction in particular cases. In connection with the declaration of war by the United Provinces against France in 1689, a placard was issued by the States-General in which both Dutch and foreign vessels were exhorted to keep out on the high seas; and it was declared that any vessels suspected of having contraband goods on board and found “on the coast of France, or of other countries, islands, and places under the dominion of the King of France, and particularly in the bays and gulfs on the coast of the said kingdom,” would be seized and brought to trial.1007On the English coast thelimits of jurisdiction were better defined, but still, in many cases, without precision. Within the King’s Chambers, as specified by James I. in 1604, “or other places of our dominion, or so near to any of our said ports, or havens, as may be reasonably construed to be within that title, limit, or precinct,” the hostile acts of belligerents, captures of the enemy’s vessels, and the hovering of foreign ships of war were forbidden. The injunction with respect to the neutral waters was renewed in 1633, 1668, and 1683, and it was in no case confined strictly to the “chambers.” In the proclamations of 1668 and 1683, which were drawn up by Sir Leoline Jenkins, the definition was merely “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.”1008These limits were upheld by the decisions of the High Court of Admiralty during the greater part of the century. Sir Leoline Jenkins, it may be noted, although in questions of international policy advocating the most extreme pretensions of the English crown to the sovereignty of the seas, was careful in his judicial decisions to restrict jurisdiction within the terms of the royal proclamations. If a capture was made in one of the chambers or beyond them by a foreign privateer which had issued from an English port and had been hovering in the neighbourhood, the vessel was ordered to be restored. So also if the prize was taken, in any case, outside a chamber, but near enough the coast to be “reasonably construed” to be within the king’s jurisdiction. This usually happened on the east coast, where the chambers were small. In one such case the vessel was taken between half a league and one league off Orfordness (the headland of a chamber); in another instance the vessel was seized eight leagues at sea off Harwich, and presumably four leagues from the boundary of the nearest chamber.1009