The Sovereignty of the Sea: An Historical Account of the Claims of England to the Dominion of the British Seas, and of the Evolution of the Territorial WatersFulton, Thomas Wemyss
History
The Sovereignty of the Sea: An Historical Account of the Claims of England to the Dominion of the British Seas, and of the Evolution of the Territorial Waters
Fulton, Thomas Wemyss
Fisheries -- Great Britain; Great Britain. Royal Navy -- History; Sea-power; Territorial waters -- Great Britain -- History
It is important to note--what many of his followers too often
forgot--that Grotius restricts the application of his general argument
for _mare liberum_ to the open sea. He does not, he says, deal with
an inland sea (_mare interiore_) which, surrounded on all sides by
land, did not exceed the breadth of a river; the question concerned
the ocean, which the ancients called immense, infinite, the parent
of things, co-terminous with the air. The controversy, he continues,
was not about a bay or a strait in this ocean, _nor concerning so
much of it as might be seen from the shore_: the Portuguese claim for
themselves whatever lies between the two worlds.[622] Again, referring
to the Italian publicists, he says their opinion cannot be applied to
the matter in question, for they speak of the Mediterranean, he of the
ocean; they of bays or gulfs, he of the vast sea, which differ very
much in respect of occupation.[623]
The opinions and reasonings of Grotius in _Mare Liberum_ as to the
free use of the sea were repeated more concisely and with some
modification in his greatest work, _The Rights of War and Peace_, which
was published in 1625.[624] No one, he affirmed, can have property in
the sea, either as to the whole or its principal parts; and as some
people admit this in respect to private persons but not in regard to
countries or states, he proceeds to prove its truth by both a “moral
reason and a natural reason.” The moral reason is the vast extent and
inexhaustibility of the sea, whether for navigation or fishing; the
natural reason is that it cannot be occupied or possessed because
of its fluidity, since liquids having no bounds of their own cannot
be possessed unless enclosed by something else, as a river by its
banks; but the sea is not contained in the earth, as it is equal to
it or even greater.[625] Grotius, however, admits that his argument
that rivers and lakes may be appropriated because their banks could
be appropriated, may be logically applied also to certain parts of
the sea. From the example of rivers he says, “It appears that the
sea may be occupied by him who is in possession of the lands on both
sides, although it be open either above, as a bay or gulf, or both
above and below, as a strait, provided that it be not so great a part
of the sea that when compared with the lands on each side it cannot
be supposed to be some part of them”; and what is lawful to one king
or people may be also lawful to two or three, if they have a mind to
take possession of the sea thus enclosed within their land.[626] He
also admits by another train of reasoning--concerning property in the
marine vivaria of the Romans--that if it is not repugnant to the law
of nature for a private person to appropriate a small enclosed part
of the sea, one or more nations possessing the shores might in like
manner appropriate a part of the sea, if it be small compared with the
land; and that might happen although the sea was not enclosed on all
sides.
Public-domain text, read in full here on John Shaqi.
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