The sovereignty of the sea: The enduring tension between codified law and naval force

“ Yet the fine-spun theories on which are based the necessity for the use of force, as between nations, and the proposition that the relationship of nations can only be determined by force, and that international pugnacity will always be expressed by a physical struggle between nations, all arise from this fatal analogy, which in truth corresponds to very few of the facts. ”

“ In time of war, the fleets should be strong enough to sweep the seas, so that, as it has been described, the bounds of the empire should then be the coasts of the enemy. But, more strictly, the sovereignty of the sea was a political sovereignty that existed as a matter of right, and was duly recognised as such, apart from an actual predominance of naval power at the time, just as the sovereignty of a state exists on land, though in both cases its maintenance may depend upon the sword. ”

“ Through the intervention of vessels navigating the high seas, nations in amity are enabled to overcome the want of proximity, and all the purposes of trade and commercial intercourse may thereby be extended, as well to the inhabitants of the remotest corners of the earth, as to those only divided by a geometrical line. ”

“ Sir, had he not seen the approaching storm, no atonement for that wanton outrage on our national sovereignty had yet been made. If you now say that you will not prosecute the war, the enemy must view it as a decision pronounced by this Government, that war shall not be waged by the American nation for the impressment of her citizens, or for depredations committed on commerce. It might as well be said, in plain, intelligible language, that the ocean is to be abandoned by the people of the United States, except so far as depends on the will of Great Britain. ”

“ On the issue of the war are staked our national sovereignty on the high seas, and the security of an important class of citizens, whose occupations give the proper value to those of every other class. Not to contend for such a stake, is to surrender our equality with other powers on the element common to all, and to violate the sacred title which every member of the society has to its protection. ”

“ Thrice in the compass of a single generation the nation was plunged into war with the object of maintaining it.
One thus finds in English history a great deal which refers to the sovereignty of the sea, although the words were not always used to signify the same thing. Most commonly perhaps they meant a mastery or supremacy by force of arms,—what is now so much spoken of as sea-power. In times of peace, the strength of the navy should be such as to safeguard the commerce that came to the realm and went from it, thus enabling merchants and traders to carry on their traffic in security. ”

“ China's territorial sea along the mainland and its coastal islands takes as its baseline the line composed of the straight lines connecting basepoints on the mainland coast and on the outermost of the coastal islands; the water area extending twelve nautical miles outward from this baseline is China's territorial sea. ”

“ The laws and regulations relating to innocent passage in the territorial sea prescribed in the preceding paragraph shall be duly promulgated by the Executive Yuan. Article 12 The Government of the Republic of China may, for the purposes of protecting the safety of navigation, prevention of destroying on-the-sea and under-the-sea installations or marine resources as well as the prevention of marine environment pollution, require the foreign vessels exercising the right of innocent passage through its territorial sea to observe designated sea lanes or traffic separation schemes. ”

“ At the very beginning of government under the Constitution, Congress conferred on the federal district courts exclusive original cognizance "of all civil causes of admiralty and maritime jurisdiction, including all seizures under laws of impost, navigation or trade of the United States, where the seizures are made, on waters which are navigable from the sea by vessels of ten or more tons burthen, within their respective districts, as well as upon the high seas; saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it ”

“ But no nation, however desirous of peace, can hope to escape occasional collisions with other powers, and the soundest dictates of policy require that we should place ourselves in a condition to assert our rights if a resort to force should ever become necessary. Our local situation, our long line of seacoast, indented by numerous bays, with deep rivers opening into the interior, as well as our extended and still increasing commerce, point to the Navy as our natural means of defense. ”

“ The control of our commerce by Great Britain, in regulating, at pleasure, and expelling it almost from the ocean; the oppressive manner in which these regulations have been carried into effect, by seizing and confiscating such of our vessels, with their cargoes, as were said to have violated her edicts, often without previous warning of their danger; the impressment of our citizens from on board our own vessels on the high seas, and elsewhere, and holding them in bondage till it suited the convenience of their oppressors to deliver them up ”

“ Compared with that, what does the average man know of the fighting she can do, when she has reached the end of that preposterously misleading performance called her trial trip? The error is of the nature of a half-truth, the most dangerous of errors; for it is true that, as compared with land forces, the great characteristic of navies is mobility; but it is not true that, between different classes of naval vessels, the swiftest are the most efficient for control of the sea. Force is for that the determining element. ”

“ But now, instead of discussion and argument, brute force rises up to the rescue of discomfited error, and crushes truth and right into the dust. "Might makes right," and hoary folly totters on in her mad career escorted by armies and navies. ”

“ 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. ”

“ If it was supposed thereby “that for the property of a whole sea it is sufficient to have the banks on both sides, as in rivers,” the ambassadors were to declare “that though property of sea, in some small distance from the coast, may yield some oversight and jurisdiction, yet use not princes to forbid passage or fishing, as is well seen in our Seas of England and Ireland, and in the Adriatic Sea of the Venetians, where we in ours and they in theirs, have property of command; and yet neither we in ours nor they in theirs, offer to forbid fishing, much less passage to ships of merchandise ”

“ 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 ”

“ The people and inhabitants of the said United Provinces, of what condition or quality soever they be, shall with their busses and other vessels fitted to that purpose, have liberty from time to time, for the term of one and twenty years, next coming, to sail and fish as well for herrings, as all other sort of fish, great and small, upon any of the coasts or seas of Great Britain and Ireland and the rest of the Isles adjacent, where and in such manner as they have been formerly permitted to fish. ”

“ If and when another maritime war unfortunately breaks out, it would be absurd to suppose that the neutral Powers within the sphere of possible operations would be content with a three-mile limit to safeguard the security of their coasts. As provided for in the rules drawn up by the Institute of International Law, their duty would be to prohibit all hostilities within such distance of their coasts as would render them secure, and this in turn would involve the immunity from capture within the same space of the merchant vessels of one of the belligerents by the vessels of the other. ”

“ And thus if this country were engaged in a great maritime war, such as occurred a century or so ago, a very considerable belt of sea on neutral coasts would be closed to the operations of the fleet, and the conditions of naval warfare would be profoundly changed.
With regard to the other questions of sovereignty or exclusive rights in the seas washing the coasts of a country, it is becoming more and more recognised that there is no reason in nature why the boundary for one purpose should be the boundary for all purposes. ”

“ What was the power of Venice and Genoa when they led the van of naval power? How quickly did the sceptre of Portugal rise, as she assumed a station on the ocean! how sink as she lost her naval preponderance! How did a navy once support the United Provinces! and how is it now the salvation of Great Britain! It is then a fact, that a naval armament gives effect to the power of a nation, as do the musket and bayonet, the cannon and the mortar. And how, sir, is it attempted to rebut this fact? By showing a physical disability in the country to avail itself of this force? No. ”

“ Force does not exist for mobility, but mobility for force. It is of no use to get there first unless, when the enemy in turn arrives, you have also the most men,—the greater force. This is especially true of the sea, because there inferiority of force—of gun power—cannot be compensated, as on land it at times may be, by judiciously using accidents of the ground. I do not propose to fall into an absurdity of my own by questioning the usefulness of higher speed, provided the increase is not purchased at the expense of strictly offensive power ”

“ And here again we must guard ourselves from thinking that inferior force—inferior in number or inferior in quality—has no chance against a superior. The idea is simply another phase of "a navy equal to the greatest," another military heresy. A ship under the guns of one thrice her force, from which her speed cannot carry her, is doubtless a lost ship. ”

“ The true speed of war is not headlong precipitancy, but the unremitting energy which wastes no time.
For the reasons that have been given, the safest, though not the most effective, disposition of an inferior "fleet in being" is to lock it up in an impregnable port or ports, imposing upon the enemy the intense and continuous strain of watchfulness against escape. ”

“ The third description of force worthy of consideration is, that which would be able to prevent any single vessel, of whatever metal, from endangering our whole coasting trade, blocking up our harbors, or laying under contribution our cities; a force competent to punish the insolence of the commander of any single ship, and to preserve in our own jurisdiction the inviolability of our peace and our laws. ”

“ As a very little opium represents a considerable money value, smuggling is of course practised on a very large scale, especially in China, where the ingenuity displayed is really extraordinary. All along the coast, and that coast is of immense extent, the illicit trade is briskly carried on. In the South the smuggled drug is brought in in very fleet vessels, of light tonnage, which easily evade the boats of the revenue officers. ”

“ The struggle between the smugglers and the custom-house officers is never-ending, and the skill displayed in concealment on the one side and detection on the other is so nearly equal, that it is rare indeed for either to gain a decisive victory over the other.
There is something truly pathetic in the futile efforts made at various times by the Chinese Government to prevent the importation of opium into the country, and of the many viceroys of provinces to keep it out of the districts under their care. ”

“ Should an unreckoned-with disaster cast a vessel on the breakers, there is not a mile of beach that the Coast Guard does not watch.
Far in the northern Bering Sea, a Coast Guard cutter blazes the hidden trail through Polar ice for the oncoming fleet of whalers, and carries [vi] American justice to where, as yet, no court has been; out in the mid-Atlantic, when the Greenland icebergs follow their silent path of ghostly menace, a Coast Guard cutter watches and warns the great ocean liners of their peril ”

“ But, when they go abroad on the high seas; when they come to this country to acquire a neutrality of character, now indeed no longer to be found here; when they come here only to neutralize goods in the Baltic, at Heligoland, in the Black Sea, the White Sea, and the Red Sea, and the passing to and fro on the highway of nations; if it please God, their old master George the Third, or Napoleon, or Alexander of Russia, should lay his hand on them, they were welcome, Mr. R. said, for him. He would not spend one shilling, one drop of American blood, to redeem such a man ”

“ Not so with the sailor; when impressed, there is no learned judge to decide his case, or lawyer to have justice done; force is law to him, and his oppressor judge; he is put on board ships, and compelled to fight battles, in which neither he nor his country have any concern: deprived of the right to complain or petition; he is poor, friendless—Great God! can it be possible, that we shall yield the point of impressment, for the sake of carrying on a little trifling trade by hook or by crook! ”

“ When the evils of the war press upon the country, and press they will; when the many lives sacrificed, and the countless millions expended, shall be brought to view, is it not to be apprehended that seamen and their claim will be remembered, only as the cause of the scenes of expense and blood through which we are to pass? It is not dealing fairly with our seamen, to make them the scape-goats of this war.
The British then claim the right, in time of war, to take their seamen out of neutral merchant vessels on the high seas. ”

“ But they were unsuccessful. Great Britain persisted. In reply to a proposal of the British commissioners, as reported in a joint letter to Mr. Madison, dated at London, September 11, 1806, the plenipotentiaries declared,—
“That it was impossible that we should acknowledge, in favor of any foreign power, the claim to such jurisdiction on board our vessels found upon the main ocean as this sort of impressment implied,—a claim as plainly inadmissible in its principle, and derogatory from the unquestionable rights of our sovereignty, as it was vexatious in its practical consequences.” ”

“ I would propose that private property at sea should be exempt from capture by armed Government ships. On this condition I would give in my adhesion to the abolition of privateering. I would propose that neutral merchant vessels, in time of war, as in time of peace, should be exempt from search, visitation, or detention, by armed Government vessels, when on the ocean or high seas,—I mean when beyond that distance from the shore which removes them from the jurisdiction of any maritime state. ”

“ In the mildness of our sway we must not suffer our sovereignty to be rebelled against or insulted with impunity.... The sovereignty of the seas in the hands of Great Britain is an established, legitimate sovereignty,—a sovereignty which has been exercised on principles so equitable, and swayed with a spirit so mild, that the most humble of the maritime Powers have been treated as if they were on a perfect equality with us. ”

“ When there is not much sea on, the Paracelses reefs can be clearly seen, certain flat portions emerging here and there for a few inches above the surface of the water. If there were never such a thing as a storm, and no danger of the islets being swept by the waves, it would be possible to live on them and even to support life by feeding on the turtles and shell-fish abounding there; so that if the poor abandoned coolies had been able to get out of their prison, who can tell but what they might have saved themselves by clinging to the rocks till help arrived? ”

“ Far away from any other land, in the midst of the South Pacific Ocean, there is a little island, a mere speck in the sea, for it is not six miles across at its widest point. A passing ship might leave this tiny island unnoticed, save for the lofty cliffs and precipices which guard its shores, running down to the white waves, ever curling and breaking at their feet. ”

“ The men who have grown old in the service are both grave and friendly; they sense things other people do not perceive; they have a knowledge of storms and a way of being able to know the shapes of vessels which to common, eyes are only undistinguishable spots on the horizon.
All night long the men guard the coast and inform the stations of the fates of vessels. By day the men sit looking out to sea; they are isolated as though they were on board ship. Sand, sky, sea, and the vessels sailing the sea bound their lives. Many stations are in distant places, hard to get at ”

“ Monroe, at London, dated January 5, 1804, he says:—
“The article renounces the claim to take from the vessels of the neutral party, on the high seas, any person whatever not in the military service of an enemy, an exception which we admit to come within the Law of Nations, on the subject of contraband of war. With this exception, we consider a neutral flag on the high seas as a safeguard to those sailing under it.” [63]
Then again, in the same despatch, this statesman says:—
“Great Britain must produce, then, an exception in the Law of Nations in favor of the right she contends for. ”

“ I have lived too long to cherish many illusions about the essential high mindedness of men when brought into stark confrontation with the issue of control over their security, and their property interests. ”

“ for to bear all naked truths,
And to envisage circumstance, all calm,
That is the top of sovereignty Mark well! ”

“ We now come to the assertion that if the United States takes to itself interests beyond the sea—of which Hawaii is an instance—it not only adds to its liabilities, which is true, but incurs an unnecessary exposure, to guard against which we need no less than the greatest navy in the world. ”

“ Remember, sir, it is no longer a contest singly about the carrying trade, or the impressment of seamen, or the insult to the national flag, but all united with the rights and attributes of sovereignty, even to the violation of the good old United States. You stand on the verge of [Pg 84] destruction, one step, one movement backwards will stamp your character with indelible disgrace. You must now determine whether you will maintain the high station among nations, to which the virtues, the spirit of the people have elevated you, or sink into tributary vassalage and colonization. ”