Maritime sovereignty

“ While the fleets were contending for actual dominion over the sea, the Parliament took care to keep alive the historic claims to maritime sovereignty and to place them well before the people. As early as 25th June 1652—the day before Blake sailed away to the north in quest of the herring-busses—they passed a resolution: “That it be referred to the Council of State to prepare a declaration to assert the right of this Commonwealth to the Sovereignty of the Seas, and to the fishery ”

“ The current opinion is that such rights can only be enforced against foreigners under the comity of nations or by their tacit assent, as a matter of mutual convenience, and in practice they are acquiesced in by other Powers.1102 But it is important to observe that, as will be more apparent when we come to deal with the exclusive right of fishing, maritime nations find it necessary for the protection of their just interests to extend their jurisdiction beyond the somewhat narrow boundary at present ordinarily assigned. ”

“ 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.” ”

“ With regard to the most important attribute of maritime 33 sovereignty—the right to exclude others from an equal use of a particular sea by prohibiting navigation, at least of vessels of war, and from fishing in it, or by imposing dues and conditions for the liberty—there is scarcely a scrap of evidence to show that any authority of the kind was exercised by England in the adjacent seas. ”

“ As maritime commerce 555 extended and the security of the sea became established, it was felt more and more that claims to a hampering sovereignty and jurisdiction were incompatible with the general welfare of nations; and as the states interested in this commerce had the greatest power, the assertion of a wide dominion was gradually abandoned, surviving only in remote regions or in enclosed seas, like the Baltic. ”

“ There were many reasons why a strong fleet should be provided, apart from any question of enforcing a new political sovereignty over the North Sea and the Channel. The maritime strength of the United Provinces was growing quickly, and France, under the wise and energetic guidance of Richelieu, was rapidly becoming a formidable naval power. ”

“ It is difficult, he states elsewhere, to draw any precise conclusion, amidst the variety of opinion, as to the distance to which a state may lawfully extend its exclusive dominion over the sea adjoining its territories, and beyond harbours, gulfs, bays, and estuaries, where its jurisdiction unquestionably extends. “All that can reasonably be asserted is, that the dominion of the sovereign of the shore over the contiguous sea extends as far as is requisite for his safety, and for some lawful end. A more extended dominion must rest entirely upon force and maritime supremacy. ”

“ The high seas being open to all nations, no State may validly purport to subject any part of them to its sovereignty. Freedom of the high seas is exercised under the conditions laid down by these articles and by the other rules of international law. ”

“ This was in effect asking the Commonwealth not only for equality of sovereignty on the sea, but for the assistance of England in protecting the immense commerce and shipping of the United Provinces. They desired that each nation should shield and defend the merchant vessels of the other, and help to recover them if taken by an enemy. ”

“ 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. ”

“ It is even conceded the right to detain and take to its own ports for judicial examination all vessels which it suspects for substantial reasons to be engaged in unneutral or contraband service and to condemn them if the suspicion is sustained. But such rights, long clearly defined both in doctrine and practice, have hitherto been held to be the only permissible exceptions to the principle of universal equality of sovereignty on the high seas as between belligerents and nations not engaged in war. ”

“ It goes to establish upon the ocean a territorial jurisdiction, like that which is claimed by all nations within cannon shot of their shores, in virtue of their general sovereignty. But the latter right is founded upon the principle of sovereign and permanent appropriation, and has never been successfully asserted beyond it. Every vessel undoubtedly has a right to the use of so much of the ocean as she occupies, and as is essential to her own movements. Beyond this, no exclusive right has ever yet been recognised, and we see no reason for admitting its existence. ”

“ American vessels on the high seas in time of peace, bearing the American flag, remain under the jurisdiction of the country to which they belong, and therefore any visitation, molestation, or detention of such vessel by force, or by the exhibition of force, on the part of a foreign power is in derogation of the sovereignty of the United States. ”

“ I do not mean that the several maritime nations did not establish different rules, or that there is not some dissimilarity in their maritime laws, for, as long as each nation is the master of its own territory, it may legislate as it sees fit in reference to maritime matters coming within its jurisdiction, and yet this does not abridge the fact that admiralty grew up out of the thought of having a common law of the seas. ”

“ These papers will acquaint you with the grounds of this interposition of two leading commercial powers of Europe, and with the apprehensions, which this Government could not fail to entertain, that such interposition, if carried into effect, might lead to abuses in derogation of the maritime rights of the United States. The maritime rights of the United States are founded on a firm, secure, and well-defined basis; they stand upon the ground of national independence and public law, and will be maintained in all their full and just extent. ”

“ Conceding that it was not the law of the United States, nor that of Great Britain, nor the concurrent regulations of the two governments, but that it was the law of the sea, was it the ancient maritime law, that which existed before the commercial nations of the world adopted the regulations of 1863 and 1864, or the law changed after those regulations were adopted? Undoubtedly, no single nation can change the law of the sea. That law is of universal obligation, and no statute of one or two nations can create obligations for the world. ”

“ If the freedom of commerce and navigation was to be assured, it would be necessary, it was said, for both countries to equip fleets to secure the safety and liberty of the subjects of both, to purge the sea of pirates and sea-rovers, and to preserve the security of commerce and of fishing. The proposition was that each state should set forth a fleet yearly, its strength to be fixed by mutual agreement, and the ocean as well as the North Sea and the Mediterranean, with their straits and channels, were to be patrolled by the two fleets, each under its own admiral and flag. ”

“ Upon a principle much more just in itself and more temperately applied, maritime States have claimed a right of visitation and inquiry within those parts of the ocean adjoining to their shores, which the common courtesy of nations has for their common convenience allowed to be considered as parts of their dominions for various domestic purposes, and particularly for fiscal or defensive regulations, more immediately affecting their rights and welfare. ”

“ In the enforcement of the laws and treaty stipulations of Great Britain a practice had threatened to grow up on the part of its cruisers of subjecting to visitation ships sailing under the American flag, which, while it seriously involved our maritime rights, would subject to vexation a branch of our trade which was daily increasing, and which required the fostering care of Government. ”

“ And thus it happens, that, from the general practice of commercial nations in making the same general law the basis and groundwork of their respective maritime systems, the great mass of maritime law which is thus received by these nations in common, comes to be the common maritime law of the world. ”

“ That by the Law of Nations every State when at war has the right to capture its enemy's property at sea, of whatever nature it be and in whatever vessels it is found. That every State has also a right by the Law of Nations to arm and commission private vessels as an auxiliary to its naval force. ”

“ With the opening of ocean routes and the discovery of America, a rivalry in world trade and colonial expansion set in which has continued increasingly down to the present time, forming a dominant element in the foreign policies of maritime nations and a primary motive for the possession and use of navies. The development of overseas trade, involving the factors of merchant shipping, navies, and control of the seas, is thus an integral part of the history of sea power. ”

“ Navigation of the seas outside of territorial waters must be made free to all nations. Exceptions are made by international agreement. To landlocked nations access to the sea must be secured by an international agreement ”

“ In deciding this question we must realize that however ancient may be the traditions of maritime law, however diverse the sources from which it has been drawn, it derives its whole and only power in this country from its having been accepted and adopted by the United States. There is no mystic over-law to which even the United States must bow. When a case is said to be governed by foreign law or by general maritime law that is only a short way of saying that for this purpose the sovereign power takes up a rule suggested from without and makes it part of its own rules. ”

“ Now you may make peace, and keep the West India Islands, and secure the neutrality at least of America for the future; and in this case you may at least maintain your own sovereignty, and the freedom of the British seas. France at present claims no more than freedom on any seas. If you make peace at present, you may have more of American trade in future than France, and derive more support to your navy than she will to her marine from that country, and consequently may preserve your liberty upon all seas ”

“ This is an unfortunate alternative, but it is one which will not admit of compromise or arbitration: we consider an absolute superiority on the seas essential to the safety of our shores, the prosperity of our commerce, and the security of our colonies; they manifest a determination to contest our maritime supremacy, and to create a force which shall give them even a preponderating influence. ”

“ In a foreign territory, in the exclusive jurisdiction of another sovereign? Certainly not; for the very terms of the act confine it to the ocean, where all nations have a common right, and exercise a common sovereighty. And over what vessels is this right of visitation to be exercised? By the very words of the act, over our own vessels, and over foreign vessels bound to our ports, and over no others. ”

“ Any advantages which a British ship has, e.g. the right of claiming protection for her flag, the non-attachment to her of a maritime lien for necessaries supplied in a British port, are not directly connected with the policy under which the Navigation Acts have become obsolete. These advantages are not secured to a British ship until she is registered. United States law agrees with British in this respect. “The United States have imitated the policy of England and other commercial nations in conferring peculiar privileges upon American-built ships and owned by our own citizens. ”

“ Obviously, nations cannot assume obligations in matters of which they are ignorant; and therefore any secret treaty tends to undermine the solidity of the whole structure of international covenants which it is proposed to erect. 2. Absolute freedom of navigation upon the seas, outside territorial waters, alike in peace and in war, except as the seas may be closed in whole or in part by international action for the enforcement of international covenants. ”

“ A public vessel of war belonging to a foreign sovereign, at peace with the United States, coming into our ports, and demeaning herself in a friendly manner, is exempt from the jurisdiction of the courts of the country. The Exchange, 7 Cranch 116. If there be no prohibition, the ports of a friendly nation are considered as open to the public ships of all other nations with whom it is at peace, and they enter such ports, and remain in them, under the protection of the government of the place. ”

“ No nation can, indeed, safely do so, until a reciprocity, at least, be insured to it. Take, for a proof, the familiar case of the navigation employed in a foreign commerce. If a nation, adhering to the rule of never interposing a countervailing protection of its vessels, admits foreign vessels into its ports free of duty, whilst its own vessels are subject to a duty in foreign ports, the ruinous effect is so obvious, that the warmest advocate for the theory in question must shrink from a universal application of it. ”