Page images

would twice in the year scour the Sea of such pirates, but I mean not thereby that the King is bound to conduct his merchants upon the sea against all outward enemies, but that he is bound only to put away such pirates and petit robbers."

This claim to the Lordship of "the Narrow Sea," which the Student in the above passage asserts for the Kings of England, cannot be traced so far back as their claim to the Lordship of “the Four Seas,” unless upon the principle that omne majus continet in se minus. Nevertheless the Lordship of “the Narrow Sea,” as asserted by the Commons of England in the Reign of Henry V., rested on a more solid pretext of right than the Lordship of “the Four Seas.” It rested on a principle of Public Law, which holds good in the present day in respect of the stream of navigable rivers, namely, that the Kings of England, being in physical possession of both shores of the British Channel, were in juridical possession of the waters contained between those shores. Such is the inference to be drawn from the petition presented to the Crown, in 1421, in which the Commons pray, " that in virtue of the fact that by the Grace of God the King's Highness was Lord of the Coasts of both parts of the Sea, he should levy upon all strangers passing along the sea such dues for the advantage of the King's Highness, as should seem to him reasonable for the safeguard of the sea.” (Rot. Parliamenti 8. Henr. V. Tom. IV. p. 126.) There is also evidence of the same period, but of a more popular kind, that the Kings of England were at that time accounted to be in possession of “the Narrow Sea.” It is to be found in an ancient black-letter poem, which has been preserved by Hakluyt, in his collection of Voyages (Vol. I. p. 107), and which is entitled “ The Libel of English Policie, exhorting all England to keepe the Sea, and, namely, the Narrow Sea." The scheme of this poem is to urge the English nation to maintain its supremacy over the British Channel, and it represents the Emperor Sigismund I., who came to England, in 1416, in the hope of restoring peace between the French and the English Crowns, as addressing to King Henry V. the following counsel :

" And to the King thus he sayd: my Brother

(When he perceived two towns, Caleis and Dover)
Of all the townes to chuse of one and other
To keepe the Sea, and soone to come over
To weero (war) outwards and your regne to recover,
Keepe these two Townes sure, and your Majestee,
As your tweyne eyne, so keepe the Narrow Sea.”

The phrase "narrow sea " is used repeatedly throughout this poem, which fills twenty-two folio pages, to signify the Channel between Dover and Calais, but however much the Commons of England may have been desirous to diminish their own war-burdens by levying tolls on strange ships passing along “the narrow sea,” the Crown of England does not appear to have ventured to give effect to their prayer.

This claim on behalf of the Crown of England to exercise absolute dominion over “ the narrow sea,” as far as it rested on its possession of both shores, had a well defined beginning, as Calais did not become a possession of the British Crown before A.D. 1347 (21 Ed. III.) It had also a well defined ending, when the Crown of England lost the last of its possessions on the French coast by the surrender of Calais in 1558. On the other hand, if England's title to such a dominion rested on a prescriptive right, which had a valid origin, and had been acquiesced in by other nations, her title to exercise that dominion would not have been necessarily extinguished by the severance of Calais from its allegiance to the British Crown, any more than the prescriptive right of Denmark to levy tolls on all vessels, passing along the Channel known as the Ore-Sound, ceased on the dissolution of the Union of Calmar, or on the separation of Norway from Denmark in 1814. But England's title to any such dominion, whether it originated in her possession of both coasts or rested upon a prescription, to the contrary of which the memory of man runneth not, has long since been forfeited, for its use has been neglected by her for such a length of time as to found a presumption juris et de jure, that she has abandoned it. “Celui qui abandonne une chose cesse d'en être le inaître, et par conséquent une chose abandonnée devient une chose qui n'est à personne.” (Wolff, Droit des Gens, $ cciii.) It would seem, however, from a report submitted by Sir Leoline Jenkins, in 1666, to King Charles II., that the Crown of England at that time was desirous to uphold the right of neutral sanctuary in the narrow part of the British Channel, much in the same way as the Baltic Powers have at times been desirous to maintain within the Baltic Sea the right of neutral sanctuary, when the Baltic Powers are not at war.* The question arose upon the capture of a Biscayan ship in the British Channel, by a Portuguese frigate, which had brought her Prize into a British port, whether the British Crown might rightfully divest the captor of his prize on the ground of the capture being made in British waters. “However the truth may be," writes Sir Leoline to the King's Council, “as to the Chambers, 'tis certain the seizure was made in your Majesty's seas. But so it is, that, notwithstanding your Majesty's undoubted right of dominion and protection in these seas, strangers do hold themselves, if not permitted, yet excused for such hostilities, when they are acted at a due distance from your Majesty's ports, harbours, and chambers, grounding themselves upon what was done between Spain and the Netherlands.”—(Life of Sir Leoline Jenkins, vol. ii., p. 732). Sir Leoline would appear to refer in the above Report to the proclamation which had been made by King James I. in 1604, during the war between Spain and the Low Provinces, touching his resolution to maintain the right of neutral sanctuary upon the Seas sur

* Treaty of 28th of June, 1780, between Denmark and Russia. Treaty cf 8th May, 1781, between Russia and Prussia. Treaty of 27th March, 1794, between Denmark and Sweden.

rounding England within such limits as were necessary for the safety and welfare of the State, and respecting which Vattel ($ 288) writes in these words :-"During the war between Spain and the United Provinces, James I., King of England, marked out along his coasts certain boundaries, within which he declared that he would not suffer any of the powers at war to pursue their enemies, nor even allow their armed vessels to stop and observe the ships, that should enter or sail out of the ports.” Selden* cites this proclamation of the neutrality of the King's Chambers as evidence of the King of England's right to exercise dominion over all persons within the Seas, which surround England, at any distance from the coasts of England; whilst Albericus Gentilis,t in an argument on behalf of a Spanish vessel captured by a Dutch Letter of Marque within one of the King of England's Chambers, treats the edict of James I. as limiting the right of neutral sanctuary to the waters immediately adjacent to the English coasts, and as repudiating all territorial jurisdiction beyond those limits (ultra fines illos).

Other claims to dominion over the Sea adjacent to their territory have been set up by other States, for instance by Venice to the Adriatic, by Genoa to the Ligurian Sea, by Denmark to a portion of the North Sea. All these claims rested on prescriptive right, and have been long since abandoned. But another class of claims to dominion over the Sea, more extravagant indeed than any which were grounded on ancient prescription, were set up in comparatively modern times, founded on a pretended right of occupation of the Sea, as in the case of the Portuguese, who claimed dominion over the Eastern Ocean in virtue of Vasco de Gama having first discovered and sailed over those Seas in 1497. But as regards this right of occupation, Grotius aptly remarks, “ Nimirum apparet in nulla re verius dici posse, quod doctores nostri prodiderunt, mare, cum sit incomprehensibile non minus quam aer, nullius populi bonis potuisse applicari. Si vero ante alios navigasse et viam quodammodo aperuisse, hoc vocant occupare, quid esset magis ridiculum; nam, cum nulla pars sit maris, in quam non aliquis primus ingressus sit, sequetur omnem navigationem ab aliquo esse occupatam. Ita undique excludimur. Quin et illi, qui terrarum orbem circumvecti sunt, totum sibi oceanum acquisivisse dicendi erunt. Sed nemo nescit navem per mare transeuntem non plus juris, quam vestigii, relinquere.” (De Jure Frædæ, cap. XII., p. 227.) We pass by the Papal Donations of Nicholas V. and of Alexander VI. in favour of Portugal and Spain respectively. England, in the person of her Queen, Elizabeth, refused to acknowledge any title in the Spaniards in virtue of the Papal Donation to exclude either her subjects or those of any other European Prince from the navigation of the Seas of the Western Indies ; whilst the exaggerated pretensions of Portugal to exclude the Dutch from the navigation of the Seas of the Eastern Indies provoked that insurrection of public opinion in favour of the Liberty of the High Seas, at the head of which Grotius placed himself. Grotius had indeed been preceded by Balthazar Ayala and Albericus Gentilis as explorers of the way, but he himself led the van of the great intellectual movement, which swept away the ancient traditions of the Imperial Law applicable to the High Seas, and he laid the foundations of a new order of ideas on public law, which, to use the language of the Historian of the Middle Ages,* may be considered to be as nearly original in

* Mare Clausum, ch. xxii. + Hispanicæ Advocationes, L. 1, ch. viii. (De Marino territorio tuendo.) Albericus Gentilis makes the observation, that a great part of the Law of England was in the breasts of the Judges, so that Foreign Powers could not be expected to submit to their conclusions. “Etiam in scrinio pectoris nostrorum Judicam esse multum Anglicani juris dicitur, ubi non se patientur concludi externi Roges."

• fallam's History of Literature, Part iii. ch. iv. $ 84.

« PreviousContinue »