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No. CCXXIII.-February, 1877.



JT is recorded of a great Italian Jurist of the fifteenth 1 century, who is styled in the epitaph on his monument in St. Anthony's Church at Padua, “the Wonder of his Age” in both branches of the Law (Utroque jure Stupor), that he was wont to say when he was a young student, that of other matters and points of Law he could attain to some understanding by his private study and Chamberdisquisitions, but in the point of jurisdiction he could understand nothing but what he heard in the schools Voce Magistri. There is probably no branch of jurisprudence, to which this apt remark of the Paduan Professor applies more forcibly in the present day, if the Courts of Law be substituted for the Schools of Law, than that branch of International Jurisprudence which is conversant with maritime rights, respecting which several questions of a novel character have recently been raised ;* and, more especially one, which involves a conflict of personal and territorial jurisdiction, the settlement of which is beyond the domain of the text-writers, and the solution of which by the decision of the highest English Court of Criminal Jurisdiction will only be authori. tative for British purposes. The question has arisen by reason of a collision between the German vessel Franconia and the British vessel Strathclyde, which happened in the open sea within a marine league from the Admiralty Pier at Dover, in consequence of which collision a passenger on board the Strathclyde was drowned. The Master of the Franconia, having landed at Dover, and having so placed himself personally within the local jurisdiction of an English Court of Criminal Law, has been arrested and tried before an English Jury, and has been found guilty of "homicide by negligence," a crime unknown to the Law of the Sea, but known to the Law of the Land of England; to which latter law, it has been asserted on behalf of the Crown, that all persons are subject, who navigate the High Seas within the distance of a marine league from the English Coast, no matter whether they are navigating under a British or under a foreign flag. This contention on behalf of the Crown involves one or other of two postulates ; (I) either that the three-mile zone of open sea which girds the coast of any State, is by the Common Law of Nations a continuation of its territory, and is subject to its jurisdiction as absolutely as the coast itself ;* (2), or that the three-mile zone of open sea may be prescribed for, and that in the case of the British Channel England has a prescriptive right of absolute jurisdiction over all persons navigating that Channel within a marine league of her coasts.t

*e.g. The question of the respect due from the Queen's Ships of War to the Law of the Land, if they come within the territorial waters of a foreign State, has lately been discussed in the Report of the Fugitive Slave Commissioners ; but, unfortunately, the Commission has not defined the sense, in which the phrase “territorial waters ” is to be understood.


These postulates, although they are both antagonistic to the general principle of Natural Right, that, as the open sea

* We do not wish to understate the claim of the Crown, which was perhaps moro extensive, but it would have been sufficient for the purpose of maintaining the legality of the finding of the Jury, if the territorial jurisdiction of the British Crown over the three-mile zone could have been maintained.

† The Admiralty Jurisdiction is a distinct jurisdiction from either of these, and the law, which the Instance Court of Admiralty properly administers between Nations, is the consuetudo maris.

is physically incapable of occupation, it is not susceptible of dominion, and, inasmuch as no nation can reduce it into its possession, it is and must ever remain nullius territorium, rest upon very different assumptions, and require for their establishment very different proofs. The former, for instance, would require for its establishment the evidence either of a common practice, or of an overt consensus gentium as to the general right; the latter, on the other hand, might be proved, by lapse of time, establishing the presumption of the abandonment by other nations of their natural right of free navigation in parts of the British Channel, and the consequent acquisition of dominion over those waters by England, as in the case of land, in virtue of the tacit consent of other nations. Grotius, however, who first associated sovereignty over persons with dominion over territory, in the sense that every nation occupying a vacant country must be taken to acquire not merely a disposing power over all things within it, but likewise an exclusive right of command over all persons within it, did not admit at first that the open sea was in any way susceptible of exclusive dominion on the part of any nation “in virtue of prescriptive right; as in his early work on the “ Right of Prize,"* written by him in 1604, in support of the claim of the Dutch to trade in the Eastern Seas, notwithstanding the Portuguese asserted their exclusive right to that trade, he repudiated altogether the application of the principle of prescription to the open sea on three grounds : (1.) On the ground that the Civil Law forbade it; “Quin et ipsa lex civilis præscriptionem hic impedit. Usucapi enim aut præscriptione acquiri prohibentur, quæ in bonis esse non possunt; deinde quæ possideri vel quasi possideri nequeunt, et quorum alienatio prohibita est. Hæc autem omnia de mari et usu maris vere dicuntur."

* Hugonis Grotii Commentarius de Jure Prædæ, printed for the first time at the Hague, in 1868, by Martin Nijhoff, from the original MS. The shorter treatiso, known as the “ Mare Liberum," originally published in 1608, is an extract from this work, being a portion of the twelfth Chapter.

(2.) On the ground that a prescriptive right can only be maintained, where a valid title by acquisition may be presumed. (3.) On the ground that the right of navigation on the open sea is a jus meræ facultatis, which does not require a continuous exercise to maintain its validity, and, consequently, can neither be lost by any nation from nonuser, nor be acquired by any one nation to the exclusion of all others. Grotius, however, in his later Treatise, “De Jure Belli et Pacis,” modified his view as to the sea not being susceptible of dominion on the part of a nation in cases, where other nations have acquiesced in its assertion ; but he still maintained that the right to the use of the open sea was a jus meræ facultatis, and that something more than non-user on the part of other nations must be shown in order to establish the abandonment of their natural right in the exclusive favour of a single nation. Vattel, the disciple of Wolff, agreed with Grotius in holding that the right of navigation on the high seas belongs to the class of rights of mere ability (jura mera facultatis), which are imprescriptible, and cannot be lost simply from want of use. (B. I, s. 285.) But he holds, at the same time, that the non-usage of a right of navigation may assume the nature of a consent or tacit agreement, and thus become a title in favour of one nation against another. (S. 286). It also seems to have been the opinion of two great masters of jurisprudence, who have adorned the judicial bench in recent times, and who had frequent opportunities to test the soundness of the principles maintained by Grotius and Vattel in their practical application to the actual intercourse of Nations, that in the case of portions of the Sea a Nation may have a peculiar possession of them, so as to exclude other nations from the common use of them. Lord Stowell, for instance, held that portions of the Sea may be prescribed for, and Mr. Justice Story held it to be legally possible, that a Nation might have an exclusive use of a portion of the Sea founded on the acquiescence or tacit consent of other Nations. (The Fame, 3 Mason's Reports.

p. 150). But Lord Stowell also held that the general presumption certainly bears strongly against such exclusive rights, and the title is a matter to be established on the parts of those claiming under it, in the same manner as all other legal demands are to be substantiated by clear and competent evidence. (The Twee Gebroeders, Northwold, Ch. Robinson, p. 339). It is unnecessary to add, that precisely as in the case of land, where a title by usucaption or prescription is set up, the continuous possession of the land for a length of time is an indispensable element of title; so, where an exclusive right of dominion over any portion of the open sea is asserted, it is a conditio sine quia non that the party asserting the title should be able to show, that it has exercised the right for a length of time, without interruption and without dispute. What lapse of time is requisite to found a title by prescription as between nations, has not been definitely settled. The Law of Nature suggests no rule on this head, but if the landmarks of possession go back so far that the memory of man runneth not to the contrary, all nations would probably admit under such circumstances the validity of a claim of prescriptive right. “ It is further to be noted," writes Grotius, “that since in those places where that Law of Nations (namely, the law which is founded on common consent) is not received, or is abolished, it is not to be inferred from the mere occupation of the land, that the sea is occupied; so also that a mere mental act does not suffice for the occupation of the sea ; but there is need of some external act (as the presence of ships), by which the occupation may be understood to take place. And, again, that if the possession, which arose from occupation, be given up by desertion, the sea forthwith returns to a state of nature, that is, to community of use.” (Right of Peace and War. Whewell's translation, B. ii. ch. iii. s. xi.)

The claims of the kings of England to the lordship of the seas, which wash the English coast, may be traced back

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