The supremacy asserted by the king of Denmark over the Baltic Sea. Sound and the two belts which form the outlet of the Baltic Sea into the ocean, is rested by the Danish publicists upon immemorial prescription, sanctioned by a long succession of treaties with other powers. According to these writers, the Danish claim of sovereignty has been exercised from the earliest times beneficially for the protection of commerce against pirates and other enemies by means of guard-ships, and against the perils of the seas by the establishment of lights and land-marks. The Danes continued for several centuries masters of the coasts on both sides of the Sound, the province of Scania not having been ceded to Sweden until the treaty of Roeskild in 1658, confirmed by that of 1660, in which it was stipulated that Sweden should never lay claim to the Sound tolls in consequence of the cession, but should content herself with a compensation for keeping up the light-houses on the coast of Scania. The exclusive right of Denmark was recognised as early as 1368, by a treaty with the Hanseatic republics, and by that of 1490 with Henry VII. of England, which forbids English vessels from passing the Great Belt as well as the Sound, unless in case of unavoidable necessity; in which case they were to pay the same duties at Wyborg as if they had passed the Sound at Elsinore. The treaty concluded at Spires in 1544, with the emperor Charles V., which has commonly been referred to as the origin, or at least the first recognition, of the Danish claim to the Sound tolls, merely stipulates, in general terms, that the merchants of the Low Countries frequenting the ports of Denmark should pay the same duties as formerly. The rates of the tariff were first definitely ascertained by the treaty of Christianopel, in 1645, with the Dutch, and this has since served as the standard for the duties payable by other nations privileged by treaty. Those not privileged pay according to a more ancient tariff on the specified articles, and one and a quarter per cent. on unspecified articles. 11 11 Schlegel, Staats-Recht des Königreichs Danemark, 1 Theil, cap. 7, §§ 27-29. is mare clausum? Qu. WheThe Baltic Sea is considered by the maritime powers borther the Baltic Sea dering on its coasts as mare clausum against the exercise of hostilities upon its waters by other powers whilst the Baltic powers are at peace. This principle was proclaimed in the treaties of armed neutrality in 1780 and 1800, and by the treaty of 1794 between Denmark and Sweden, guarantying the tranquillity of that sea. In the Russian declaration of war against Great Britain of 1807, the inviolability of that sea and the reciprocal guarantees of the powers that border upon it (guarantees said to have been contracted with the knowledge of the British government) were stated as aggravations of the British proceedings in entering the Sound and attacking the Danish capital in that year. In the British answer to this declaration, it was denied that Great Britain had at any time acquiesced in the principles upon which the inviolability of the Baltic is maintained; however she might, at particular periods, have forborne, for special reasons influencing her conduct at the time, to act in contradiction to them. Such forbearance never could have applied but to a state of peace and real neutrality in the north; and she could not be expected to recur to it after France had been suffered, by the conquest of Prussia, to establish herself in full sovereignty along the whole coast, from Dantzic to Lubeck.12 § 10. Controver the seas. The controversy how far the open sea or main ocean, besy respect- yond the immediate vicinity of the coasts, may be approing the do- priated by one nation to the exclusion of others, which once minion of exercised the pens of the ablest European jurists, can hardly be considered open at this day. Grotius, in his treatise on the Law of Peace and War, hardly admits more than the possibility of appropriating the waters immediately contiguous, though he adduces a number of quotations from ancient authors, showing that a broader pretension has been sometimes sanctioned by usage and opinion. But he never intimates that any thing more than a limited portion could be thus claimed; and he uniformly speaks of “pars,” or “ portus 12 Annual Register, vol. xlix. (State Papers,) p. 773. 66 maris," always confining his view to the effect of the neighbouring land in giving a jurisdiction and property of this sort.13 He had previously taken the lead in maintaining the common-right of mankind to the free navigation, commerce, and fisheries of the Atlantic and Pacific Oceans, against the exclusive claims of Spain and Portugal, founded on the right of previous discovery, confirmed by possession and the papal grants. The treatise De Mare Libero was published in 1609. The claim of sovereignty asserted by the kings of England over the British seas was supported by Albericus Gentilis, in his Advocatio Hispanica, in 1613. In 1635, Selden published his Mare Clausum, in which the general principles maintained by Grotius are called in question, and the claim of England more fully vindicated than by Gentilis. The first book of Selden's celebrated treatise is devoted to the proposition that the sea may be made property, which he attempts to show, not by reasoning, but by collecting a multitude of quotations from ancient authors, in the style of Grotius, but with much less selection. He no where grapples with the arguments by which such a vague and extensive dominion is shown to be repugnant to the law of nations. And in the second part, which indeed is the main object of his work, he has recourse only to proofs of usage and of positive compact, in order to show that Great Britain is entitled to the sovereignty of what are called the Narrow Seas.14 Father Paul Sarpi, the celebrated historian of the council of Trent, also wrote a vindication of the claim of the republic of Venice to the sovereignty of the Adriatic.15 Bynkershoek examined the general question, in the earliest of his published works, with the vigour and acumen which distinguish all his writings.. He admits that certain portions of the sea may be susceptible of exclusive dominion, though he denies the claim of the English crown to the British seas on the ground of the want of uninterrupted possession. He asserts that there was 13 De Jur. Bel. ac Pac. lib. ii. cap. 3, §§ 8—13. 14 Edinburgh Review, vol. xi. art. 1, p. 16. 15 Paola Sarpi, Del Dominio del Mare Adriatico e sue Reggioni per il Jus Belli della Serenissima Rep. de Venezia, Venet. 1676, 12o. § 11. Rivers the state. no instance, at the time when he wrote, in which the sea was subject to any particular sovereign, where the surrounding territory did not belong to him.16 Puffendorf lays it down, that in a narrow sea the dominion belongs to the sovereigns of the surrounding land, and is distributed, where there are several such sovereigns, according to the rules applicable to neighbouring proprietors on a lake or river, supposing no compact has been made, "as is pretended," he says, "by Great Britain;" but he expresses himself with a sort of indignation at the idea that the main ocean can ever be appropriated. The authority of Vattel would be full and explicit to the same purpose, were it not weakened by the concession, that though the exclusive right of navigation or fishery in the sea cannot be claimed by one nation on the ground of immemorial use, nor lost to others by non-user, on the principle of prescription, yet it may be thus established where the non-user assumes the nature of a consent or tacit agreement, and thus becomes a title in favour of one nation against another.18 17 The territory of the state includes the lakes, seas, and rivers entirely enclosed within its limits. The rivers which forming part of the flow through the territory also form a part of the domain, territory of from their sources to their mouths, or as far as they flow within the territory, including the bays or estuaries formed by their junction with the sea. Where a navigable river forms the boundary of conterminous states, the middle of the channel, or Thalweg, is generally taken as the line of sepation between the two states, the presumption of law being that the right of navigation is common to both; but this presumption may be destroyed by actual proof of prior occupancy, and long undisturbed possession giving to one of the ripuarian proprietors the exclusive title to the entire river.19 16 De Dominio Maris, Opera Minora, Dissert. V. first published in 1702. 17 De Jure Naturæ et Gentium, lib. iv. cap. 5, § 7. 18 Droit des Gens, liv. i. ch. 23, §§ 279–286. 19 Vattel, Droit des Gens, liv. i. ch. 22, § 266. Martens, Précis du Droit des Gens Moderne de l'Europe, liv. ii. ch. 1, § 39. § 12. on rivers different Things of which the use is inexhaustible, such as the sea Right of and running water, cannot be so appropriated as to exclude innocent others from using these elements in any manner which does passage not occasion a loss or inconvenience to the proprietor. This flowing is what is called an innocent use. Thus we have seen that through the jurisdiction possessed by one nation over sounds, straits, states. and other arms of the sea, leading through its own territory to that of another, or to other seas common to all nations, does not exclude others from the right of innocent passage through these communications. The same principle is applicable to rivers flowing from one state through the territory of another into the sea, or into the territory of a third state. The right of navigating, for commercial purposes, a river which flows through the territories of different states, is common to all the nations inhabiting the different parts of its banks; but this right of innocent passage being what the text writers call an imperfect right, its exercise is necessarily modified by the safety and convenience of the state affected by it, and can only be effectually secured by mutual convention regulating the mode of its exercise.20 § 13. right to Incidental banks of It seems that this right draws after it the incidental right of using all the means which are necessary to the secure enjoyment of the principal right itself. Thus the Roman law, use the which considered navigable rivers as public or common pro- the rivers. perty, declared that the right to the use of the shores was incident to that of the water; and that the right to navigate a river involved the right to moor vessels to its banks, to lade and unlade cargoes, &c. The publicists apply this principle of the Roman civil law to the same case between nations, and infer the right to use the adjacent land for these purposes as means necessary to the attainment of the end for which the free navigation of the water is permitted,21 20 Grotius, de Jur. Bel, ac Pac lib. ii. cap. 2, §§ 12—14; cap. 3, §§ 7—12. Vattel, Droit des Gens, liv. ii. ch. 9, §§ 126-130; ch. 10, §§ 132-134 Puffendorf, de Jur. Naturæ et Gentium, lib. iii. cap. 3, §§ 3—6. 21 Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 2, § 15. Puffendorf, de Jur. Naturæ et Gentium, lib. iii. cap. 3, § 8., Vattel, Droit des Gens, liv. ii. ch. 9, § 129. |