Treaties between various powers, restricting navigation.

in concluding a treaty, by which the English were permitted to trade only with the kingdoms of Portugal and Algarva, the islands of Madeira, and the Azores, and on the coast of Barbary: all the Portuguese possessions in the Indies were expressly excepted. (189) Philip IV. king of Spain, in the treaty of Munster, in the year 1648, by which peace was concluded with the states general of the United Provinces, agreed, by the 5th and 6th articles, that the subjects of Spain should not extend their commerce any farther in the Indies; a stipulation which afterwards occasioned very warm disputes between the two countries.

10. Navigation is further limited, when a particular route is prescribed to navigators. Thus, the king of Portugal, in the 21st article of the treaty made in 1669, with the United Provinces, stipulated, that the Dutch should not go in a direct course to Brazil, but that in going and returning, they should touch at Portugal, and pay there the same duties as the Portuguese. Several of the sovereigns of India do not allow European vessels to enter into every part of their dominions without distinction; but only at certain ports; nor do they suffer merchants to trade where they please, but only at particular places designated for commerce.(190) During the war be

(189) Camden annal. Britann. 1571.

(190) Tavernier, Voyage aux Indes, liv. 1.

Various treaties defining the limits of navigation.

tween Spain and the United Provinces, James I. king of England, caused certain limits to be fixed along the coasts of his kingdom, within which he declared he would not suffer any belligerent power to pursue his enemy. He further made known, that to maintain this prohibition, he should keep ships of war to convoy all such vessels, as wished to go in or out of his ports.(191) In a treaty, dated the 14th September, 1689, between the king of France and the dey of Algiers, it was stipulated, that it should be renewed at the accession of each dey, and that the Algerines should not make any prizes within ten leagues of the coast of France. Russia, in our time, has followed this example in the last war she carried on with the Ottoman Porte. France, Tuscany, the republics of Venice and Genoa, did the same in the war between England, and the United States of America.

11. Thus, as often as reasons of state, or any other public consideration may require a government to prohibit foreigners from navigating in their territorial seas, it may lawfully be done without infringing general liberty, or offending against the laws of nature.(192) On the same principle, is founded the

(191) Selden. Mare Clausum, lib. 2.

(192) Singularibus pactis populorum et principum conventis commerciorum jura contineri, et peregrinum finibus arcere, atque etiam fines prætervectum ejicere licet; non modo si bellum indictum sit, verum etiam ipso pacis tempore, ne civium mores peregrinorum consuetudine corrumpantur. Bodinus, de republica, lib. 4, cap. 1. et

Admission of foreign armed ships into port: Mare liberum, mare clausum.

usage, constantly followed by the powers of Europe, of not admitting into their ports, whole fleets of other nations, but only a certain number of ships, except they belong to their allies.(193)

ARTICLE II.

Of the Extent of a territorial Sea.

§ 1. HAVING established the general principles on which the empire of territorial seas is founded, it remains to define what is meant by the terms, open sea, and inclosed sea,* that we may better ascertain what ought to be comprehended under the denomi

lib. 6, cap. 2. Consequens est, ut urgente homines a negativa illa communione discedere, adeoque dominium, quod communioni illi opponitur, introducere animo potuerint. Heineccius, Jure Nat. et Gent. lib. 1, cap. 9, § 234. Selden, Loc. Cit.

(193) Mably, Droit public de l'Europe, tom. 2, p. 300. "A "l'egard des vaisseaux de guerre, il est d'usage de regler le nom"bre de ceux qui peuvent entrer dans un port, et ce nombre est "ordinairement de six vaisseaux." In the treaty concluded between England and Holland, in 1667, confirmed, by subsequent treaties, the 4th article fixes the number of ships of war at eight, that may be allowed to anchor in their respective ports. In the treaty, concluded between the French republic, and the king of the two Sicilies, the 11th October, 1796, it is agreed, by the 4th article, that the number of armed ships, received into their ports, shall not, at most, exceed four.

What is territorial sea.-Opinions of writers differ.

nation of territorial sea, and to corroborate the opinion advanced in the next article, as to the extent of this empire. It is certain, and all writers on this subject have agreed, that that must be called an inclosed sea, the shores of which, like great gulphs, as well as the mouth, communicating with the high sea, belong to one nation.

2. The authors, who have written on maritime rights, are not agreed as to the claims of certain powers to the sovereignty over those gulphs, whose shores do not wholly belong to them; such as that of the ancient republic of Venice, over the Adriatic sea, and that of England over the English channel.* They equally differ in opinion in regard to certain tracts of sea, not forming a gulph, as that of the Ligurian sea, in relation to the republic of Genoa.

3. Writers are still more divided in opinion as to the claim to a general sovereignty of the sea, asserted by some powers, in the height of their prosperity, and founded only on the superiority of their maritime strength, or the celebrity of the victories they have gained a pretension which must appear, to every just and considerate mind, illegal, and injurious to the rights of mankind. "What would they think," says Galliani, in speaking on this subject, "of a sove

reign, who, having two hundred thousand men in "his pay, should, for that reason, suppose himself

La Manche.

66

66

General sovereignty of the sea, absurd and unjust.

"the master of those princes who had only thirty or forty thousand men in their service? Would it not "be confounding the ideas of right with those of power, and serve to establish a theory always unjust, often arrogant, and sometimes, in spite of its success, vain and ruinous ?"(194) It follows, therefore, that there can be no just title to the sovereignty of these seas, any more than to that of the high sea, unless there have been particular treaties to that ef fect; and these will be binding on those nations

(194) Galliani, de Doveri de' Principi neutrali in tempo di guerra, etc. lib. 1.

*See on this subject, the commentary of Valin on the marine. ordinance, vol. 2, book 8, page 689, ed. Rochelle, 1776.

A very late writer, Dr. Arthur Browne, professor of the civil law, in the university of Dublin, in a recent work, entitled, A compendious view of the civil law, and of the law of admiralty, makes the following judicious remarks, on this subject:-"The disputes about "Mare clausum and Mare liberum, engrossed, in the last century, "the attention of all Europe. They were occasioned by the claim "of the English to the dominion of the neighbouring seas, even as "far as the opposite coasts; a claim, which could have been found"ed only in treaty, and if it rested merely on use, was supported "solely by power; the licence of Britain was the sole key to the navigation of those seas; the claim was extravagant as it was haughty; the sea, at least, out of cannon-shot of the coast, is "common to all; yet it was supported by the learned Selden, and required, at that time, confutation from the able pens of Grotius "and Bynkershoek. I do not mean to impeach that dominion of "the sea, and respect demanded by the British flag, which parti"cular treaties concede, or which the general consent of Euro"pean nations grants, in the four seas, to the undisputed superiority "of the naval power of Britain."---Vol. 2, p. 9....T.