亨利-梅因：国际法Lecture 4

ommon property. And the moot point was whether there was anything in nature， whatever that word might have meant， which either pointed to the community， of the sea or of rivers， and also what did history show to have been the actual practice of mankind， and whether it pointed in any definite way to a general sense of mankind on the subject. We do not know exactly what was in tile mind of a Roman lawyer when he spoke of nature. Nor is it easy for us to form even a speculative opinion as to what can have been the actual condition of the sea in those primitive ages somehow associated with the conception of nature. The slender evidence before us seems to suggest that the sea at first was common only in the sense of being universally open to depredation. The sea of early Greek literature appears to have swarmed with pirates. But there is older evidence. There are some Egyptian inscriptions which appear to speak of piratical leagues formed among the small Mediterranean states for making descent on weak and wealthy maritime communities. There are some of the names recorded which may be identified with the ancient appellations of tribes subsequently famous； and one cannot avoid the suspicion that the famous war of Troy arose from an expedition of this kind， whatever other pretexts for it there may have been. Whatever jurisdiction may have been asserted probably did not spring from anything which may be called nature， but was perhaps a security against piracy. At all events this is certain， that the earliest development of Maritime Law seems to have consisted in a movement from mare liberum， whatever that may have meant， to mare clausum from navigation in waters over which nobody claimed authority， to waters under the control of a separate sovereign. The closing of seas meant delivery from violent depredation at the cost or by the exertion of some power or powers stronger than the rest. No doubt Sovereignty over water began as a benefit to all navigators， and it ended in taking the form of protection. Mr. W. E. Hall， in a very interesting chapter of his volume （Part

ii. 2）， has shown that International Law， in the modern sense of the words， began in a general system of mare clausum； the Adriatic， the Gulf of Genoa， the North Sea， and the Baltic， were all closed and were under authority， and England claimed to have precedence and to exercise jurisdiction of various kinds from the North Sea and the parts of the Atlantic adjoining Scotland and Ireland southwards to the Bay of Biscay. In all these waters the omission to lower the flag to a British ship would have been followed by a cannon shot. Thenceforward the progress of maritime jurisdiction was reversed —— from mare clausum to mare liberum. And the Sovereignty allowed by International Law over portions of the sea is in fact a decayed and contracted remnant of the authority once allowed to particular states over a great part of the known sea and ocean.

　　The causes which threw open a large number of maria clausa are not obscure. In the first place there was the opinion of some of the most respected and authoritative of the founders of International Law. For example， the strong opinion of Grotius， perhaps the most reverenced of all these writers， that the proper doctrine was that of the mare liberum. Next， and more especially， this opening of seas was brought about by the discovery of America and the passage round the Cape of Good Hope. The repugnance of the most adventurous states to the extravagant pretensions of Spain and Portugal was quickened and stimulated by the knowledge， that their title was founded in the main on a partition of the eastern and western oceans by an authority which the new maritime nations， the Dutch and the English， no longer reverenced —— the Pope. Thus the widely prevailing exclusive maritime Sovereignty of early days declined. The English claims dwindled to claims over territorial water close to the coast， and over portions of the sea interposed between promontory and promontory known as the King's Chambers， and over the whole of the narrow seas for ceremonial purposes； these last claims were once so serious that even Philip II of Spain was fired into by an English captain for flying his flag when he came into the narrow seas tor the purpose of marrying our Queen Mary.

　　The language of the ordinance of Hastings， attributed to lying John， was even much stronger：

　　'If a lieutenant of the lying do encounter upon the sea any ships or vessels， laden or unladen， that will not strike or veil their bonets at the commandment of the lieutenant of the lying， he will fight against them of the fleet； if they be taken they be reported as enemies， and their ships and goods taken and forfeited as the goods of enemies.'

　　I have already spoken of the doubts entertained by English judges， and expressed in the 'Franconia' case， as to that jurisdiction over three miles or a league which is said to exist over territorial waters. If those opinions be examined， it will seem that the doubts chiefly rest on the fluctuations and differences of view as to the exact extent of territorial water which may be claimed under the general rule of International Law. In some cases the claim is identical with that of the international writers to Sovereignty for three miles over the water next adjoining the shores. In other cases the claim is larger. It is easy to understand these differences if we bring home to our minds that what took place was a renunciation of indefinite for definite claims， entailing generally a contraction of the extent of sea asserted to be within a given jurisdiction.

　　Another survival of larger pretensions is the English claim to exclusive authority over what were called the King's Chambers. These are portions of the sea cut off by lines drawn from one promontory of our coasts to another， as from the Land's End to Milford Haven. The claim has been followed in America， and a jurisdiction of the like kind is asserted by the United States over Delaware Bay and other estuaries which en

ter into portions of their territory. A more indefinite claim was advanced by British sovereigns to a larger extent of the water by the prohibition which they issued against the roving or， as the technical word was， the hovering of foreign ships of war near the neutral coasts and harbours of Great Britain. In more recent times what was known as the 'Hovering Act' was passed， in 1736， and this assumes for certain revenue purposes a jurisdiction of four leagues from the coast by prohibiting foreign goods to be transhipped within that distance without payment of duties. The United States here again have copied this provision， and in either country the statutory legislation has been declared by the courts of justice to be consistent with the law and usage of nations. The once extensive but now greatly diminished claims of Great Britain have not been exclusively of advantage to her. We have a trace of the amplitude of the old claim in the necessity which Great Britain has submitted to of great expenditure on the costly duty of lighting by lighthouses and in other ways a much larger extent of seaway than is clearly under her jurisdiction.

　　The jurisdiction of a state over a portion of the sea nearest its coasts， either as a fragment of ancient claims or under the rule of International Law， is often said to exist by virtue of a fiction under which water is treated as land. You will find on examining the opinions of the judges in the 'Franconia' case that the admissibility or otherwise of such a fiction fills considerable space in the arguments. Conversely， the full Sovereignty of a state over the portions of land which it includes， and which are covered by water， rivers and lakes， might be supposed to exist under the Law of Nature. But this apparent natural completeness of Sovereignty is limited， as is seen in one case which has had more than its share of attention from international writers. Wherever， as often happens in a river of great length， it passes through the territory of a considerable number of states， it has been asserted that each one of those states has a right of navigation to the sea； and it has even been claimed that wholly foreign states can navigate the river from its mouth up to any one of the co-riparian sovereignties. It is the fact that such a right as I hare described has been exercised in all great European rivers for many centuries， and I believe the reason to be one which every traveller along such a river as the Rhine will at once understand. The command of a portion of the river was not valued in former days for the purpose of obstructing or closing it： its advantage consisted in the tolls which were exacted from a vessel as it passed from one sovereignty to another， and the long rivers were burdened with obligatory payments of this kind down to the mouth. Of course the burden was excessively heavy on the Rhine owing to the number of semi-sovereignties or fractional sovereignties which abounded within the limits of the Empire. In one instance a portion of the Rhine was absolutely closed under a provision of the Treaty of Westphalia. The Scheldt， or passage through the Dutch territory at the mouth， was closed to every other co-riparian Power， and was free only to the Dutch themselves. There was some pretext for this exceptional rule， because no doubt this portion of the Rhine was mainly the work of Dutch industry， for the river enters there into the gigantic constructions which have been made by Dutch engineers and by Dutch labourers for the purpose of protecting or recovering the Dutch territory from the sea. The closing of the Scheldt was， however， never in favour with the international writers， and was for a great length of time strongly objected to. It has a gloomy celebrity， for it was the forcible opening of this passage by the

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