Читать книгу The Sovereignty of the Sea - Thomas Wemyss Fulton - Страница 6

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One of the most prominent and characteristic features in English history relates to the sea and maritime affairs, and the reason is not far to seek. The geographical situation of the country—everywhere surrounded by the waves, separated on the one side from the Continent by a narrow strait and open on the other to the great ocean—made it almost inevitable. And to the advantage of insularity was added the potent influence of race. A great part, if not the larger part, of our blood has come from the old Scandinavian peoples,—the sea-wolves, as the Roman poet said, whose school was the sea and who lived on the pillage of the world; and it is to this circumstance even more perhaps than to the accident of position that we owe our maritime and naval supremacy and the vast empire scattered around the globe. Running through the web of English history one perceives the connecting thread of maritime interest and occupation interwoven with the national life, and at all times affecting the national policy. First and foremost was the necessity of securing the land from invasion; then came the duty of safeguarding shipping and commerce; and with regard to those fundamental interests, the language used by our rulers centuries ago was the same as that which is used by our statesmen to-day. The sea must be “kept.” That has been the maxim and watchword of national policy throughout the ages, and the recognition of its truth was by no means confined to rulers and statesmen. The people at large have always been as convinced and as resolved that the supremacy or dominion on the sea should be maintained as were those in whose hands was placed the guidance of the affairs of the state. Again and again, when owing to mismanagement of the national resources, the poverty of the exchequer, or from some other cause, the supremacy at sea was endangered or temporarily lost, one will find the people clamouring for steps to be taken to maintain it. On the other hand, such was the deep and abiding sentiment with respect to the sovereignty of the sea, when this king or that wished to embark upon a policy or engage in a war for an object that was secret or unpopular, there was no better method of deceiving the people than by declaring that the dominion of the sea was in danger. Thrice in the compass of a single generation the nation was plunged into war with the object of maintaining it.

One thus finds in English history a great deal which refers to the sovereignty of the sea, although the words were not always used to signify the same thing. Most commonly perhaps they meant a mastery or supremacy by force of arms,—what is now so much spoken of as sea-power. In times of peace, the strength of the navy should be such as to safeguard the commerce that came to the realm and went from it, thus enabling merchants and traders to carry on their traffic in security. In time of war, the fleets should be strong enough to sweep the seas, so that, as it has been described, the bounds of the empire should then be the coasts of the enemy. But, more strictly, the sovereignty of the sea was a political sovereignty that existed as a matter of right, and was duly recognised as such, apart from an actual predominance of naval power at the time, just as the sovereignty of a state exists on land, though in both cases its maintenance may depend upon the sword. In this sense, the sovereignty of the sea signified the same sole power of jurisdiction and rule as obtained on land, and also, in its extreme form, an exclusive property in the sea as part of the territory of the realm,—very much indeed like the rights that are now admitted by the law of nations to appertain to the so-called territorial waters of a state. Many things and many interests were thus embraced in the term besides the question of naval ascendency. There were jurisdictions of various kinds and for various purposes. There was the important subject of the fisheries in the waters adjacent to the coasts, or, it might be, in distant regions. There was the still more important question of the freedom or restriction of commerce and navigation from one European country to another, or to the remote countries in the east or west which had been opened up to commercial enterprise by the discoveries of the early navigators. There was, moreover, another subject which was specially characteristic of the English pretensions to the dominion of the seas, and which gave rise to more trouble than all the others combined, and that was the demand that foreign vessels on meeting with a ship of the king’s should lower their top-sails and strike their flag as a token and acknowledgment of that dominion.

Although according to the Roman law the sea was common and free to all, in the middle ages many seas had become more or less effectively appropriated, and Civilian writers began to assign to maritime states, as a principle of law, a certain jurisdiction in the waters adjacent to their coasts. The distance to which such jurisdiction was allowed by those writers was variously stated. Very commonly it extended to sixty or one hundred miles from the land, and thus included all the bordering sea within which navigation was practically confined. Sometimes the principle governing the ownership of rivers was transferred in theory to the sea, the possession of the opposite shores by the same state being held to entitle that state to the sovereignty over the intervening water; or, if it possessed only one shore, to the same right as far as the mid-line. In most cases, however, the appropriation of the sea was effected by force and legalised afterwards, if legalised at all, and the disputes on the subject between different nations not infrequently led to sanguinary wars.

The most notable instances are to be found among the early Italian Republics. Long before the end of the thirteenth century Venice, eminent for her commerce, wealth, and maritime power, assumed the sovereignty over the whole of the Adriatic, though she was not in possession of both the shores, and after repeated appeals to the sword she was able to enforce the right to levy tribute on the ships of other peoples which navigated the Gulf, or to prohibit their passage altogether. The neighbouring cities and commonwealths were soon compelled to agree to her claim, which was eventually recognised by the other Powers of Europe and by the Pope. The right of Venice to the dominion of the Adriatic, arising in this way by force, became firmly established by custom and treaty; and even after she had fallen from her greatness and was hardly able to sustain her claim by the sword, it was still for a time admitted by other nations, who looked upon the Republic as forming a useful barrier to the farther extension of the Turk in Europe and as a scourge to the Saracen pirates.1 On the other side of the Italian peninsula, the Republic of Genoa advanced a similar claim to the dominion of the Ligurian Sea, and some of the other Mediterranean states followed the example in the waters with which they were most immediately concerned.

Then in the north of Europe, Denmark and Sweden, and later Poland, contended for or shared in the dominion of the Baltic. The Sound and the Belts fell into the possession of Denmark, the Bothnian Gulf passed under the rule of Sweden; and all the northern seas between Norway on the one hand, and the Shetland Isles, Iceland, Greenland, and Spitzbergen on the other, were claimed by Norway and later by Denmark, on the principle referred to above, that possession was held of the opposite shores. The Scandinavian claims to maritime dominion are probably indeed the most important in history. They led to several wars; they were the cause of many international treaties and of innumerable disputes about fishery, trading, and navigation; they were the last to be abandoned. Until about half a century ago Denmark still exacted a toll from ships passing through the Sound,—a tribute which at one time was a heavy burden on the trade to and from the Baltic.

Still more extensive were the claims put forward by Spain and Portugal. In the sixteenth century these Powers, in virtue of Bulls of the Pope and the Treaty of Tordesillas, divided the great oceans between them. Spain claimed the exclusive right of navigation in the western portion of the Atlantic, in the Gulf of Mexico, and in the Pacific. Portugal assumed a similar right in the Atlantic south of Morocco and in the Indian Ocean. It was those preposterous pretensions to the dominion of the immense waters of the globe that caused the great juridical controversies regarding mare clausum and mare liberum, from which modern international law took its rise. The task of Grotius in demolishing them by argument was, however, materially facilitated by the exploits of Drake, Hawkins, and Cavendish on the part of the English, and of Jakob van Heemskerk on the part of the Dutch; and, as we shall show, the credit on having first asserted the freedom of the seas in the sense now universally recognised, belongs rather to our own Queen Elizabeth than to the Dutch publicist.

In thus appropriating the seas adjacent to their territories, or which formed the means of communication with them, the various nations were doubtless impelled by consideration of their own immediate interests. Sometimes it helped to secure the safety of their coasts or commerce; in other cases it enabled them to levy tribute on foreign shipping traversing the appropriated waters, and thus to increase their revenues; or it allowed them to preserve the fisheries for the exclusive use of their own subjects. In most instances, however, the principal object appears to have been to maintain a monopoly of trade and commerce as far as possible in their own hands, in accordance with the commercial spirit of the times.

But when the matter is more carefully examined in its historical aspects, a less selfish explanation may be found of the tendency to appropriate seas in the middle ages. In the state of wild anarchy which prevailed after the break-up of the Roman empire, pirates swarmed along every coast where booty might be had. Scandinavian rovers infested the Baltic, the North Sea, and the Channel; Saracens and Greeks preyed upon the commerce of the Mediterranean; everywhere the navigation of trading vessels was exposed to constant peril from the attacks of freebooters. The sea was then common only in the sense of being universally open to depredation.[2] The lawlessness and insecurity that reigned on the sea led merchants, in the absence of effective sovereign authority, to form associations among themselves for mutual protection, and to maintain by force the security of navigation in the common interest. Independent princes at first made use of the armed fleets of those voluntary associations, and later, as their power grew stronger and better organised, they took over the duty of policing the neighbouring seas under an admiralty jurisdiction of their own, which enforced the maritime laws and customs, such as the Laws of Oleron, that had been gradually developed among the merchant associations. In the thirteenth century this duty of exercising supreme admiralty jurisdiction on the neighbouring sea came to be regarded as a prerogative of sovereign power,3 and it was only a short step further to the assertion of an exclusive dominion. It was natural that this assumption of sovereignty on the sea should first be made by the great trading cities of Italy, who then controlled the important traffic between the east and the west, and whose shipping was to be found in all the ports of Christendom. It was also natural that the Italian jurists should be the first to attempt to give it a legal sanction, by assigning a large part of the bordering sea for the exercise of those sovereign functions which were originally confined to the maintenance of order and the punishment of delinquents. There is little doubt that the assumption of sovereign jurisdiction in this way was advantageous to navigation and commerce in those times, though later, with the extension of commercial intercourse and the increased security of the sea, it became burdensome and unnecessary.

There are good reasons for the belief that the English claims to the sovereignty of the sea originated in this humble way—by the exercise of jurisdiction in the interests of peaceful commerce—some time after the Norman Conquest, and in all probability first of all in the Channel or the Straits of Dover. The earliest indication of it is to be found in the much-discussed ordinance which King John issued in 1201. By that ordinance any ships or vessels, “laden or empty,” which refused “at sea” to lower their sails when ordered to do so by the king’s lieutenant or admiral in any voyage appointed by the Council, and resisted the demand, were to be reputed as enemies, and the ships, vessels, and goods were to be seized and forfeited and the crews punished. This is the first evidence of the custom of lowering the top-sails and striking the flag which afterwards became so notorious as a supposed acknowledgment of the English sovereignty of the sea; and it is to be noted that, in later times at least, the vessel had not only to strike, but had also to “lie by the lee.” Considering the prevalence of piracy and the jurisdiction exercised by the state for its suppression, as above described, and in view likewise of the special measures taken by John to encourage and safeguard foreign commerce, the most reasonable explanation of the origin of the custom is that the demand for the sail to be lowered—and the largest vessels then had but one mast and a single sail—was to enable the king’s officers, who were there to maintain the security of navigation, to ascertain the true nature of the vessel which they challenged, whether it was a peaceful trader or a pirate. In all ages piratical vessels have been generally swift, and, if we judge from later times, the ships used in the navy were generally slow: the command to a vessel to lower its sails was thus made in order to deprive it of the power of escaping until the king’s officers had satisfied themselves as to its bona fides, and was equivalent to the gun that was fired in later times in connection with “visit and search.” Shortly before the ordinance was issued, John sent writs to the Mayor and Commonalty of London and to all the Sheriffs of England instructing that all merchants, of what nation soever, should have safe conduct to pass into and repass from England, and to enjoy peace and security.4 It is noteworthy that in the first record relating to the seizure of a vessel for not lowering its sail (a Flemish herring smack, in 1402) it was pled on its behalf that it was not armed, and that the sail had been dropped at the first command. It is also noteworthy that the ordinance of John was placed in the Black Book of the Admiralty immediately after the mercantile marine laws.