The great juridical controversies respecting mare liberum and mare clausum—the sea open to all, or that under the dominion of a particular Power—which enlivened the international politics of the seventeenth century, reached their highest pitch in the reign of Charles I., and may be conveniently considered here. The writers who touched upon the question in the previous century took it for granted that the seas were capable of appropriation, and that they were almost wholly under the dominion of one Power or another. It is true that now and again a slender voice was raised in protest, on abstract legal grounds, against the exclusive maritime sovereignty arrogated by Venice, Portugal, or Spain. Queen Elizabeth too, as we have seen, not only protested against these claims in certain cases, but actively opposed them. Her action, however, pertained rather to the sphere of diplomacy and politics than to legal controversy; and the protests of the few jurists alluded to were too feeble to have practical effect on the course of events or on the prevalent opinion.
It is noteworthy that the birth of modern international law was associated with the origin of these juridical controversies as to the freedom of the sea.610 It was the appearance of Mare Liberum in 1609 that heralded the dawn of the new epoch. The little book of Grotius was at once a reasoned appeal for the freedom of the seas in the general interest of mankind, and the source from which the principles of the Law of Nations have come. The main reasons why the controversy broke out at 339 that time and the pleas of Grotius had so much success are not difficult to discover. The period was characterised by a great expansion of commercial enterprise. The Western Powers of Europe, and above all the United Provinces, were pushing into every sea for the sake of traffic and gain. In some directions the trading adventurers found their way barred by claims to mare clausum and monopoly of trade; in other directions it was open to them only under heavy burdens and aggravating restrictions. The northern seas, in theory at least, were closed to the whaling vessels engaged in what was then a most valuable business; and commerce and fishing within them were permitted only under irksome conditions. The passage through the Sound into the Baltic was subjected to high dues by Denmark; Venice claimed dominion in the Adriatic and levied imposts for the right of navigation there, and Genoa followed her example in the Ligurian Sea. But it was not so much the claim of Denmark to the sovereignty of the northern seas, or the rights asserted by Venice in the Adriatic, that led to the outburst for the freedom of the sea and of commercial intercourse at the beginning of the seventeenth century. Except with regard to English traffic with Iceland and Norway and the fishing there, more or less regulated by treaties, the Scandinavian claim at this time was not of great practical importance; and the dominion of Venice over the Adriatic was generally regarded as beneficial on the whole, by interposing a powerful barrier to the further extension of the Turkish empire in Europe, and by facilitating the suppression of pirates and Saracens.611 It was the extravagant pretensions of Spain and Portugal to a monopoly of navigation and commerce with the New World and the East Indies that constituted the great obstacle to the new spirit of commercial enterprise. Founding their title on the Bulls of the Pope, and the right of discovery, conquest, and prior occupation, they arrogated to themselves the exclusive sovereignty of the great oceans which were the pathways to these immense regions,—the Atlantic, the Indian Ocean, and parts of the Pacific. Thus, as Grotius remarked, the whole Ocean except a little was to remain under the control of two nations, and all the other nations of the earth were to content themselves with the remnant. 340
The commerce with the East Indies was of special value and importance. The discovery of the Cape route by Vasco di Gama, in 1497, led to the great stream of traffic between Europe and the East being diverted in the next century from its old channel in the Mediterranean and Levant to the Atlantic. The lucrative trade with the Indies was transferred from the Venetians and the Italian Republics to the Portuguese, who then became for a time the chief trading people of the world,612 and strove to keep it entirely in their own hands. It was particularly with reference to this monopoly that the disputes about the freedom of the sea began. The Mare Liberum of Grotius was specially directed against the prohibition by the Portuguese for any other nation to navigate round the Cape of Good Hope or to trade with the Indies. It has been well said by Calvo that the historical antecedents of the controversy about mare clausum are to be found in the voyages of Columbus and Vasco di Gama.613
Very soon, however, the claims of other Powers to maritime sovereignty—of Denmark, Venice, England—were similarly assailed, and the controversy became general. It may be noted that those who took part in it on the one side or the other, including some of the most learned men of their age, were in large measure inspired by patriotic motives. National interests as much as lofty ethics or legal principles were at its root. Even Grotius, notwithstanding his impassioned appeal to the conscience of the world for the liberty of the sea and the freedom of commerce, was not exempt from this weakness. It was his happy fortune that the cause he publicly advocated was equally in conformity with the growing spirit of liberty and the immediate interests of the United Provinces. Only four years later, when the Dutch had obtained a footing in the East Indies in spite of the Portuguese, they in turn wished to exclude the English from any share in the trade with that opulent region: they did not want any freedom of commerce that might tell against themselves. And then we find Grotius arguing, in London, against his own declarations in Mare Liberum, and in favour of commercial monopoly for his native land—a 341 task, which, we are told, he performed “with uncommon ability.”
This charge cannot be made against the two authors whose voices were raised in opposition to the prevailing opinions as to the appropriation of the sea before the work of Grotius appeared, and of whose writings he made considerable use. One of these was a Spanish monk, Francis Alphonso de Castro, who wrote about the middle of the sixteenth century, protesting against the Genoese and Venetians prohibiting other peoples from freely navigating the Ligurian and Adriatic Seas, as being contrary to the imperial law, the primitive right of mankind, and the law of nature; and also against the Spanish and Portuguese claims for exclusive rights to the navigation to the East and West Indies.614 The other author, also a Spaniard, was Ferdinand Vasquez or Vasquius, who expressed the same opinions as de Castro, and for the same reasons. He held that the sea could not be appropriated, but had remained common to mankind since the beginning of the world; that the claim of the Portuguese to forbid to others the navigation to the East Indies, and that of the Spaniards to a similar prohibition to sail through “the spacious and immense sea” to the West Indies, were no less vain and foolish (non minus insan?) than the pretensions of the Venetians and Genoese. The law of prescription, he said, was purely civil, and could have no force in controversies between princes and peoples who acknowledged no superior, because the peculiar civil laws of any country were of no more value with respect to foreign nations than as if they did not exist; to decide such controversies recourse must be had to the law of nations, primitive or secondary, which it was evident could never admit of such a usurpation of a title to the sea. With regard to the right of fishery, Vasquius drew a distinction between fishing in the sea and in rivers or lakes. He held that the sea had been from the first, and still remained, by the primitive right of mankind, free both for navigation and fishing, and that its use could not be exhausted by fishing, while lakes and rivers may be so exhausted.615 342
From the foregoing, it will be seen that Grotius had ready to his hand many of the legal arguments of which he made so much use; but the strength of his work lay rather in its appeal to the sense of justice and the conscience of the free peoples of Christendom, to whom it was dedicated. The Spanish authors, moreover, were not in a position to assail the validity of the Papal Bulls, upon which the Spanish and Portuguese claims were partly founded, whereas it was against them that the Protestant writer levelled some of his most powerful philippics.
The Mare Liberum of Grotius was published anonymously at Leyden, Holland, in March 1609.616 As the title declares, the author’s object was to assert the right of the Dutch to trade with the Indies, and to combat the pretensions of the Portuguese to a monopoly of navigation and commerce in those regions; but the genesis of the book has only been recently made known. At the end of the sixteenth century, when the commerce of the United Provinces was expanding in all directions, the Dutch merchants resolved to share in the lucrative 343 trade with the far east. Having failed to open up a passage to the Indies by the north-east, they boldly sailed thither by the Cape of Good Hope, in 1595, through the seas and to the regions which Portugal claimed for herself. Encouraged by success, other trading voyages by the same route were undertaken almost every year. A United Dutch East India Company was formed in 1602, and the States-General decided to maintain their rights to the trade by force. The disputes and conflicts with the Portuguese which followed were soon brought to a head by the action of the redoubtable Jacob van Heemskerk in attacking and seizing Portuguese ships.617 The valuable booty taken from the Portuguese was brought to Holland in 1604 and 1605, and caused much searching of heart among the shareholders of the company. Many were gratified by the spoil, but others of much influence, moved by conscientious scruples or good policy, refused to share in it, and they threatened to separate themselves from the company and form a rival association to carry on peaceful trade under the protection of the King of France. It was about this time that Grotius, incited by the condition of affairs, began to write a treatise with the object of encouraging his countrymen to resist the claims of the Portuguese by force. In a tract written about 1614 to vindicate Mare Liberum against the attack of the Scotch lawyer, Welwood—which was not published, and the existence of which was unknown till about forty years ago—he says that some years earlier, perceiving the great importance of the East Indian trade for the Netherlands, and that it could only be made secure by armed resistance to the Portuguese, he had written a book in which he explained the law of war and spoil; and in order to rouse the popular mind he gave an account of the ill-treatment of the Dutch in the East Indies at the hands of the Portuguese.618 Grotius was then only a little 344 over twenty years of age, and it enhances our sense of the precocity and fertility of his genius to learn that Mare Liberum was only one chapter (the twelfth) of this treatise. The treatise itself was not published by Grotius; but in 1608, during the negotiations with Spain which ended in the truce of Antwerp, on (March 30)/(April 9), 1609, the Spaniards demanded that the Dutch should relinquish the trade with the West Indies and also with the East Indies (Portugal being then united to Spain), and, probably at the request of the directors of the East India Company, Grotius then detached the part of his work which dealt with the freedom of commerce and navigation and published it in March 1609, under the title of Mare Liberum.
In dealing with his theme Grotius attacked in succession all the arguments put forward by the Portuguese to justify their claim. Their titles from prior discovery of the Cape route, under Papal Bulls, by the right of war or conquest, or from occupancy and prescription, were all, he maintained, invalid; by the Law of Nations navigation and commerce were free to all mankind. The action of the Portuguese in attempting to restrain the trade with India furnished a just cause of war; and the Dutch were resolved to assert their rights by force. But Mare Liberum was much more than a pleading in a particular case. An earnest and powerful appeal was made to the civilised world for complete freedom of the high seas for the innocent use and mutual benefit of all. Grotius spoke in the name of humanity as against the selfish interests of a few; and while he made full use of arguments founded on Roman law, on the law of nature and of nations, it was principally the lofty moral 345 ideas which inspired his work that gave it its reputation and charm. He entered into a subtle and learned disquisition as to the origin of the idea of property from the primitive times when all things were held in common; the conditions under which private property is possible or lawful, and the distinction between what is private, what is public, and what is common. Much of the argument appears to us now to be of the nature of hair-splitting and word-play; but inasmuch as it was made use of subsequently in the numerous controversies regarding the freedom or the sovereignty of the sea, as well as in diplomatic negotiations, it is necessary to summarise it here. All property, he says, is based upon possession or occupation (occupatio), which requires that all movable things shall be seized and all immovable things enclosed; things that can neither be seized nor enclosed cannot become property: they are common to all, and their use pertains not to any particular people but to the whole human race. The distinction is also made between things which are exhausted by promiscuous use and those which are not: the latter are common, and their free use belongs to all men. Thus the air is common, because it cannot be occupied and because it cannot be exhausted by promiscuous use; it therefore belongs to all mankind. And in the same way the sea is common to all; it is clearly so infinite that it is not capable of being possessed, and is fitted for the use of all both for navigation and fishing.619 It is also among those things which cannot be bought and sold—that is, which cannot be lawfully acquired; whence it is, strictly speaking, impossible to look upon any part of it as belonging to the territory of a people. The sea is under no one’s dominion except God’s; it cannot by its very nature be appropriated; it is common to all, and its use, by the general consent of mankind, is common, and what belongs to all cannot be appropriated by one; nor can prescription or custom justify any claim of the kind, 346 because no one has power to grant a privilege adverse to mankind in general.
Grotius places navigation and fishing in the sea on the same footing, or rather he looked upon interference with the freedom of fishing as a greater offence than interference with navigation. With regard to imposing tribute on fishermen, he said that such as are reckoned among the Regalia are imposed not on the thing, that is the sea and the fishing, but on the person; and while it may be levied by a prince on his own subjects, it is not to be levied on foreigners, for the right of fishing everywhere should be free to foreigners, lest a servitude be imposed on the sea which it cannot bear. An action of this kind would be worse than the prohibition of navigation; it would be barbarous and inhuman. If any one, says Grotius, claimed jurisdiction and sovereignty on the great seas for himself alone against promiscuous use, he would be looked upon as one who was aiming at extravagant dominion; if any one was to keep others from fishing, he would not escape the brand of insane cupidity.620
It is hardly possible to escape the suspicion, which was apparently shared by King James, as it was by many others, that Grotius in these sentences was aiming obliquely at England. Such strength of language about the right of free fishing in the sea was scarcely pertinent to his theme, for neither the Portuguese nor the Spaniards contested that right, and the Dutch did not fish in waters under their control. It would, on the other hand, be explicable if Grotius had got a hint of James’s intention with regard to the “assize-herring” (see p. 152), and we know that as early as the beginning of 1606 proposals were made for the formation of an English fishery society, with taxation of foreign 347 fishermen, and that in the beginning of 1608 negotiations were on foot between the English Government and the Dutch Ambassador as to the “assize-herring.”621
It is important to note—what many of his followers too often forgot—that Grotius restricts the application of his general argument for mare liberum to the open sea. He does not, he says, deal with an inland sea (mare interiore) which, surrounded on all sides by land, did not exceed the breadth of a river; the question concerned the ocean, which the ancients called immense, infinite, the parent of things, co-terminous with the air. The controversy, he continues, was not about a bay or a strait in this ocean, nor concerning so much of it as might be seen from the shore: the Portuguese claim for themselves whatever lies between the two worlds.622 Again, referring to the Italian publicists, he says their opinion cannot be applied to the matter in question, for they speak of the Mediterranean, he of the ocean; they of bays or gulfs, he of the vast sea, which differ very much in respect of occupation.623
The opinions and reasonings of Grotius in Mare Liberum as to the free use of the sea were repeated more concisely and with some modification in his greatest work, The Rights of War and Peace, which was published in 1625.624 No one, he affirmed, can have property in the sea, either as to the whole or its principal parts; and as some people admit this in respect to private persons but not in regard to countries or states, he proceeds to prove its truth by both a “moral 348 reason and a natural reason.” The moral reason is the vast extent and inexhaustibility of the sea, whether for navigation or fishing; the natural reason is that it cannot be occupied or possessed because of its fluidity, since liquids having no bounds of their own cannot be possessed unless enclosed by something else, as a river by its banks; but the sea is not contained in the earth, as it is equal to it or even greater.625 Grotius, however, admits that his argument that rivers and lakes may be appropriated because their banks could be appropriated, may be logically applied also to certain parts of the sea. From the example of rivers he says, “It appears that the sea may be occupied by him who is in possession of the lands on both sides, although it be open either above, as a bay or gulf, or both above and below, as a strait, provided that it be not so great a part of the sea that when compared with the lands on each side it cannot be supposed to be some part of them”; and what is lawful to one king or people may be also lawful to two or three, if they have a mind to take possession of the sea thus enclosed within their land.626 He also admits by another train of reasoning—concerning property in the marine vivaria of the Romans—that if it is not repugnant to the law of nature for a private person to appropriate a small enclosed part of the sea, one or more nations possessing the shores might in like manner appropriate a part of the sea, if it be small compared with the land; and that might happen although the sea was not enclosed on all sides. But this admission that the law of nature does not preclude appropriation of a relatively small part of the sea by the neighbouring state, he qualifies in a general way by saying that there are many things tolerated by the law of nature which the law of nations, by common consent, might prohibit; and where this law of nations was in force and is not repealed 349 by common consent, the most inconsiderable part of the sea, although almost enclosed by the shores, can never be the property of a particular people. And in places where the law of nations was not received, or was afterwards abolished, it does not follow that the people merely because they possess the lands also possess the sea enclosed by them; the taking possession must be made by an overt act, and signified and made known. And if the possession thus gained by the right of prior occupation is afterwards abandoned, the sea returns to its original nature—namely, to the common use of mankind. Further, he who possesses any part of the sea cannot lawfully hinder unarmed ships, giving no room to apprehend danger, from sailing there, in the same way that he cannot justly prohibit innocent passage through his lands. Grotius goes on to explain that it is more easy to take possession of the jurisdiction (imperium) alone over part of the sea than of the right of property, and that it is not contradicted by the law of nations; and he points to a number of instances among the ancients.627 He admits that sovereignty or jurisdiction may be acquired on the sea either in regard to persons or in regard to territory (ratione personarum et ratione territorii),—in regard to persons, as when a fleet, which is a maritime army, is maintained in any part of the sea; in regard to territory, as when those who sail along the coasts may be compelled from the land, as if they were actually on the land.628
The latter statement of Grotius contains the germ of the idea subsequently adopted by almost all the writers on international law, that the extent of the adjoining sea over which the neighbouring state is entitled to exercise dominion is limited by the range of guns from the land. Grotius does not mention the means by which compulsion was to be made effective, but there is little or no doubt of what was 350 in his mind.629 It remained for Bynkershoek, at the beginning of the next century, to give the doctrine precise expression.
It is obvious from the foregoing that the opinions expressed by Grotius as to the appropriation of the sea were not always consistent, and were sometimes self-destructive. If the fluidity and physical nature of the sea made it impossible to occupy or appropriate it, the objection applied as much to one part of it as to another, since it is everywhere fluid; and the admissions in his later book stultify many of the statements in the earlier one. It seems to be indisputable that Grotius was to some extent influenced by his environment, and expanded or contracted his argument to meet the conditions at the time—that he was, in short, like all the others, more or less of an advocate. When he published his greater work he was in the service of the Queen of Sweden, who claimed a somewhat extensive maritime sovereignty in the Baltic, and it is not unlikely that this influenced him in making the admissions referred to.
The immediate object for which Mare Liberum was published—the recognition of the right of the Dutch to sail to the East Indies and to trade there—was achieved by the treaty of Antwerp in the month following its appearance,630 and no reply from the Portuguese or Spaniards to the arguments of Grotius was published till sixteen years later. Grotius tells us that a work in refutation of Mare Liberum had been prepared by a scholar of Salamanca, but it was suppressed by Philip III.;631 but in 1625, when Philip IV. was on the throne, an elaborate defence of the rights of Portugal in the Indies and a reply to Grotius was published by Franciscus Seraphinus de Freiras, a Spaniard, who dedicated his book to the king.632 The Venetians also, whose power had by this time declined, began to defend with the pen their rights in the Adriatic. These rights had been 351 indirectly assailed by the general argument of Mare Liberum, and directly in the writings of de Castro and Vasquius, from which Grotius had quoted liberally; and now at the beginning of the seventeenth century they were actively contested by other Powers, and in particular by Spain. Hence quite a number of works defending the claims of Venice appeared at this period, the best of which was that of Pacius, who relied on the opinions of numerous early jurists, as Bartolus, Baldus, and Angelus; on immemorial possession and prescription, and stated that the rights of the Venetians consisted in jurisdiction, the imposition of taxes, the prohibition or regulation of navigation, the protection of subjects, and the suppression of pirates.633
But it is probable that Mare Liberum received as much attention in England as it did in any other country. Grotius, as we have seen, condemned any interference with the liberty of fishing or the imposition of taxes on foreign fishermen in very severe language, and his book appeared just at the time when King James had resolved on both these courses, and within less than two months of the issue of the famous proclamation forbidding unlicensed fishing by foreigners on the British coasts. To be by implication branded as “insanely cupid” by an anonymous Dutch writer, because he had decided to levy the “assize-herring” from Dutch fishermen, must have irritated James; and the irritation would not be lessened when he found the envoys from the Netherlands in the following year vindicating their right to liberty of fishing by just such arguments as were contained in Mare Liberum. James, indeed, showed a somewhat bitter feeling towards the great Dutch publicist when the authorship was revealed and the author lay in prison; and Carleton, the English ambassador at The Hague, in a speech to the States-General, held him up to opprobrium and stated that the disgrace into which he had fallen should deter others from adopting his opinions. 352
The task of replying to Grotius was taken up by a Scottish lawyer, William Welwod or Welwood, a professor of the civil law. Welwood was Professor of Mathematics at St Andrews University, but exchanged the Mathematical for the Juridical Chair about the year 1587; at the royal visitation in 1597 he was deprived of his office, on the ground that the profession of the law was in no wise necessary at that time in the University, but probably because his profession as a teacher of jurisprudence was obnoxious in the eyes of James.634 In 1590 he had published at Edinburgh a treatise on the Sea Laws of Scotland, which is believed to be the earliest regular work on maritime jurisprudence printed in Britain, and which was dedicated to James;635 but it contains nothing bearing on the question of the fishery or “assize-herring.” In 1613 he published at London a new and enlarged edition of his early work, and in one of the chapters on “The Community and Proprietie of the Seas,” he endeavoured to refute the arguments advanced in Mare Liberum, which he seems to have looked upon as a reply to James’s proclamation of 1609.636 This 353 work was also dedicated to the king, and in a prefatory address to the three High Admirals—the Duke of Lennox, the Earl of Northampton, and the Earl of Nottingham—he impressed upon them the importance of the “conservacie” of the sea, especially for the fisheries, and urged that strangers should be stayed from scattering and breaking the shoals of fish on the coast of Scotland, a duty on which some of his Majesty’s ships might well be employed.
Welwood was scarcely fitted either by knowledge or capacity to be a formidable antagonist to a giant like Grotius; and although his writings contain quite a number of arguments which were later used and expanded by Selden, it can hardly be said that they had a great influence on the controversy. He looked upon Mare Liberum as an attack on the rights of King James and his subjects to the fisheries “on this side the seas,” veiled under the pretext of asserting the liberty to sail to the Indies. As befitted his nationality and his time, many of his arguments were drawn from Holy Writ, and he had no difficulty in placing Providence on the side of James and in opposition to the Dutch. Others were more pertinent. He urged that the injunctions of the Roman law applied only to the subjects of Rome, and not internationally as between state and state,—an opinion also pressed, as we have seen, by Vasquius; that the fluidity of the sea was no bar to its occupation, and that it could be, and had been in certain cases, divided up into marches and boundaries, by the ordinary methods used by navigators, “so farre as is expedient for the certain reach and bounds of seas, properlie pertaining to any prince or people,”—what these bounds are or should be he does not say, though he quotes the Italian limit of 100 miles with approval. He held that the liberty of navigation was beyond all controversy, and agreed to the principle of the complete freedom of the sea so far as concerned the “main Sea or great Ocean,” which was “farre removed from the just and due bounds above mentioned properlie perteyning to the neerest Lands of euerie 354 Nation.” To Grotius’ statement that it was worse to prohibit promiscuous fishing than to forbid navigation, Welwood justly replied that if the free use of the sea is interfered with for any purpose, it ought to be chiefly for the sake of the fishings, if the fishes become exhausted and scarce, as he says was the condition at that time on the east coast of Scotland, from the “neere and dailie approaching of the busse fishers” scattering and breaking the shoals, so that no fish “worthy of anie paines and travels” could now be found.
Two years later Welwood returned to the theme, and published a formal little book on the dominion of the seas.637 It was dedicated to Queen Anne, who had just been endeavouring to set up a fishery society with power to tax foreign fishermen (p. 161), and, as explained in the dedication, the book was specially directed against the freedom unlawfully usurped by foreigners of fishing in the British seas. It may be regarded as an amplification of his chapter in the Abridgement, but is much superior and more logically arranged; and being written in Latin, it attained, if not a reputation, at least considerable recognition on the Continent. He urges strongly that the sea as well as the land is capable of distinction and dominion, both by human and by divine law, and explains the contrary opinion of many publicists, poets, and orators (so copiously quoted by Grotius) by saying they were ignorant of the true law of nature, and had infected the minds of later generations with “a preposterous notion concerning some universal community of things.” The adjacent sea is claimed for the neighbouring state, because it is as necessary there as it is on land that some one should have jurisdiction, and this jurisdiction ought to be exercised by the neighbouring prince, so that both the land and the sea should be under the same sovereignty. The part of the sea next the land is, moreover, so joined to and, as it were, incorporated with it, that the ruler of the land is not permitted to alienate either a part of it, or the use of it, or to let it out (locare) any more than his kingdom or the patrimony of his kingdom. He held that it was incontestable that the vast and boundless waters beyond the 355 mare proximum were open to all nations indifferently for all uses, but that in the adjacent sea the neighbouring prince had in particular two primary rights besides jurisdiction—namely, the right of navigation and the right of fishing, with the power to impose taxes for either. He maintained that fishing in the sea was for the most part appropriated, and for a clear reason. God had appointed the fishes (herrings) to swarm along the coasts of Britain and the surrounding isles at seasons and places which He had pre-arranged, and for the benefit of the inhabitants: why, then, should the people be hindered from possessing as their own this benefit which God had granted them? He would be unwilling to deny the communication of this natural advantage to other nations, “but only by the same law by which they possess their own, that is by a just price.” Yet, notwithstanding this special blessing which had been granted to the British people, they were despoiled of it and of their just rights, owing to their seas being taken possession of, as it were, by a continual inundation of foreign fishermen, so that the shoals were scattered and the fishery exhausted. Welwood then refers to the alleged old agreement between the Scotch and the Dutch, whereby the latter were not to fish within eighty miles of the coast of Scotland (p. 84), but which they of late totally disregarded, fishing close to the shore, in front of the houses. And while they were permitted to carry away their fish from our seas without paying any tribute, the poor Scottish fishermen had to pay tithes to the Church and the assize-herring to the crown, as well as having their livelihood damaged by the action of the foreigners.
The treatises of Welwood were composed to support the claim of James to the assize-herring, and the project of the queen to monopolise the fishings, as much as to demonstrate the law as to the dominion of the sea. On one account if on no other his works deserve to be remembered. He was the first author who clearly enunciated, and insisted on, the principle that the inhabitants of a country had a primary and exclusive right to the fisheries along their coasts—that the usufruct of the adjacent sea belonged to them; and that one of the main reasons why that portion of the sea should pertain to the neighbouring state was the risk of the exhaustion of its fisheries from promiscuous use. 356
But they will be remembered in the history of international law for another reason. The first of them called forth from Grotius the only reply he ever vouchsafed to the numerous writers who attacked Mare Liberum. In the year in which the work was published, he was in London as one of the Dutch ambassadors, engaged in the somewhat ironical task of defending a Dutch mare clausum in the East Indies, and probably the book then fell into his hands. In his Defensio (see p. 344) Grotius reaffirmed the position he took in Mare Liberum, with the old arguments, and with some new ones to meet the criticism of Welwood, and not without some of the customary logic-chopping and wire-drawn reasoning. He held that the Roman law as to the sea being common applied not merely among the citizens of one state, but among mankind in general, because communis was a different thing from publicus.638 While admitting the possibility of marking out the sea by imaginary lines, he said this was not relevant to the question of appropriation, since appropriation could not take place without possession, and possession cannot be established merely by the mind or intellect, but requires a corporeal act; otherwise the astronomer might lay claim to the heavens or the geometrician to the earth. Concerning the rights of fishery, with which the Defensio largely deals, he asserts that as the use of the sea is common to all, no one can prohibit fishing in it or justly impose taxes on it. With respect to the right of the Dutch to fish on the British coasts, he cites the Burgundy treaties and uses the same arguments as the Dutch ambassadors did in 1610 (p. 155). They had the right by treaties, immemorial usage, prescription, and the Law of Nations. It is noteworthy that in the Defensio, Grotius, no doubt owing to the polemical spirit inciting him above all to refute the arguments of Welwood concerning the mare proximum, as well as to demolish the claims of King James, denies the existence of sovereignty or property in any part of the sea, whereas it appears to be allowed by implication in Mare Liberum, and is expressly admitted in his later and larger work. Here he says, and more 357 logically, that whatever applies to the whole sea applies to all its parts, even to a diverticulum, and he allows no exception for the sea washing a coast: a conclusion, however, at variance with the general practice of the time. This tract, as already stated, was not published by the author, probably because it was likely to excite still more the ire of James at finding his “rights” again “questioned.”639
In contrast with the writings of Welwood may be cited the opinions of another and more eminent Scottish lawyer, Sir Thomas Craig, who touched upon the subject of maritime jurisdiction in a non-controversial work published before the juridical controversy had arisen.640 He states that the sea is common to all for navigation, but that property and jurisdiction in the adjacent sea pertains to the neighbouring territory according to the current opinion—the sea washing the coast of France, England, Scotland, Ireland, &c., to the respective countries. No limits or bounds are laid down by Craig as to the partitioning of the sea in this way, but when dealing with the theoretical question of islands arising in the sea, he follows Bartolus in assigning a space of 100 miles from the coast. He admits that certain seas may be prescribed, as the Adriatic, which Venice, though not possessing the shores, claimed by prescription. With respect to ............