The Essentials of International Public Law and Organization

By Amos S. Hershey | Go to book overview

CHAPTER XV
THE OPEN SEA

I. THE FREEDOM OF THE OPEN SEA

202. History of the Freedom of the Open Sea. -- During Antiquity and the early Middle Ages, the open sea was theoretically free and common to the use of all mankind,1 though by no means free from depredation by pirates even under the rule of the Roman Empire. But owing to the universal prevalence of piracy and the revival of commerce during the Later Middle Ages, the leading maritime States of Europe claimed territorial jurisdiction over adjacent seas. Thus Venice and Genoa respectively laid claim to the Adriatic and the Ligurian Seas, Portugal regarded herself as sovereign over the whole of the Indian and the southern portion of the Atlantic Ocean, and Spain preferred the modest claim of sovereignty over the Pacific Ocean and the Gulf of Mexico. Sweden and Denmark were apparently satisfied with the Baltic and the Arctic regions, but England claimed the Narrow Seas, the North Sea, and the Atlantic from Cape Finisterre in Spain to Stadland in Norway.

These enormous pretentions led to a great controversy 2

____________________
1
This was at least the view of the Roman jurists, who are supposed to have derived the doctrine from the Rhodian Laws of the Sea. For a learned article on "Justinian and the Freedom of the Sea," see Henn, in 19 A. J. ( 1925), 716-27.
2
Thus Gentilis defended the Spanish and English claims in a work entitled Hispanicae Advocationis ( 1613). In the same year William Welwood defended the English claims in a work entitled De dominio maris. In 1633 Sir John Burroughs wrote his Sovereignty of the British Seas. In 1676 Sarpi published a book in defense of the claims of Venice to the Adriatic. The work of Grotius written in behalf of Holland was directed against the exorbitant claims of Portugal. Selden's work (published in 1635), was an official defense of the claims of England to the British Seas. 1 Oppenheim, § 250. See Fulton, Sovereignty of the Sea ( 1911), ch. 9; Nys, Les origines, 379-87, and 2 Études, 260-72; and Potter, Freedom of the Seas ( 1924), ch. 4, for additional information regarding this great controversy.

Very interesting is the reply of Queen Elizabeth to the Spanish envoy Mendoza who complained (in 1580) of the intrusion of English vessels in East Indian waters. The great queen refused to admit any right of Spain

-321-

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