76. The Freedom of the High Seas.-In early days, including the first portion of the Middle Ages, navigation upon the high seas was free to the world. Definite claims to parts of the high seas began, however, in the latter part of the Middle Ages. At the end of that period the republic of Venice claimed and was recognized as the sovereign of the Adriatic and the republic of Genoa as the ruler of the Ligurian Sea. Portugal claimed, by virtue of papal decree, to be the sovereign over the whole of the Indian Ocean and of the parts of the Atlantic Ocean lying south of Morocco. The Pope of Rome also gave to Spain the authority for her claim over the Pacific Ocean and the Gulf of Mexico. Sweden and Denmark claimed sovereignty over the Baltic. Great Britain claimed and attempted to enforce her sovereignty over the narrow seas; that is, the North Sea and the Atlantic Ocean from the North Cape to Cape Finisterre.

But the extravagant assertions of Spain and Portugal were not submitted to by the French, Dutch, and English navigators, "and when, in 1680, the Spanish ambassador Mendoza lodged a complaint with Queen Elizabeth against Drake for having made his famous voyage to the Pacific, Queen Elizabeth answered that vessels of all nations could navigate on the Pacific, since the use of the sea and the air was common to all, and that no title to the ocean could belong to any nation, since neither nature nor regard for the public use permits any possession of the ocean."1

In 1609 Grotius appeared on the scene with his treatise "Mare Liberum," arguing that the sea cannot be under the jurisdiction of the state because it cannot be held in possession through occupation, and consequently it is free from the sovereignty of any state. This work of Grotius met with responses from writers of several nations. The most important answer was by John Selden, written in 1619 and printed in 1635. Selden sought to establish the propositions: "1. That

1 Oppenheim, 2d ed., I, p. 318.

the sea may be property. 2. That the seas which washed the shores of Great Britain and Ireland were subject to her sovereignty even as far as the northern pole."

So fully did Charles I accept the arguments of Selden that "he instructed Carleton, the British ambassador, to complain to the states general of the Dutch provinces of the audacity of Grotius in publishing his "Mare Liberum," and to demand that he should be punished."1

In spite of opposition and after due time the doctrines of Grotius prevailed, ably seconded, as he was, by such writers as Bynkershoek, Vattel, G. F. de Martens, and others, until at the end of the first quarter of the nineteenth century Great Britain herself became a champion of the freedom of the high seas. When Russia, in 1821, attempted to forbid all foreign vessels from approaching the shore-line of Russian Alaska within the distance of one hundred Italian miles, both the United States and Great Britain protested, and Russia gave up her claims in treaties concluded with the two countries in 1824 and 1825.

An incidental claim to jurisdiction beyond the marine league in the Bering Sea has led to the statement that the United States revived the Russian claim during the controversy in regard to the seal fisheries from 1886 to 1893.

Though this claim was undoubtedly used by some of the agents and officials of the United States during the controversy, neither the secretary of state, Mr. Blaine, nor our minister to Great Britain sanctioned this argument. The main argument of the United States was that the seals were its property and that the consequent right of protection followed on the high seas and elsewhere. This claim was founded upon the fact that the seals in the eastern Bering Sea habitually go to the Pribylov Islands, belonging to the United States, for breeding purposes, leaving there to go into the high seas in search of food and returning there successively each year for

1 Phillimore, 3d ed., I, p. 258.

1

the establishment of their harems. The decision of the court of arbitration in this controversy was against the United States upon all points.

In concluding this narration, it may be stated that it is now an accepted rule of international law that the high seas are free and cannot be denied to the use of all nations at all times. This rule is based largely upon the necessity of absolute freedom of intercourse by means of the sea, as the sea is becoming more and more an international highway and less and less an obstacle for international communication.

Besides these grounds, there is the traditional one also that it is practically impossible to retain possession of the high seas by permanent occupation, in the sense that territory on land is so occupied. This physical control naturally increases in its possibility as the approach is made to land and as we enter into the marginal waters of a state.

For the purposes of mutual safety in navigation it has been found necessary, by treaty and by municipal law, to agree upon and promulgate certain rules for the avoidance of collisions, etc., upon the high seas. Besides these rules, there are others enacted by Congress that are applicable to seagoing vessels of all nations within the waters of the United States. This is, of course, purely municipal federal law. In neither case can the rules be called international law, but the so-called international rules are the result of international maritime conferences, and the rules in regard to the avoidance of collisions will doubtless continue to be subject to such conferences and arrangements as the changes in vessel and circumstances dictate. The same can be said as to proposed arrangements for greater safety in case of shipwreck and for communication between vessels by wireless and other means of signalling. The great opportunities for assistance in danger have been multiplied to such an extent by means of wireless telegraph that provisions for common safety will necessarily increase, so

1 Moore's "Digest," I, sec. 172.

many nationalities being interested in every transoceanic steamship carrying large and heterogeneous numbers of pas

sengers.

In cases of collisions occurring upon the high seas between vessels of different and foreign states, the Supreme Court of the United States has decided that the admiralty courts of the United States may take jurisdiction.1

Great Britain in her admiralty courts also claims jurisdiction between two foreign ships if the guilty ship is in a British port at the time an action is entered for damages, the collision having taken place on the high seas.

All countries have freedom of fishing upon the high seas, which right is limited only by treaty or common usage founded on treaty. The latter would include servitudes. Treaties and regulations have been negotiated with respect to the fisheries in the North Sea between various maritime countries in Europe. This includes a suppression of the liquor trade among the fishing vessels in that sea. As a result of the Bering Sea arbitration, rules were drawn up with regard to seal fishing, but they have never been generally established or recognized. A further convention was agreed to bearing on this subject and signed at Washington, July 7, 1911. A treaty for regulating the fisheries in the vicinity of Iceland was signed in June, 1901.

So far as telegraph and telephone cables are concerned, the high seas are free and open to all, but no state is required to permit their entry into its territorial waters. A convention was agreed upon, in 1884, by most of the maritime powers for protecting submarine telegraph cables in time of peace upon the high seas; this does not restrict, however, the action of belligerents in time of war.2 Regulations have been perfected as to wireless telegraphy on the high seas, so that ready communication can now be maintained with vessels of all nations, in time of peace, as to dangers seen and vessels in distress. 1 Moore's "Digest," vol. II, p. 79. 2 Oppenheim, 2d ed., I, chap. VIL

77. Jurisdiction over Vessels upon the High Seas and Other Waters. In order to carry practically into effect the jurisdiction of a state over its vessels upon the high seas, it is necessary that every state which has shipping should adopt regulations under which its national vessels can legally carry its maritime flag. These regulations provide for certain official documents to be carried by the privately owned vessels, and which give the vessel an identity as to nationality, ownership, its personnel, cargo, and destination. If a vessel carries the flag of a state without proper authority upon the high seas, she is punishable by that state under its municipal law. When the vessel under jurisdiction of a state has its proper papers, it is authorized to carry the maritime flag and is under the exclusive domain of that state on the high seas and within the territorial waters of the state. This jurisdiction includes all the persons and cargo carried by it.

The flag carried by such privately wned vessel may be a special flag adopted by the state for such vessels or it may be the flag used as an evidence of nationality for all purposes, ashore and afloat. With the United States there is but one national flag, with the exception of the flag used in home waters for the revenue marine service and the flag prescribed under the law of the secretary of the navy for regularly enrolled yachts. The French republic has a common flag for all national purposes, while other countries vary as to their maritime and other national ensigns.

Vessels of war are the representatives of the sovereignty of the state under whose flag they sail, being a part of their armed forces. They possess this character with its immunities upon the high seas as well as in foreign territory. They must, however, be commissioned and manned as a national vessel by the state and under the command of a regularly enrolled official, responsible to and commissioned by the state as a member of its naval or marine service.

Other public vessels consist of despatch vessels, school