ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 197 



Treatise was put forward it certainly could not have been said to have 

 beeu overthrown. Sir Henry Maine in liis lecture on International 

 Law at pages 75 and 77, cited in the United States Argument, page 

 141, considers this subject historically, and perhaps I may be excused 

 for reading a very few words. 



The first branch of our enquiry brings ns to what, at the birth of international 

 law, was one of tlie most bitterly disimted of all questions, the question of mare 

 clansnm and mare libenim — sea under the dominion of a particular power, or sea open 

 to all — names ideutiliod with the great reputations of (irotius and Selden. In all 

 probability the question would not have arisen but for the dictum of the iustitutional 

 Roman writers that the sea was by nature common projjcrty. Aud the moot point 

 was whether there was anything in nature, whatever that word might have meant, 

 which either pointed to the community of 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 the 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 ])rimitive 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. 



Whatever jurisdiction may have been asserted, probably did not spring from any- 

 thing 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 libenim, whatever that may have meant, 

 to viare clausum — from navigation in waters over which nobody claimed authority, 

 to waters xmder 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. 



And he cites, as you will find in a note on the same page, from Mr. 

 Hall in his Treatise on International Law, which was an English trea- 

 tise to a similar effect. 



Sir Henry points out there that fnare clausum wufi not the beginning 

 of what may be called the law of the sea, if you dignify it with tliat 

 name. It was preceded by mare Ubcrum; it was preceded, before inter- 

 national law could be said to have had its birth, by a freedom of the sea, 

 which is just what is contended for in this case, — a freedom for univer- 

 sal depredation; a freedom that had no limit; a freedom from which 

 property was not safe and life was not safe. That was the early idea 

 of the freedom of the sea; the doctrine of mare clausum, as these 

 authors point out, very clearly came from the necessity of protection; 

 and the world acquiesced in the adjacent maritime nation stretching 

 its hand out over the waters of the sea and assuming a sovereignty 

 over the sea as it did over the shore, because it was necessary to human 

 protection. That is where the original doctrine of mare clausum comes 

 from. It comes from necessity of j)rotection against a form of freedom 

 of the sea which was lawlessness. 



When civilisation and commerce and the rudiments of international 

 law had so far advanced that the assumption of such a sovereignty by a 

 maritimenation wasno longer necessary, and, could nolongerbejustitied; 

 when it was no longer necessary for Great Britain to assert a sover- 

 eignty over the Channel for the protection either of itself or of the 

 world; or for Italy to extend a sovereignty over the Adriatic, or Den- 

 mark over the Baltic, then the new theory comes in; that is, the doc- 

 trine set forth by Grotius of a free sea, and that gradually came to be 

 accomplished; and what is material, as I have said, is to find how far 

 the nations then surrendered their sovereignty over the sea. They did 

 surrender it to a large extent, un(|uestionably ; they <lid give way to 

 the advancing idea of the ireedom of the sea. How far did they go? 



