RIGHT TO PROTECT INTERESTS AND INDUSTRY. 141 



by many historic precedents, the rightfulness of which has never been 

 called in question; and that no precedent or authority can be pro- 

 duced, judicial, juridical, or historical, for such a right in the open sea 

 as is claimed by the Canadians in the present case. 



That the sea was at an early day regarded as subject to no law is 

 probably true. It was the theatre of lawless violence and the home of 

 piracy. But this condition was soon found intolerable. The assump- 

 tion of a dominion over it by adjacent maritime nations became a neces- 

 sity to self protection, and was therefore generally assented to. The 

 mare liberum iu all such waters gave way to mare elausum, not upon 

 principle, but for the sake of defense. Says Sir llenry Maine (Lectures 

 upon International Law, pp. 75-77): 



The first branch of our inquiry brings us to what, at the birth of in- 

 ternational law, was one of the most bitterly disputed of all ques- 

 tions, the question of mare olausum and mare liberum — sea under the 

 dominion of a particular power, or sea open to all — names identified 

 with the great reputations of Grotins and Selden. In all probability 

 the question would not have arisen but for the dictum of the institu- 

 tional Roman writers that the sea was by nature common property. 

 And the moot point was whether there was anything in nature, what- 

 ever that word might have meant, which either pointed to the com- 

 munity 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 ;is to 

 what can have been the actual condition of the sea in those primitive 

 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 anything 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 liberum, whatever that may have meant, to mare clausum — 

 from navigation in waters over which nobody claimed authority, to 

 waters under 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. 1 



1 Sir Henry Maine proceeds as follows: "Mr. W. E. Hall, in a very interesting 

 chapter of his volume (Part n, 2) has shown that international law, in the modern 

 sense of the words, began in a general system of mare rim, sum. The Adriatic, the 

 Gulf of Genoa, the North Sea, and the Baltic wen- all closed and were under author- 

 ity, and England claimed to have precedence and to exercise jurisdiction of various 

 kinds from the North Sea and the parts of the Atlantic adjoining Scotland and Ireland, 

 southwards to the bay of Biscay. In all these waters the omission to lower the flag to a 

 Britishship would have been followed by a cannon shot. Thenceforward theprogress 



