HISTORICAL EVOLUTION OF THE TERRITORIAL SEA 547 



fishing, and that the inhabitants of the coast had a primary 

 right to the fructus of the adjacent sea, as against the intrusion 

 of foreigners a principle which lay at the root of the Scottish 

 claims to the "reserved waters." Sarpi, an Italian author of 

 the early part of the seventeenth century, in a work defending 

 the claims of Venice, formulated the opinion that the extent 

 of territorial sea should not be fixed everywhere in an absolute 

 manner, but should be made proportionate to the requirements 

 of the adjoining state, without violating the just rights of 

 other peoples. Thus a country or city which possessed large 

 and fertile territories that provided adequate subsistence for 

 the inhabitants, would have little need of the fisheries in the 

 neighbouring sea, while one with small territories that drew 

 a large part of its subsistence from the sea ought to have a 

 much greater extent of sea for its exclusive use. 1 This doctrine, 

 though obviously difficult of application internationally, has 

 much to recommend it on grounds of reason and justice. It 

 is one of the fundamental principles on which Norway claims 

 at the present day an unusually large extent of territorial sea. 



With regard to bays, straits, and arms of the sea, the 

 general usage from the earliest times has included them within 

 the jurisdiction of the neighbouring state. They have been 

 always regarded as differing from the sea on an open coast, 

 the only disputes about them referring to the size of such 

 areas that might justly be looked upon as territorial. By 

 the old common law of England, which Hale dates as far 

 back at least as the reign of Edward II. (1307-1327), bays, 

 gulfs, or estuaries, of which one shore could be "reasonably 

 discerned " from the other shore, were regarded as inter fauces 

 terrce, and within the body of the adjacent county or counties, 

 so that offences committed there were triable at common law. 

 But along the coast, on the open sea, the jurisdiction of the 

 common law extended no farther than to low- water mark ; 

 beyond that it was high sea, or altum mare, and under the 

 jurisdiction of the Admiral. 2 Here we see a sharp distinction 



1 Dominio del Mar' Adriatico e sue Raggione per il Jus Belli delta Serenissima 

 Rcpvblica di Venetia, Venezia, 1686. 



2 Hale, A Treatise relating to the Maritime Law of England, c. iv. Coke's 

 Fourth Institute, c. xxii. p. 140 (ed. 1797). Blackstone, Commentaries, \, 110. 

 Hale, Pleas of the Crovm, ii. 54. An early authority is in Fitzherbert's La Grande 



