558 



THE SOVEREIGNTY OF THE SEA 



practice, as shown for instance in the decisions of the English 

 Admiralty Court, and the usage in connection with the salute, 

 it can scarcely be supposed that a capture made under the 

 guns of a neutral fortress would be held as good prize; at 

 all events, it was not so held in the Admiralty Court in 

 1760. But the merit of Bynkershoek's doctrine was, that it 

 transferred in theory to all parts of a coast this decisive 

 property of compulsion and dominion which, strictly speak- 

 ing, only existed where forts or batteries were placed. The 

 doctrine, justly enough, has been called fictitious, because there 

 are various coasts and districts where it would be impractic- 

 able to maintain dominion over the territorial sea by means 

 of artillery on shore; and because in point of fact such 

 dominion, unless in the neighbourhood of forts, is actually 

 maintained by other means, as by coastguards and naval 

 vessels. Nevertheless the principle, though resting largely 

 on hypothesis, had much to recommend it, and it gradually 

 became incorporated into international law as the rule for 

 fixing the boundary of the territorial waters. Apart from its 

 intrinsic merits, its acceptance was perhaps not a little facili- 

 tated by the felicity with which it was expressed. Bynkers- 

 hoek gave it the form almost of an aphorism, and the phrase, 

 terrce dominium finitur ubi finitur armorum vis, has been 

 quoted by almost all later writers. 



But although the doctrine of Bynkershoek was attractive, 

 and was eventually accepted almost everywhere, it did not 

 command immediate assent. The publicists who came after 

 Bynkershoek in the eighteenth century, while usually referring 

 to the cannon-range limit, or adopting it with respect to ques- 

 tions of prize, did not as a rule adhere to it as the sole principle 

 for delimiting the territorial belt. The earliest notice of it 

 after the Qucestiones appeared seems to have been by Casaregi, 

 an Italian writer of authority, who was judge in the Court of 

 the Grand Duke of Tuscany, in a work which appeared in 

 1740, and referred more especially to the practice in the 

 Mediterranean. 1 Foreign ships, he said, were under the pro- 

 tection of the prince whose seas they sail through, when they 

 are in his ports, or in the sea so near as to be within the 



1 Discursus Legates de Commercio, Venice, 1740, D, 136. 174, 211, torn. 2. Aii 

 earlier edition was published at Florence in 1719. 



