2006 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 



as they could accomplish narrow seas, and closed seas, and broad 

 seas, and great stretches running out into the ocean, and this in some 

 cases even went so far as to extend, practically, to a claim over the 

 entire ocean. 



But when the great duel between mare libenim and marc clauxum 

 was ended, when Grotius and his followers, representing the newly 

 awakening spirit of commercial freedom that ushered in the civiliza- 

 tion of our day, had overcome the conservatism and principle of 

 exclusion represented by Selden, with all his learning and ability, 

 when the principle of modern freedom had conquered, and the old 

 claims to control and possession and ownership over the sea disap- 

 peared, they disappeared entirely: it is not that there was a residuum 

 left; it is that they were gone. A very great English judge has 

 stated what happened, in the case of The Queen ?\ Keyn, already 

 referred to here, in the 2nd Exchequer Division. Lord Chief Justice 

 Cockburn says: 



"All these vain and extravagant pretensions have long since given 

 way to the influence of reason and common sense. If indeed, the 

 sovereignty thus asserted had a real existence, and could now be 

 maintained, it would, of course, independently of any question as to 

 the three-mile zone, be conclusive of the present case. But the claim 

 to such sovereignty, at all times unfounded, has long since been 

 abandoned. No one would now dream of asserting that the sover- 

 eign of these realms has any greater right over the surrounding seas 

 than the sovereigns on the opposite shores; or that it is the especial 

 duty and privilege of the Queen of Great Britain to keep the pe:i<v 



in these seas It is in vain, therefore, that the ancient assertion 



of sovereignty over the narrow seas is invoked to give countenance 

 to the rule now sought to be established, of jurisdiction over the 



three-mile zone To invoke as its foundation, or in its support. 



an assertion of sovereignty which, for all practical purposes, is, and 

 always has been, idle and unfounded, and the invalidity of which 

 renders it necessary to have recourse to the new doctrine, involves 

 an inconsistency, on which it would be superfluous to dwell." 



That is to say, these vague and unfounded claims disappeared en- 

 tirely, and there was nothing of them left as the basis for any claim 

 of ownership or sovereignty or jurisdiction over any portion of the 

 sea beyond the line that adjoins the land. The sea became, in general, 

 as free internationally as it was under the Roman law. But the new 

 principle of freedom, when it approached the shore, met with another 

 principle the principle of protection; not a residuum of the old 

 claim, but a new independent basis and reason for modification, near 

 the shore, of the principle of freedom. The sovereign of the land 

 washed by the sea asserted a new right to protect his subjects and 

 citizens against attack, against invasion, against interference and in 

 jury; to protect them against attack threatening their peace, to pro- 

 tect their revenues, to protect their health, to protect their industries. 

 That is the basis and the sole basis on which is established the ter- 



