cxl INTRODUCTION 



"The empire of a portion of the sea, is, it would seem, acquired in the same way 

 as other lordships: that is, as above stated, as belonging to a person, or as belonging 

 to a territory; belonging to a person, when he has a fleet which commands that part 

 of the sea; belonging to a territory, in so far as those who sail in that part of the sea 

 can be compelled from the shores as if they were on land." * 



That is to say, a small body of water forming part of the sea may 

 be considered as territorial if it is so small as in extent "to appear 

 part of the land" and the jurisdiction is determined by the power to 

 command from the shores. The principle thus announced by Grotius 

 was developed by Bynkershoek, who says, in his De Dominio Maris, 

 published in 1702: 



"My opinion is that the territorial sea should extend only as far as it can be con- 

 sidered subject to the mainland. , Hence I concede no further dominion over the 

 territorial sea than that which can be exercised from the land; and there is no reason 

 why a portion of the sea under the control and power of the state should not be called 

 its property as well as any other body of water within its territory. It is, therefore, 

 right to extend the land power and the right of dominion and possession as far as the 

 range of cannon. I speak of our times when cannons are in use; otherwise the gen- 

 eral principle should be; the sovereignty of the land ends where the force of arms 

 ends, for this, as I said, is considered possession." * 



The principle thus stated has made its way into international law, 

 and the exercise of jurisdiction over adjacent waters is made dependent 

 upon the exercise of force from the shores whether measured by the 

 range of cannon, which in Bynkershoek's time, as in the year 1818, was 

 something less than three miles, or stated in express terms as three 

 marine miles or a marine league. 



In discussing the nature and extent of maritime jurisdiction Mr. Hall 

 aptly says: 



"The true key to the development of the law is to be sought in the principle that 

 maritime occupation must be effective in order to be valid. This principle may be 

 taken as the formal expression of the results of the experience of the last two hundred 

 and fifty years, and when coupled with the rule that the proprietor of territorial waters 

 may not deny their navigation to foreigners, it reconciles the interests of a particular 

 state with those of the body of states. As a matter of history, in proportion as the 

 due limits of these conflicting interests were ascertained, the practical rule which 

 represented the principle became insensibly consolidated, until at the beginning of 

 the present century it may fairly be said that though its application was still rough 

 it was definitively settled as law." ' 



The principles thus established by Bynkershoek and declared by Mr. 

 Hall to represent international practice at the beginning of the nine- 

 teenth century were clearly stated by two authorities with which it is 



' Bk. II, ch. Ill, sec. XIII. (Quoted in Oral Argument, Vol. I, p. 737.) 

 * Edition of 1767, Bk. II, ch. 2, p. 127. (Oral Argument, Vol. I, p. 729.) 

 'Hall's International Law, Fourth Edition (1895), sec. 40, pp. 157, 158. 



