98 FISHERIES ARBITRATION AT THE HAGUE 



ized the entire argument of the case, standing upon Lord Salisbury's 

 position as to Umitation upon sovereignty, are quite inconsistent 

 with the idea that this is a transaction merely between two jurisji/ 

 persons; because, of course, the mere passing of a private titte is 

 no Hmitation of sovereignty at all; absolutely none. But the sub- 

 ject is important, and it was raised by suggestions and questions 

 from the bench, and I think that perhaps I ought to assign a rational 

 basis for the agreement of counsel on both sides regarding it. 



Under the Roman law we all know the sea was free to everyone, 

 clear to the edge of the shore, and no one could acquire ownership 

 or special rights in it. When the dreadful and brutal, selfish period 

 of the Middle Ages came in Europe, and the .advanced juristic 

 learning of Rome was in a great measure forgotten, the different 

 sovereigns reached out for general control over as great a part of 

 the sea 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 liberum and mare 

 clausum was ended, when Grotius and his followers, representing 

 the newly awakening spirit of commercial freedom that ushered 

 in the civilization of our day, had overcome the conservatism and 

 principle of exclusion represented by Selden, with all his learning 

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

 and the old claims to control and possession and ownership over the 

 sea disappeared, 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 vs. Keyn, 

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

 Chief Justice Cockburn says: 



"AH 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-mEe zone, be con- 

 clusive 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 sovereign 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 peace 



