Abstract
The purpose of this chapter is to apply something of a functional approach to the development of the International Law of Bays during the period from the fall of Rome in 476 A.D.1 to 1800. A number of scholars and advocates, using more or less the techniques of writing legal history,2 have made studies of the development of the international law of the sea during this period. To adopt the same formula, narrowed to a study of the law of bays, would appear to travel over rather well-trodden ground, and would probably yield little satisfaction to the author or to the reader. It is for this reason that a functional or cause-and-effect approach has been adopted.3 The historical development is centered around three interdependent influences: Navigation, economics and defense. Other terms synonymous with these could as readily be used. For purposes of this book the term navigation embraces not only the art of navigating the earth’s surface and its accompanying scientific developments, but also the developments in the building, handling, and manning of ships at sea. The term economics, in our context here, embraces a study of man’s needs and desires for physical things as well as some of the natural and man-made barriers to satisfaction of such needs and desires.
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References
The Fall of Rome is generally described as to have taken place in 476 A.D., the year in which the Roman Empire of the West ceased to exist. It is generally conceded to be the year marking a new era in history. Leslie Lipson, The Great Issues in Politics (1954), pp. 328–9
Lynn Thorndike, The History of Medieval Europe (1917), p. 86.
CAPT Christopher Meyer, RNorN, The Extent of Jurisdiction in Coastal Waters (1937)
James Reddie, Maritime International Law (1847)
Thomas W. Fulton, Sovereignty of the Sea (1911)
Henry G. Crocker, The Extent of the Marginal Sea (1919)
Domenico A. Azuni, The Maritime Law of Europe (1806)
Arnold Raestad, La Mer Territoriale (1913)
Gilbert Gidel, Le Droit international public de La Mer (1934).
It is believed that a functional approach offers a fruitful vehicle for clarifying some issues of International Law. Such an approach seems to address itself more readily than others to the purpose this author believes International Law — and all law — should serve: the widest possible satisfaction of human wants and needs with the least possible amount of waste and friction. Roscoe Pound describes this puropse as “efficacious social engineering.” An Introduction to the Philosophy of Law (Yale Paper-bound), p. 47. Actually, analysis of the sort envisioned by Pound has obvious pitfalls and it is not without its thoughtful critics, e.g. Karl R. Popper (The Poverty of Historicism), because it can lend to empirical theorizing on the needs of a planned society (Karl Mannheim, Man and Society, p. 6). Perhaps, it leads to what Walter Lippmann called “piecemeal engineering.” (The Good Society, pp. 203–240). Scholars, like most other human beings seem to have a predilection for erecting general theories seemingly ab initio or upon the basis of “objective” study. The author experiences a distinct feeling of discomfort when under exposure to most theories because of the human tendency to select such past or future events which will indicate the theories. On the other hand there must be a starting point with a well placed hunch for all study, since nothing is accomplished otherwise. This author believes that the best service t he student can render himself is to operate from a thought-out hunch, readily admit his own uncertainties, and concede that he may ultimately be wrong. On that basis, the author has selected the functional approach. Admittedly, such a modus operandi may result in some untidiness and may be criticized for its absence of what is admiringly called “tightly reasoned” argument. But this author believes that often where such scholarly sophistication is not present, sophistry has also been excluded.
Sovereignty of the Sea (1911), p. 1.
Briefly, the propulsion of a ship with sails involves problems of ship construction, sail design, and sail positioning. With winds from directions other than those within about twenty degrees of either side of a line drawn from the stern of the ship, the mechanical effect of a wind driving a ship in a chosen direction is the result of a highly complex resolution of forces. For a given ship with a given set of sails this effect is susceptible of precise mathematical description. Obviously, such description is beyond the scope of this text, and in any event serves little useful purpose because technological progress with sailing ships was the result of slow, trial-and-error evolution. It is sufficient for our purposes to note that ships’ hull construction, sail design, and techniques of handling are all mutually dependent.
From the viewpoint of navigation, the Roman era is of very little historical interest. Their methods of ship construction and propulsion were taken directly from the Greeks and Roman talents were not devoted to this field. Charnock, History of Marine Architecture (1800), Vol I., p. 141.
Oars or “sweeps” were used on some ships of the Great Armada of 1588 as well as during the maritime wars between England and the United Provinces. Charnock writes that the first naval battle between fleets of oar less ships occured in 1342, during the war of Edward III. The last great naval battle in which oared ships were used almost exclusively was the battle of Lepanto, 7 October 1571. However, galleys were a part of the French Navy until 1748 and were used by the Italian States until the Wars of Napoleon I. VADM William L. Rodgers USN (Ret.), Naval Warfare under Oars, 4th to 16th Century (1939), pp. 233–4.
An oar is most efficient when so extended from the propelled craft that it strikes the water at a slight angle with the surface. In a rolling sea, the use of oars becomes difficult and inefficient unless used with craft especially constructed for heavy weather. Examples of such craft are modern whale boats and the ships of the Norsemen.
For his crusade, Louis IX in 1248 ordered several two masted ships which were the first large ships to use the rudder instead of the steering oar. At a somewhat later date, Portuguese ship-builders adopted lateen sails to two and three-masted ships. These could sail very well in contrary winds. Per Collender, A History of Marine Navigation (1954), p. 115.
This is the naval architect’s term for the portion of the ship below the surface of the water. LCDR G. C. Manning CC USN and LCDR T. L. Schumacher CC USN, Principles of Warship Construction and Damage Control (1935), p. 32.
This is the vertical distance from the water to the weather deck at any point in the length of the ship, ibid, p. 17.
This is not to say that quite large ships were not built on some occasions. In 357 A.D., the Roman Emperor Justinian had constructed a ship to transport an obelisk from the Nile to the Tiber. The obelisk was 115 feet long and weighed about 1500 tons. No ship in existence in 1800 was considered capable of transporting such a load. In 1191 A.D., the ships of Richard the Lion-hearted captured a Saracen galley manned by 1300 men. It is recorded that the great crusader directed 1100 of the Saracens to be thrown overboard. Charnock, History, vol. I, pp. 156, 329.
It is not the view of the author that such writings have no value if they fail to reflect the actual practices or capabilities which were known to exist as of the time of writing. The interrelationship between practice and juridical idea appears very unclear in the works of some writers on the Law of the sea, however, and this relationship is what the author hopes to establish, at least in part. Professor Alf Ross reminds us that “In the continental tradition the law is very largely an academic product, and therefore in a corresponding degree bears the stamp of academic thinking and its urge toward systematic analysis and rationality.” On Law and Justice (1959), p. 89. On the other hand, we in the United States are reminded in the opinion of the U.S. Supreme Court in The Pacquete Habana, that “such works [of text writers] are resorted to by juridical tribunals, not for the speculation of their authors concerning what the law ought to be but for trustworthy evidences of what the law really is.” 175 U.S. 677 (1900). The late Professor Hyde wrote: “Whenever such writers do not evince a disposition to mirror the practice of their time, the views expressed lack evidential value.” International Law Chiefly as Interpreted and Applied by the United States (1947), p. 12. It would appear that the work of a text writer, or a glossator, or an early writer in the service of a Prince might have a transcendent quality which grows in stature and importance to decision makers with the passage of time. Such work may reflect a reasoned conclusion as to the probable course of events. Ross writes: “With a firm foundation in the tradition of the law, and by way of rational thinking, an attempt is made to arrange the rules of law systematically in conformity with them.” op. cit., p. 89. Perhaps the author’s own problem (fundamentally, one of assessing the worth of a publicist’s work in differentiation to time), comes nearer to solution through a synthesis of these suggestions: “But inasmuch as a source of law is conceived as a factor influencing the judge in rendering his decision, the work of writers may continue to play a part in proportion to its intrinsic scientific value, its impartiality and its determination to scrutinize critically the practice of States by reference to a legal principle.” Lauterpacht, Oppenheim’s International Law, vol. I, 8th Ed., p. 33. “Indeed, it is not too much to say that the true and recognized course of this new department of English law [Conflicts of Law] — is a stream of foreign juristic writing beginning in the fourteenth century; and that when judges follow the precedents of our own courts in this domain, they are often really affirming principles enunciated by Continental Jurists of the 16th and 17th Centuries. ... What is true of Private is even more true of Public International Law.” Carleton K. Allen, Law in the Making, 4th Ed. (1947), p. 239.
“The views expressed by learned writers on International Law have done in the past and will do in the future valuable service in helping to create the opinion by which the range of the consensus of civillezed nations is enlarged.” Lord Alverstone, C. J., in West Rand Central Gold Mining Co., Ltd., v. The King, 2 K.B. 391 (1905).
Bartolus, a fourteenth century Italian jurist and teacher of law laid down the proposition that a State had jurisdiction over a belt of the adjacent sea one hundred Italian miles in width. Angelo Sereni, The Italian Conception of International Law (1943), p. 71
C. Baldoni, De Mare territoriale nel diritto internazionale commune (1934), p. 54.
An Italian mile of the time measured 5,000 English feet. J. B. Hewson, A History of the Practice of Navigation (1951), p. 156. Italy is situated in a generally north-south orientation. The north-south water boundary, must then have the same orientation. Knowing the position of a ship with respect to it involves a problem in calculating longitude. But a method of calculating longitude at sea was not perfected until the second half of the eighteenth century.
Nathaniel Bowditch, American Practical Navigator, 1958 Edition, pp. 45–7.
By reconstructing the methods used as of the time of Bartolus, the author doubts that a mariner approaching Italy from the west or southwest could ascertain his position with greater accuracy than plus or minus twenty miles with respect to such a line. Mindful, however, of the matters discussed in footnote 9, above, one should note that Bartolus has been credited with contributing directly to the formation of the modern conception of territorial waters. Arnold Raestad, La Mer territoriale, Etudes Historiques et juridiques (1913), pp. 15–18.
Commander Hewson makes this comment: “Scientific Navigation was advancing beyond the resources of the individual trading ship-master. It was not he who brought about the great navigational developments that began in the Middle Ages. It was the wealthy patron, the learned geographer and the scientifically-minded navigator who rubbed shoulders with the mathematician ashore, who brought about the development in charts as in every other branch of navigation. A History of the Practice of Navigation (1957), p. 6. The matter is made more difficult, from a research standpoint, by reason of the paucity of recorded information concerning early maritime practice. “... no group of people in the history of mankind has been more reluctant to keep records than professional sailors,” Lloyd A. Brown, The Story of Maps (1949), p. 114. Mr Brown has exaggerated a bit, perhaps, but there is no doubt some truth in what he says. The well-kept descriptive log book is the exception and it occupies a fairly low priority in the average mariner’s mind.
The table is compiled from information to be found in the following works: Nathaniel Bowditch, American Practical Navigator, 1958 Edition
J. B. Hewson, A History of the Practice of Navigation (1951)
Hill, Utegaard and Riordan, Dutton’s Navigation and Piloting (1958)
Per Collender, A History of Marine Navigation (1954)
Lloyd A. Brown, The Storu of Maps (1949)
Leo Bagrow, Die Geschichte der Kartographie (1951).
G. P. Gooch, Nationalism (1920), p. 5.
Accurate means of determining longitude were not perfected until a much later date, as the table shows. Correspondingly, small scale (large area) charts became reasonably accurate, by present-day standards, in latitude orientation, but they were distorted in their longitude presentation.
S. Whittemore Boggs, International Boundaries (1940), pp. 6–9
Paul de Lapradelle, La Frontière (1928), pp. 25–6
Sir Thomas Holdich, Political Frontiers and Boundary Making (1916), p. 14.
Chapter I, Section B, above.
Keller, Lissitzyn, Mann, Sovereignty through Symbolic Acts (1938) contains numerous examples.
In United Kingdom v. Norway (1951), Norway in her countermemorial relied upon an exclusive fishing right granted in 1688 for the establishment of an historic title. The limits of the concession were 10 leagues, or 80 marine miles from the coastal littoral. I.C.J. Pleadings, Fisheries Case, vol. I, p. 243. (The measurement apparently refers to an old Norwegian league of eight miles. Meyer, The Extent of Jurisdiction in Coastal Waters (1937), pp. 521–2. The United Kingdom reply did not point out the extreme unlikelihood of a mariner’s being able to determine his position with respect to the consession’s boundary ,using 17th Century navigating methods, hence the questionable character of the concession on these grounds alone. For other reasons, not pertinent to this footnote, the Court in its opinion took a qualified view of this early concession. I.C.J. Reports, 1951, p. 142.
Between 1550 and about 1628, Spanish ships increased in size from a maximum of 200 tons to 600 tons. Clarence H. Haring, Trade and Navigation Between Spain and the Indies (1918), pp. 212–3. A ton incidentally is derived from the word tun, meaning a barrel of wine. A ship’s displacement was reckoned on imagining how many barrels of wine could be stowed below decks.
Richard Hakluyt, A Selection of the Principal Voyages, Traffiques, and Discoveries of the English Nation, Ed., Laurance Irving (1926), p. xiv. Obviously tonnage measurement as applied in this context can only be used as some rough measure of comparison.
A. L. Rowse, “The Elizabethans and America” X American Heritage, April 1959, p. 4f and June 1959 p. 4f. Early British overseas commercial ventures were, in general, unprofitable for the participants, chiefly because they were directed to relatively barren areas of the North American continent, and they were ill-managed. Accordingly, the early incentive for construction of large ships was absent.
Sources of information concerning ship construction of this period are: John Charnock, History of Marine Architecture, 3 vols. (1802)
Hakluyt, The Principal Navigations of the English Nation, 12 vols. (1904 Edition of the Hakluyt Society)
W. S. Lindsay, History of Merchant Shipping and Ancient Commerce (1874), 4 vols.; and
LCDR John Forsyth Meigs USN (RET), The Story of the Seaman, 2 vols. (1912)
A. Du Sein, Histoire de la Marine de Tous les Peuples (1879). Worthy of special comment is the Charnock work whose title is something of a misnomer. Printed on quarto-size pages numbering some 450 per volume, and containing numerous finely-engraved illustrations and line drawings, this now very rare work is in reality a maritime history of Western Europe and the Ancient World. For the period of the 17th and 18th Centuries it is also a documented administrative history of the Royal Navy. The author combines unquestionable talents of a professional naval constructor with those of an historian and man of letters.
Until comparatively recent times this has been a fairly common phenomenon, relieved only occasionally when sailors were guaranteed shares in the venture or shares in prizes. It was much easier to find men for a privateer for a warship.
Harbors and bays were defended by forts as well as by guard ships. In 1579, a rule was laid down for Spanish Indies ports that no ship might enter or leave under cover of darkness without being fired opun. Special gun signals were prescribed to indentify friendly ships. Haring, Trade and Navigation, p. 224.
Anales de la Corte de Justicia Centroamericano, vol. V.
W. S. Lindsay, History of Merchant Shipping and Ancient Commerce. (1874), vol. II, pp. 165–185.
Charnock, History of Marine Architecture (1800), vol. III, p. 109.
At the time of Charnock (1800), marine architecture was the general term, and naval architecture was the term used to indicate the science of designing war ships. Today, the term, naval architecture, is the general term used, regardless of the type of vessel considered. This is manifested even among educational institutions, for example: the Webb Institute of Naval Architecture and the Department of Naval Architecture, University of Michigan.
Domenico A. Azuni, The Maritime Law of Europe (1806), p. 234. Writing similarly at p. 206, Azuni states this to be the practice among “polished” nations.
Knight, Barnes and Flügel, Economic History of Europe (1928), Ch. III.
Bernard Lewis, The Arabs in History, Rev. Ed. (1958), p. 121.
Sir Paul Vinogradoff, Cambridge Medieval History, vol. I, Ch. XIX, vol. II, Ch. XX.
George H. Sabine, A History of Political Theory, Rev. Ed. (1958), p. 202. One must hasten to add, perhaps, that this development did not run the same course in Scotland, where the Clan definitely could and did oppose the crown.
Edward Jenks, Law and Politics in the Middle Ages (1914), p. 97.
Max Weber “Capitalism and Rural Society in Germany”, Max Weber’s Essays in Sociology, Tr. H. H. Gerth and C. Wright Mills (1947), pp. 363–380.
Lynn Thorndike, The History of Medieval Europe (1917), Chs. XIII, XIV,
Eli Heckscher, Mercantilism, Tr. Mendel Shapiro, (1935), pp. 45–6.
William S. Holdsworth, A History of English Law, vol. V, (1924), p. 103.
W. C. Hazlitt, The Venetian Republic, Vol. I, Chs. VIII, XI.
Percy T. Fenn Jr., The Origin of the Right of Fishing in Territorial Waters (1926), pp. 224–231.
F. C. von Savigny, Geschichte des Romanischen Rechts im Mittelalter (1834 – 58), vol. III, p. 83 et seq.
Knight, Barnes, and Flügel, Economic History of Europe, write: “To the Roman jurist, law must be written and based upon the will of a prince. The nobility of Germany got the necessary courts into their own hands. The tendency was for the lord to invest himself legally with the arbitrary powers of the Roman dominus and for the partially free peasantry of various grades to be classified and treated as coloni or servi — serfs or slaves.” p. 196. This is one view, of course, but another is simply a desire for order and organization after an era of anarchy and disunion. This desire would appear to call for a philosophy rationalizing and strengthening authority and the imposition of a legal yoke upon society.” See, also, Roscoe Pound, An Introduction To the Philosophy of Law (1922), Yale Paperbound, p. 12.
Julius Stone, The Province and Function of Law (1946), pp. 424–6
Sir Hersch Lauterpacht, Private Law Sources and Analogies of International Law, p. 129
Edward Jenks, Law and Politics in the Middle Ages (1919), Ch. V.
William E. Masterson, Jurisdiction in Marginal Seas (1929), p. 1.
13a Actually, charging of customs duties is a very ancient measure, and was especially well developed in the Roman Empire. W. S. Lindsay, History of Merchant Shipping and Ancient Commerce, vol. I, p. 109.
The works of Cicero, Seneca, Paulus and Ovid express the belief that the sea, and the fish in it, were open or common to all men. Fenn, Origin, p. 5. See also, Stefan A. Riesenfeld, Protection of Coastal Fisheries under International Law (1942), pp. 7–8.
For present purposes, the author has indicated the development of manufacturing and commerce in northern europe and elsewhere simply as facts rather than as phenomenological problems requiring further study. It is necessary, however, to note and keep in mind that the matter of where human economic activity becomes geographically located is, in itself, a complex study, generally termed as the location theory. The author has endeavored to orient his writing in accordance with general precepts of this theory as he understands it. William H. Dean Jr., The Theory of Economic Activities with Special Reference to Historical Change (Unpublished Harvard University PhD dissertation, 1938).
Bertil Ohlin, Interregional and International Trade (1931), pp. 183–229.
Carl J. Friedrich, Ed., Alfred Weber’s Theory of Location of Industries (1929), pp. 1–12, 23–36, 39.
From birth to death, domesticated meat animals must be fed, somehow. See Chapter I, Section C., for a more detailed explanation. It is to be noted, also, that there is far less waste in the use of fish as food than in animals used for the same purpose.
Huntly M. Sinclair, A Preface to Economic History (1934), pp. 26, 29.
Sinclair, p. 101.
Heckscher, Mercantilism, pp. 329–330.
Norwegian fishing has traditionally been done by thousands of little boats, each manned by two or three men who sold their product ashore. The product was used either at home or exported by others. It seems always to have been a laborintensive, low capital operation. Mead, Economic Geography of the Scandinavian States and Finland (1958), Ch. VIII. By comparison, English fishing, even in early periods, was characterized by larger boats and more significant capital investment. The requirement therefor was simply explained by Adam Smith in 1776: “The fish must generally be sought tor a greater distance, larger vessels must be employed, and more expensive machinery of every kind made use of.” Wealth of Nations, (Modern Library Edition), p. 235.
This is a rather uncommon phenomenon. W. R. Mead, in his Economic Geography of the Scandinavian States and Finland (1958), writes, “Long experience has shown that fish are so persistently associated with certain areas that they may be mapped with fair precision”, p. 176. In this excellent work, Mr. Mead has gone to some length to explore the natural causes for the presence of fish in certain geographical areas.
Up to that time, it appears that English coastal fisheries did not catch enough for domestic requirements. To alleviate the condition, treaties were signed in the reign of Edward III (circa 1330 A.D.) guaranteeing the general liberty of fishing. In 1468 Edward IV and the Duchess of Burgundy signed a treaty granting Holland the right to fish without a license. In 1946, Henry VII and the Duke of Burgundy signed the Intercursus Magnus reaffirming the right and extending to all fisherman the use of any ports without license.
Fulton, The Sovereignty of the Sea (1911), Ch. III.
L. Larry Leonard, International Regulation of Fisheries (1949), pp. 12–17. Professor Raestad argues that the situations of Scotland and Norway are the same, both being lands on the North Sea and less fertile than those further to the south. La Mer territoriale (1913), p. 40.
See also, Bustamante, The Territorial Sea (1930), p. 5.
Fulton, Sovereignty, p. 87.
Advanced in a book published in 1377, entitled: Rare Memorials pertayning to the Perfecte Arte of Navigation.
It is of some interest that Adam Smith, writing two centuries after the passage of this legislation condemns the uneconomic and artificial subsidation of the English fishing industry — for defense purposes. Wealth of Nations (Modern Library Edition), pp. 484–8.
Fulton, Sovereignty, pp. 76–77. See also, James Anderson, Observations on the Means of Exciting a Spirit of National Industry (1775).
Substitution, in this context, has to do with choice of occupations and the motivations toward change experienced by an occupation group. Economic factors, of course, are not necessarily controlling, as was evident in the fishmonger’s reply to Sir William Cecil’s 1528 inquiry into the declining state of English fisheries. Fulton, Sovereignty, p. 91. For a theoretical discussion, see, Tibor Scitovsky, Welfare and Competition (1951), pp. 94–5.
“But everyone will cling as tightly as possible to habitual economic methods and only submit to the pressure of circumstances as it becomes necessary. Thus the economic system will not change capriciously on its own initiative but will be at all times connected with the preceding state of affairs.... All the preceding periods have.... entangled him (a farmer, for example), in a net of social and economic connections which he cannot easily shake off.” Joseph A. Schumpeter, The Theory of Economic Development (1951), pp. 6, 8–9.
“Owing to the tenacity of legal concepts and principles, the past always possesses a great bearing upon the present law.” Stefan A. Riesenfeld, Protection of Coastal Fisheries Under International Law (1941), p. 3.
For purposes of comparison with the position of Northern European countries in the present era, it is of interest to note that in the mid-sixteenth century, Denmark-Norway and Sweden-Finland were very powerful States, the latter occupying an area greater than that of the German Empire of 1914. England and Scotland had about 5 million inhabitants and Denmark-Norway had about 2 million. While in these countries there was greater absolute dependence upon fish for food than there was in England and West Central Europe, there was otherwise much greater economic parity than there exists today. See, Chapter 4, below. Mead, Economic Geography, pp. 85–6
M. K. Bennett, The World’s Food (1954), p. 15
A. M. Carr-Saunders, World Population, Past Growth and Present Trends (1936).
Knight, Barnes and Flügel estimate that between 1492 and 1550, Spain’s revenues in gold and silver from the new world surpassed all the world’s previous output of these metals. Economic History of Europe (1928), p. 269.
Heckscher, Mercantilism, pp. 340–1.
Sir Geoffrey Butler and Simon Maccoby, The Development of International Law (1928), p. 41, citing Corpus Christi College Cambridge MS No. 370.7, written by an English Franciscan pilgrim to the Holy Land in 1344 A.D.
Fulton, Sovereignty of the Sea, Ch. IV.
Concerning the foundation of British sovereignty claims to Hudson Bay and other bays in North America, and subsequent legislation, see Keller, Lissitzyn and Mann, Sovereignty through Symbolic Acts (1938), Ch. V; The Alleganean, Stetson v. United States IV Moore’s Arbitrations, 4332.
On Portuguese and Spanish claims, see Hecksher, Mercantilism, Ch. VII; Haring, Trade and Navigation, Ch. I; Fulton, Sovereignty, Ch. IX; Reddie, Maritime International Law, (1844), Ch. VI; Butler and Maccoby, Development, Ch. II.
Fulton, Sovereignty, Ch. IV.
Heckscher, Mercantilism, Ch. VII; Shepard B. Clough and Charles W. Cole, Economic History of Europe, 3rd Ed., (1952), Chs. VII, VIII. For our purposes here, it matters little whether the desired monopoly was under the aegis of State trading (Spain) or under the control of a chartered company (England and United Provinces).
Fulton, Sovereignty, p. 122, argues that in any event, the King’s Chambers were limited to neutrality and jurisdiction in view of the war existing between Spain and the United Provinces and the frequent depredations of privateers. Judging from the wealth of evidence in Fulton’s work, it would appear that the boundaries of the areas known as the King’s Chambers have been more discussed in the books than they were ever enforced in fact or even reiterated in subsequent legislation.
Sir Hersch Lauterpacht, Private Law Analogies, p. 129.
John Charnock, writing in another field, describes this as ‘avariciousness’ History of Marine Architecture. John Stuart Mill classes the process as a “progressive state of wealth”. Principles of Political Economy, bk. IV, Ch. I. It is not believed, however, that the present-day “economic development” should be viewed in the same light inasmuch as it does not carry with it the same connotations of movement and exploitation of the heretofore unclaimed. The present author’s thoughts about the cyclical development are the result of some reflection upon Mill’s Principles and Schumpeter’s The Theory of Economic Development.
Implicit in this statement, of course, is the tendency toward what is generically classed as nationalism, about which there is a huge literature and a plethora of theories more or less finely delineated. Hans Kohn, Nationalism, Its Meaning and History (1955)
Karl W. Deutsch, Nationalism and Social Communication (1953) (One of the theories).
S. Whittemore Boggs, International Boundaries (1940), Chs. I, X
Hans W. Weigert and others, Principles of Political Geography (1957), pp. 85–6.
Rationalizations of untimely aspirations toward upsetting the equilibrium are usually met with attitudes ranging from an academic interest to a disdain to an apprehension. The generic term “geo-politics” covers the field. The literature is extensive but much of it reflects narrow thinking and very strong bias, for example: Sir Halford Mackinder, “The Geographic Pivot of History,” 33 Geographic Journal (1904), pp. 434–7
Karl Haushofer, Grenzen in ihrer geographischen und politischen Bedeutung (1927)
Andrew Gyorgy, Geopolitics, The New German Science (1944).
For a general discussion of territorial rationalizations and irrationalities, see Norman Hill, Claims to Territory in International Law and Relations (1945).
In the author’s view, herein is implied the most difficult and vexing intellectual problem in the study of international law. By comparison much else is simply frosting on the cake. It occurs to the author that too much preoccupation with the sociologie aspects of international law propagates a tendency toward stalling one’s contemplating machinery on dead center. Rather than argue out the problems and contradictions and views that have been considered, the author will simply cite a few of the authorities whose writings are believed to merit some reflection. To do otherwise would be to depart considerably from the scope of this thesis. Julius Stone, Legal Controls of International Conflict (1954), Ch. II, Sect. Ix
Kenneth S. Carlston, Law and Structures of Social Action (1956), pp. 1–28
Edward Jenks, Law and Politics in the Middle Ages (1919), pp. 64–5
Carleton K. Allen, Law in the Making, 4th Ed., (1946), Ch. I
Julius Stone, The Province and Function of Law (1946), Part III
Roscoe Pound, An Introduction to the Philosophy of Law (1922), Ch. II.
Although said to have been used by the Chinese, the man who was probably the most careful recorder on the subject, LCOL Hime, Royal Artillery, credits the original compounding of gunpowder to the English friar, Roger Bacon, who recorded for posterity his experiment of 1249 A.D. By 1300 the explosive was being used for propelling missiles. H. W. L. Hime, Gunpowder and Ammunition, their Origin and Progress (1904), Ch. VII
Lyn Montross, War through the Ages (1944), Ch. VII. Care must be exercised in differentiating between the time when any gunpowder weapon or device was invented and the time when it came into general use. For example, General Fuller writes that rifling was invented in 1520. But rifled cannon were not in general use until the time of the American Civil War.
Almost any short history of warfare will demonstrate this. An excellent and thoroughly documented example is: MGEN J. F. C. Fuller, British Army, Armament and History (1945).
For an historical analysis of gunfire weapons and artillery, the author has relied primarily on the following works: Lcol Hime, Gunpowder and Ammunition (1904)
Lcol Hime, Seacoast Artillery (1944)
Arthur Marshall, Explosives, Their Manufacture, Properties, Tests and History (1915). Both LCOL Hime and Mr. Marshall were professional ordnance engineers and their works may be considered most authoritative. Strictly speaking, there are three different end-ranges of guns, enumerated here in decreasing distance from the muzzle: extreme range, maximum range, and maximum effective range. Extreme range is the greatest distance which will be reached by a given gun firing a given projectile using a given powder charge. Maximum range is the greatest distance, for which the gun and its fire control equipment are designed and maximum effective range is the maximum distance at which a gun can be expected to be an effective weapon in battle.
Professor Schumpeter in Imperialism and the Social Classes (1951), goes to great lengths to demonstrate that with the rise of commerce and early industrialization in the 18th Century, wars came less and less to be fought for the adventure of it or to divert troublesome elements at home. He argues that to an increasing extent wars had to be justified in terms of some alleged misdeed on the par t of the prospective enemy.
Fuller, Armaments, p. 7.
There were some slight increases in ranges, but their order of magnitude was too low to have any significant effect upon the tactical outcome of wars of the time. Tactical outcome was governed by numbers of weapons, their size, and their maneuverability. A most complete study and report of artillery tactics, using these fixed range weapons, appears in von Clausewitz, On War. By his time there had been the fullest flowering of military experience with these guns.
Bernard Brodie, Sea Power in the Machine Age (1941), pp. 229, 181–198
I. S. Bloch, The Future of War (1899), p. 103
One work asserts that in Queen Elizabeth’s day, the heaviest cannon had a range of three miles. Stevens and Wescott, A History of Sea Power (1937), p. 109. The authors offer no documentation and this author considers such a range to be very unlikely in view of the known state of the science of metallurgy at the time, as well as the absence of any method of effective fire control at that range. The muzzle velocity of any given gun was very low because the shape of the projectile and its imperfect fit in the gun tube permitted a large fraction of the propelling gases to escape. Efforts to remedy this defect resulted, usually, in gun explosions because the science of metallurgy had not advanced sufficiently to permit the construction of a gun capable of withstanding the total strain of the explosion. In theory one might conquer the problem by building the gun massively enough, but then it became too big to move. The result was that it was unfeasible to achieve greater ranges. Some military men, accustomed to this state of affairs, were given to theorizing that long ranges were undesirable because one might waste too much ammunition before the enemy closed to “decisive range!”
LT A. W. Wilson, Wilson R.N., The Story of the Gun (1944), p. 47. The direct relationship between muzzle velocity and range can now be shown by the relatively simple empirical formulae devised in the study of exterior ballistics. LCDR E. E. Herrmann, USN, Exterior Ballistics 1935. See also: Brodie, Sea Power, p. 186.
Fulton, in Sovereignty of the Sea at pages 681–689 mentions a great number of these, and their roster need not detain us. See also: Henry G. Crocker, The Extent of the Marginal Sea (1919), pp. 3–471
Butler and Maccoby, Development, pp. 53–57; CAPT Meyer, Extent of Territorial Jurisdiction, p. 48ff.
RADM S. S. Robison USN (Ret). A History of Naval Tactics, 1530–1930 (1942), pp. 695, 714, 717, 723, 730.
It is well known among students of naval history that during the Nineteenth Century, technical developments in gun design and propellents brought forth guns whose ranges far outstripped any known capabilities for accurate aiming. Target practice was something virtually unknown. Captain Broke RN of HMS Shannon, victor over USS Chesapeake, did some target firings. The gunnery reforms of CAPT Sir Percy Scott RN and the then LCDR William S. Sims USN, are epics of determination and insubordination. COMO Dudley Knox USN, A History of the U.S. Navy (1948) p. 99
Stevens and Westcott, History of Sea Power, (1937), P. 307
FADM E. J. King USN and CDR Walter M. Whitehill USNR, A Naval Record (1952), p. 39
FADM E. J. King USN and CDR Walter M. Whitehill USNR, Brassey’s Naval Annual 1903, p. 106.
This author was unable to ascertain whether there existed in the 17th, 18th or 19th Centuries any tables designed to show dispersion at long range, or fall of shot patterns; the latter type of table is unlikely because of the relative infrequency of salvo firing.
Examples are: Porto Farina, Tunis on 4 april 1655; Santa Cruz on 20 April 1657; Gibralter, 4 August 1704. CAPT Alfred T. Mahan, USN Influence of Sea Power Upon History 1660–1783 (1890), p. 210. Stevens and Westcott, History, pp. 139, 141.
On fictions, see Julius Stone, Province and Function of Law (1946), p. 678
Vilfredo Pareto, The Mind and Society (1916), Tr. Livingston, Sect, 242, pp. 146–170 (On English legal life)
Kelsen, General Theory of the Law and the State (1949) p. 225, (on contradiction to “legal reality determined by the principle of effectiveness”). Raestad does perhaps the most outstanding job of demonstrating that the range of artillery had to do only with the limits of neutral rights. He writes: “Les raisons qui ont fait adopter la portée du canon comme limite des eaux neutres, raisons non fondées sur une occupation de la mer territoriale ou des droits a exercer, mais sur le respect de la côte proprement dite, respect imposé ou volontairement observé, ne sauraient être appliquées pour déterminer les limites des eaux territoriales a d’autres égards que celui de la neutralité. Si la portée du canon, ainsi introduite, a été ensuite adoptée, par exemple, pour définir la zone réservée aux pêcheurs nationaux, c’est, encore une fois, par analogie.”
Arnold Raestad, La Mer territoriale (1913), pp. 165–6. Raestad, an advocate, argues on rather treacherous grounds here. Analogies per se are not necessarily to be ruled out because subsequent history deprives them of continuing objective validity. What is more important is the degree to which a rule originally based on an analogy continues to be honored.
For further views on the “cannon shor tule,” see: Wyndham L, Walker, “Territorial Waters: The Cannon Shot Rule” The British Yearbook of International Law (1945), pp. 210–231
H.S. K. Kent, “The historical Origin of the Three-Mile Limit”, 48 American Journa of International Law, (1954), pp. 537–553; The Anna (1905), 5 C. Rec. 373
S. Whittemore Boggs, “National Claims in Adjacent Seas”, The Geographical Review (April 1951), p. 185.
T. S. Ashton, Economic History of England in the Eighteenth Century (1959).
Butler and Maccoby, Development, pp. 308–311.
An excellent example is the Ordonnance of Louis XIV in 1681, Fulton, Sovereignty, p. 562. There was the expected corollary, of course, whereby neutral States adopted strict measures to ensure abstention from belligerency, and to impose their attitudes upon their citizens or subjects.
Examples with respect to prize and the cannon-shot rule are: The Italian, Casaregi, writing in 1740. Fulton, Sovereignty, pp. 558–9
The Spaniard, d’Ahren, writing in 1746, Reddie, Maritime International Law (1846), pp. 251–263
French Valin, Nouveau Commentaire sur l’Ordonnance de la Marine du mois d’Aôut (1766), pp. 687–8.
See also Kunz, Kriegsrecht und Neutralitätsrecht (1935), pp. 212
Hübner, De la Saisie des Bâtiments Neutres (1759), p. 57.
For a discussion of this, see the opinion of the U.S. Supreme Court in The Paquete Habana, The Lola, 175 U.S. 677 (1900).
Fulton, Sovereignty, p. 566.
The Republic of Genoa, Venice, Tuscany, American Colonies in 1777, Fulton, Sovereignty, pp. 564–573.
Franco-Russian treaty of 17 January 1787, Martens, I Recueil iv. p. 237.
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© 1963 Martinus nijhoff, The Hague, Netherlands
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Strohl, M.P. (1963). Development from the Fall of Rome to 1800. In: The International Law of Bays. Springer, Dordrecht. https://doi.org/10.1007/978-94-015-0967-1_3
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