HIGH SBA, The. All the waters of the ocean, which are not included in the territorial limits of any nation, and over which no nation can rightly claim supervisory or exclusive juris diction, are included by the term Thigh sea.* A state's territory extends over its adjacent waters to a line following the sinuosities of the coast at a distance of one marine league, to all harbors, and to the mouths of rivers and to straits and bays, when embraced by headlands not too remote from each other. There is no general rule as to the distance between head lands which determines the character of the waters enclosed by them; but the Bay of Fundy, the mouth of the Amazon and the Strait of Dover, for instance, are unquestionably parts of the high sea, while Chesapeake and Delaware bays would properly be considered territorial waters. The high sea is free to all nations for or fishing or any other lawful use; right but this ght has been conceded only partially and in comparatively recent times. Powerful maritime nations, ancient and modern, have as serted superiority and exclusive jurisdiction commensurate with their ability to compel obedi ence from those weaker than themselves. The Phoenicians would permit ships of no other nationality to pass the Pillars of Hercules out into the Atlantic; the Greeks at Byzantium barred others from ,the Euxine. For nearly 1,000 years, however, the freedom of the high sea was maintained by the Pax Romana ; the Romans included even the rivers in the common liberties —flutnen publica sunt, hoe est populi Romani —Institutes 2, title 1, sec. 2. But the unsettled conditions following the disintegration of the Roman Empire were not brought to a tolerable state of order until, toward the end of the 12th century, a system of maritime law found general acceptance and was embodied in various compilations of ancient and mediaeval maritime usages and customs, in which the Roman idea of the high sea as a common human possession is assumed, though not de clared, as a basic principle. This principle was controverted however by claims arising out of the great discoveries made toward the close of the 15th century. Vasco de Gama had doubled the Cape of Good Hope and made the voyage to India; Columbus had opened the way to the western continent. By the famous bulls of Pope Alexander VI the worlds thus newly dis closed were partitioned between Spain and Por tugal, in whose service the great discoverers had sailed. The grantees, who were then and long after the leading maritime powers, asserted, and enforced, the right to exclude all other nations from the oceans as well as the lands divided between them by the papal grant. More particularly, the Spaniards asserted the Pacific and the Spanish Main to be their own by right of discovery, while the Portuguese, by the same right, insisted upon exercising sole dominion over the Indian Ocean. The circum navigation of the globe by Francis Drake was in open defiance of the pretensions of both, and Hugo Grotius, in his celebrated treatise De Mare Liberum, which appeared in 1609, riddled their preposterous claims.
The plea of Grotius for complete freedom of the seas went unheeded, and the rivalry between the English, .Dutch and French as colonizing and maritime powers brought forth jurisdictional claims over the ocean highways scarcely less objectionable than those previously asserted by Portugal and Spain. It was the exaggeration of belligerent rights at the expense of neutrals during the ensuing two centuries of war for maritime and colonial supremacy that caused the most trouble, however. The armed neutrality, established by the North. European powers in 1780 under Russian leadership, was the first concerted effort of the weak to protect themselves against the arbitrariness of the strong in naval power. The objects of this
concert of lesser naval powers were the limita tion of contraband to actual war material, to immunize other neutral property, ships in cluded, from seizure and confiscation on the high sea, and to sustain the right of neutrals to carry on oversea trade in innocent products with all belligerents without interference from either of them. From its very beginning the American government stood out for the great est possible freedom of high sea commerce, even in time of war, and the principle ex pressed in the slogan, ships make free goods carried the immunities proposed by the armed neutrality a step further, by extending protection to enemy property when transported in neutral ships. But the American commis sioners sent to France in 1793 to secure adher ences to this principle were able to obtain only a single treaty embodying the same, that with Prussia, signed by Franklin and his associates at Brussels in 1799. Twenty-five years later a proposal °to abolish private war at sea and restrict contraband' was simultaneously sub mitted by this government to all the leading European powers. of private prop erty at sea from destruction and the depreda tions of war is offered to the civilized world by the United wrote Secretary Adams to Middleton, the American Minister at Paris cn 13 Aug. 1823. The offer was again rejected; this government, however, not only steadfastly maintained its position, but advanced it as time ran on. When the United States were requested to become parties to the Declaration of Paris, the answer was conditionally affirm ative. This government would become a signatory if the Declaration should be amended by this addition: •Private property of sub jects and citizens of belligerents on the high sea shall be exempt from seizure by public armed vessels of the other belligerents, except it be President Pierce, 4th annual message, 1856. Even in the throes of the Civil War this government was prepared to forego the advantage of naval capture of enemy ship ping and other property on the sea for the sake of establishing a principle in which it believed. We must claim for ourselves the rigors which other maritime powers apply to us when we are neutrals. But even to-day, in the midst of this strife, if the other powers, in cluding Great Britain, should agree to abolish naval blockades altogether and forever, and to exempt private property from confiscation in maritime war, we are prepared to consider the proposal'— Secretary Seward to Minister Day ton at Paris, 28 Feb. 1862. The trend of opinion in later years among international jurists seemed to be toward the American idea of complete freedom of high sea commerce in war as well as in peace. The British dele gates to the second peace conference at The Hague in 1907 had instructions from Sir Ed ward Grey, Minister for Foreign Affairs, to agree to the abandonment of high sea captures and the complete abolition of contraband. But the Relative to Certain Restrictions with Regard to the Exercise of the Right of Capture in Naval War,' which was adopted by the conference, left matters practically where they stood. It merely immunized postal cor respondence, inshore fishing vessels and small boats operated exclusively in coastal waters. The Declaration of London, formulated and adopted by the maritime conference of 1908, failed of ratification, though it was merely declaratory of prevalent usages and gave un diminished recognition to the right of capture on the high sea. The total of con ventions and morals by belligerents in the World War necessitates a complete reformation of the law of the sea, and its enforcement by a super national authority.