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There was no treaty describing either boundary. There was no claim on grounds of discovery, occupation, prescription or accretion. While each controversy had arisen out of war and military occupation, claim to title on this score seems in each case to have been waived by the treaties prescribing other modes of settlement. In fact the treaties, which in the one case suggested a plebiscite and in the other negotiation and eventual submission to the League Council, both political methods of settlement, might be considered express recognition by the parties that the boundary disputes were political rather than legal in character.

The interpretation of treaties, however, is a subject on which there is not only an abundance of legal material, but which numerous agreements have declared to be universally susceptible of judicial determination.46 In the Tacna-Arica case 47 a single arbitrator was authorized to determine the meaning of the treaty, but with the express stipulation that, if he found it did not require the plebiscite, the status quo would return with, as he remarked in his opinion, "recurrence of a not improbable disastrous clash of opposing sentiments and interests which enter into the very fibre of the respective nations," 48 and that if he found it did require the plebiscite he would have to perform the political tasks of deciding who should vote, how the voting should be controlled, when the plebiscite should be held, and of supervising it until complete. In him were vested judicial, and contingent legislative and executive powers.

In the Mosul case the Permanent Court was requested to give an advisory opinion on the meaning of the treaty, with the understanding that this would terminate its powers and responsibilities in the matter, but that the League Council would continue its work of mediation, eventuating in a binding decision if the Court found it had that power under the treaty. Here was a clear separation of judicial and political powers.

There has been criticism of the legal conclusions of both tribunals." Whether any or all of these criticisms are justified, experience and theory are agreed that the delegation of political powers to the authority which interprets the law is not likely to make for good law. Separation of judicial and political functions has been generally approved in national governments. The present breakdown of the Tacna-Arica settlement compared with the general acceptance of the Mosul settlement suggests that such a separation may be expedient in international government. At any rate, a study of organic and social evolution discloses that a process of differentiation and specialization once begun usually continues.

46 Supra, note 44.

47 See this Journal, Vol. 19, p. 393 et seq.; and Wright, "The Tacna-Arica Dispute," Rev. de droit Int. et de Lég. Comp., 1925, pp. 295–309, and Minn. Law Rev., Vol. 10, pp. 28-40.

48 Opinion and Award of the Arbitrator, p. 36, this JOURNAL, Vol. 19, p. 415.

"See Wright, Minn. Law Rev., Vol. 10, p. 35, and Turkish statement on Mosul opinion, in League of Nations Council, Dec. 8, 1925.

ORIGINS OF THE THEORY OF TERRITORIAL WATERS

BY PERCY THOMAS FENN, JR.

Assistant Professor of Political Science, Washington University,
St. Louis, Mo.

I

To discover the origins in legal theory of the modern principle of territorial waters it is necessary to go back to the theory of the Glossators. There one finds stated for the first time in terms of law some of the elements which made the development of this principle possible.

The classical theory of the glosses is to be found in a comment on D.1.8.10. pr. It follows: Aristo) Casus. Hic dicit. . . sicut quando quis aedificat in maris efficitur edificium privatum: ita si mare aliquid occupet, sit commune et publicum id quod occupatur. The position of the Glossators is stated here in flat disregard of the existence of an important body of practice which was in conflict with this doctrine, and which will be noticed below.

On the other hand, a gloss which reflects the influence of the period in which it was written is that on D.1.8.2. The text reads: Mare est commune, quo ad usus: sed proprietas est nullius: sicut aër est communis usu: proprietas tamen est nullius . . . sed iurisdictio est Caesaris. . . The statement that the sea is common so far as the use thereof is concerned and that the proprietas thereof belongs to no one is obviously in full accord with the doctrine of the Digest.1 But the addition of the statement that Caesar possesses the jurisdiction exercised over it represents the crystallization in jurisprudence of a practice which had been developing since ancient times. The practice referred to is, of course, the suppression of piracy by the naval forces of a state, together with the exercise of some jurisdiction over offenses committed at sea. Celsus had attributed to the populus Romanus the position of arbitror of the seashore. The Glossators give the Emperor the right of jurisdiction over the sea.

The gloss on alioquin, D.48.9.9, offers a definition of the sea. Mare comprehendere etiam amnem et flumen, cum mare sit congregatio aquarum multarum. Bartolus, the great founder of the school of the Post-Glossators, took over this definition with the addition of one word and the substitution of a synonym for congregatio: Mare est collectio aquarum multarum salsarum.3

The definition of the sea presented no difficulty. The point of conflict was

1 For this doctrine see article, “Justinian and the Freedom of the Sea," by the present writer, this JOURNAL, Vol. 19, No. 4, p. 716.

D.43.8.3.

'Bartolus de Saxoferrato, Tractatus de Fluminibus, Bononiae, 1576, p. 54.

reached when the jurists attempted to define the sources of the rights, or the methods of acquiring rights in the sea. The denial of the legality of these rights left the problem of their existence unsolved. This attitude was, in the main, that of the classical jurists. As contrasted with them, the PostGlossators and the jurists of the practical school after them, Die Praktiker, undertook the work of grounding these rights solidly in the law. Then the doctrine of Paulus in D.47.10.14 became disputed ground between those who recognized no problem and those who adopted a realistic view. The text begins as follows: Sane si maris proprium ius ad aliquem pertineat: uti possidetis interdictum ei competit, si prohibeatur ius suum exercere. Azo has left this gloss on Sane:-Pertineat: per privilegium, vel per longam consuetudinem. In other words, the sea is open to some sort of appropriation in two different ways, either by the grant of a privilege, or through long continued custom. Because Azo thus recognizes the legality of a violation of the communal character of the sea, he must take rank as the first jurist among those who have been influential in forming a theory of the territoriality of coastal waters. His contribution is that which is necessary to any other.

In their observations on the jurisdiction of the Roman people or of "Caesar" over the sea, it seems impossible that any modern idea of sovereignty could have entered. The middle ages missed the conception of the personality of the state. The location of the supreme power proved a moot question until the modern period. There were conflicting theories not only as to the source of the power and authority of the Prince, but also as to the scope thereof. Always he was restricted by the ius divina (transformed into terms of ecclesiastical law) and probably in general by the ius naturale. In the later middle ages there were difficulties over the question whether the princely authority was lodged in the office or in the man. Furthermore, the attitude of jurisprudence toward the law was unlike the modern position. Legislation in the sense of lawmaking was foreign to mediaeval thought. Law was interpreted, not created; discovered, not made. The approach to law was judicial, not legislative. When the sea was declared to be by the law of nature incapable of becoming the object of private property, the matter was closed. When the shores of the sea were declared free of access to all men for the exercise of the right of fishery, by the ius gentium, there was no sovereign power which could override this law and annul it. It is in the light of these considerations that the exercise of jurisdiction over the seashore or over the sea should be understood.

It has been noted that, after the Glossators, there arose a class of jurists whose work was to interpret the classic Roman law in the light of contemporary practice. Evidence of the practice referred to is to be found in the mass of acts, constitutiones, capitularies and treaties which have come down to the present day. This practice shows a marked development from the position

Gierke, Otto, Political Theories of the Middle Age, transl. by R. W. Maitland, Cambridge, 1922, passim.

of the classic Roman law, indicating a growth of the belief that the Emperor, king, or state possesses some kind of inchoate property rights in the sea adjacent to the territories of the same. The growth alluded to took the following general forms: the grant of river fisheries to private persons or bodies; the grant of sea fisheries to similar persons or bodies; the use of the sea to mark a boundary to a domain or to an estate; the exemption of specified persons or people from the payment of port or harbor dues; and the grant of freedom of commerce or of travel or of both to specified parties. Such acts as these indicate a personal freedom of the monarch to dispose at will of the use of public property even though it be located in the sea. This freedom did not, apparently, extend to the right to alienate public property, title to which remained vested in the body politic, or in the monarch as the embodiment of the state, or in the monarch as the titular landowner of the national territory, according to the theories of the period. It should be noted that actual practice along the lines indicated does not show a break with the past; nor does it mark a rupture in legal theory. The development referred to is rather evidence of the gradual acceptance as a general rule of a policy which had been at its inception due either to the exigencies of a particular situation or the desire to placate potential antagonists. This development was accelerated by the steady concentration of power in the monarch, and in particular by the rise of feudalism which, while actually decentralizing the power of the Crown, vested in him those prerogatives which are to be derived from the position of titular landowner and overlord of the realm. The rivalry between the Emperors and the Popes affected this development by causing the former to emphasize the royal prerogatives and by causing them to use every means at their disposal to increase, as well as to preserve, imperial authority.

The results of this practice proved to be far-reaching. The uninterrupted custom of granting to loyal subjects or vassals portions of the lands of the state or of the Empire, together with the frequent grants of exclusive rights of use in public property, eventually became endowed with the sanction attaching to long-established usage. The minds of the people became habituated to a new idea of the relation of the state or the monarch to public property. The idea of the nature of public property underwent a corresponding change. It became possible to include within the term things which had hitherto been excluded. The acceptance of these new relationships as fact created in due time theories to justify and to explain them, theories of politics and theories of law. While the breakup of feudalism and the rise of intensely national states destroyed much, much also remained preserved and took fresh root in the municipal law of the young nations and in the new science of the law of nations. The idea of the possibility of acquiring ownership of, or sovereignty over, the sea adjacent to the territory of a state, though it had heretofore existed in but a primitive form, was one of the ideas which was projected into the modern era, there to take concrete

form under the powerful interaction of conflicting practice and opposing theories.5

It should be recalled that the practice of granting exclusive rights of use within the public domain, or in the sea adjacent to the coast, did not carry with it an extension of territorial jurisdiction seaward. It was possible for a state to own, for example, a fishery in coastal waters without that ownership involving a claim to the ownership of those waters. Not before the time of the Glossators is there an expression in the law books of a right of jurisdiction over such waters. Even then there is no claim to sovereignty or dominion. A claim to sovereignty in the modern sense was of course impossible, as has been pointed out, for the concept was lacking to the mediaeval mind. The course of development summarized above ended logically in a claim to sovereignty; but this culmination did not reach definite expression in legal thought until the sixteenth century.

One other body of practice must be noted before passing to the jurists. There is evidence which points to, if it does not prove, the existence of property rights in the bays and smaller indentations along the coasts. Venice is, in truth, as nearly every writer on the subject from the thirteenth to the sixteenth century points out, the example par excellence of the appropriation of the sea. Allowing for an element of exaggeration, the evidence of these writers indicates clearly that the Venetians owned the bays and gulfs adjacent to the land which they occupied, and claimed jurisdiction over the upper Adriatic by right of ownership. The claim to ownership of the bays and gulfs through which their islands were sprinkled seems to

'For the acts, treaties, capitularies, and so forth, which form the evidence referred to in the above summary, see the following citations. They are taken from the Monumenta Germanica Historica (M.G.H.).

For grants of fishery rights:

Mühlbacher, Die Urkunden Pippins, Karlmanns und Karls des Grossen, M.G.H., Diplomatum Karolinorum, Hanover, 1908, tom. i, p. 161.

Die Urkunden Otto des II, M.G.H., Diplomatum, Hanover, 1888-1893, tom. II, i, p. 120. Die Urkunden Otto des III, ib., p. 554. Also, p. 615. Also, p. 655.5. Also, p. 707.

Die Urkunden Heinrichs II und Arduins, M.G.H., Diplomata, Hanover, 1900-1903, tom. iii, p. 662.

Constitutiones et Acta publica Imperatorum et Regum, M.G.H., Legum Sectio IV, Hanoverae et Lipsiae, 1910, tom. viii, pars prior, p. 185.

Breslau, Die Urkunden Konrads II, M.G.H., Diplomata, tom. iv, Hanover und Leipzig, 1909, p. 71-72.

For the use of the sea as a boundary:

Mühlbacher, op. cit., p. 346.

Boretius, Capitularia Regum Francorum, M.G.H., Legum Sectic II, Hanoverae, 1883, tom. i, p. 122. Also, p. 128.

Die Urkunden Otto des III, op. cit., p. 603.

Die Urkunden Heinrichs II und Arduins, op. cit., p. 226.

Breslau, op. cit., p. 299–300.

"For a detailed discussion of the Roman law on this point reference must be made to the present writer's article in this JOURNAL, cited above.

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