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ternational law itself at this point, and, in contrast to the later philosophical and deductive method of Grotius, is empirical and inductive. His doctrine is given additional significance by the fact that he is observing international practice and appraising it.39

The question as to the limits of the adjacent sea does not meet with anything like wide recognition in the writings of the jurists previous to the seventeenth century controversy over mare liberum and mare clausum. Even then no attempt is made to place precise limits which shall be at once workable and applicable to all nations. Even Venetian lawyers did not begin seriously to defend the notorious claims of their republic to the Adriatic until the ability of their government to act effectually on them had become undermined by decay. It may safely be said that up to 1648 the problem of setting limits to mare adiacens received slight attention from the jurists. The first limit to make its appearance is that of Bartolus. He had his followers here, most notable of whom is Gentilis. Jean Bodin advocated a different limit and for a different purpose. While treating of the sovereignty of the Prince, he writes:

Sed quoniam aequor ac mare ipsum privatorum proprium esse non potest, iure quodammodo Principum omnium maris accolarum communi receptum est, ut sexaginta miliaribus a littore, Princeps legem ad littus accedentibus dicere potest. . . . At etiam ancoras alienis littoribus sine Principis concessu iniicere non licet: quae tamen olim iuris gentium fuerint.1o

The passage referring to the sixty-mile limit is given in the French edition as follows: Mais les droits de la mer n'appartiennent qu'au Prince souverain, qui peut imposer charges iusque a xxx lieuës loing de sa terre, s'il n'y a Prince souverain plus pres qui l'empesche." Antonius Matthaeus, in referring to Bodin's sixty miles, remarks, admodum dubito, an id ipsum obtineat.42

Plowden, in his argument in Sir John Constable's Case, suggested a method by which to apportion the adjacent sea:

'And to take all this matter, we ought to consider to what place the bounds of England extend. . . . Firstly, the bounds of England extend to the middle of the sea adjoining which surrounds the realm; but the Queen has all the jurisdiction of the sea between France and this realm by reason of her title to France, and so it is of Ireland; but in other places, as towards Spain, she has only the moiety. . .

39 For the expression of Gentilis' theory in the field of Roman jurisprudence, see Klockius' C., Tractatus Juridico-Politico-Polemico-Historicus de Aerario, Libri duo, Norimbergae, 1671, pp. 754.16 and 938.1 (vols. paged consecutively).

Other jurists including the sea within the meaning of territorium are:
Decianus, T., Responsorum, 3 vols., Venetiis, 1579.

Caponus, J., Controversarium Forensium, Coloniae Allobrogum, 1732.
(Probably) Pacianus, F., Consilia, Augustae Vindelicorum, 1605.

Vinnius, op. cit., notes the presence of this and opposed theories on p. 143. 40 Bodinus, I., De Republica, libri sex, Francofurti, 1622, p. 267.

4 Les Six Libres de la Republique de I. Bodin, Paris, 1576, p. 215.

42 Commentarius ad Institutiones, Trajecti ad Rhenum, 1672, p. 541.4.

But although the Queen has jurisdiction in the sea adjoining her realm, still she has not property in it, nor in the land under the sea, for it is common to all men, and she cannot prohibit any one from fishing there. . .

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With the famous controversy over mare liberum and mare clausum, in which Grotius and Selden were the great antagonists, the present study is not concerned. That conflict was between theories which had become familiar, the elements of one of which have been exposed here. The other was the great doctrine of the classic Roman law which finds expression in that vague phrase, "the freedom of the seas." The conflict was serious primarily because the advocates of mare clausum placed an extravagant interpretation upon the meaning of the term "adjacent sea." Grotius himself admitted the right of a state to the ownership of its gulfs and bays. What agitated him was the claim of Spain and Portugal to divide the ocean between them. Selden was on sound ground when he championed the theory of territorial waters. The menace in his argument lay in his definition of them. Save for a small group of Continental jurists, the arguments are guided by the interests of the parties to them, and are thus particularistic to a high degree. - The first indications, then, of the germ of a legal theory capable of developing into one of territorial waters are to be found in the work of the Glossators. The beginning of a beginning may be seen in that express recognition by the ⚫ Glossators of the inchoate jurisdiction over crimes which were committed at sea which the Mediterranean states had exercised from time immemorial, and which found its largest field in the suppression of piracy. A jurisdiction which had heretofore been based on the tacit consent which accompanies uninterrupted practice was now given legality and vested in the person of the Emperor. With this material at hand, Azo, one of the greatest of the Glossators, makes the first contribution. A private right may be granted in the sea in either of two ways: by the bestowal of a privilege, or by long continued custom. This means, of course, not only that the communal character of the sea is limited, but also that the monarch possesses the authority so to limit it. A practice originally infrequently indulged in had become intensified before 1230 (the latest possible date for Azo's death) to the point where it found expression in law.

44

An examination of the evidence shows that the private right referred to might take one of two forms. It might be the right to the exclusive use of some thing in the sea, as, for example, an offshore fishery. Or it might be the private ownership of a portion of the sea, as, for example, the bays and inlets indenting the coast of an estate or fief.

The next step toward the formation of a theory of territorial waters is

43 Moore, S. A., History and Law of the Foreshore, 3d ed., London, 1888. "The case of Atty v. Sir John Constable occurred in 17 Elizabeth, A. D. 1575. The defendant was charged with taking 'wreck of the sea' in Holderness,” p. 224.

"According to Savigny, he died before 1230. Geschichte des Römischen Rechts in Mittelalter, 6 vols, 2d ed., Heidelberg, 1834 and after, vol. v, p. 8.

made in the middle of the fourteenth century by Bartolus of Sassoferrato, the greatest jurist of his time. The influence of the practice of the feudal period is clearly to be discerned in his thought. He places coastal waters under the exclusive jurisdiction of the ruler of the territory adjoining, and gives the ruler (or state) the right of ownership over the islands near the shore. He holds that islands to a distance of one hundred miles out to sea belong to the adjacent territory. Within this distance a state exercises its jurisdiction.

Toward the end of the century, Baldus, the famous pupil of Bartolus, incorporates his teacher's theory in the feudal law. He terms the adjacent sea a judicial district, in which is applied the civil law of the state possessing the adjoining territory.

The fact that the feudal system was a territorial system, in which the king was the ultimate owner of all the land in his realm; the placing of the power to grant the rights and privileges referred to above within the Regalia or royal prerogatives; and the rise of the modern theory of sovereignty,—these were the influences which caused the existing theory of the adjacent sea to develop into that of the territorial sea.

This final step was taken by Gentilis in the latter part of the sixteenth century. Significantly enough, he stated his doctrine as part of the law of nations. Coastal waters are, he says, a part of the territory of the state whose shores they wash. It follows that the territorial rights of sovereignty which exist in the head of the state are extended in toto over the sea adjacent to his coasts.

There remains the problem of placing a limit to these waters. The theory, however, is complete with Gentilis. The delimitation of the territorial waters is a mere matter of detail, and becomes a problem for statecraft and not for lawyers to settle.

The contributors to the completed theory may be arranged to satisfy the sympathies of the student. The most inclusive list must begin with the name of Paulus, the Roman jurisconsult who contributed the text in the Digest which stimulated Azo. The Glossators as a group may be given a place for their doctrine of the punitive power of the Emperor over offenses committed at sea. Then follow Azo, Bartolus, Baldus, and Gentilis. Azo, because he recognized the authority of the Emperor to limit the communal character of the sea; Bartolus, because he asserted the right of the monarch to exclusive jurisdiction over the adjacent sea to the extent of one hundred miles; Baldus, because he transferred this doctrine to the feudal law, terming the adjacent sea a judicial district.45 It may be noted that he did not contribute an original element to the theory. And, finally, Gentilis, who brought the work to completion. But the greatest names are three: Azo,

45 It is regretted that lack of space has prevented a full consideration of the position of Baldus. Full citations from his works were given under his name as a partial remedy for this omission.

Bartolus, and Gentilis. Their work was done, roughly, within three centuries: from the early part of the thirteenth, to the latter part of the sixteenth centuries, that period which saw the height and ruin of feudalism and the rise of the modern state.

THE VILNA DISPUTE

BY W. J. BROCKELBANK

Of the many post war problems of Europe few have presented such difficulty as the problem of Poland's boundaries with Lithuania. Article 87 of the Treaty of Versailles reads in part, "The boundaries not laid down in the present treaty will be subsequently determined by the Principal Allied and Associated Powers." Since the eastern boundaries of Poland are not laid down in the Versailles Treaty, this task has remained for the Principal Allied and Associated Powers.

During the World War the Germans took possession of Vilna, where they remained until their military collapse in 1918. On February 16, 1918, the Lithuanian State Council proclaimed the independence of Lithuania at Vilna, and was established there after the Armistice of November 11, 1918. In January, 1919, the Bolshevik army descended on Vilna, and the Lithuanian Government was forced to retire to Kovno. Both the Polish and Lithuanian military machines assumed the offensive; but the Polish army was able to organize more quickly and succeeded in driving the Bolsheviks back and in occupying Vilna on April 20, 1919. The Lithuanian Government regarded this as a seizure of its capital and protested warmly. Some fighting then took place between the Polish and Lithuanian forces. Thus we see the problem before the Allied and Associated Powers was that of fixing a boundary line on each side of which stood an army ready at any moment to vindicate what it considered its rights. To approach this problem on its merits one must realize something of the background that is embedded in the history of the Polish and Lithuanian peoples. The present antagonism is the more unexpected because these two peoples have for centuries been united, and their history seems to have especially intended them to be friends.

Until the thirteenth century Lithuania remained a pagan and unimportant country. Aroused by the hostile Teutonic knights, Lithuania then became aggressive and powerful, and spread her conquests until at the end of the fourteenth century her territory extended from the Baltic almost to the Black Sea, a vast territory in which only about one-tenth of the people were Lithuanian by origin. In 1386 Janiello, the Grand Prince of Lithuania, married Jadwiga, the young Queen of Poland. This was the beginning of a union between Poland and Lithuania which lasted until the final partition in 1795. On July 1, 1569, the Act of Lublin further brought the two peoples together into a perpetual organic union, and the Constitution of May 3, 1791, effected a complete fusion. There are few examples in history of such a complete union of two peoples. During these two centuries they shared in common many struggles against both Germans and Russians.

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