Has, from similar causes, the territorial extent, seaward, of maritime powers been increased by improvements in modern artillery?

National sovereignty has long been deemed to extend a marine league from the shore. This limit was adopted because to that distance the cannon of a littoral power could, at that period, under ordinary circumstances, enforce its commands. For the cannon with an effective range of only a marine league we have now substituted one with an effective range of 20 miles, or more. What is now meant by the phrase " within a cannon-shot"? In our treaty of 1794 with Great Britain, it is stipulated (Art. XXV) that neither power "shall permit the ships or goods belonging to the subjects or citizens of the other to be taken, within a cannon shot of the coast," and if its "territorial rights shall thus have been violated," it shall use its utmost endeavors to obtain satisfaction from the government of the captor.

Provisions of this kind call for interpretation, and the argument has certainly much force that this interpretation must be determined by the reason of the thing. A littoral sovereign, with cannon that can hit a ship 20 miles away with reasonable certainty, would hardly be justified for not using them to protect the rights of friendly commerce or visitation along his coasts.

But may a belligerent power have the right, under modern conditions of maritime warfare, to mark off a portion of the high seas, outside of the range of any cannon shot discharged from the shore, and either prohibit its use for commercial navigation by the subjects of other powers during the continuance of hostilities, or limit the manner of such use?

Most of the older maritime nations have, from time to time, set up claims of sovereignty over certain littoral waters, otherwise forming part unquestionably of the high seas. The contest as to closed seas and open seas-the mare liberum or mare clausum—was a warm one, before international law really became a science. England's claim to maritime supremacy over the "Narrow Seas," that is, the waters dividing her from the continent of Europe, was harshly enforced against the Dutch until a Dutch sovereign was on the English throne. She insisted upon it, as against the United States, as late as 1803.' This was an incident 'Wharton, Elements of International Law, II, 2, 163.

of the long-standing dispute between the two powers as to England's claim of right to seize English sailors on foreign ships and impress them for service in the English navy. A convention had been practically arranged at London by our minister, Rufus King, in 1803, by which Great Britain was to relinquish this claim. At the last moment she insisted on excepting all rights as to American ships sailing in the Narrow Seas. This reservation our minister refused to consider, and the affair was broken off in consequence. He did not miscalculate its importance. When John Quincy Adams, then our minister to Russia, some years later, heard of our declaration of war against Great Britain, he said: “The war hangs upon a single point; and that is impressment."

The closed sea, it will be recollected, if there ever was one, was closed at all times, in peace as well as in war. It belonged mainly to the class of commercial restrictions which were imposed to support a monopoly of trade.

But while, for more than a hundred years, the old doctrine of closed seas has been universally abandoned, a new doctrine of closed areas of sea, by the act of a belligerent in time of war, has found considerable support. These have been termed "war areas," "military areas," "strategic areas,' war zones, areas of operations" or "defence sea areas."

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Some color for this practice may be claimed from the great treatise of Grotius on the law of war and peace. The empire, he says, over a part of the sea may be gained in a similar way to that on which the empire over land may depend: by having a fleet or maritime army stationed there, or if off a sea coast by its being commanded by the guns of the littoral sovereign."

Vattel takes a view somewhat more favorable to the segregation and appropriation of part of the seas, but remarks that if a nation, without a title, arrogates to itself an exclusive right to the open sea and supports it by force, it does an injury to all nations whose commerce it violates.'

Let us look back for a century to see whether there is any ground for the position that international law has undergone a

Grotius de Jure Belli ac Pacis, II, 3, 13, 2.

'Vattel, Law of Nations, I, XXIII, Secs. 283, 289.

change in this respect, and become more favorable to the creation of a temporary mare clausum in time of war by one or more of the belligerents.

Two of the great powers, soon after the nineteenth century came in, marked off such a closed sea, and their courts have maintained the validity of such action as against the subjects of neutral states engaged in ocean trade.

In May, 1806, a British order in council declared the European coast from the Elbe to Brest under blockade. In the following November, by the Berlin decree, Napoleon declared the British islands to be in a state of blockade.

In January and November, 1807, Great Britain promulgated further orders in council, forbidding neutral commerce with France and any of her allies; and in December of the same year the Milan decree of Napoleon reiterated his first pronunciamento from Berlin.

Each power defended its action as retaliatory, and the English prize courts supported the orders in council mainly on that ground. The ministry took the position in the House of Commons, in speaking of the whole series of them, from 1806 to that of April 26, 1809, that they were not in accord with the existing law of nations, but were defensible as a just and necessary extension of that law-necessary because France had violated it first.10

Without such a reason, during the War of 1812, Great Britain took a similar position in regard to parts of our Atlantic coast. Our Secretary of State, John Quincy Adams, alluded to this in 1817, in a dispatch to our minister to England, in these words:

So irresistible is the tendency of precedent to become principle in that part of the law of nations which has its foundation in usage, that Great Britain, in her late war with the United States, applied against neutral maritime nations almost all the most exceptionable doctrines and practices which she had introduced during her war with France. The maritime nations were then, too, so subservient to her domination that in the Kingdom of the Netherlands a clearance was actually refused to vessels from thence to a port in the United States on the avowed ground that their whole coast had been declared by Great Britain to be in a state of blockade."

10 Adams, History of the United States, V, 61. "Moore, International Law Digest, 800.

President Madison, in a proclamation issued June 29, 1814, described this measure as 66 destitute of the character of a regular and legal blockade, as defined and recognized by the established law of nations, whatever other purposes it may be made to answer." The treaty of peace with Great Britain, soon afterwards negotiated, contained no provision in reference to the validity of the proceedings. Our attitude towards any such extension of the right of interfering with neutral trade continued the same, and there was soon an occasion to assert it.

In 1816, Spain declared a blockade of a part of the ocean near Carthagena, of some 3000 square miles in extent. We refused to accept it, our Secretary of State, James Monroe, saying that there can be no blockade which is not confined to particular ports."

Blockades not so confined, but extending to areas of the high seas, were however declared by Great Britain in 1854 and 1897, and by France in 1870, 1893, and 1896."

With these precedents before it, the Japanese government, in 1904, promulgated an ordinance giving the naval department power, in case of war, to designate a part of the seas off the coast as a defence sea area," and close it to commerce. Twelve such areas were thereupon so created, marked off by degrees of latitude and longitude.

Her official regulations for captures at sea, of March 15, 1904, forbade, however (Art. II), captures "in neutral waters clearly placed by treaty stipulations outside the zone of hostile operations." Blockade was defined as including the right to close an enemy's coast with force, and as being effective when the force. is strong enough to threaten any vessels that attempt to approach the blockaded coast."

By these proceedings of Japan, the leading power of Asia has pronounced in favor of the validity of zones of exclusion, other than ports and harbors, created by a belligerent, in restraint of

12 Moore, Int. Law Digest, 800; Atherley Jones on Commerce in War, 126.

13 Atherley Jones on Commerce in War, 158, 172, 181, 183.

"See Proceedings of U. S. War College for 1912, 122, and Takahashi on International Law as applied to the Russo-Japanese War, 359, 360, 778, 781, 789.

neutral trade. She thus virtually affirmed, ten years ago, that the law of nations had been so changed as to permit what, prior to the acts of England and France in 1806, was generally considered as forbidden.

Her action and the general question involved were the special subject of discussion at our Naval War College in 1912.

Stated in form, the proposition before it was thus expressed:

A belligerent may be obliged to assume in time of war, for his own protection, a measure of control over the waters which in time of peace would be outside of his jurisdiction.

In the course of the discussion this pronouncement was formulated as in his judgment sound, by one of our most distinguished scholars in international law:

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The definition of the area of operations of a blockade, even if in such a manner as to include a large range of high seas, is regarded as a legitimate act of war, and the belligerent right is respected. The principle which is recognized is that the belligerent has the right to put pressure on his opponent, without interference by neutrals. It is undoubtedly an inconvenience and may be a loss to neutral commerce to be excluded from the blockaded area, but it is a recognized consequence of war.

The result of the conference was the adoption of the view that if such a strategic area were designated by a belligerent as for the time closed to commerce, the commander of a neutral manof-war, if appealed to to escort one of his country's merchant ships through it, should decline, and should advise the master of the merchantman to keep out of it."

This conclusion of the discussion has, of course, no binding force upon the United States. It is important, however, as a matter of intrinsic weight, in view of the insistence on the war zone theory, and the practice under it of Great Britain, Germany, and Italy, in the present European wars.

It will not be forgotten that a blockade of the old type is quite a different thing from a war zone of the new type.

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Such a blockade is designed to shut up a particular port. Such a war zone is designed to exclude because it endangers entrance into a particular part of the high seas.

15 Professor George G. Wilson.

1 Proceedings of the Naval War College for 1912, 117, 128, 129.