The Sovereignty of the Air Why, then, should there be a threemile limit? Probably not a thousandth part of the water included in the threemile line could at any moment be actu ally "possessed" by means of cannon, yet nevertheless the line extends for legal purposes through the sea outside of every coast. The waters interior to the line are part of the same immensity to which those exterior to it contribute, and they are fully as uncontrolled in the sense in which that term is used in this connection; namely, incapable of sub mitting to prescription. It seems more reasonable to base the practice of according the three-mile limit of water a special consideration upon a less imaginative foundation. Impossibility of full control over the sea, of course, has played its part, but it has not played, in my opinion, more than an incidental one. Mankind has had no general interest in the sea itself, except as it was useful for transporta tion. His life has been lived on land and if he ventured on the water it was with a terrestrial purpose in view, to secure something he could use to ad vantage on shore or to deliver on for eign soil cargoes that in turn would pro vide him substance. He has had no other regard for the sea itself. The sea, being thus of utility, has been employed to the extent that has proved feasible. It was not until Bynkershoek published his DeDominio Mar:s, in 1703, that the theory of the three-mile limit really entered into the concepts of jurisprudence. In that day the effi ciency of gunpowder had increased the range of the warrior, and commerce to foreign parts was a well-recognized field of activity. Throughout the earlier ages, gunpowder had for the most part not existed and commerce, instead of being foreign, was done on a coasting trade basis. The two or three centuries
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immediately preceding Bynkershoek were the incubating time in which the world was ripened to receive his theory. Bynkershoek analyzed and solved a need of his time, the desirability of ex erting a wider jurisdiction than had theretofore been thought necessary. And the very basis of his theory was that developments in his world had brought a certain part of the sea within the sphere of interest of the state. With gunpowder an armed ship could stand a mile off shore and pepper a fort full of holes. The increase of commerce multiplied the concern of diplomats in their sea frontiers. So, the need having arisen, the solution was forthcoming, and the exact nature of the answer to the problem is significantly called, in Europe, the jurisdictional sea or littor al, rather than the three-mile limit. The French terms express the underlying idea much better than our customary English descriptive one. This portion of the sea is jurisdictional because the land-state has a presumptive interest in anything that happens so close to its shore. The moral is that when the land-state felt its interests widening it widened its authority to meet the new situation. If this reasoning is correct, the high seas remain "high" because the landstate has not sufficient practical interest in it to warrant it to set up a claim to sovereignty over it, which would be difficult to enforce and barren in results. A general substitute for the state's failure to extend its sovereignty over the waste of waters is found in the exten sive regulations of admiralty and the maritime navigation rules. These were found to give the state quite as good satisfaction in respect to its real interests on the sea as a preposterous claim to jurisdiction, and this is doubtless the reason why the extravagant conten
