I. THE HISTORICAL EVOLUTION OF THE TERRITORIAL SEA…

I. THE HISTORICAL EVOLUTION OF THE TERRITORIAL SEA

From what has been said in previous chapters, it is apparent that the extensive claims which were formerly made to the dominion of the English or British seas were practically abandoned in the eighteenth century, and the pretensions of other states to a similar and more effective dominion in particular seas long ago shared the same fate. It is now settled as indisputable, both by the usage of nations and the principles of international law, that the open ocean cannot be appropriated by any one Power. But it is also as firmly established that all states possess sovereign rights in those parts of the sea which wash their shores, although there is not, and has never been, universal agreement as to the precise nature of those rights, or as to the extent of the sea that may be thus appropriated. While the general movement of opinion and practice in modern times has thus been from the mare clausum to the mare liberum--from the sea held to be appropriated by particular nations to the sea under no sovereignty, but free and open to all for all purposes,--there has been another movement in the opposite direction, by which the exclusive rights of maritime states in the waters immediately adjoining their coasts have come to be more clearly recognised and definitely incorporated in international law. To this extent all maritime countries now possess a sovereignty of the sea.

It is desirable to trace the evolution of this limited sovereignty over what is now known as the territorial waters or territorial sea (also named the neighbouring, proximal, adjacent, or littoral sea--mare proximum, mare vicinum, mer territoriale, nächstangrenzendes Meer), and to consider in particular the two main aspects it presents,--first, the actual practice of nations on the one hand, and, second, the opinions of the accredited writers on international law.

The sovereignty over the so-called territorial sea has sometimes been regarded as the direct remnant of a sovereignty which was previously asserted by particular nations over whole seas or large parts of them.[968] This is true in a general sense, but in tracing the historical evolution of the territorial waters it is found that the steps by which the transference was effected varied in different cases. The pretensions of Denmark, for example, to a wide dominion over the Norwegian Sea and the North Atlantic, were slowly curtailed by gradual concessions to the opposition of other Powers, so that the extensive territorial waters at present pertaining to Norway may be looked upon as the residuum of the ancient claim. The exclusive rights have persisted, while the area over which they are exercised has dwindled. In like manner, the equally extensive territorial waters of Sweden may be regarded as an abridgment of her old claims in the Baltic. The same process may have operated in the case of Spain and Portugal, both of which Powers now claim maritime sovereignty to a distance of six miles from their coasts; but here the successive stages of contraction are not obvious. The territorial sea now held to pertain to Great Britain, so far as it has been defined, did not originate in this way, by direct descent from the old claim to the dominion of the British seas. That claim simply died out and vanished in the lapse of time, without apparently leaving a single juridical or international right behind it. The British territorial waters, as usually defined, are of modern origin, and were derived from the international jurisprudence of the Continent, and especially from the doctrine of Bynkershoek, to be referred to later.

Even during the time when some nations were asserting a wide maritime dominion, and other nations were opposing such pretensions, there was a general recognition that every maritime state was entitled to exercise jurisdiction over some extent of the neighbouring sea. This was admitted by the most thoroughgoing advocates of the mare liberum, as by Grotius himself, and it was acknowledged by the common usage of nations. The rights exercised by the crown of England, for instance, in the so-called King’s Chambers in the seventeenth century were apparently not challenged by foreign Powers. But while the sovereign rights of a state over a part of the adjacent sea were recognised by the usage of nations and the opinions of publicists, there was no agreement as to the extent which might be appropriated, and various limits or boundaries have from time to time been proposed or adopted, by which the sea pertaining to a state might be divided off from that which was open and free to all. From an early date attempts were made by jurists to discover some general principle or to lay down rules which might be applied in all such cases. Some of these rules were of such a nature as to assign to states an extent of sea almost as great as any comprised under the widest claims to maritime sovereignty, and none of them received a general assent. The early English lawyers of the twelfth and thirteenth centuries, Glanville, Bracton, Britton, and “Fleta,” merely followed the Roman law with regard to the sea--that is to say, they held that it is by its nature common, like the air, and they did not suggest any limit within which the prince of the adjoining state had exclusive jurisdiction or dominion (see p. 66).

It is in the writings of the early Italian jurists, who lived after the time when Venice by force of arms had established her sovereignty over the Adriatic, that we first meet with proposals to assign legal limits to the maritime jurisdiction of the neighbouring state. Bartolus of Saxo-Ferrato, a great Perugian jurist who died in 1357, and whose authority in the middle ages was very great, declared the law to be that jurisdiction extended to a distance of one hundred miles from the coast, or less than two days’ journey from it. Within this space the ruler had power to apprehend and punish delinquents just as he had on land.[969] Baldus Ubaldus, another eminent Italian jurist, who was a pupil of Bartolus and died in 1400, also allotted a wide limit to the maritime rights of the prince of the adjoining territory; but he reduced the space from one hundred to sixty miles, a distance which was supposed to be equal to one day’s journey from the coast.[970] The boundaries assigned by these jurists, or sometimes the equivalent of one or two days’ voyage from the coast, were very generally accepted by civilians later, although frequently with qualification, more particularly as to the nature of the rights to be exercised.[971] Bartolus confined the rights of the prince to jurisdiction and the appropriation of islands, and since the distance prescribed included the space within which navigation in those times was almost entirely restricted, it is probable that the primary idea was the maintenance of order and the suppression of piracy. The underlying principle was the range of navigation from the coast or from a port, just as later it was the range of guns.

Baldus seems to have gone a step further than Bartolus by including sovereignty (potestas) as well as jurisdiction (jurisdictio) among the rights of the neighbouring prince, and he declared that the proximal sea pertained to the territory of the adjoining state, which, as in the case of Venice, had power to impose taxes for the use of it.[972] Much the same opinion was expressed by Bodin, a French lawyer who wrote about the middle of the sixteenth century. When speaking of the taxes or tolls that might be imposed by a state, he said that though the sea was incapable of appropriation, it was in a measure accepted that for a distance of sixty miles from the shore the prince of the adjoining country could impose law on those who approached the coast, and that it had been so adjudged in the case of the Duke of Savoy.[973] Gentilis, writing at the beginning of the next century, stated that it was laid down by the civilians that not only jurisdiction, but dominion, pertained to the neighbouring state as far as one hundred miles from the coast, and even further unless the proximity of another state interfered.[974]

It is thus clear that long before the beginning of the seventeenth century, the original simplicity of the Roman law regarding the appropriation of the sea had undergone a change at the hands of its commentators, and that the doctrine of sovereignty or dominion over a very considerable maritime zone was widely held by jurists. But there is no evidence that either of the boundaries prescribed by Bartolus or Baldus was sanctioned by the general usage of nations. They do not appear ever to have been adopted by any state of northern or western Europe as the limits of its territorial sea or maritime sovereignty; although they were occasionally used in arguments in State Papers, as when the Earl of Salisbury justified to the Spanish Court King James’s proclamation of 1609 against unlicensed fishing, on the ground that maritime jurisdiction was “generally received to be about one hundred miles at the least into the seas.” The actual application of these large boundaries appears to have been confined to parts of the Mediterranean, where the doctrine took its rise, and where it survived till the eighteenth century.[975] A more recent and a curious survival of the old boundary of Bartolus is to be found in the abortive Russian Ukase of 1821, by which foreigners were prohibited from navigating in Behring Sea within one hundred Italian miles of the coast, a claim which was revived by the United States as late as 1891.[976]

Another general principle for the demarcation of the seas belonging to a state had even wider currency than the above. It consisted in the transference to the sea of the principle of the mid-channel, or thalweg, as applied to rivers in apportioning the waters pertaining to either bank,--a doctrine laid down in Roman law and in vogue among the Anglo-Saxons as early at least as the seventh century.[977] The thalweg or mid-channel was not infrequently a boundary between contiguous states, and it was not a great step to transfer its application in theory from wide rivers and estuaries to intervening seas. In this way the mid-line in the sea lying between the coasts of two states was held to be the boundary of their respective maritime jurisdiction or sovereignty. The whole extent of a sea stretching between territories belonging to the same state, however far apart these territories might be, was looked upon as being under the sovereignty of that state. This principle, therefore, covered most extensive claims to maritime dominion, since it left hardly any part of the sea unappropriated. The mid-line as an international boundary was in the case of narrow seas logically derived from the tenets of the Italian lawyers, but there are grounds for believing that it may have been much older. An ancient example of its use in a limited way is to be found in King Cnut’s charter, in 1023, granting the port of Sandwich, in Kent, to the Church at Canterbury, by which certain rights of wreck up to the middle of the sea were conferred on the monks. After mentioning “the great sea without the port,” it provided that half of whatever was found “on this side of the middle of the sea,” and brought to Sandwich, should belong to the monks and half to the finder.[978] Cnut’s charter cannot be taken as expressing any direct claim to jurisdiction to the middle line, but as wreck was a prerogative of the crown--and this is the first grant of it--the limit assigned seems to imply a differentiation of authority. More pertinent is the statement in the Mirror of Justice, a law-book written about the end of the thirteenth century, and attributed to Andrew Horn, who was Chamberlain of London in the reign of Edward II., that the king’s sovereign jurisdiction extended as far as the middle line of the sea surrounding the land.[979] Plowden, the Elizabethan lawyer, believed that this work contained the law as it existed before the Norman Conquest, but it is now declared to contain much that is spurious. Whether that be so or not, there is no doubt that this principle of maritime delimitation was adopted by many of the lawyers and scholars of Elizabeth’s time, as Dee and Plowden.[980] Even well on in the next century no less a personage than Lord Chief-Justice Hale, in an early unpublished treatise on the law of the customs and seaports, maintained that the king had “right of jurisdiction or dominion of so much at lest of the sea as adjoines to the British coast nearer then to any forren coast.”[981] From internal evidence this tract appears to have been written about 1636, and the influence of Selden’s Mare Clausum, which was published at this time, and in which the mid-line was repudiated as a boundary of the British seas, was shown in Hale’s later treatise. In it the mid-line was abandoned, and the “narrow sea, adjoining to the coast of England,” was declared to be “part of the waste and demesnes and dominions of the King of England,” who had in it the double right of jurisdiction and property or ownership, “Master Selden” being referred to as authority.[982]

There is no evidence that the principle of the mid-channel as applied to the sea was ever homologated by an English sovereign or Government. Notwithstanding its currency in the reign of Elizabeth, we know that it was explicitly disavowed by the queen herself in diplomatic controversy with the King of Denmark, who, in virtue of it, claimed the whole of the sea between Norway and Iceland. Still earlier the English Parliament vainly petitioned the victorious Henry V., fresh from his conquests in France, to impose tribute on vessels passing through the Channel, on the ground that he possessed both shores, and therefore had a legal title to the intervening sea.[983] But although the mid-line appears never to have been clearly adopted, there are two circumstances, both referring like Cnut’s charter to the Channel, which may point to its ancient usage there. One is that an important fishing-bank, the Zowe or Sow, extending about one-third across the Channel between Rye and Dieppe, was recognised by France as within the English jurisdiction, and French fishermen for a very long period were in the habit of procuring licenses from the Warden of the Cinque Ports for permission to fish there (see p. 65). The other is that when the question was raised as to how far the jurisdiction of the Cinque Ports extended into the sea--in connection apparently with complaints against French fishermen towards the end of the reign of Charles II.--the Trinity House, while avowing their own ignorance, stated that the Sergeant of the Admiralty within the Cinque Ports claimed to exercise his authority “half seas over or further.”[984]

The methods of delimitation hitherto mentioned consisted in drawing imaginary lines in the sea, usually at a considerable distance from the coast. Another principle, which probably originated among seafaring men and was capable of being made use of in a rough-and-ready fashion, depended on the range of vision on a fair day, seawards from the shore, or usually from the sea to the land. The space of sea between the coast and the horizon, or vice versâ, was regarded as belonging to the adjoining state. This was the principle adopted in Scotland, but it was not confined to that country. It was employed in olden times in England to determine whether a bay or arm of the sea was within the body of a county, inter fauces terræ, and therefore under common law, or part of the high sea and under the jurisdiction of the Admiral.[985] An early instance of its adoption as a boundary of international jurisdiction is to be found in the nautical laws prescribed for the Netherlands in 1563 by Philip II. of Spain, by which it was forbidden, on pain of death, for any violence to be done by reason of war, or for any other cause, to his subjects or allies, or to foreigners, on the sea within sight of the land.[986] Grotius also referred to the range of vision as a boundary, when he said that the controversy respecting the freedom of the sea was not about bays or straits, or “so much of the sea as might be seen from the shore.”[987] We have already seen that in Scotland the fisheries within sight of the coast, or a “land-kenning,” were claimed as belonging exclusively to the Scottish people. In this case the range of vision was from the sea to the land, and it was to be determined from the main-top of the fishing smack.[988] The extent of a land-kenning was stated to be fourteen miles, and this was the distance expressed in the Draft Treaty of Union in 1604, and pressed upon the Dutch by King James in 1618; but sometimes twenty-eight miles, or two land-kennings, was claimed; and it is to be noted that in the case of bays and firths the distance was measured from a base-line drawn between headland and headland. The range of vision, or land-kenning, as the boundary of the reserved fishing waters, was embodied in Scottish law as well as claimed against other nations by the Privy Council, the Parliament, and the king.[989]

It was also conceded to Denmark, for in 1618 the Privy Council prohibited Scottish fishermen from fishing within sight of land at the Færöe Isles. The King of Denmark, indeed, assigned the same limit in a decree of 1691 with regard to places where he did not possess the opposite coasts.[990] Although the principle was not formally acknowledged by the Dutch in determining their fishing on the British coasts, they agreed to adhere to it (see p. 193); and there is evidence to show that the British cruisers caused them to respect this limit, at all events in connection with the herring-fishing at Yarmouth.[991] A later example of the adoption of this limit is to be found in a treaty concluded in 1740 between the Porte and the King of Naples, by which it was stipulated that neither party would permit vessels to be pursued or molested on their coasts within a distance at which ships could discern the land.[992]

The method of determining the extent of the territorial sea by the range of vision was vague and open to obvious objections, even though it was ascertained only on a fair day. The distance, as Bynkershoek pointed out, would vary according to the position of the observer, the keenness of his vision, the climate, and many other circumstances, and it was inapplicable to narrow seas, such as the Channel, where the opposite coasts belonged to different states. It is, however, questionable whether, under proper rules, it would have furnished a zone much less definite than that of the range of guns. It has been proposed by some modern publicists, as Rayneval, Azuni, Heffter, and Godey, as a boundary of territorial waters; and if it had been generally adopted as a principle of delimitation, there is no doubt that the equivalent distance of fourteen miles as used in Scotland would have proved more satisfactory in several respects than the ordinary limit of three miles, which was supposed to represent the range of guns.

Still less definite was another principle, if such it can be called, which was proposed as a guide in allotting the space of sea within which exclusive rights of fishing should belong to the adjacent state. Welwood, Selden, and many others, held, in opposition to Grotius and his school, that the fisheries along a coast might be exhausted or injured by promiscuous fishing, and that the inhabitants of the coast had a primary right to the fructus of the adjacent sea, as against the intrusion of foreigners--a principle which lay at the root of the Scottish claims to the “reserved waters.” Sarpi, an Italian author of the early part of the seventeenth century, in a work defending the claims of Venice, formulated the opinion that the extent of territorial sea should not be fixed everywhere in an absolute manner, but should be made proportionate to the requirements of the adjoining state, without violating the just rights of other peoples. Thus a country or city which possessed large and fertile territories that provided adequate subsistence for the inhabitants, would have little need of the fisheries in the neighbouring sea, while one with small territories that drew a large part of its subsistence from the sea ought to have a much greater extent of sea for its exclusive use.[993] This doctrine, though obviously difficult of application internationally, has much to recommend it on grounds of reason and justice. It is one of the fundamental principles on which Norway claims at the present day an unusually large extent of territorial sea.

With regard to bays, straits, and arms of the sea, the general usage from the earliest times has included them within the jurisdiction of the neighbouring state. They have been always regarded as differing from the sea on an open coast, the only disputes about them referring to the size of such areas that might justly be looked upon as territorial. By the old common law of England, which Hale dates as far back at least as the reign of Edward II. (1307-1327), bays, gulfs, or estuaries, of which one shore could be “reasonably discerned” from the other shore, were regarded as inter fauces terræ, and within the body of the adjacent county or counties, so that offences committed there were triable at common law. But along the coast, on the open sea, the jurisdiction of the common law extended no farther than to low-water mark; beyond that it was high sea, or altum mare, and under the jurisdiction of the Admiral.[994] Here we see a sharp distinction drawn between bays and the open coast, the former being included within the realm as part of the territory. It seems reasonable on many grounds that the waters lying in view between two parts of the same continuous territory should have been regarded as pertaining to that territory, and it may be noted that in early times the navigation of a vessel along a coast was conducted from headland to headland, and thus a distinction was likely to arise between the open sea lying outside a line joining the headlands, as a waterway common to all, and the sea inside the headlands as an access to the territory. The distinction was maintained from an early period with regard to international relations. Reference has already been made to the treaty arranged by Cardinal Wolsey in 1521, in which it was stipulated that English harbours, bays, rivers, and roads should be exempt from hostilities between belligerents, and to the proclamations of King James in 1604, and of succeeding sovereigns, defining the extent of the King’s Chambers, or bays, according to ancient custom, for purposes of neutrality.[995] It is interesting to note that the rights exercised within the King’s Chambers, or bays, on the coasts of England referred only to neutrality and had nothing to do with fishing, while in Scotland it was exactly the opposite. The large bays and firths on the Scottish coast were reserved for fishing, without any specific reference to the rights or obligations of neutrals. The differentiation of bays and arms of the sea from the territorial belt on open coasts has persisted to the present day, both in the writings of publicists and in the practice of nations, although the introduction of another principle of delimitation has tended to keep the claims to bays within moderate bounds.

The various methods of determining the territorial waters of a state referred to above were more or less arbitrary, and did not rest upon a natural basis capable of universal application. During the seventeenth and eighteenth centuries another principle was gradually evolved, and was ultimately accepted as furnishing such a natural basis, so that it may now be regarded as an established part of international law. It was, that the maritime dominion of a state ended where its power of asserting continuous possession ended. The belt of sea along the coast which could be commanded and controlled by artillery on shore thus came to be regarded as the territorial sea belonging to the contiguous state. Beyond the range of guns on shore the sea was common.

This principle was of slow growth. It did not even receive definite expression among jurists until the beginning of the eighteenth century; but as previously stated (see p. 156), the Dutch ambassadors who came to London in 1610, to endeavour to induce King James to withdraw his proclamation against unlicensed fishing, made use of it in their conferences with the English Ministers, not improbably at the instigation of Grotius. But whether or not Grotius was the person who enunciated the principle in 1610, it is in his writings that we first meet with it, although in a veiled form. It is not mentioned in Mare Liberum, but in his greater work, the Law of War and Peace, which was published in 1625, he said that a state might acquire sovereignty over parts of the sea, in regard to persons by an armed fleet, and “in regard to territory, as when those who sail on the coasts of a country may be compelled from the land, just as if they were on the land.”[996] The principle of compulsion from the land is clearly enough expressed, and though Grotius did not define the nature of the compulsion to be exercised, modern writers have generally held that what he meant was compulsion by artillery. If Grotius was the author of the dictum of 1610, he must have had reasons for expressing it in a less definite form in 1625,--perhaps owing to his employment at that time by the Queen of Sweden, to whom the naked doctrine would have been no more attractive than to James.

For a long time, however, the doctrine was equally neglected by publicists and statesmen. This may have been partly due to the somewhat obscure and incidental way in which it was advanced, but probably mainly to the fact that the time was not ripe for its acceptance. It represented much too stringent a limitation of the territorial sea to receive general assent. Selden does not refer to it, and it was passed over by the authors, such as Pontanus,[997] Burgus,[998] Shookius,[999] Conringius,[1000] and Strauchius,[1001] who favoured more or less extensive claims to maritime dominion, while even writers who opposed such claims, as Stypmannus[1002] and Graswinckel,[1003] do not adopt it.

The opinions of Grotius with respect to the appropriation of the sea had, indeed, comparatively little influence among jurists in the seventeenth century. The views which prevailed in the latter part of the period are rather represented in the works of two of the writers whose reputation was greatest, Loccenius and Puffendorf. Loccenius, a Swedish author who wrote about the middle of the century and is still quoted as an authority, declared that while a nation could not acquire a universal dominion over the sea, it might possess sovereignty in a particular sea as far as it was under its power or dominion, subject to the rights of innocent passage and navigation by others; and he cited as examples Sweden and Denmark, which exercised sovereignty in the Baltic.[1004] As a general rule, however, Loccenius held that states had jurisdiction only in the waters adjacent to their coasts, for the preservation of peaceful navigation; but no attempt is made by him to lay down any fixed rule or limit as to the extent of such jurisdiction. He merely contrasts the opinions of those, as Baldus and Bodin, who contended for a wide limit of sixty miles, or two days’ journey, with those who argue for a narrow but undefined space in the neighbouring sea.

The celebrated Puffendorf, whose authority later was only second to that of Grotius, dealt with the question in his great work on the Law of Nature and Nations, and with even less precision than Loccenius.[1005] On the general question of the appropriation of the sea he discarded the objection that its fluidity rendered it incapable of possession, but held that it would be morally impossible for one nation to possess the ocean. He also set aside the moral objection in the absolute form in which it was put forward by Grotius, that the use of the sea was inexhaustible. On the contrary, he held with Selden and Welwood that fisheries in the sea might be exhausted by promiscuous use. “If all nations,” he said, “should desire such a right and liberty (of fishing) near the coasts of any particular country, that country must be very much prejudiced in this respect; especially since it is very usual that some particular kind of fish, or perhaps some more precious commodity, as pearls, coral, amber, or the like, are to be found only in one part of the sea, and that of no considerable extent. In this case there is no reason why the bordering people should not rather challenge to themselves this happiness of a wealthy shore or sea, than those who are situated at a distance from it.”[1006] On this ground, the right of exclusive fishing, and also for the security and defence of the state, a nation was justified in claiming dominion in the neighbouring sea. The extent of this territorial sea, he says, cannot in general be accurately determined; but it is clear that he thought it might be very considerable. We had the power to abridge others of the use of the sea by forts on shore, in narrow creeks and straits, or by armed fleets; but it would, he thought, show unreasonable jealousy to claim “some hundreds of leagues.” The true bounds could only be discovered either from “the right of possession” of a state, or from its treaties with its neighbours. Gulfs, channels, or arms of the sea, on the other hand, were “according to the regular course” supposed to belong to the state which had possession of the shores. If the shores belonged to several peoples, the sovereignty was distributed to the middle line, unless treaties directed otherwise, or one people had obtained the exclusive sovereignty by convention, conquest, or prescription.

We thus perceive that the opinion of jurists at the end of the seventeenth century with regard to the appropriation of the sea was very much what it was at the beginning. With the exception of the clear and terse declaration of the Dutch ambassadors in 1610, and the somewhat dubious dictum of Grotius in 1625, the principle that the maritime sovereignty of a state was limited by the range of guns from the shore does not appear to have been advanced throughout the century.

Nor does an examination of the usage of nations during the period show that the opinions of publicists were at variance with the actual practice. All maritime countries enforced an unquestionable jurisdiction, more or less extensive, in the neighbouring seas, and several of them exercised dominion over particular regions. The extravagant pretensions of Spain and Portugal had long since vanished; but Venice, while sadly fallen from her former greatness, still asserted her sovereignty over the Adriatic. Sweden and Denmark possessed a joint sway over the Baltic; and Denmark maintained her claim to the northern seas between Iceland, Greenland, and the coast of Europe. Moreover, the pretensions of England to the sovereignty of the so-called British seas, although in abeyance, had not been withdrawn. The striking of the flag was still enforced by English men-of-war, and there was nothing to prove that the other phases of the pretension might not be revived at any time.

With regard to the extent of neutral waters, it would appear that the boundaries were as a rule vague, and that general considerations determined jurisdiction in particular cases. In connection with the declaration of war by the United Provinces against France in 1689, a placard was issued by the States-General in which both Dutch and foreign vessels were exhorted to keep out on the high seas; and it was declared that any vessels suspected of having contraband goods on board and found “on the coast of France, or of other countries, islands, and places under the dominion of the King of France, and particularly in the bays and gulfs on the coast of the said kingdom,” would be seized and brought to trial.[1007] On the English coast the limits of jurisdiction were better defined, but still, in many cases, without precision. Within the King’s Chambers, as specified by James I. in 1604, “or other places of our dominion, or so near to any of our said ports, or havens, as may be reasonably construed to be within that title, limit, or precinct,” the hostile acts of belligerents, captures of the enemy’s vessels, and the hovering of foreign ships of war were forbidden. The injunction with respect to the neutral waters was renewed in 1633, 1668, and 1683, and it was in no case confined strictly to the “chambers.” In the proclamations of 1668 and 1683, which were drawn up by Sir Leoline Jenkins, the definition was merely “within our ports, havens, roads, and creeks, as also in every other place or tract at sea that may be reasonably construed to be within any of these denominations, limits, or precincts.”[1008] These limits were upheld by the decisions of the High Court of Admiralty during the greater part of the century. Sir Leoline Jenkins, it may be noted, although in questions of international policy advocating the most extreme pretensions of the English crown to the sovereignty of the seas, was careful in his judicial decisions to restrict jurisdiction within the terms of the royal proclamations. If a capture was made in one of the chambers or beyond them by a foreign privateer which had issued from an English port and had been hovering in the neighbourhood, the vessel was ordered to be restored. So also if the prize was taken, in any case, outside a chamber, but near enough the coast to be “reasonably construed” to be within the king’s jurisdiction. This usually happened on the east coast, where the chambers were small. In one such case the vessel was taken between half a league and one league off Orfordness (the headland of a chamber); in another instance the vessel was seized eight leagues at sea off Harwich, and presumably four leagues from the boundary of the nearest chamber.[1009]

At the end of the seventeenth century, while the old pretensions of various nations to the appropriation of particular seas had not been withdrawn, they had in many cases become by the force of circumstances to a large extent nominal or were in abeyance. There was moreover a tendency, as we have seen (p. 526), to substitute fixed boundaries in place of a wide and vague sovereignty, and to arrange by treaty defined limits for special purposes. In the historical retrospect we can now perceive the main influences which led to the modification of the claims and practice in the century that followed. The juridical controversies on the subject between the writers of various nations were doubtless not without effect. The repeated decisions of the High Court of Admiralty in this country, going counter to the English pretension even in the Channel, and fixing limits for neutrality, must also have had an important influence. But the chief causes were probably twofold. One was the moral and material victory of the Dutch Republic in its long and persistent struggle against the exorbitant claims to maritime dominion, first, of Spain and Portugal, and then of England and Denmark. The other was the great extension of commerce and navigation, in which England secured an ever-increasing share, so that in the next century we find her taking the part of Holland in opposing the Danish claims to mare clausum. As maritime commerce extended and the security of the sea became established, it was felt more and more that claims to a hampering sovereignty and jurisdiction were incompatible with the general welfare of nations; and as the states interested in this commerce had the greatest power, the assertion of a wide dominion was gradually abandoned, surviving only in remote regions or in enclosed seas, like the Baltic.

At the beginning of the eighteenth century the question of the appropriation of the sea was placed on another footing. The principle of delimiting the territorial sea which is now generally accepted was first expounded in 1703 by a distinguished publicist, Cornelius van Bynkershoek, who, like Grotius, was a Dutchman, and held the office of Judge in the Supreme Court of Appeal of Holland, Zealand, and West Friesland. In his early work on the dominion of the sea,[1010] and in a later treatise published in 1737,[1011] he dealt with the subject with much acumen. With respect to the general question as to the capability of appropriation, he agreed with Puffendorf rather than with Grotius. While holding that the open ocean could not be wholly brought under dominion, he admitted, with Selden, not only that large parts of the sea are susceptible of appropriation, but that various nations had at different times enjoyed such dominion: the fluidity of the sea was not a bar to its occupation, and by taking possession of it the same right was acquired as by taking possession of the land. But he declared there was no instance at the time he wrote of any ruler possessing maritime dominion of that kind, unless when the surrounding territory belonged to him, and that the general freedom of the seas for navigation had been established both by usage and by various treaties. He denied that England had the dominion of the so-called British seas, mainly on the ground of the want of uninterrupted possession, pointing out that all the neighbouring nations freely navigated them without paying any tribute or requiring any permission.

It was, however, with regard to the delimitation of the territorial sea immediately adjacent to the coast that Bynkershoek’s teaching had its chief results. He showed how uncertain and unsatisfactory were the limits previously proposed, and, following Grotius, he laid down the principle that the dominion of a state extended over the neighbouring sea as far, and only as far, as it was able to command and control it from the land. But he went further and showed how the principle was to be carried into practice. The dominion of the territory extended as far as projectiles could be thrown from the shore by artillery, so that exclusive possession might be taken of the part so commanded: “the dominion of the land ends where the power of arms terminates.”[1012] Thus Bynkershoek assigned the dominion of the adjacent sea (mare proximum) to the neighbouring state, within the range of a cannon-shot from the shore. Besides the general reasoning on which the limit was based, he cited in support of it an Act of state. He was apparently unaware of the clear declaration made by the Dutch ambassadors a century earlier; but he referred to an edict of the States-General in 1671, which enjoined that the commanders of their ships should give the salute on the coasts of a foreign Power when they were within the range of the guns of a town or fort, in such manner as the Government of the country should require, leaving to its discretion the return of the salute, and adding that every Government was sovereign within its own jurisdiction and every foreigner a subject there.[1013]

This decree could not, of course, as Bynkershoek admitted, bind other Powers to the same opinion. Nevertheless it may be said that the almost universal practice which had grown up, regulating the salute of a vessel coming within range of a battery on a foreign coast, had prepared the way for the acceptance of the doctrine. It was a recognition that the vessel had passed within the sphere of territorial authority of the particular state. It was the rule, in England at least, that “the sea should salute the land,” and the range of guns determined the limit within which the salute ought to be rendered. Beyond the reach of cannon no salute was expected; within it usage, international courtesy, or the law, required it. No foreign ship with its flag aloft could come within range of an English fort or castle without exposing itself to the risk of a shot. It is indeed a curious circumstance, that it was largely through the action of England with regard to the salute that the acceptance of the cannon-range limit was facilitated. The relation of the ceremony to the sovereignty of a state was forced by her prominently into international politics. Before the time of Selden and Charles I. jurists paid little attention to the matter, but afterwards they dealt with it as a department of international law: Loccenius and Bynkershoek, for example, each devotes a chapter to it. Even when the English were most actively asserting “the honour of the flag,” they recognised the rights of foreign states within the actual range of guns on their shore. In 1636 the Earl of Northumberland was instructed by the Admiralty not to enforce the salute within the command of the guns of forts on foreign coasts,--an order which was repeated by the Parliament in 1647,[1014] and became the rule in the service. Molloy, a vehement supporter of the most extreme claims of England to the sovereignty of the seas, stated in 1676 that English men-of-war entering a foreign harbour, or “the road within shot of cannon of some fort or castle,” were to pay such respect as was usually there expected.[1015]

The gunshot limit had been long established in connection with another international relationship--namely, the right of visitation of neutral vessels in the open sea. Many treaties had been made which stipulated that the visiting ship was not to approach nearer than within cannon-shot, and was then to send one of its boats with a few men to conduct the examination necessary. It is, moreover, extremely probable that with respect to what was in those times the principal attribute of the territorial waters--viz., the rights and obligations of neutrals--the gunshot limit, at the least, was recognised where guns were actually in position. In view of the general practice, as shown for instance in the decisions of the English Admiralty Court, and the usage in connection with the salute, it can scarcely be supposed that a capture made under the guns of a neutral fortress would be held as good prize; at all events, it was not so held in the Admiralty Court in 1760. But the merit of Bynkershoek’s doctrine was, that it transferred in theory to all parts of a coast this decisive property of compulsion and dominion which, strictly speaking, only existed where forts or batteries were placed. The doctrine, justly enough, has been called fictitious, because there are various coasts and districts where it would be impracticable to maintain dominion over the territorial sea by means of artillery on shore; and because in point of fact such dominion, unless in the neighbourhood of forts, is actually maintained by other means, as by coastguards and naval vessels. Nevertheless the principle, though resting largely on hypothesis, had much to recommend it, and it gradually became incorporated into international law as the rule for fixing the boundary of the territorial waters. Apart from its intrinsic merits, its acceptance was perhaps not a little facilitated by the felicity with which it was expressed. Bynkershoek gave it the form almost of an aphorism, and the phrase, terræ dominium finitur ubi finitur armorum vis, has been quoted by almost all later writers.

But although the doctrine of Bynkershoek was attractive, and was eventually accepted almost everywhere, it did not command immediate assent. The publicists who came after Bynkershoek in the eighteenth century, while usually referring to the cannon-range limit, or adopting it with respect to questions of prize, did not as a rule adhere to it as the sole principle for delimiting the territorial belt. The earliest notice of it after the Quæstiones appeared seems to have been by Casaregi, an Italian writer of authority, who was judge in the Court of the Grand Duke of Tuscany, in a work which appeared in 1740, and referred more especially to the practice in the Mediterranean.[1016] Foreign ships, he said, were under the protection of the prince whose seas they sail through, when they are in his ports, or in the sea so near as to be within the range of guns on shore; if seized by the enemy there, they require to be restored.[1017] This was the ordinary rule in regard to neutrality; but with regard to the question of sovereignty in the neighbouring sea, Casaregi followed preceding Italian jurists in assigning a space of one hundred miles from the coast for civil and criminal jurisdiction, with the power of levying tolls and dues from passing ships, and even of prohibiting or permitting navigation.

A little later a Spanish writer, Abreu y Bertodano, in a work on the law of maritime prize,[1018] held that it was unlawful for cruisers to attack the enemy’s vessels in the seas adjacent to the coast of a neutral within a distance of two leagues from the shore, or within the reach of a cannon-shot from it. He stated that no European Power had asserted the dominion of the sea with more heat and boldness than Great Britain, and yet by Act of Parliament the visitation of ships by the coastguard was restricted to two leagues from the coast, which was as much as could reasonably be claimed.[1019] But this author also followed the Italian rule that jurisdiction, including the levying of tolls, &c., was not limited to the coast waters, but extended for at least a hundred miles from the shore, and said that this was in agreement with the teaching of the lawyers of all nations.[1020]

Wolff, who wrote on the law of nations about the same time, appears rather to have followed the opinions of Puffendorf. He argued that the use of the sea next the shore, for fishing and the collection of things that grow on it, was not inexhaustible, nor its use for navigation always innocuous; and since it served as a protection for the adjoining state, it was reasonable that it should be under the dominion of that state. The inhabitants of the shores had therefore the right to occupy it “so far as they can maintain their dominion over it”; and the same was true of straits and bays.[1021]

Some ten years later Vattel, the pupil and follower of Wolff, published a work on the law of nations, which is still of authority, and in which much the same opinions as those of Puffendorf and Wolff are expressed.[1022] On the general question of the appropriation of the sea the usual statement was made; but Vattel held that a nation might acquire exclusive rights of navigation and fishery in the open sea by treaties, but not by prescription, unless in virtue of the consent or tacit agreement of other nations. Thus “when a nation that is in possession of the navigation and fishery in certain tracts of the sea claims an exclusive right of them, and forbids all participation on the part of other nations, if the others obey that prohibition with sufficient marks of acquiescence, they tacitly renounce their own right in favour of that nation, and establish for her a new right, which she may afterwards lawfully maintain against them, especially when it is confirmed by long use.” On the other hand, Vattel states that the uses of the sea near the coast render it very susceptible of appropriation: it supplies fish, shells, pearls, and other things, and with respect to all these its use is not inexhaustible. A maritime people may therefore appropriate and convert to their own profit “an advantage which nature has placed within their reach as to enable them conveniently to take possession of it, in the same manner as they possessed themselves of the dominion of the land they inhabit.” Vattel does not state his opinion as to the distance from the coast within which the fisheries may be appropriated, but from the examples he cites it is evident that the space might extend considerably beyond the range of guns. “Who can doubt,” he asks, “that the pearl fisheries of Bahrem and Ceylon may lawfully become property?” And the same principle may be applied to floating fish, which appear less liable to be exhausted. If a people, he says, have on their coast a particular and profitable fishery of which they can become masters, shall they not be permitted to appropriate that bounteous gift of nature as an appendage to the country they possess, and to reserve to themselves the great advantages which their commerce may thence derive, if there is sufficient abundance of fish to furnish neighbouring nations? Thus, Vattel states, the herring fishery on the British coasts might have been appropriated by the English if they had originally taken exclusive possession of it, instead of allowing other nations to take part in it. Another reason for the extension of territorial dominion over the adjoining sea, “as far as a nation is able to protect its right,” is the security and welfare of the state; but the author says it is not easy to fix upon any precise distance. Between nation and nation, “all that can reasonably be said is that, in general, the dominion of the state over the neighbouring sea extends as far as her safety renders it necessary and her power is able to assert it.” At the time he wrote, “the whole extent of the sea which is within cannon-shot of the coast is considered as forming part of the territory; and for that reason a vessel taken under the cannon of a neutral fortress is not a lawful prize.” The principle that applied to the adjacent sea applied with much greater force to roads, bays, and straits, since they were more capable of being possessed, and were of greater importance to the safety of the country. But such areas must be “of small extent,” and not great tracts of sea--as Hudson’s Bay and the Straits of Magellan: a bay “whose entrance can be defended” might clearly be appropriated.

The opinions of Vattel do not, therefore, materially differ from those of Puffendorf in the previous century, though the tendency of the earlier writer to allow a wide dominion is modified. Bynkershoek’s principle of cannon range is adopted in a somewhat cautious manner, and shown to apply especially to captures under the guns of a neutral fortress. But the general argument in regard to fisheries, the security of the state, and the exercise of territorial jurisdiction--as in the King’s Chambers on the English coast, which Vattel cites as an example of the practice--implies that a nation might lawfully extend its sovereignty much beyond the range of guns.

In the writings of other international jurists later in the century, the tendency to narrow the extent of the territorial sea in accordance with Bynkershoek’s teaching becomes more manifest, particularly in those which treat specially of the rights of neutrals. Hübner, who was assessor in the Consistorial Court at Copenhagen, treating of this subject, said with reference to Bynkershoek’s doctrine that it was evident the parts of the adjacent sea belonged to the master of the country, as accessory to the land,--first, “because it is in his power to take possession and to maintain it by means of forts and batteries which he is able to erect on the shore”; and, secondly, because the waters serve as a rampart to the land.[1023]

Valin, a French writer of authority, introduced another principle in combination with that of the range of guns. In his commentary on the marine ordinance of Louis XIV., first published in 1760, he stated that the rule that the adjacent sea within the reach of guns from the coast is under the dominion of the neighbouring state was universally recognised, the alternative distance which he gave being two leagues--the same as given by Abreu. But he thought that the depth of the water ought also to be taken into account, and that the sea up to the point at which the bottom ceased to be reached by a sounding-line pertained to the adjoining coast--an idea vague and impracticable.[1024]

In 1778, Moser, a councillor of state in Denmark, adopted Bynkershoek’s doctrine, declaring that the sea adjacent to the coast of a country was, according to the law of nations, indisputably under the sovereignty of the neighbouring territory, as far as a cannon-ball could reach.[1025] On the other hand, Lampredi, Professor of Public Law in the University of Pisa, writing at the same time, while allowing to a state the right of property in the adjacent sea, makes the limit of its dominion depend, not on cannon range, but upon considerations of general convenience.[1026] Another contemporary Italian, Galiani, who was Sicilian Secretary of Legation at Paris, and was employed by his master, the King of the Two Sicilies, to write a book in defence of his adhesion to the Russian League of Armed Neutrality, expressed somewhat varying opinions as to the limits of the territorial sea.[1027] Admitting as a received doctrine that the belt of sea washing the coasts of a country belonged to it as a part of its territory, he at first seems to extend it, in accordance with the Italian principles, as far as the authorities can cause their jurisdiction to be enforced. Later, he advances the gunshot limit for certain purposes, as the imposition of tolls and the regulation of navigation; and finally, with regard to the observance of neutrality he considers the boundary should be two leagues, or twice the distance of cannon range, and he appears to have been the first to fix upon three miles as equivalent to the range of guns.[1028]

G. F. von Martens, one of the greatest authorities on international law, writing a little later, more definitely adopted the principle of the range of guns; but he gave the equivalent distance as “three leagues,” and moreover admitted that a nation might acquire maritime dominion beyond that limit.[1029] The principle of appropriation, he says, which applies to lakes and rivers also applies to straits, which are in general not wider than great rivers and lakes, so that the middle may be reached by a cannon-ball fired from the shore; and those parts of the sea which border the land may also be regarded as the property and under the dominion of the nation possessing the coast. By a custom generally acknowledged, he continues, the authority of the possessor of the coast extends as far as the range of guns from the shore--that is to say, to a distance of three leagues;[1030] and he adds that this distance is the least that a nation ought to claim as the extent of its dominion in the sea. But he also says that a nation may occupy and extend its dominion beyond that distance, and maintain it, if the security of the nation require it, by a fleet of armed vessels; and, further, that its sovereignty may extend as far as it has been acknowledged to reach by the consent of other nations, and beyond the boundary of its property--Von Martens, like many others, drawing a distinction between property in the sea and sovereignty over it. As examples of such cases, he definitely states, as well established at the time he wrote, that St George’s Channel was under the sovereignty of Great Britain and the Gulf of Bothnia under that of Sweden, while the straits between Sweden and Denmark were considered to be the property of Denmark. On the other hand, the Bay of Biscay, the Mediterranean, the Straits of Gibraltar, the White Sea, and the North Sea were acknowledged to be free.

Towards the close of the century, an Italian author, Azuni, who was judge in the commercial court at Nice, published a work on maritime law, in which he dealt with the territorial sea; and adopting the range of guns as the principle of delimitation, he declared that the equivalent distance ought to be fixed at three miles, which, he said, was “without doubt” the farthest a cannon-shot could ever be made to reach.[1031] In this Azuni followed Galiani, making the statement more definite, and thus we see the three-mile limit put forward by publicists, as the alternative to the range of guns, before the century closed. In point of fact, however, it had actually been applied in the United States a year or two before Azuni wrote;[1032] and it is clear from what he says that no general agreement then existed as to the extent of the territorial sea, for he complained that the limit was still undecided,--a statement repeated in his enlarged work, published in 1805,--and he contended that it ought to be fixed by a solemn treaty between the maritime Powers, as Meadows had suggested a century before.[1033] Although Azuni adopted the principle of cannon range, and, like Galiani, declared that three miles was the farthest that a ball or bomb could be thrown,[1034] he was of opinion that for purposes of neutrality, as an asylum against hostilities, the territorial waters should be extended to two leagues from either shore in the case of bays and gulfs, which, he says, even when their centre was at a greater distance than three miles from either shore, were admitted to be territorial. He even strongly recommended the adoption of the range of vision as the boundary of neutral waters in time of war.

From the above review of the opinions of publicists in the latter half of the eighteenth century, it is evident that there was a general agreement that the sea, at least as far as the range of guns from the coast, was accessory to the land: no one doubted that this space at all events was included within the territorial sea of the neighbouring country. Almost all the writers went further, and held that the sovereignty of a state was not confined to gunshot range, but could be extended to a greater distance from the coast, either for the security of the state or for jurisdiction, but there was not agreement as to how far this could be carried. We see, moreover, the growing tendency to assign a fixed distance as an alternative to cannon range or as a boundary to neutral waters. Abreu, Valin, and Galiani placed it at two leagues from the coast, and the same distance is given by the writer of the article “Mer” in a great French work published in 1777[1035]--that is, twice the distance of cannon range, which was said to be one marine league, or three miles.

Turning from the opinions of international jurists in the eighteenth century to the practice and usage of nations in the same period, we may note certain features of prominence: (1) the continued decadence of claims to sovereignty over extensive areas; (2) the growing custom of fixing definite boundaries for special purposes by international treaties or by municipal laws; (3) legal decisions by which the limit of cannon range was recognised in certain cases. In the eighteenth century claims to the sovereignty of seas became greatly restricted and lost their previous importance. The feebleness of Venice prevented her from asserting in practice the rights which were hers by law and ancient prescription. Both Vattel and Azuni, while admitting that she possessed a limited sovereignty, questioned whether any other Power would recognise her claim to the whole of the Adriatic. “Such pretensions to empire,” says the former author, “are respected so long as the nation that makes them is able to assert them by force, but they vanish, of course, on the decline of her power.” In 1779, indeed, before Azuni wrote, the Republic issued a decree respecting her neutrality, in which the limit of cannon range was fixed as the boundary of her waters for that purpose.[1036] Her ancient dominion over the Adriatic was soon finally extinguished. When Napoleon conquered Venice in 1795 and transferred her like a chattel to Austria, her maritime sovereignty came to an end, and the picturesque and symbolic ceremony of “espousing” the Adriatic, which had been performed by the Doge every year for many centuries, terminated with it.[1037]

The similar pretension of England to sovereignty of the sea, as previously mentioned, did not survive till this century, except on the point of the flag; and this ceremony fell into desuetude, and was abandoned finally in 1805. Great Britain now appeared rather as a champion of the freedom of the sea than as an advocate of mare clausum. This was particularly shown in connection with the rights claimed by Denmark in the northern sea, especially at Iceland and the Danish portion of Greenland. As already stated, Denmark tried in the preceding century to keep alive her ancient rights to the fisheries and trade in these remote regions, and having failed in her efforts, introduced a fixed limit of forty geographical miles from the coast, within which whale-fishing by foreigners was forbidden (see p. 529).

While Denmark was unsuccessfully endeavouring to assert exclusive rights to the fisheries within a wide extent of water in the northern seas, she was at the same time claiming a much less extensive space along her coasts for purposes of neutrality. Moreover, it may be added that just as in most European countries the cannon-range limit and then the three-mile belt--which likewise originated in connection with neutral rights--came to be applied as the boundary of the territorial seas for all purposes, so the Danish limit for neutral waters, which was a different one, was also adopted later as the general boundary of the territorial seas by the Scandinavian states. The decree in regard to neutrality was issued in 1745 by the King of Denmark and Norway, and communicated to the foreign consuls, and it forbade all foreign privateers to capture any vessel of the enemy within a distance of one league, of fifteen to a degree of latitude, from the coast or its outlying banks or rocks.[1038] This ordinance in regard to neutral waters was renewed in 1756, 1759, and 1779,--that of 1759 expressly declaring that the league was the marine league of fifteen to a degree.[1039] It may be added here that early in the next century, in view of the war with Great Britain, decrees were published prohibiting either Danish or Norwegian privateers from capturing the enemy’s vessels within the territorial sea of any foreign state which was friendly or neutral; and such sea, it was said, was usually supposed to extend for one marine league from the coast.[1040] The same distance of four geographical miles was assigned by Sweden, in a decree of 12th April 1808, which prohibited the seizure of vessels nearer the coast of neutrals than the limit named.[1041]

The various ordinances cited referred solely to the limit of the territorial sea in relation to neutrality. But as early as 1747 the same boundary was applied to a limited part of the Norwegian coast in connection with fisheries. In that year a royal decree prohibited Russian fishermen at Finmarken from fishing within one league of the land,--a measure which was not opposed by the Russian Government, and which was renewed by a Norwegian law in 1830.[1042] In 1812, as we shall see (p. 653), the territorial waters of Denmark and Norway were declared to extend to four miles from the coast or its outlying isles,--that is to say, the limit which was adopted for neutrality was applied in regard to fisheries and other purposes.

Another example of the decadence of wide claims to maritime sovereignty is to be found in the case of Spain, which, like the Scandinavian countries, adopted a fixed limit in the eighteenth century as the boundary of her territorial waters, and, as with them also, it was placed at a greater distance than the range of guns from the coast. An eminent Spanish publicist, Abreu, as we have seen, declared in 1746 that the boundary of neutral waters should be at least two leagues from the coast, and by a royal decree of 17th December 1760 this distance was assigned, the territorial sea of Spain being declared to extend to six miles from the land. This boundary was again given in 1775 and in 1830, and it is still retained by Spain--and also, until last year, by Portugal--as the maritime frontier for customs, fishery, neutrality, and jurisdiction.[1043] At various times Spain has entered into treaties with her neighbours, France and Portugal, concerning the rights of fishery within the six-mile zone, either for reciprocal liberty to fish in the whole extent of the territorial sea, or in the outer belt of three miles. A treaty of this kind was concluded with France in 1768.[1044]

The uprising in America in 1775, which resulted in the independence of the United States, brought in its train a widespread maritime war, Great Britain having to meet the naval forces of France, Holland, and Spain, and at this time and throughout the remainder of the century we meet with numerous decrees and treaties bearing upon the delimitation of territorial waters, particularly in connection with the rights of neutrals. One of the first of these was a circular which the American Commissioners at the Court of Paris addressed to the commanders of American armed vessels in 1777, instructing them to abstain from capturing the enemy’s vessels, or vessels of neutrals, when they were “under the protection of a port, river, or coast of a neutral country.” To do so, it was said, would be contrary to the usage and customs of nations; and the proclamation issued by the American Government in the following year on the same subject is couched in equally general terms.[1045]

We find the same want of definition in an edict of the King of the Two Sicilies in the same year, which speaks only of the accustomed rules being observed in his “ports, coasts, and adjacent seas.”[1046] But in corresponding proclamations issued at the same time by the Grand Duke of Tuscany, the Republic of Genoa, the Republic of Venice, and the Pope, the range of guns is expressly mentioned as determining the boundary of their territorial waters in respect to neutrality. The Grand Duke prohibited all acts of hostility in the ports or coasts of Leghorn, within certain places specified, and in the seas adjacent to all his other ports, castles, or coasts within gunshot of the shore.[1047] With respect to Civita Vecchia, Ancona, and his other territories, the Pope prohibited, “according to the common usage of nations,” all acts of hostility or superiority between belligerents there or in the adjacent seas, “or generally within the range of guns from the shore”;[1048] while the Genoese edict forbade all acts of hostility between belligerents “in the ports, gulfs, and coasts, within range of guns,”[1049] and contained particular rules for carrying the prohibition into effect. Thus, if such an act of hostility should be committed within range of cannon, a shot was first to be fired into the air, or to a distance from the vessel or vessels violating the neutrality, unless there was risk of damage to other vessels, in which case a blank shot was to be fired. If this did not put a stop to the transgression, the offenders were to be assailed with shot and musketry. In places where cannon were not available, the same course was to be followed with muskets, and, it was said, the rules had to be carried out precisely as they had been ordained in a decree of 1756, when, no doubt, the gunshot limit was equally in force. The Venetian decree is couched in similar terms, and the size of the cannon whose range was to determine the limit is mentioned. All acts of force or authority between belligerents were prohibited “in the ports, roads, and coasts of our dominion, and in all the adjacent sea, at least to the distance within range of a large cannon of battery.”[1050] In several of the edicts, as in the two last referred to, the range of vision was also used as a limit within which no belligerent vessel was to be allowed to station itself, or cruise about waiting for the enemy’s vessels: such action was prohibited within view of the ports or roads.

It will be noticed that all these edicts regarding neutral waters in which the limit of cannon range was prescribed, emanated from the small Mediterranean states; but in many of the international treaties which followed the Armed Neutrality of 1780 the gunshot limit for neutral waters was also adopted. This league, which was directed against Great Britain, had its source in a declaration by the Empress Catherine II. of Russia regarding the rights of neutrals; especially that neutral vessels should be free to carry on trade on the coasts of belligerents, and that the property of belligerents in neutral vessels, except arms, equipment, and munitions of war, should be free from capture. The seizure of enemy’s goods in neutral ships by English cruisers bore hardly on the commerce of neutral countries; and for this reason, and, according to English views, because it was perceived by the other Powers that they could not directly contend against the naval force of Great Britain, a new code of international law was introduced which would have the effect of sapping it.[1051] In some of the treaties referred to, the limits of neutral waters were defined in vague or general terms, as in that of 1782 between the United States and the United Provinces.[1052] The gunshot limit, however, was specified in a treaty between the United States and Morocco in 1785, which stipulated that if a vessel of either state was engaged with that of another Christian Power within the range of guns of a castle of the other state, it was to be protected and defended;[1053] in a treaty of navigation and commerce between Great Britain and France in 1786;[1054] and in a treaty between France and Russia in 1787. In the latter it was stipulated that in agreement with the principles laid down in the Russian declaration regarding the navigation of neutrals, either Power, if at war, should abstain from attacking the enemy’s vessels within cannon range of the coasts of the other Power, or in the ports, harbours, gulfs, and “other waters comprised under the name of closed waters.”[1055] Russian activity in the direction indicated was shown by the conclusion of a similar treaty in the same terms with the Two Sicilies a few days later.[1056] A little later, in 1803, the range of guns was adopted by Austria as determining the extent of neutral waters, as in the treaties above referred to.[1057]

In contrast to the gunshot limit in connection with neutrality, was another which Spain incorporated in a treaty with Tripoli in 1784, by which it was agreed that Tripolitan vessels of war or privateers should not capture ships of their enemy within ten leagues of the coasts of the Spanish dominions[1058]--that is to say, within the same extent of sea as was expressed in the treaty between France and Algeria a century earlier.[1059] A few years later the same limit of ten leagues was agreed to in a treaty between Great Britain and Spain concerning fisheries and navigation in certain parts of the Pacific. Disputes had arisen with Spain concerning proceedings at Nootka Sound, Vancouver; and in a convention between the two Powers, signed in 1790, it was agreed, inter alia, that British subjects should not navigate or carry on their fishery within a distance of ten sea leagues from any part of the coast already occupied by Spain, the object being to prevent illegal trading with the Spanish settlements.[1060]

We thus perceive that towards the end of the eighteenth century various maritime boundaries were assigned in particular places for particular purposes, and that many states looked upon the limit of gunshot from an open coast as fixing the extent of their neutral waters. But hitherto, with the exception of the league limit prescribed by Denmark and Norway, which had no avowed reference to the range of guns, and was in reality equivalent to much more than three miles, no Power had yet adopted one marine league as the equivalent of gunshot from the shore. It appears that this step was first taken by the United States of America, and it is of interest to note that the three-mile limit was put forward tentatively, and, in a manner, as a temporary expedient. When the war between Great Britain and France broke out in 1793, the United States found it necessary to define the extent of the line of territorial protection which they claimed on their coast, in order to give effect to their neutral rights and duties. Washington, who was then President, instructed the executive officers to consider the line restrained, for the time being, to the distance of one sea league, or three geographical miles, from the shores, a distance which was said to be not more extensive than was claimed by any other Power. This limit was adopted tentatively, since the Government “did not propose, at that time, and without amicable communication with the foreign Powers interested in the navigation of the coast, to fix on the distance to which they might ultimately insist on the right of protection.” It was stated that the greatest distance to which any “respectable assent” among nations had ever been given was the range of vision, which was estimated at upwards of twenty miles, and the smallest distance claimed by any nation was “the utmost range of a cannon-ball, usually stated at one sea league.”[1061] Besides the extent of sea referred to, the bays and rivers were held by usage and the law of nations to be territorial, with immunity from belligerent operations. This was well shown in the same year, when the United States claimed that the whole of Delaware Bay and New Jersey, an arm of the sea about fifty English miles in length and a little over eleven miles wide at the entrance, was under their territorial jurisdiction, and ordered the restitution of a British vessel, the Grange, which had been captured there by a French frigate, L’Ambuscade; and this was done notwithstanding the protest of the French Minister that Delaware Bay was open sea and not under the exclusive jurisdiction of the United States. The American Government rested its action on the law of nations, and declared that they were entitled to attach to their coasts an extent of sea beyond the reach of cannon-shot--a claim which showed that the three-mile limit had not been adopted as an inflexible rule.[1062]

Next year the United States Congress passed a law authorising the district courts to take cognisance of all captures made within one marine league of the American shores;[1063] but in the treaty concluded between Great Britain and the United States in the same year, it is interesting to observe that the less precise limit of gunshot was adopted, in the same words as in the treaty of 1786 between Great Britain and France. The twenty-fifth article of this treaty provided that neither Government should permit the ships or goods belonging to the citizens or subjects of the other “to be taken within cannon-shot of the coast, nor in any of the bays, ports, or rivers of their territories, by ships of war, or others, having commissions from any prince, republic, or state whatever.”[1064]

It may be mentioned here that the claims which have been put forward by the United States as to the extent of their territorial or jurisdictional waters have varied greatly on different occasions. The above declaration to M. Genet was, for instance, repudiated by President Jefferson as establishing a fixed limit; and it was claimed that the limit of neutrality should extend “to the Gulf Stream, which was a natural boundary (!), and within which we ought not to suffer any hostility to be committed.”[1065] On another occasion, in a controversy about the right of jurisdiction, they claimed that the extent of neutral immunity off the American coast ought at least to correspond with the claims maintained by Great Britain around her own territory, and that no belligerent rights should be exercised within “the chambers formed by headlands, or anywhere at sea within the distance of four leagues, or from a right line from one headland to another.”[1066] The American Government endeavoured to obtain from England in the same year the recognition of a territorial belt six miles in breadth, and in the draft treaty proposed in 1807 a distance of five miles was in reality specified.[1067]

II. GENERAL ADOPTION OF THE THREE-MILE LIMIT

It is evident from the foregoing that, notwithstanding the variation in the extent of water claimed in certain cases, the principle of determining the general boundary of the territorial sea by the range of guns from the coast had become tolerably firmly established in the practice of nations before the end of the eighteenth century, with reference in particular to the rights of neutrals. Shortly before the century closed, moreover, we have seen that one of the important maritime Powers, the United States of America, had adopted a fixed distance of three miles or one marine league as equivalent to the utmost range of the cannon of those days. The range of guns naturally varied according to their size and power, and though it was specified in some of the Continental ordinances that the distance was to be determined by a large gun of battery, there was no certainty that it would be everywhere the same. It was thus clearly an advantage to have a fixed distance, which could be marked on charts, substituted for the less definite cannon range, so long as it really represented it. By the progress of the military art, however, most notably perhaps after about the middle of last century, the range of guns became enormously increased, so that long ago the three-mile limit ceased to represent it.

The new boundary of one marine league, as equivalent to the range of guns, was soon introduced into English law and practice, in the first place through the decisions of the High Court of Admiralty in questions affecting the extent of neutral waters. It is noteworthy that nothing was heard at this period about the principle of the King’s Chambers in such cases. It is very doubtful whether, as the American Government implied in 1806, the boundaries of the King’s Chambers had retained their validity at the beginning of last century. There seems to be no evidence that they were enforced during the eighteenth century, or even in the closing years of the seventeenth, possibly because occasions to test the point had become rare. But it is perhaps more probable that the claim to the King’s Chambers was allowed gradually to die out, and that the deliberate omission of any reference to them in the later proclamations of Charles II. (see p. 554) foreshadowed this change in practice. It is clear at all events that long before the end of the eighteenth century it was well established that a vessel captured by one belligerent from another belligerent in a port of a neutral state or within the actual reach of cannon was not good prize.[1068] The next step was to give effect to the same principle, whether the place was actually within the range of a fort or not.

The decisions which introduced the three-mile limit into English jurisprudence were those of Sir William Scott (afterwards Lord Stowell) at the beginning of last century. In 1800 and 1801 this great authority adopted both the gunshot limit and the distance of three miles as its equivalent for the boundary of neutral waters, in deciding the well-known cases of the Twee Gebroeders. It was these decisions of Lord Stowell’s which introduced the three-mile limit into English jurisprudence. The cases arose from the capture of certain vessels in 1799, by the boats of a British man-of-war, in the Groningen-Watt, between East Friesland and the island of Borkum, in the belief that they were bound from Hamburg to Amsterdam, which was then blockaded by the British; and it was claimed by the King of Prussia that the capture was made within the territory of that state. In deciding the first case,[1069] Lord Stowell found that the capturing vessel was “lying within the limits to which neutral immunity is usually conceded. She was lying in the eastern branch of the Eems, within what may, I think, be considered as a distance of three miles, at most, from East Friesland. An exact measurement cannot easily be obtained; but in a case of this nature, in which the Court would not willingly act with an unfavourable minuteness towards a neutral state, it will be disposed to calculate the distance very liberally; and more especially, as the spot in question is a sand covered with water only on the flow of the tide, but immediately connected with the land of East Friesland, and when dry, may be considered as making part of it. I am of opinion, that the ship was lying within those limits in which all direct hostile operations are by the law of nations forbidden to be exercised.”[1070] In this decision the three-mile limit is assumed to be, “by the law of nations,” the boundary of the neutral waters. It is also to be observed that the distance was reckoned, not from low-water mark, but apparently from the land; while according to the rule apparently governing such cases now, the sand-bank itself would be a part of the territory, and the distance of three miles would be measured from its outer margin at low water (see fig. 19, p. 635).

In deciding the second case, in which the circumstances were much the same, Lord Stowell said that “in the sea, out of the reach of cannon shot universal use is presumed”; but he made no reference to three miles as an equivalent distance.[1071] A few years later, in 1805, in deciding the case of the Anna, which was captured at the mouth of the Mississippi by a British privateer, and in which the question of the violation of American waters had to be considered, the same judge, quoting Bynkershoek, said: “We all know that the rule of law on this subject is terræ dominium finitur, ubi finitur armorum vis; and since the introduction of fire-arms, that distance has usually been recognised to be about three miles from shore.”[1072]

It is, as above stated, in these decisions of the High Court of Admiralty that the three-mile limit originated in England. They furnished the legal precedents which regulated subsequent practice. The gunshot limit was a doctrine borrowed from Continental publicists, and three miles as its equivalent from recent American practice. Both were previously unknown to English law.[1073]

Moreover, although, as we shall see, the writers on international law had in only a few instances accepted the three-mile limit as an alternative to the range of guns from the shore, and scarcely any of the Continental publicists of repute, the actual practice of Great Britain and the United States, together with the legal decisions in the British and American courts, and the dicta of the judges, tended steadily to bring about its adoption. At first the boundary of one marine league as equivalent to the range of cannon had reference solely to questions of neutrality, as the capture of prizes, in the maritime wars that prevailed. But very soon it was applied to other purposes, and first of all by the British Government in connection with the rights of fishery. During the peace negotiations with the United States at Ghent, after the war of 1812-14, the British Government intimated that they did not intend to grant to the United States gratuitously the privileges formerly given by the treaty of 1783 “of fishing within the limits of British territory, or of using the shores of the British territories for purposes connected with the fisheries.” The treaty of Ghent contained no stipulation on the subject, but shortly afterwards the British Government expressed its intention to exclude, and gave instructions to exclude, fishing vessels of the United States from fishing within the harbours, bays, rivers, and creeks, and within one marine league of the shores of the British territories in America, and from drying and curing their fish on shore. Several American vessels were seized for trespassing within British waters, and the prolonged diplomatic discussion which followed resulted in the convention of 1818, by which the fishermen of the United States were allowed the same rights as British fishermen on certain parts of the coast, but at all other parts they were forbidden to fish within a distance of three miles of the “coasts, bays, creeks, or harbours.”[1074] This was the first of the treaties in which the three-mile limit was specified, and it naturally formed a precedent for those which followed.

That the principle of adopting the distance in question as the proper boundary of the territorial sea had not yet become firmly incorporated in British policy in all cases was, however, shown a few years later in the negotiations with Russia concerning Behring Sea. In 1821 the Emperor of Russia issued a ukase or decree, in which he declared that the pursuit of commerce, whaling, and fishery, and of all other industry, on all islands, ports, and gulfs, including the whole of the north-west coast of America, beginning from Behring Straits to the 51st of northern latitude, and in other parts specified, had been exclusively granted to Russian subjects; and therefore prohibiting “all foreign vessels not only to land on the coasts and islands belonging to Russia, as stated above, but also to approach them within less than 100 Italian miles,” the penalty for doing so being the confiscation of the transgressing vessel and the cargo.[1075] The Russian Government claimed that the extent of sea of which the Russian possessions formed the limits “comprehended all the conditions which are ordinarily attached to closed seas (mers fermées), and it might consequently judge itself authorised to exercise upon this sea the right of sovereignty, and especially that of entirely interdicting the entrance of foreigners; but it preferred only asserting its essential rights without taking any advantage of localities.” This, it will be perceived, was a revival in the nineteenth century of pretensions similar to those which Denmark had advanced in the seventeenth and eighteenth; and the claim was opposed by Great Britain and the United States, whose interests were threatened by it. The British Government declared that it was contrary to the law of nations, and that it could not admit the right of any Power possessing the sovereignty of a country to exclude the vessels of others from the seas on its coasts to a distance of 100 Italian miles. In its justification Russia cited, not the Italian publicists or the earlier practice in the Mediterranean, but an article in the treaty of Utrecht, which assigned thirty leagues as the distance of prohibition (see p. 531),--an argument which was sufficiently answered by the statement that the distance mentioned was a particular stipulation in a treaty to which the other party had given its deliberate consent. At an early period in the discussion the Russian Government suspended the execution of the ukase, and instructed the commanders of their ships of war to confine their surveillance as nearly as possible “to the mainland, i.e., over an extent of sea within the range of cannon-shot from the shore.”

An article in the draft convention subsequently arranged between Great Britain and Russia provided for an exclusive fishery, not within three miles, but within two leagues or six miles, from the coasts of their respective possessions in the regions referred to; but when the British Government discovered that in the corresponding convention concluded a little earlier between Russia and the United States no limit at all had been specified, they withdrew this article. Mr George Canning, in a despatch to Mr Stratford Canning, the British plenipotentiary at St Petersburg, withdrawing the article, said that its omission was, in truth, immaterial, since “the law of nations assigns the exclusive sovereignty of one league to each Power on its own coasts, without any specific stipulation.” The Russian Government raised no objection to the new article, and the distance from the coast at which the fishing was to be exercised in common passed without specification, “and consequently,” added Stratford Canning, “it rests on the law of nations as generally received.” A little later, before the convention was ratified, the British plenipotentiary, thinking it might be desirable to have the law of nations declared therein, jointly with the Court of Russia, in some ostensible shape, broached the subject anew and suggested that notes should be exchanged in London “declaratory of the law as fixing the distance at one marine league from the shore.” The Russian Minister, however, expressed disinclination to do anything that might retard the immediate ratification of the convention; and he assured Canning that the Russian Government would be content in executing the convention to abide by the recognised law of nations, and that if any question should afterwards be raised upon the subject, he would not refuse to join in making the suggested declaration, “on being satisfied that the general rule under the law of nations was such as the English Government supposed.”[1076]

It is evident from these despatches that the British Government at that time held the opinion that the territorial waters of a state on an open coast extended, “by the law of nations,” for one marine league from the shore. But it would not have been easy for them to adduce convincing testimony in support of that opinion from the accredited writers on the law of nations whose works were then available, or from the general usage of nations apart from Anglo-American practice. The Russian Government were obviously not satisfied on the point, and their instruction to their naval commanders to enforce the limit of cannon range, though that was a less definite boundary, was more in consonance with the law of nations as generally understood. It was natural that the British Government should give weight to the decisions of Lord Stowell in the Admiralty Court.

The Government of the United States, in discussing the Russian pretension, did not apparently lay the same stress on the principle of the three-mile limit as they did on some other occasions. The claim that the Northern Pacific might strictly be regarded as a closed sea was met by the simple statement that the opposite coasts on the parallel of 51 degrees were 4000 miles apart. The right of American subjects to navigate and fish within the prescribed distance of 100 miles from the coast was rested on continuous exercise from the earliest times. Universal usage, it was declared, which had obtained the force of law, had established for all coasts “an accessory limit of a moderate distance” which was sufficient for the security of the country and for the convenience of its inhabitants, but which laid no restraint upon the universal right of nations, nor upon the freedom of commerce and of navigation.[1077]

In the conventions which followed, it was provided that the subjects of the contracting Powers should not be molested either in navigating or in fishing in any part of the Pacific Ocean, and they were to be at liberty for ten years to frequent without hindrance all the inland seas, gulfs, havens, and creeks, on the coasts mentioned, for the purpose of fishing and of trading with the natives, subject to certain conditions to prevent illicit commerce.[1078]

It may be here stated that some years later, when American and British whalers had greatly increased in numbers in Behring Sea, the Russian officials on several occasions urged their Government to preserve the sea as a mare clausum,[1079] or to prohibit foreign whalers from approaching the coast within a distance of forty Italian miles.[1080] The Russian Government pointed out in reply that to fix such a limit would be contrary to the conventions, and might lead to protests from other Powers, “since no clear and uniform agreement has yet been arrived at among nations in regard to the limit of jurisdiction at sea.” In 1847 the Government repeated the objections, and expressed the opinion that “the limit of a cannon-shot, that is, about three Italian miles, would alone give rise to no dispute”; and they further observed that no Power had yet succeeded in limiting the freedom of fishing in open seas, other Powers never recognising such pretensions. Subsequently, in 1853, in consequence of continued complaints as to foreigners fishing in the sea of Okhotsk, the Russian Government were pressed by the influential Russian-American Company either to close that great stretch of waters, as an inland sea, or to prohibit whalers from approaching close to the shores and whaling in the bays and among the islands. Instructions were thereupon issued to the commanders of the Russian cruisers to prevent foreign whalers from entering bays or gulfs, or from coming “within three Italian miles of the shores” of Russian America (north of 54° 41´ lat.), the peninsula of Kamtchatka, Siberia, the Kadjak Archipelago, the Aleutin Islands, the Pribyloff and Commander Islands, and the others in Behring Sea, as well as Sakhalin and others; and at the same time it was declared that while the Sea of Okhotsk, from its geographical position, was a Russian inland sea, foreigners were to be allowed to take whales there.[1081] Thus the Russian Government adopted at first the principle of the range of guns, then spoke of this or three Italian miles, and eventually accepted and enforced, on the great extent of coast referred to above, the three-mile limit.

Reference must now be made to some decisions in the courts of law and to certain provisions in particular Acts of Parliament which bear upon the question of the extent of the territorial waters. Owing to the long-continued peace on the sea since the decisions of Lord Stowell at the beginning of last century, few occasions have occurred for the question of the boundary of neutral waters to be raised. In a number of civil cases tried in our courts the three-mile limit has, however, been referred to, either as a ground for the decision, or more usually as a dictum of the judges, as the proper boundary of the territorial sea; but this has been frequently coupled with the qualification that it is the assumed distance of the range of guns, or the smallest extent that has been claimed by publicists or states.[1082] Some of these cases dealt with the vexed question of bays.[1083] One of the most important was tried in 1859, and it referred to the Bristol Channel. An offence was committed on an American vessel within one mile of the coast in Penarth Roads, but where the width from shore to shore is less than ten miles, and Chief Justice Cockburn, in delivering judgment, said, “We are of opinion that, looking at the local situation of this sea, it must be taken to belong to the counties respectively by the shores of which it is bounded; and the fact of the Holms,[1084] between which and the shore of the county of Glamorgan, the place in question, is situated, having always been treated as part of the parish of Cardiff, and as part of the county of Glamorgan, is a strong illustration of the principle on which we proceed, namely, that the whole of this inland sea, between the counties of Somerset and Glamorgan, is to be considered as within the counties by the shores of which its several parts are respectively bounded.” A good deal of discussion has taken place as to the precise meaning of these words. It is to be noted that much farther seawards than the place in question the width of the Channel is less than ten geographical miles. On the usual rule for bays (as laid down in the fishery conventions), the ten-mile base-line would pass between Nash Point in Glamorgan and Hurtstone Point, the headland east of Porlock in Somerset, and the closing line would be three miles west of this, or about twenty geographical miles from Penarth Roads. The six-mile limit, from land to land, is, however, about twenty-seven miles farther east, between the coast near Goldcliff, in Monmouth, and that near Walton Castle, Somerset. But about midway between these two limits (and seawards of Penarth Roads) there is a part where the three-mile zone around the island, Steepholm, joins that of the coast on either side, and though eastwards of this there are small areas beyond the distance of three miles from shore, the fact that the territorial waters are continuous from side to side at this place probably confers territoriality on all the waters inside, though that is a point which has not apparently been decided. A line drawn from the western boundary of Somerset (and in that case not from a headland) to Worms Head, the most western part of Glamorgan, measures about thirty geographical miles, and it is a markedly oblique line. What is true of one county ought to be true of another, and a much more natural line would be one of about twenty-three geographical miles between Morte Point in Devon and Worms Head in Glamorgan; or one still farther seawards between Hartland Point in Devon and St Goven’s Head in Pembroke, which are about thirty-eight geographical miles apart; but under common law the range of vision has to be taken into account. It may be added that the whole of the Bristol Channel within a line from Land’s End to Milford was one of the “King’s Chambers” (see p. 122), the closing line being nearly one hundred miles long; and that Continental publicists have referred to it, probably from this circumstance, as being within British jurisdiction.[1085]

Another case of the kind decided in a British court concerned Conception Bay in Newfoundland, which is rather more than twenty miles wide between the headlands and from forty to fifty miles in length. It was decided by the Judicial Committee of the Privy Council in 1877 that it was a British bay and part of the territorial waters of Newfoundland. The decision was based partly on the configuration of the bay, but mainly on the evidence that the British Government had for a long time exercised dominion over it, which had been acquiesced in by other nations, and the Legislature had by Acts of Parliament declared it to be British territory.[1086] Lord Blackburn, in delivering judgment, said that there was a universal agreement among writers on international jurisprudence that harbours, estuaries, and bays, landlocked, belong to the territory of the nation which possesses the shores round them, but no agreement existed as to what is the rule to determine what is a “bay” for this purpose. “It seems generally agreed,” he continued, “that where the configuration and dimensions of the bay are such as to show that the nation occupying the adjoining coasts also occupies the bay, it is part of the territory,” most of the writers referring to defensibility from the shore as the test of occupation. But the judgment was founded on the principle above stated.

With regard to jurisdiction over foreigners in the waters along our coasts, it is surprising that until quite recently there was no statutory enactment or international agreement defining the extent of that jurisdiction. Even in certain statutes in which the territorial waters are specially mentioned their boundaries are not defined, Thus, the provisions of the Foreign Enlistment Act of 1870,[1087] which was passed for purposes of neutrality in the war between France and Germany, were declared by the second section to extend “to all the dominions of Her Majesty, including the adjacent territorial waters”; and the fourteenth section provided that any ship captured during the war between other nations when Great Britain was neutral, “within the territorial jurisdiction of Her Majesty, in violation of the neutrality of this realm,” &c., would be illegal; yet, in the interpretation clause no definition is given of the meaning or extent of “the adjacent territorial waters.” A similar reluctance apparently to fix a definite boundary to the territorial seas for all purposes has been shown by the British Government on several occasions in recent years--as, for example, in the Territorial Waters Jurisdiction Act, and in the negotiations preceding the North Sea fishery convention of 1882.[1088]

The statute just referred to was the outcome of a very important case which was decided in the English courts in 1876, and raised indirectly the whole question of the extent of the territorial sea (apart from bays) and the nature of the jurisdiction over it. A German ship, the Franconia, bound from Hamburg to the West Indies, ran into a British ship, the Strathclyde, off Dover and within two and a half miles from the English coast, whereby the Strathclyde was sunk and a passenger drowned. The master, a German named Keyn, was convicted of manslaughter in the Central Criminal Court, according to English law, and the case was carried to the Criminal Court of Appeal. The defence was that as the defendant was a foreigner, in a foreign vessel, on a foreign voyage, sailing upon the high seas, he was not subject to the jurisdiction of any court in this country, while it was contended for the crown that inasmuch as at the time of the collision he was within three miles of the English shore, the offence was committed within the realm of England and was triable by the English court.[1089] It was held by seven of the thirteen judges that in the absence of statutory enactment the Central Criminal Court had no power to try such an offence, inasmuch as the original jurisdiction of the admiral, which had been transferred to that court, did not enable him to try offences by foreigners on board foreign ships; the other six judges held the opposite, on the ground that the sea within three miles of the coast of England is part of the territory of England; that the English criminal law extends over those limits; and the admiral formerly had, and the Central Criminal Court now has, jurisdiction to try offences there committed although on board foreign ships. In referring to the limits of the territorial waters under the law of nations, the three-mile distance or the range of guns from the shore was very generally quoted, and not infrequently the two were confused and spoken of as if they were one and the same thing. This was particularly the case with Sir Alexander Cockburn, who referred to various treaties and edicts (see p. 570) in which the range of guns alone was mentioned, as having fixed a three-mile limit for purposes of neutrality. He even gives Bynkershoek the credit of having propounded the three-mile theory.[1090] His conclusion was cautiously expressed as follows: “Possibly, after these precedents and all that has been written on this subject, it may not be too much to say that, independently of treaties, the three-mile belt of sea might at this day be taken as belonging, for these purposes [in connection with fisheries and neutrality], to the local State.”

It was, as we have said, in sequence to the above case of the Franconia that the important statute, the Territorial Waters Jurisdiction Act, was passed by the British Parliament in 1878.[1091] This Act is sometimes loosely referred to as having settled the extent of the territorial waters at three miles from the shore. This is far from being the case. In the preamble it is stated that “whereas the rightful jurisdiction of Her Majesty, her heirs and successors, extends and has always extended over the open seas adjacent to the coasts of the United Kingdom and of all other parts of Her Majesty’s dominions to such a distance as is necessary for the defence and security of such dominions. And whereas it is expedient that all offences committed on the open sea within a certain distance of the coasts of the United Kingdom and of all other parts of Her Majesty’s dominions, by whomsoever committed, should be dealt with according to law,” it was enacted that an offence committed by a person, whether or not a British subject, within the territorial waters of Her Majesty’s dominions was an offence within the jurisdiction of the admiral, although committed on board, or by means of, a foreign ship, and the person who committed the offence might be arrested, tried, and punished accordingly. The legal advisers of the Government were, however, careful to guard against the limitation of the general rights of the crown in the adjacent seas to the distance to which criminal jurisdiction was declared to extend. In the interpretation clause it is stated: “‘The territorial waters of Her Majesty’s dominions,’ in reference to the sea, means such part of the sea adjacent to the coast of the United Kingdom, or the coast of some other part of Her Majesty’s dominions, as is deemed by international law to be within the territorial sovereignty of Her Majesty: and for the purpose of any offence declared by this Act to be within the jurisdiction of the admiral, any part of the open sea within one marine league of the coast measured from low-water mark shall be deemed to be open sea within the territorial waters of Her Majesty’s dominions.” The reservation is made explicit in the fifth section, which says that “nothing in this Act contained shall be construed to be in derogation of any rightful jurisdiction of Her Majesty, her heirs or successors, under the law of nations, or to affect or prejudice any jurisdiction conferred by Act of Parliament or now by law existing in relation to foreign ships or in relation to persons on board such ships.”

In the debate that took place in the House of Lords in 1895 in connection with the Sea Fisheries Regulation (Scotland) Act,[1092] by which power was conferred on the Fishery Board for Scotland of regulating trawling, under certain conditions, up to thirteen miles from the coast (see p. 720), it was stated by Lord Halsbury, who had charge of the Territorial Waters Jurisdiction Act in 1878, that “in that Act they took care specially to avoid any measurements. The distance was left at such limit as was necessary for the defence of the Realm; then the exact limit was given for the particular purpose in view.” Equally clear was the statement of the late Lord Salisbury in the same debate, that “Great care had been taken not to name three miles as the territorial limit. The limit depended on the distance to which a cannon-shot could go.”[1093]

It is evident from the foregoing that the territorial sea that may be claimed as belonging to this country is not restricted to a distance of three miles from the shore on an open coast, though a certain jurisdiction and certain rights may be confined to that distance by municipal law or international agreement. The determination of the extent is left to the law of nations, and there is but little doubt that by the law of nations the true principle of delimitation is the actual range of guns from the coast, where the coast is washed by the open sea. It is to be noted that in the Territorial Waters Jurisdiction Act nothing is said about bays: criminal jurisdiction is confined to “the open sea” within one marine league of the coast. Offences such as come under the Act may obviously be committed as well in territorial bays and arms of the sea as within the three-mile limit on the open coast; and the omission to include bays was no doubt deliberate, bays in England being left under the common law on the principle previously explained, the range of vision, and in Scotland presumably under Scots law--i.e., “within land” (see pp. 545, 547).

Other Acts of Parliament which fix limits of jurisdiction beyond three miles from the shore include those relating to smuggling, the public health, and slave-ships. In 1736, and later, statutes were made by Parliament, known as the Hovering Acts, by which vessels with certain cargoes on board, destined for British ports, might be seized within four leagues of the British coast; and foreign vessels so taken have been brought for adjudication before British courts and forfeited for illicit trade.[1094] By later Acts concerning the customs, differential limits were fixed with respect to jurisdiction over vessels having dutiable goods on board. Those belonging wholly or in part to British subjects, or having half the persons on board British subjects, found or discovered to have been within four leagues of the coast between the North Foreland and Beachy Head, or within eight leagues of any other part of the coast; or any foreign ship with one or more British subjects on board, found or discovered to have been within three leagues of the coast, or any foreign ship irrespective of British subjects within one league, might under certain specified conditions be forfeited; and power was conferred on the commander of a ship of the royal navy to fire on such vessel if it refused to bring to after a warning gun had been given.[1095]

Other nations have also assigned boundaries for customs jurisdiction, which in nearly all cases exceed the ordinary limits of territorial waters. The United States in 1799 extended its jurisdiction for such purposes to four leagues from the coast, and in 1807, in an Act against the importation of slaves, the seizure of vessels laden with certain cargoes within that distance was also authorised.[1096] In Spain the customs limit is six miles, and therefore corresponds to the territorial zone which is claimed;[1097] in Sweden it is also six miles, but measured on the Scandinavian system from the outermost rocks; in Norway it is four miles, measured on the same principle, but a treaty between Norway and Mexico, concluded in 1886, places it as between these countries at three leagues from low-water mark.[1098] In Italy the boundary is ten kilometres; in France two myriametres, or about four leagues; in Austria it is also four leagues; while in Canada it is three leagues.[1099] Wide limits for jurisdiction have also been fixed by certain quarantine Acts. By the British Act of 1753, all vessels coming from places whence the plague might be brought were required to make signals on meeting other ships within four leagues of the coast, a distance which was reduced to two leagues by a later Act.[1100]

Such extension of jurisdiction as is indicated for customs or quarantine purposes over foreign ships approaching the ports of a country, has only been sanctioned in a few cases by international treaties. It is now generally held to rest upon another basis than the absolute rights possessed by a state in its territorial waters proper; although it is quite in agreement with the principles laid down by the older publicists, as Puffendorf, Vattel, and Von Martens, and by several recent writers, as Latour,[1101] that a nation is justified in exercising jurisdiction in the sea as far as its security or interests render it necessary. The current opinion is that such rights can only be enforced against foreigners under the comity of nations or by their tacit assent, as a matter of mutual convenience, and in practice they are acquiesced in by other Powers.[1102] But it is important to observe that, as will be more apparent when we come to deal with the exclusive right of fishing, maritime nations find it necessary for the protection of their just interests to extend their jurisdiction beyond the somewhat narrow boundary at present ordinarily assigned.

The statement made above, that the true principle for determining the extent of the territorial sea on an open coast is the range of guns from the shore, is borne out by an examination of the writings of the accredited authorities on the law of nations. A review of the opinions of the leading publicists of the earlier part of last century shows that while the majority accepted Bynkershoek’s principle of cannon range, comparatively few restricted it to the distance of three miles, and many logically insisted that the extent must necessarily vary with the improvements in artillery. Works of a purely polemical nature may be passed over, such as those of the worthless Barrère[1103] and of Champagne.[1104] They were inspired by hatred of Great Britain and the desire of flattering Napoleon rather than by love of the truth, and were written in order to show that the British were the tyrants of the sea. Another contemporary French author, of much superior merit, who dealt with the question was Rayneval, although his views were also somewhat coloured by national prejudice. In 1803 he published a treatise on international law,[1105] and in 1811 another on the liberty of the sea.[1106] The latter for the most part consists, like the work of Champagne, of an examination of the writings of Grotius and Selden regarding the mare liberum and the mare clausum, and also of the trenchant little book of Jenkinson (Lord Liverpool) on the conduct of the British Government in relation to neutrals. But in the earlier treatise, which is still cited as an authority, Rayneval expounded the law of nations respecting the territorial sea with marked impartiality. On the general question of the freedom of the sea and the appropriation of straits and bays the usual opinions were expressed. He held that the sea bathing the coasts of a country makes part of it; that the security and tranquillity of the state require that it should be held as a rampart against hostile surprise or violence and illicit trading; and that the fisheries form a natural appendage to this zone. With regard to the extent of sea that may be appropriated, Rayneval stated that it had not been determined by any uniform rule. Some, he said, carried it to a hundred miles, or to sixty miles, from the coast, others only to three miles, and others placed it at the distance of gunshot from the shore. On the southern coast of France it had been fixed by agreement at ten leagues with respect to the Barbary privateers. Like Meadows and several preceding writers, he held it to be desirable in the interests of the peace of nations that a general rule, or at least particular rules clearly determined, should be adopted on a matter so important and exposed to such uncertainties and disputes. Authors, he said, had usually fixed the distance at the range of cannon, but their opinion was not founded on a general regulation nor on uniform practice; and the most equitable limit according to some was the range of vision from the coast or the apparent horizon. Rayneval was of opinion that within the territorial seas the neighbouring state had the right to forbid navigation, except in cases of stress and necessity--a claim generally discarded, though still made by Norway. Any liberty to foreigners to fish along the coasts or in the bays of a country, he thought, was a matter of tolerance, founded principally on the supposed abundance of fish; and he held the opinion, which is at variance with that of most other writers,--unless when confined to the territorial zone,--that a state does not lose the right to forbid foreigners from fishing in the waters along its coasts because it at one time allowed them to do so.

Much more definite and restricted was the opinion of a contemporary English lawyer, Chitty, who published a work on the law of nations in 1812.[1107] Quoting Vattel, that the whole extent of the sea within cannon-shot of the coast is considered as making part of the territory, and that a vessel taken under the guns of a neutral fortress is not lawful prize, he says that the same doctrine is enforced by Von Martens; and he refers to the decisions in the English Court of Admiralty in the cases of the Twee Gebroeders and the Anna, which established the principle in English law. Chitty, however, makes no allusion to the three-mile limit as an alternative to the range of guns.

Bynkershoek’s principle, and also a fixed distance in place of it, were likewise accepted by Schmalz, Professor of Law in the University of Berlin. Writing in 1817,[1108] he declared that the adjacent sea pertained to the neighbouring land as far as it could be defended by cannon from the shore; that this principle had been systematically adopted; and that the distance had been fixed arbitrarily at three marine leagues,[1109]--an erroneous statement, no doubt derived from G. F. von Martens, which has been previously referred to,[1110] and was copied from one book into another. Two years later another and a greater German authority, Klüber, also adopted the principle of the range of guns, without, however, proposing an equivalent distance in miles.[1111] He allowed to the state the waters susceptible of exclusive possession, over which it had acquired, by occupation or convention, and maintained, its sovereignty. Among the parts so comprised are (1) the sea adjoining the continental territory of a state--at all events, “according to the generally received opinion,” to the extent to which it can be reached by cannon-shot from the shore; (2) parts extending into the land, as bays and gulfs, which can be commanded by guns on shore; (3) straits which are equally commanded by guns; (4) gulfs, straits, and seas adjoining the continental territory of a state, which, though not entirely under the range of guns on shore, are recognised by other Powers as closed seas--that is, under one dominion, and inaccessible to foreign vessels without permission.

Wheaton, an eminent American jurist, whose first work was published about this time, likewise accepted the principle of cannon range, or, as an alternative, a distance of three miles from the shore.[1112] The territorial jurisdiction of a neutral Power, he says, “extends to the ports, harbours, bays, and chambers formed by headlands of the neutral Power. The usual addition allowed to this is a distance of three English miles, or a marine league, or as far as a cannon-shot will carry from the coasts or shore.” His statement is based on the decisions in the English Admiralty Court, and on the writings of Vattel, Bynkershoek, Von Martens, and Azuni. In his great treatise on the law of nations, first published in 1836,[1113] the same views are expressed, it being stated that the general usage of nations superadds “to bays, ports, &c., a distance of a marine league, or as far as a cannon shot will reach, along all the coasts of the state”; and, incorporating into his text Lord Stowell’s observation, he says, “The rule of law on this subject is terræ dominium finitur, ubi finitur armorum vis, and since the introduction of fire-arms, that distance has usually been recognised to be about three miles from the shore.” Wheaton also states that the exclusive territorial jurisdiction of the British crown over the enclosed parts of the sea along the coasts of Great Britain has immemorially extended to those bays called the “King’s Chambers,”[1114] and that a similar jurisdiction is also asserted by the United States over Delaware Bay, and other bays and estuaries forming portions of their territory, and that a state had the exclusive right of fishing within its territorial waters.

Chancellor Kent, who was another high American authority, expressed somewhat different opinions from those of Wheaton, in a treatise published in 1826, and seemed inclined to extend territorial jurisdiction much farther into the sea than the latter writer.[1115] The extent of such jurisdiction over the neighbouring sea is, he says, often a question of difficulty and of dubious right, but as far as a nation can conveniently occupy, and that occupancy is acquired by prior possession or treaty, the jurisdiction is exclusive. It is difficult, he states elsewhere, to draw any precise conclusion, amidst the variety of opinion, as to the distance to which a state may lawfully extend its exclusive dominion over the sea adjoining its territories, and beyond harbours, gulfs, bays, and estuaries, where its jurisdiction unquestionably extends. “All that can reasonably be asserted is, that the dominion of the sovereign of the shore over the contiguous sea extends as far as is requisite for his safety, and for some lawful end. A more extended dominion must rest entirely upon force and maritime supremacy. According to the current of modern authority,” he continues, “the general territorial jurisdiction extends into the sea as far as cannon-shot will reach, and no farther; and this is generally calculated to be a marine league.” These opinions do not differ materially from those of Puffendorf and Vattel, and the tendency of this writer to allow an extended maritime jurisdiction is shown by his statement regarding bays. He holds that the American Government have the right to claim for fiscal and defensive regulations an extensive jurisdiction, and that it would not be unreasonable to assume, “for domestic purposes connected with our safety and welfare,” the control of the waters within lines stretching from quite distant headlands, as from Cape Ann to Cape Cod, and from Nantucket to Montauk Point, and from that point to the capes of the Delaware, and from the south cape of Florida to the Mississippi; that is to say, within areas in comparison with which the “King’s Chambers” are insignificant, since a straight line from the south cape of Florida to the Mississippi measures about 500 miles, and encloses a tract of sea as much as 180 miles in breath. Kent adds that the Government of the United States would certainly view with uneasiness, in the case of war between other maritime Powers, the use of the waters of the American coast, far beyond the reach of cannon-shot, as cruising ground for belligerent purposes.

Manning, an English publicist, writing a little later,[1116] adopts the usual opinion, stating that the distance to which the special right of jurisdiction or the qualified dominion of a state extends on the adjacent sea has been variously measured, the most prevalent distances being those of a cannon-shot or of a marine league from the shore. Heffter, a publicist of high authority, asserting as incontestable the right of all maritime nations, both for defence and for the protection of their commercial and revenue interests, to establish an active surveillance on the neighbouring sea, declares that for these purposes a state has the power of fixing, according to the particular conditions of its coasts and waters, the distance to which its rights shall extend. A common usage, he says, has established the limit at the range of guns, a principle sanctioned by the laws and regulations of many nations. But he maintains with Vattel that the dominion of the state in the adjacent sea extends as far as it is necessary for its security, and it can enforce it,--qualifying this declaration, however, by adopting Rayneval’s suggestion that the horizon should be the extreme boundary of the territorial sea. In his opinion the range of guns, although the principle commonly adopted, affords no invariable basis, and the distance may be fixed, at all events provisionally, by the laws of each state: formerly, he adds, it included two leagues, and now usually three marine miles.[1117]

A much more restricted view of the extent of the territorial sea was taken by Reddie, an English writer whose work appeared in the same year.[1118] He adopted Bynkershoek’s doctrine of the range of guns, but makes no mention of the three-mile limit or any other alternative distance. A certain breadth of the adjacent open sea is, he says, necessary for defence and security, and it is that portion within reach of cannon-shot, capable of being protected and commanded by artillery from the land, and thus susceptible of exclusive and permanent dominion, if not of appropriation. Beyond the range of artillery the sea is common; within that range each nation has the right of sovereignty, legislative, judicial, and executive, and the exclusive fishery. This part of the sea cannot be used by nations generally, without diminishing the use or enjoyment of others, and its produce is by no means inexhaustible.

Ortolan, a French publicist of eminence, writing about the same time, not only adopted the principle of Bynkershoek, but affirmed in a positive manner that the extent of the territorial sea should correspond to the actual range of artillery at the time.[1119] Although the gunshot limit was the one recognised, there was nothing, he says, to hinder two or more states from fixing between themselves, by treaty, another limit, but such would be binding only on those who were parties to the agreement. Bays and arms of the sea whose shores belong to the same state are also territorial, provided that their width does not exceed twice the actual range of guns, or that the entrance can be commanded by artillery, or is naturally protected by islands, banks, or rocks. Within the territorial sea as thus defined the state has the power of making laws and regulations for its safety, prosperity, and interests, but it has not the right of property,--Ortolan, like so many other writers, drawing a distinction between property and jurisdiction. The opinion that the real range of guns is the true principle for the determination of the extent of the territorial sea was also affirmed by Hautefeuille, another French writer of authority.[1120] According to him, it extends to the distance a ball can be actually thrown from the shore and no farther. Within the space thus commanded the rights of the state are absolute, both in regard to jurisdiction and property, and even to the prohibition of navigation. The right of fishery is exclusive, since the products of the sea are not inexhaustible, and the pursuit of them requires to be kept under proper regulation. On this view, therefore, the fisheries of right belong to the neighbouring state up to the limit of gunshot from the coast.

Other French writers of authority have maintained the same opinion as to the principle for the delimitation of the territorial waters. Thus, Pistoye and Duverdy[1121] state that each Power is able, in a given zone, measured by the range of cannon, to impose its laws and enforce obedience to them. It cannot take bodily possession of the waves, but it can maintain over them direct and constant domination. While there has been much discussion, they say, as to the extent of the territorial sea, the principle upon which its appropriation rests serves also to determine its bounds, “and it must be acknowledged that the range of cannon from the shore is the only real and true boundary of the sea in question.”[1122] No measure, they add, has been generally agreed upon between different nations as to the distance which the range of guns may be supposed to cover; but they think the eyes of experienced officers on the coast may be trusted to judge how far a given spot is within the distance. Still another French author of repute expressed the same view as to the extent of the territorial sea. Massé, in his elaborate work on commercial law in relation to the law of nations,[1123] pointed to the fact that the arbitrary opinions of the older writers had been rejected, and stated that the real basis of delimitation was the range of guns--a distance which he places at “about three miles”; but he says that this rule is not always followed in practice. Bays and gulfs are declared to be undoubtedly part of the territorial sea, even when they are not capable of being defended from the shore. The reasons for this opinion are the same as those advanced by Hubner--namely, that such areas form natural harbours and anchorages, sheltering vessels from tempests: the vessels are thus under the protection of the coasts, and consequently of the sovereign of the coasts. The true boundary in such cases Massé regards as the line joining the headlands, or passing between the islands that may lie off the mouth, even if the distance be greater than the range of guns, or than what has been fixed by convention for an open coast.

It is obvious from the above review of the opinions of publicists in the first half of last century that no complete agreement had been reached in theory or principle respecting the extent of the territorial sea. Many of the writers held to the opinions expressed by Puffendorf, Wolff, and Vattel, which allowed a more or less wide and vague jurisdiction in the neighbouring sea for the security of the state; and most of them refer to the cannon-range limit as the one usually adopted. Few, however, accept the three-mile boundary as an alternative to the range of guns: most of the authors indeed do not even mention it, and those who do, appear to have been guided in the main by Lord Stowell’s decisions. On the other hand, the later of the French writers affirm that the boundary of the territorial waters is determined by the actual range of artillery from the shore at the time, which is a virtual repudiation of the three-mile limitation. Their view is summed up by Pistoye and Duverdy when they say that the principle on which the appropriation of the bordering sea rests serves also to determine its bounds--i.e., control and command from the shore.

III. THE FISHERY CONVENTIONS

Compared with the eighteenth century and the earlier part of the nineteenth, the period which has elapsed since the close of the Napoleonic wars has been singularly free from occurrences raising the question of the extent of the territorial sea in connection with the rights of belligerents and neutrals. There has been no great maritime war in Europe since the enormous advance in the power of artillery rendered the three-mile limit untenable for the security of a neutral state against the operations of belligerents in the sea off its coasts, though some questions involving the inadequacy of that limit came to the front during the civil war in America. The chief questions affecting the boundary of the territorial waters were concerned with sea fisheries, and several conventions were made between European nations in which limits were fixed for exclusive fishing. They originated in the perennial disputes between British and foreign fishermen.

In previous chapters it has been shown that the intermittent efforts of the British Government to establish an exclusive right to the fisheries along the coasts of this country were without definite result, except that it came to be tacitly understood by the Dutch fishermen that they should keep out of sight of the shore. At various times during the eighteenth century complaints were made to the Government of the encroachments of Dutch, French, and Danish fishermen along our coasts and in the Channel, and representations were in several instances made to the foreign Government concerned. An examination of these complaints shows that in many cases the foreigners were alleged to fish within the bays and close to the shore, destroying the spawn and brood of fish. In other cases they were accused of fishing in British waters when they were between three and four, or even between six and seven, miles from the coast,--the real ground of complaint being that they occupied the localities where the fish were most abundant, and where the native fishermen mostly carried on their industry.[1124] From causes previously described, the number of Dutch fishermen frequenting the British coasts diminished very much during the eighteenth century, while at the same time French fishermen, and on the coast of Scotland also Danes and Prussians, as well as fishermen from the Austrian Netherlands, came in increasing numbers. During the war with France and Holland the fishermen of these nations were unable to pursue their fishing on the British coasts. But shortly after the restoration of peace they returned, and complaints of their encroachments, especially on the coast of Scotland and the south coast of England, soon became prevalent. In 1819 the Board of British White Herring Fishery received numerous complaints of foreign, and more particularly Dutch, herring-busses shooting their nets too near the coasts, and committing depredations on the lines and nets of the native fishermen. The Board were urged to prevent foreigners from fishing “within a certain distance” of the shore; but they considered they had no power to do so, and forwarded copies of the petitions to the Lords of the Treasury. The clamour continued, and in 1821, and again in 1822, the Board strongly recommended the Government to take action. In the latter year the Government made representations on the subject to the Government of the Netherlands; and as a result a royal decree was issued in 1824 by the King of the Netherlands prohibiting Dutch fishermen from fishing on the main coast of Scotland, or even, in the absence of urgent necessity, from approaching it within a distance of two leagues, twenty making a degree, or twice the limit of three miles.[1125] In 1827--and thus only twelve years before the Anglo-French convention fixed a three-mile limit--this Dutch ordinance was renewed, and from that time few complaints were made of the encroachments of Dutch herring-busses on the Scottish coast. They continued to conduct their herring fishery, for the most part, at distances ranging from twelve or fourteen to forty or fifty miles, as they still do at the present day.

As the disputes with the Dutch fishermen were thus amicably arranged by the recognition of a six-mile zone of reserved water, similar contentions sprang up, and continued for a long period, with fishermen from France. In 1824, some years after the peace, they began to frequent the coast of Scotland, and they came in great numbers in each succeeding year, fishing at the Shetlands, Orkneys, and along the north and east coasts from Cape Wrath to Berwick, and down the English coast as far as Flamborough Head.[1126] Several circumstances connected with the French fishery tended to provoke disputes. While the Dutch fished from their busses at a distance from the coast, where the largest and best herrings were caught, and were forbidden under heavy penalties from buying or selling herrings while at sea, or even from entering any foreign port except by reason of urgent necessity, the French fished, as a rule, near the shore from small boats, which they even hired for the season, not uncommonly from Scotch fishermen. They frequented the Scottish ports; they bought herrings in large quantities surreptitiously from native boats engaged to local fish-curers, for money, brandy, tobacco, biscuits, and other articles; and they were allowed to dry their nets, and even sometimes to salt their herrings, on shore for a small payment.[1127] They were thus intimately associated with the native fishermen along the coast, and they carried on their fishery near the shore in the waters which were mostly used by the natives.

In the English Channel disputes between British and French fishermen were still more frequent and acrimonious. British naval supremacy during the long war had given a monopoly of the fisheries to the people of the English coast, but after peace was concluded French fishermen swarmed in the Channel, and began to fish along the English shores. Complaints became rife of the decadence of the English fisheries, owing to the alleged encroachments of the French and a general diminution in the abundance of fish. In 1833 a Select Committee of the House of Commons was appointed to inquire into the state of the British Channel fisheries and the laws affecting the fishing trade of England, with a view to their amendment. After taking evidence, the Committee reported that they found those fisheries, and the interests connected with them, to be in a very depressed and declining state; that the decline had begun with the peace in 1815; that the number of fishermen and boats had diminished; and that the fishermen and their families were indigent.[1128]

The principal causes of the depression were found to be the extensive interference and aggressions of the French fishermen on the coasts of Kent and Sussex, the large quantity of foreign-caught fish illegally imported, and the great decrease and comparative scarcity of fish in the Channel. Large fleets of French fishing vessels from Calais, Boulogne, Dieppe, and other ports were in the habit of fishing along the English coasts, frequently within half a league of the shore, and occasionally nearer, as well as in the bays and shallow waters, “in which,” said the Committee, “it is particularly necessary for the preservation of the brood of fish, that such as frequent those waters during the breeding season should not be disturbed, or their young destroyed before they have attained maturity.” The French fishing vessels were more numerous and larger than the English boats,--between two and three hundred coming from Boulogne alone,--and they had caused great injury to the nets and gear of the English fishermen, especially in the herring and mackerel seasons. At other times of the year it was proved that they were in the habit of coming in great numbers every morning into English bays, and dragging there for bait in the shallow waters close upon the shore, taking and destroying an immense quantity of young and unsizeable fish, at periods when they were prevented by French laws from conducting similar operations in their own bays.[1129] These laws, the Committee reported, were understood to be enforced also against English fishermen within three leagues of the coast of France; on approaching nearer they were warned off by French cruisers, and told that they would not be allowed to fish within that distance.

The Committee considered it to be proved that the scarcity of fish in the Channel (with the exception of herrings and mackerel) had been occasioned by the great destruction of the spawn and brood of fish in the shallow waters. They recommended as remedies for the evil “that foreign fishermen should be prevented at all seasons of the year from fishing within one league, or such other distance of the English coast, as by the law or usage of nations is considered to belong exclusively to this country,” and that they should also be required to observe, during the spawning or breeding season of fish, all such laws or regulations as might be imposed upon English fishermen for the better preservation of the spawn and brood of fish in the bays and shallow waters on the coast.[1130] In order to accomplish these objects, they recommended that customs and revenue officers and the commanders of cruisers should be instructed to prevent foreign fishermen from fishing “within such prohibited distance of the shore,” to enforce the observance by foreigners as well as by subjects of our fishery laws and regulations, and to protect the English fishermen from aggression at sea.

The Committee had considerable difficulty in arriving at their conclusion respecting the limit which should be fixed for exclusive fishing on the English coast. They were influenced partly by what they understood to be the usage, that the sea for one marine league from the shore was considered to be the territory of the adjoining country, partly by the practice of the Customs’ authorities in connection with the prevention of smuggling, and partly by considerations affecting the preservation of the fry and brood of fish. Under the Customs’ regulations, vessels and boats of certain descriptions, including fishing-boats, required a license, and the Commissioners of Customs had discretionary power[1131] to prescribe within what distance of the English coast they might be employed. In some cases fishing-boats were restricted to a distance of four leagues, in other instances they were allowed to fish to within one league of a foreign coast, one league of sea being regarded by the Customs’ authorities as belonging to the territory of the adjacent country. With regard to the right of fishing, however, it was generally understood among the English fishermen that the limit on the French coast reserved for French fishermen was three leagues; and they desired that the same limit should be applied on the English coast. The Committee laid great stress on the fixing of a limit of exclusive fishing in order to preserve the spawn and brood of fish. It was universally believed, and stated by all the witnesses, including Mr James Cornish, an ichthyologist of repute, that the fish spawned in the shallow water near the shore,--an erroneous opinion that has prevailed almost to the present day, but which was shown to be incorrect by the observations made by the Fishery Board for Scotland[1132] and others.

It was deemed to be of great importance that the breeding fish, and the eggs which they were supposed to deposit near the shore, should be protected from alleged injurious modes of fishing; and the Committee recommended statutory enactments to establish close-times, and to prohibit the use of trawl or drag nets within a league from the shore or in water less than ten fathoms in depth. They inquired carefully as to the limit which would be sufficient for this purpose. Most of the fishermen were of opinion that the distance of one league would be sufficient to include the “breeding-grounds,” and bring them under the protection of the law; but they held that the distance should be measured not from the shore, following its sinuosities, but from a straight line drawn from one headland to another,--an opinion with which the Committee concurred.

No immediate action was taken by the Government to establish a definite boundary for exclusive fishing, and petitions and memorials continued to pour in from various parts of the coast complaining of the depredations of French fishermen. They were accused of interfering with British fishermen engaged in dredging for oysters fifteen miles from the shores of France; of fishing for herrings and mackerel within less than a mile of the British coasts, compelling the native fishermen to shoot their nets to the seawards of them; of maliciously destroying fishing gear, and of recklessly extirpating the spawn and brood of fish in the shallow waters along the English coast. The Government were urged to give effect to the recommendations of the Committee of 1833, and they were asked by the Commissioners for the Herring Fishery to issue instructions to the naval superintendent in Scotland to prevent the encroachments complained of.[1133]

From a perusal of these petitions it is evident that much doubt existed at the time, not only in the minds of fishermen but among many in authority, as to what was the precise limit of exclusive fishery that might be claimed or enforced. As a general rule, it was believed to extend much farther than a league from the shore. Many fishermen maintained that the boundary was three leagues, an opinion strongly held in Scotland as late as 1862. The fishermen of Eyemouth, probably influenced by traditions of the extent of the “reserved waters” in earlier times, asked that foreigners should be “kept without the limits prescribed by law, and that limits (sic) be seven leagues,” declaring that they went that distance themselves, and were annoyed and endangered by foreign vessels taking up the ground.

On the part of French fishermen there were also numerous complaints against the English, the most bitter referring to the dredging for oysters off the French coast. In 1837 a mixed commission was appointed by the British and French Governments in connection with these complaints, and especially to ascertain and define the limits within which the subjects of the two countries respectively should be at liberty to fish for oysters between Jersey and the neighbouring coast of France. The opportunity was taken at the same time “to define and regulate the limits within which the general right of fishery on all parts of the coasts of the two countries shall be exclusively reserved to the subjects of Great Britain and of France respectively,” and a convention was concluded at Paris in 1839 defining these rights.[1134] By its articles a very considerable stretch of water containing oyster-beds, in the Bay of Granville on the French coast, between Cape Carteret and Point Meinga, south-east of Jersey, and extending far beyond the three-mile limit, was reserved exclusively for French fishermen, the boundaries being minutely defined and laid down on a chart annexed to the convention; and British fishermen were prohibited from carrying on any kind of fishing, even for floating fish, within this area. The bay thus appropriated is over seventeen miles in breadth, and the closing line passes in some places about fourteen miles from the shore.[1135] This concession to France was a recognition of the principle that fisheries of this nature--that is, for objects which are attached to or stationary on the bottom--require special treatment.

The article defining the general fishery limit on the coasts of the two countries was as follows:--

“ARTICLE IX. The subjects of Her Britannic Majesty shall enjoy the exclusive right of fishery within the distance of three miles from low-water mark, along the whole extent of the coasts of the British Islands; and the subjects of the King of the French shall enjoy the exclusive right of fishery within the distance of three miles from low-water mark, along the whole extent of the coasts of France; it being understood that upon that part of the coast of France which lies between Cape Carteret and Point Meinga, French subjects shall enjoy the exclusive right of all kinds of fishery within the limits assigned in Article I. of this Convention, for the French oyster fishery.

It is equally agreed, that the distance of three miles fixed as the general limit for the exclusive right of fishery upon the coasts of the two countries shall, with respect to bays, the mouths of which do not exceed ten miles in width, be measured from a straight line drawn from headland to headland.”

* * * * *

The next article defined the miles to be geographical miles, of which sixty make a degree of latitude; and it was also provided that with a view to prevent the collisions which from time to time took place “on the seas lying between the coasts of Great Britain and of France,” between the trawlers and the line and long-net fishermen of the two countries, a mixed commission should be appointed to prepare a set of regulations for the guidance of the fishermen in the seas above mentioned. The code of regulations so arranged was confirmed by the respective Governments in June 1843, and was in this country embodied in an Act of Parliament. They embraced a large number of subjects, many of them beyond what was contemplated in the convention. Besides what may be termed police regulations, such as the numbering and lettering of fishing-boats, there were others defining and restricting the fishing apparatus to be employed;[1136] and all this machinery of regulation was to be applied to British and French fishermen pursuing their industry in the extra-territorial waters.

This convention was the first to establish by an international agreement the three-mile limit as the boundary of exclusive fishing on the British coasts, so far as French fishermen were concerned. In view of the numerous conflicts and disputes, it was clearly of importance that some limit should be precisely fixed, but the selection of so narrow a strip of the adjacent sea was in some respects unfortunate, and has probably acted injuriously on the interests of the sea fisheries. It was imposed, no doubt, partly because it was the limit already recognised in England and America as bounding the territorial seas for the purposes of neutrality, and because it was deemed sufficient to afford protection to the breeding fishes and fish-spawn, one of the objects the Parliamentary Committee had in view in recommending it.

The disputes between the fishermen of the two nations were not set at rest by the convention. Numerous infringements of the new boundary of exclusive fishing occurred, and the difficulty of causing it to be respected was for many years considerable.[1137] As many as twenty-one French vessels were seized and taken into Berwick at one time for transgressing the limit, and the convention was naturally not looked upon with favour in certain French seaports.[1138] Nor was it generally regarded among the fishery classes in this country as a triumph of diplomacy. In Scotland it was thought that the British Government had made a very bad bargain in parting with the exclusive right to fish for herrings beyond a limit of only three miles instead of three leagues, the boundary maintained to be the “legal” and just distance, for the sake of obtaining, as it was supposed, some fancied advantage for the English oyster fishermen.[1139]

The convention, moreover, was binding only on French and British subjects. It left unsettled the limit in relation to other nations, and the inconvenience of this was shown by the action of Belgian fishermen. While the French were excluded from the three-mile zone, the Belgians not only fished within it, but in many cases they anchored their vessels in the Scottish harbours and bays and fished in the neighbouring waters from their small boats. In 1848 the commissioners for the British fisheries brought the question before the Board of Trade, and they were advised to enforce the boundary laid down in the Anglo-French convention with respect to Belgian and all other foreign boats also.[1140] Against this procedure strong remonstrances were made by the Belgian fishermen, and these were followed by representations from the Belgian Government. The Fishery Commissioners, who were anxious that the law in regard to foreigners fishing on our coasts should be made clear, continued to press the matter. The Belgian fishermen then produced to the naval superintendent a copy of the charter that had been granted by King Charles II., in 1666, to the citizens of Bruges,[1141] under which they claimed equal privileges with British subjects. That charter appears to have been generally regarded as fictitious; but, acting on the advice of the Queen’s Advocate, the Board of Trade directed that for the ensuing season of 1851 Belgians should be allowed to fish on the same system as before, but that afterwards this liberty should cease, except in the case of such as had been able to prove special privileges under the asserted charter in the English courts of law. The dispute was settled by a convention between Great Britain and Belgium in 1852, in which, without mention of any specified limit, it was stipulated that Belgian fishermen should enjoy the same rights of fishing on the coasts of the United Kingdom as the most favoured foreign nation, and, in like manner, that British subjects should enjoy corresponding rights on the coast of Belgium.[1142] This convention was more beneficial to Belgium than to us, as the Fishery Commissioners pointed out, owing to the extent of the respective coasts conceded for fishing, but it was thought to be satisfactory, inasmuch as defined rights were substituted for vague and disputed privileges. Nevertheless, as the Belgian Minister remonstrated that sufficient time had not been afforded for trying in the British courts the validity of the charter “alleged” to have been granted to the fishing vessels of Bruges, the vessels of that port were allowed for one season more (namely, 1852) the privilege of using the Scottish harbours for their fishing vessels and of fishing from them with small boats.[1143] When the authorities attempted in 1852 to enforce the convention against Belgian vessels other than those of Bruges, by excluding them from our harbours, so much dissatisfaction was caused that the Belgian Minister again appealed to the British Government, and the restriction was relaxed for another year for all Belgian boats, so that the enforcement of the three-mile limit against them did not come into operation till 1853.

The violations of the boundary by French vessels, above referred to, continued for many years, and the disputes were sometimes so frequent and serious as to occasion the employment of seven or eight gunboats on the east coast of Scotland to maintain the law. Yet the three-mile limit, as the Commissioners declared, was but “a slender privilege” to retain for the native fishermen. “The extent of it,” they truly said, “when looked at from the sea appears small indeed, seeming but a narrow slip lying close under the high cliffs of the land, and when it is taken into account that the whole sea outside is free to every comer, whether British or foreign, the slight boundary within shore ought to be strictly kept.” Sometimes, however, the French were accused of infringing the limit from a common misconception on the part of our fishermen that the boundary was the traditional one of three leagues or nine miles, instead of only three miles. Upon explanation, they admitted their misapprehension, “but,” said the Commissioners, “with a significant expression of their wish that it had been leagues instead of miles.”

The French herring vessels swarmed chiefly about Berwick and the coast of Northumberland, and in 1853 a question of the limit at the Farne Isles was raised by the French commodore. He interpreted the words of the convention (which did not specify islands) as meaning that the three miles was to be measured from low-water mark on the mainland, which would have allowed the French to fish close to the islands. The British naval superintendent, on the other hand, held that the limit extended to three miles from low-water mark on the islands as well, but, pending a legal opinion, he released two French vessels he had seized for fishing within that distance from them. The Queen’s Advocate decided in favour of the latter interpretation, and the point does not appear to have been again raised.[1144] The infringement of the boundary by the French gradually became less frequent, and in 1867 it was reported that they had begun to fish at a greater distance from the coast than formerly, and even out of sight of land.

At this time it was found to be desirable to conclude another fishery convention with France. Nearly all the elaborate regulations under the convention of 1839 had turned out to be unworkable or were disregarded, and much difference of opinion existed as to what actually were “the seas lying between the British Islands and France” to which they applied.[1145] In this second convention, in 1867, the exclusive fishery limits of the two countries were defined as in the convention of 1839, and the boundaries of the large area in the Bay of Granville or Cancale, reserved for French fishermen, were precisely the same as before.[1146] The international “extra-territorial” regulations under this convention were much less detailed than in the previous one. Fishing beyond the reserved limits was to be entirely free, with the exception that a close-time for oysters was established for the English Channel. The police regulations were to apply to “the seas surrounding and adjoining Great Britain and Ireland,” and adjoining the Atlantic coast of France, between the frontiers of Belgium and Spain. The conditions under which the fishing-boats of one nation might enter the exclusive fishery limits of the other, such as by stress of weather, were carefully specified; and each boat while there was to hoist a blue flag, and was again to leave as soon as the exceptional circumstances had ceased. The convention was to continue in force for ten years, and afterwards from year to year, terminable on twelve months’ notice. But, although confirmed by an Act of the British Parliament, in 1868,[1147] it was not ratified by France, and its provisions never came into practical operation, except with regard to the close-time for oysters, owing to certain objections raised by the French Government.[1148] Certain of its provisions, including, amongst others, the article in the convention defining the exclusive fishery limits, were repealed by the Sea Fisheries Act, 1883.[1149]

Both conventions, as we have seen, dealt with oyster fisheries in a special manner, and on the coast of France a large area, extending much beyond the three-mile limit, was reserved to French fishermen on account of the valuable oyster-grounds it contained. An interesting point was raised by the Irish authorities. It happened that Ireland also possessed productive and extensive oyster-beds on the coast of Wexford, stretching for many miles beyond the exclusive fishery limits laid down in the convention, and the Irish authorities claimed the right of control over the whole of them. They had enforced regulations there before the first convention with France, in 1889, had been entered into, and at that time they protested against its application to Ireland. Accordingly, in the Act of 1843 giving effect to the convention, a clause was inserted empowering the Board of Trade, with the sanction of the Privy Council, to suspend the operation of the convention in Ireland or any part thereof, so long as the fisheries there should be carried on exclusively by British subjects, and also to make bye-laws for enforcing the Act as soon as French boats frequented Irish waters for the purpose of fishing.[1150] On the day following the passing of the Act an Order in Council was issued directing “that the said Act and articles of regulation shall be suspended with respect to the fisheries of the whole coasts of Ireland, so long as such fisheries shall be carried on exclusively by the subjects of Her Majesty.”

The matter was again raised in connection with the convention of 1867, and it was associated with a recent act of jurisdiction by the Irish authorities beyond the three-mile limit. Some Welsh boats which had been dredging for oysters on the coast of Wexford, at a distance, it was said, of four or five miles from the shore, were arrested, taken to Wexford, the fishermen fined, and the oysters forfeited. The Board of Trade thereupon asked the Irish Department, with reference to an Act that had been passed in 1842 to regulate the Irish fisheries,[1151] to state what were “the limits of the Act to regulate Irish fisheries” in pursuance of the provisions of which they presumed they had acted, and “whether the oysters in question were captured within those limits.” The reply was that the oysters were taken two and a half miles from the shore, but that the most extensive and valuable oyster-beds on the east coast of Ireland lay at a distance of from five to ten miles from and parallel to the shore, and so far as they, or any other beds, were “within the reach of ordinary shore boats, and were habitually frequented by and afforded the means of living to a shore population, the Commissioners conceive they are justly entitled to be considered Irish beds, and to come within their control.”[1152]

The Irish Members of Parliament strenuously supported this contention, and they succeeded in getting a clause inserted in the Convention Act of 1868 enabling the Irish Commissioners, with the approval of the Queen in Council, to regulate the dredging for oysters on any oyster-beds situated within the distance of twenty miles seawards from a straight line between Lambay Island and Carnsore Point--an area of nearly 1300 square (geographical) miles, outside the three-mile limit, including the Arklow and Wexford banks, and stretching from twelve and a half to nineteen miles beyond the ordinary limit. All such regulations were to “apply equally to all boats and persons on whom they might be binding,” and they were binding “on all British sea-fishing boats, and on any other sea-fishing boats in that behalf specified in the Order, and on the crews of such boats.”[1153] By an Order in Council, dated 29th April 1869, regulations were made under this section of the Act appointing a close-time; but no other boats than British boats were therein specified.[1154]

In the interval between the two conventions with France, referred to above, there were some other treaties that dealt with territorial waters to which allusion may be made. The provisions of the treaty of 1818 with the United States respecting the fishery rights on the coasts of the British dominions in America (see p. 581) had given rise to disputes, and in particular the words “within three marine miles of any of the coasts, bays, creeks, or harbours.” This was interpreted by the British and Colonial Governments as meaning that the boundary of three miles was to be drawn, not everywhere along the coast following all its sinuosities, but, where bays or creeks existed, from a straight line passing from one headland to another across their mouth or entrance--that is, according to the principle now known as the headland doctrine. The United States, on the other hand, generally contended that the words meant that the three-mile limit was to be measured everywhere along the coast from the line of the shore, following it in all its curves and indents, thus eliminating altogether any special treatment for inlets or bays, and dealing with all parts of the coast as if it were an open coast. There is little doubt that the British interpretation was the correct one. This is evident from the previous usage with regard to bays as shown by the rules relating to the King’s Chambers and the practice of the Admiralty Court in England, and the reserved firths in Scotland, and by the claim advanced by the United States with respect to neutral rights in 1806. It is also evident from the language of previous treaties. That of 1686 between France and Great Britain referred to “havens, bays, creeks, roads, shoals, or places”; in that of 1783 between Great Britain and the United States, “coasts, bays, and creeks” are spoken of; and in that between the same Powers in 1794, with respect to neutral rights, it was agreed that ships should not be taken “within cannon-shot of the coast, nor in any of the bays, ports, or rivers of their territories.” It is clear that a distinction was drawn between coasts and bays--a distinction which is now and always has been recognised in international law, which is made in the North Sea and other fishery conventions of recent times, and is claimed by the United States with regard to their own coasts.[1155] If no such distinction between coast and bays was meant in the clause of the treaty of 1818, then the words “bays, creeks, and harbours” are without meaning and superfluous, a construction which is contrary to the rule which requires that effect be given to every word in a contract or treaty. That the British construction was correct was virtually admitted by Mr Webster, the American Secretary of State, when he said in a State paper, 6th July 1852, that “it was undoubtedly an oversight in the convention of 1818 to make so large a concession to England, since the United States had usually considered that those vast inlets, or recesses of the ocean, ought to be open to American fishermen as freely as the sea itself, to within three miles of the shore.” He admitted, moreover, that the word bay applied equally to small and large tracts of water situated between capes or headlands.

In 1824, and again in 1838 and 1839, British cruisers seized American vessels for fishing within the Bay of Fundy, the Bay of Chaleurs, and elsewhere in contravention of the treaty of 1818; and in 1843 the schooner Washington was arrested for fishing in the Bay of Fundy at a distance of ten miles from shore, taken to Yarmouth, Nova Scotia, and sold. In the diplomatic correspondence which followed these seizures, the two Governments took up the position as to the interpretation of the treaty which is referred to above; but eventually, in March 1845, Lord Aberdeen intimated that the British Government, while adhering to their interpretation, would as a matter of courtesy relax the rule with regard to the Bay of Fundy, and allow “the United States fishermen to pursue their avocations in any part of it, provided they should not approach, except in cases specified in the treaty of 1818, within three miles of the entrance of any bay on the coast of Nova Scotia or New Brunswick.” The Bay of Fundy (fig. 17) is a very large but typically landlocked inlet of the sea, passing between Nova Scotia and New Brunswick for a distance of about 140 miles from its mouth. As with many other bays, there is more than one cape or projection of land that might be taken as its headlands, but one of them is clearly in the United States; and the distance from it to the opposite coast is from forty to fifty-five nautical miles, while the bay itself at sixty or seventy miles from the entrance is over twenty-five miles in width. Chaleur Bay, between New Brunswick and Quebec, is a little over sixteen miles in width and over sixty miles long (fig. 18).

The United States declined to receive the above-mentioned privilege as a favour, and the colonists made a strong representation to London as to the injurious results that would ensue if the proposed policy were adopted; and in 1849 the British law officers of the Crown gave their opinion on the provisions of the treaty, “that the prescribed distance of three miles is to be measured from the headlands or extreme points of land next the sea of the coasts, or of the entrance of the bays, and not from the interior of such bays or inlets of the coast; and consequently that no right exists on the part of American citizens to enter the bays of Nova Scotia, there to take fish, although the fishing, being within the bay, may be at a greater distance than three miles from the shore of the bay.”

In terms of the convention of February 8, 1853, the case of the Washington, above described, came before referees in London, and on their disagreement it was decided by the umpire, Mr Joshua Bates, in favour of the United States. His conclusion was that the Bay of Fundy was not a British bay, nor a bay within the meaning of the word as used in the treaties of 1783 and 1818, but belonged rather to the class which comprised such bays as the Bay of Bengal and the Bay of Biscay, over which no nation can have the right to assume sovereignty. He also pointed out that one of its headlands was in the United States; and he thought that the doctrine of the headlands had “received a proper limit” in the Anglo-French convention of 1839, where a ten-mile base-line was adopted.

A few years before this, negotiations had been opened between the Governments with the view of establishing reciprocal free-trade between Canada and the United States, and in June 1854 a treaty was signed at Washington, commonly known as the Reciprocity Treaty, by which certain articles of produce of the British colonies and of the United States were admitted to each country respectively free of duty, and reciprocal rights of fishery were granted. The subjects of either state were to be free to fish along the coasts and in the bays, harbours, and creeks of the other, without any restriction as to distance from the shore, in Canada, New Brunswick, Nova Scotia, and Prince Edward’s Island, and on the eastern coast of the United States north of the 36th degree of north latitude. On each side salmon and shad fisheries, and the fisheries in rivers and the mouths of rivers, were reserved.[1156] This treaty was to endure for ten years, and it was terminated by the United States and came to an end on 17th March 1866, when, in consequence, the provisions of the treaty of 1818 again came into force. The British Government, however, being very desirous to prevent, as far as possible, the loss to the citizens of the United States by a sudden withdrawal of the privileges which they had enjoyed for twelve years, decided to allow American fishermen to continue to fish in all provincial waters upon the payment of a small fee.[1157] From the neglect of American fishermen to obtain the licenses, the fee for which had been raised from fifty cents to two dollars per ton, the system was discontinued in 1870, and orders were given to British cruisers to exclude American vessels from fishing in territorial waters, and several of them were seized and forfeited. The Canadian Minister of Marine and Fisheries issued instructions, in May 1870, for the same limits as are contained in the Anglo-French convention of 1839 to be put in force against American fishermen; but, on representations from London, these were withdrawn and other instructions issued to the commanders of the cruisers, in which bays of six miles or less in width at the mouth were alone reserved.[1158]

Further negotiations between the Governments ended in the treaty of Washington in 1871, in which reciprocal rights of fishing were re-established in much the same way as in the treaty of 1854, but the liberty to British subjects to fish on the coast of the United States was restricted to the part north of the 39th degree of north latitude.[1159] Under this treaty it was agreed to appoint joint commissioners to determine the amount of compensation, if any, which should be paid by the United States for the greater privileges granted to American citizens by the treaty; and this commission met at Halifax in 1877, the sum of 5,500,000 dollars being so awarded. The award was not received with favour in the United States, and notice was given at the end of the stipulated ten years for the abrogation of the treaty, and the articles referring to the fisheries were so terminated on July 1, 1885, the provisions of the convention of 1818 again, for the third time, coming into force. Further troubles and disputes occurred, not so much in relation to fishing within territorial waters, as to American vessels frequenting colonial ports for the purchase of bait, salt, &c., a liberty which was not granted by the treaty of 1818, and several of them having been seized, retaliatory measures were threatened by the United States. After negotiations between the two Governments another treaty was signed at Washington, on February 15, 1888, the principal British plenipotentiary being Mr Joseph Chamberlain. This treaty provided for the appointment of a mixed commission to delimit “the British waters, bays, creeks, and harbours of the coasts of Canada and of Newfoundland, as to which the United States, by Article I. of the Convention of 20th October 1818, between Great Britain and the United States, renounced for ever any liberty to take, dry, or cure fish.” The delimitation was to be marked upon charts by a series of lines regularly numbered and described, the three marine miles being measured from low-water mark, “but at every bay, creek, or harbour, not otherwise specially provided for in this treaty, such three marine miles shall be measured seaward from a straight line drawn across the bay, creek, or harbour, in the part nearest the entrance at the first point where the width does not exceed ten marine miles.” A large number of bays were specially dealt with by lines specified, that of Chaleurs being closed, or by other special lines from which the three miles was to be measured; and other articles in the treaty regulated the entry of American fishing vessels into colonial ports. It was further provided that whenever the United States removed the duties on fish and fish-oils from Canada and Newfoundland, United States’ vessels would be licensed, free of charge, to enter the colonial ports and harbours to purchase provisions, bait, ice, seines, and all other supplies and outfits, to tranship their catch, or for the shipping of crews.

But, inasmuch as the above treaty could not possibly be ratified before the commencement of the next fishing season, the British plenipotentiaries, in order to avoid a recrudescence of the usual friction and irritation, and to afford evidence of their anxious desire to promote good feeling, agreed, in a protocol of the same date, to a “temporary arrangement for a period not exceeding two years, in order to afford a modus vivendi pending the ratification of the Treaty.” This arrangement granted the privilege to American fishing vessels of entering the bays and harbours, on payment for an annual license of a fee at the rate of one and a half dollars per ton, in order to purchase bait, ice, and all other supplies and outfits, to tranship their catch and ship crews, and gave them some other privileges, declaring also that forfeiture was to be exacted only for the offence of fishing or preparing to fish in territorial waters.[1160]

Unfortunately, this treaty failed to pass the Senate of the United States and was never ratified, and the system temporarily adopted as a modus vivendi has been regularly renewed since, and is still in force.[1161]

It is to be noted that the arrangement in the treaty, both as to drawing lines on charts to separate the common from the exclusive fishing waters and for the adoption of a ten-mile base-line for bays, was proposed, not by the British Government, but by that of the United States. The British Government, indeed, strongly objected to a ten-mile line as involving “a surrender of fishing rights” and making “common fishing-grounds of the territorial waters which, by the law of nations, have been invariably regarded, both in Great Britain and the United States, as belonging to the adjacent country,” and they cited the Bay of Chaleurs as an example. They argued that in the convention with France in 1839, and in other similar conventions, the boundary-lines selected were due to special configuration of the coast, and could not be well settled “by reference to the law of nations”; and attention was called to the claims of the United States to Delaware Bay and other bays on their coasts. In reply to these observations of the British Government, the United States said they had proposed the width of ten miles not only because it had been adopted in fishery conventions, but also because it was deemed reasonable and just in the case in question; “while they might have claimed a width of six miles as a basis of settlement, fishing within bays and harbours only slightly wider would be confined to areas so narrow as to render it practically valueless, and almost certainly expose the fishermen to constant danger of carrying their operations into forbidden waters; a width of more than ten miles[1162] would give room for safe fishing more than three miles from either shore, and thus prevent the constant disputes which this Government’s proposal, following the conventions above noticed, was designed to avert.”[1163]

Nevertheless, notwithstanding this proposal by the United States’ Government, the limit now enforced for bays on the coasts of British North America is that of six miles, with the exception of the Bay of Chaleurs.[1164] It was apparently found that the attitude adopted by the British Government in 1870, then stated to be temporary and exceptional, of allowing the United States’ fishermen to fish “except within three miles of land, or in bays which are less than six miles broad at the mouth,” ought to be adhered to, during the existence of the modus vivendi and pending the ratification of the treaty of 1888. If a recent statement of the Under-Secretary for Foreign Affairs, made in the House of Lords, represents the policy of the British Government at the present day, this six-mile limit for bays is to be regarded as established not alone for British North America, but for every part of the British dominions unless specially provided for otherwise. (See p. 730.)

From the foregoing summary of the disputes, negotiations, and treaties, concerning the rights of Americans to fish on the coasts of the British possessions in North America, it is evident that the British Government has gradually given way to the pressure exerted by the United States. In allowing a six-mile line for bays they have, indeed, as just shown, gone further than was demanded, and have departed from the terms of the fishery conventions which they have concluded with European Powers. The basis of the delimitation adopted in the treaty of 1888 was, as Mr Chamberlain intimated to Lord Salisbury, derived from the North Sea Convention of 1882, to which important treaty we must now turn our attention.

It has been already said that the fishery convention with France in 1867 was not ratified by that country, and never came into operation in the general police regulation of the fisheries in extra-territorial waters. The desirability of international regulations to preserve the peace between the fishermen of various countries frequenting the neighbouring seas, and particularly the North Sea, soon became apparent. Complaints of malicious interference with one another increased in number. The Belgians and French were accused of cutting and stealing the lines of Scottish fishermen, and the Dutch of taking their derelict nets, and the Fishery Board for Scotland accordingly pressed upon the Government, as early as 1876, the advantage of negotiating a fishery convention with Holland.[1165] A little later the free use by foreign trawlers of a destructive implement known as “the devil,” or “the Belgian devil,” aroused a strong feeling among British drift-net fishermen. The instrument consisted of a shank and sharpened flukes, which was hung overboard and was designed for the sole purpose of cutting fishing-nets in the sea which might impede the movement of the boat making use of it. It was a product of the disputes and difficulties that occurred in carrying on trawling and drift-net fishing in the same localities at the same time. The British Government in January 1880 appointed Mr W. H. Higgin, Q.C., to make an inquiry on the subject. His report[1166] showed that the state of things with regard to fishing operations in the North Sea by British, Belgian, French, and Dutch boats was unsatisfactory. He found that grievous injury and damage had been done to the drift-nets and tackle of English fishermen in the North Sea by trawlers belonging to France, Belgium, and Holland;[1167] that there was no international law or convention between England and France, England and Belgium, or England and Holland, affecting the fisheries in the North Sea,--the convention with France in 1867 never having been ratified, while that of 1839 was, he said, confined to the English Channel and referred only to French fishermen; and he stated that some international law of the kind was urgently required, as it would be impossible otherwise to put a stop to the outrages described. In consequence of this report the Government invited the co-operation of France, Belgium, Holland, Sweden and Norway, and Denmark in devising a remedy, suggesting that separate agreements might be made for the purpose. At the instance of Holland, it was agreed to have one joint convention, and a conference of the North Sea Powers was convened at The Hague, in 1881, to negotiate it, Germany, at her own request, being included.[1168]

In the proceedings at the conference the question that caused the greatest difficulty and discussion was the definition of the territorial waters or exclusive fishery limits. The British Government, in curious contrast to their action earlier in the century, desired to avoid any definition at all. The memorandum prepared by them as the basis of the deliberations, stipulated that the convention should “apply to the high seas generally outside the fishery limits of the countries joining in the convention.” This somewhat vague, not to say illogical, phraseology did not meet with the approval of the other Governments. It was objected to by France in particular. That Power had accepted the invitation to the conference on condition that the regulation to be agreed upon should be restricted to police rules intended to prevent conflicts between fishermen of different nationalities, “and to secure to them the free practice of their calling in the common waters of the North Sea.” In making a special convention dealing with the open sea which was common to all, it seemed to it impossible to do otherwise than begin by defining the limits within which it was intended to operate.[1169] The French delegates at the conference therefore proposed that the extent of the territorial waters should, for fishery purposes, be defined in precise terms, and they endeavoured further to get the limit made as contracted as possible. They urged that the boundary should be fixed everywhere at three geographical miles from low-water mark, whatever might be the configuration of the coast. As to fixing a larger measurement for bays, as in the Anglo-French convention of 1867, they argued that the rules laid down on this subject in the convention in question ought not to apply to the North Sea; in many instances these rules had reference only to the interests of oyster fisheries, which, they said, did not exist in the North Sea. The French contention regarding bays was thus similar to that of the United States in the negotiations concerning the treaty of 1818; and it was of course to the interest of France, whose own coast would be but little affected, and whose fisheries along the British coast in the North Sea were of great importance, to have the exclusive fishery limit made as narrow as possible.

The proposal that the territorial waters for fishery purposes ought to be precisely defined, and that the limit on the open coast should be fixed at three geographical miles from low-water mark, was generally accepted, Belgium alone supporting the British view that it was better not to define them in the convention. But as regards bays, objection was taken to the French scheme on the part of Germany, with special reference to the mouth of the Elbe, which was declared to be a part of the sea belonging exclusively to Germany; and on the part of Norway, on the ground that that country could not agree to fix the limit at three miles, particularly with respect to bays. The rights which particular states might have acquired, it was urged, ought not to be prejudiced, and “bays should continue to belong to the State to which they at present belonged.” The French delegates then formulated their proposition in the following terms: “In the North Sea the limit of the part known as territorial waters (mer territoriale) is fixed, whatever may be the configuration of the country, at three miles from low-water mark, along the whole length of the shores of ... It is, however, understood that this shall not be taken to modify in any way the rights acquired on certain parts of their coasts by the different Powers to whom the shore belongs;” or else, “It is, however, understood that the present convention shall not be taken to modify in any way the rights which any Government may possess outside the three-mile limit in bays.”

As the British and French delegates could not agree on this subject, further discussion was postponed until the former had consulted their Government. When this was done, they announced that their instructions did not permit them to adopt the French proposals; and they continued to press the draft article for acceptance, declaring that the question of defining the limits of the maritime jurisdiction of the various countries did not fall within the province of the convention. The other delegates, however, did not share this view, and when a complete definition was insisted on, the British representatives ultimately agreed to accept the terms employed in the first article of the Anglo-French convention of 1867, and they submitted the following article: “The fishermen of each country shall enjoy the exclusive right of fishery within the distance of three miles from low-water mark along the whole extent of the coasts of their respective countries. As regards bays, the entrances of which do not exceed ten miles in width, the distance of three miles shall be measured from a straight line drawn from headland to headland.” The counter-proposal on the part of France did not materially differ from this, except by the inclusion of islands, by the better definition regarding bays, and by the insertion of a clause providing for the right of free navigation and anchorage in territorial waters.[1170] The German delegate, anxious about the waters at the mouths of German rivers, urged that flats or banks uncovered at low water should also be included, as well as islands. This proposal had been agreed to by the British Government in 1868, after correspondence between the Foreign Office and the German Embassy in London, and though apparently not now desired by Great Britain, it was formally adopted.[1171]

The article as finally agreed upon was as follows: “The fishermen of each country shall enjoy the exclusive right of fishery within the distance of three miles from low-water mark along the whole extent of the coasts of their respective countries, as well as of the dependent islands and banks. As regards bays, the distance of three miles shall be measured from a straight line drawn across the bay, in the part nearest the entrance, at the first point where the width does not exceed ten miles. The present Article shall not in any way prejudice the freedom of navigation and anchorage in territorial waters accorded to fishing-boats, provided they conform to the special police regulations enacted by the Powers to whom the shore belongs.”

It is interesting to note that, at the instance of the Dutch president, the conference agreed that the provisions of the convention would not be applicable to the Zuiderzee; and that in deliberating on the boundaries of the North Sea within which they would apply, it was agreed to exclude the Skagerrack, the fisheries of which, it was stated by the president, were not international, but were “essentially within the jurisdiction of the States to which the shores belong.” The greater part of the Zuiderzee, however, would have been excluded by the definition of bays in the convention, and the rest of it by the inclusion of “banks”; but the Skagerrack, on the other hand, is nowhere less than sixty geographical miles from shore to shore. Neither Norway nor Denmark has asserted since the convention exclusive jurisdiction in its moiety of these waters, where, in point of fact, both English and German vessels now carry on an extensive fishing.[1172]

Some other points of interest were raised during the deliberations of this important conference. It was asked by the president: What would be the fate of the convention during war, in which one or two of the Governments joining in it should be belligerents? Would the fishery cruisers of the Powers concerned merely retire from the North Sea and leave fishermen of their nationality without protection or help? He recommended that the conference should adopt the principle that fishing-boats, bonâ fide engaged in fishing, should be declared neutral. This was to revive a subject that had earlier, especially during the time of Napoleon I., caused much discussion, and which was remote from the object of the convention; and the proposal, though sympathetically received by the French delegates, was not supported by any of the Governments. A proposal of another kind was made by the German delegate. He thought it was necessary that restrictive measures should be enforced to prevent the destruction of the fry of fish and the taking of small fish; for example, by forbidding trawling within a certain distance of the shore, so as to provide a shelter for the free development of fish, and by regulating the construction of trawl-nets. The British and French delegates were opposed to any system of restriction, relying on the results of the inquiry which had been then recently made by Messrs Buckland and Walpole,[1173] and on the part of France the following draft clause was formulated for insertion in the convention: “In the extra-territorial part of the North Sea, fishery shall be free at all seasons, and with all kinds of implements, without any sort of distinction.” The clause was not adopted, and it was generally agreed that the question was not ripe for decision by that conference, which was moreover concerned with the police of the fisheries, and not with the reproduction of fish, in the North Sea.

The North Sea Convention was concluded in 1882, the signatory Powers being Great Britain, Germany, France, Belgium, Denmark, and the Netherlands.[1174] Although the delegates of the United Kingdom of Sweden and Norway signed the protocol and were present at the final deliberations, those Powers did not join in the convention, objections being raised as to the definition of the territorial waters and on some other points.[1175] An additional article was inserted providing that the King of Sweden and Norway might adhere later, for both or either country; but this has not been done, though the coast of Norway forms a not inconsiderable part of the boundary of the North Sea as defined in the convention. The reasons which induced these countries to abstain from joining in a friendly agreement with the neighbouring Powers of western Europe, after having accepted the invitation to the conference and taken part in its deliberations, must have appeared to them strong; and from the delay that occurred in coming to a decision it is evident that the matter received full consideration. They believed, however, that to agree to so restricted a boundary for their territorial waters in respect to fishery would be disadvantageous to them: it is probable, moreover, that the raising of the question was not foreseen, since the object of the conference was to consider the police of the fisheries in extra-territorial waters in the North Sea. It is curious, indeed, that the limits for exclusive fishery, both in the convention with France in 1839 and with the other North Sea Powers in 1882, were fixed as it were incidentally.

The duration of the convention was to be for five years from the date at which it came into operation, unless one year’s notice to terminate it were given by any of the contracting Powers; and it was to continue in force from year to year subject to similar notice. That none of the signatory Powers have withdrawn from the convention is the best proof of its general utility. From the number and influential position of these states, and from the character of the sea to which it applies,--one of the most productive in the world,--this convention is an international document of high importance to the sea fisheries, and deserves careful consideration. The first article declares that the provisions shall apply to the subjects of the high-contracting parties, the object being “to regulate the police of the fisheries in the North Sea outside territorial waters”; and the limits of the North Sea were carefully defined.[1176] The provisions of the convention relate to the registration, lettering, and numbering of boats, the operations of fishermen pursuing different methods of fishing at the same place at the same time, the malicious use of instruments for cutting nets, the salvage of derelict fishing-gear, and the superintendence by cruisers. It was put in force in this country in 1883 by an Act of Parliament,[1177] which also extended its application, so far as British sea-fishing boats were concerned, to the whole of the seas around the British Islands, whether within or without the exclusive fishery limits. In this Act the stipulation in the second article of the convention, as to the freedom of navigation and anchorage in territorial waters on the part of foreign fishing-boats, received a limiting definition. The clause in question was inserted in the convention at the instance of France, and was accepted with some reluctance by the British delegates, who agreed to it in general terms only, without the recognition of a right.[1178] By the Act foreign fishing-boats were prohibited from entering the exclusive fishery limits of the British Islands except for purposes recognised by international law, or by any treaty or arrangement in force between this country and any foreign state, or for any lawful purpose. If a foreign boat did enter, it was to return outside the limits as soon as the purpose for which it entered had been answered, and fishing or attempting to fish within the limits was, of course, forbidden under penalties.

The definition of the exclusive fishery limits in the North Sea Convention differed in two respects from that contained in the previous conventions with France. The rule for the measurement of bays was modified, and the dependent islands and banks were expressly included as part of the coast from which the limit should be measured. In the Anglo-French conventions of 1839 and 1867 bays which did not exceed ten miles in width at the mouths were comprised in the reserved waters, and the three-mile limit was measured from the line joining the “headlands.” Thus some bays whose width at the mouth, or between their headlands, exceeded ten miles were deprived of the benefit of the principle applied to bays and came under the three-mile rule, even although at a small distance within the entrance the width might not exceed ten miles. Since all bays have not headlands, the French proposal at The Hague conference to substitute “the two extreme points of the bay” for that term was an improvement. Still better was the definition finally adopted, to place the base-line at the first point nearest the entrance where the width did not exceed ten miles. The specific inclusion of islands removed such difficulties as were raised in 1853 by a French commodore at the Farne Islands (see p. 618), though it had long been established in connection with the rights of neutrals that islands carried with them, no less than the mainland, the belt of territorial sea. The inclusion of banks was, however, novel, and was not received with favour by the British Government. It was feared that it would lead to difficulties and complications in future if such banks as the Goodwin Sands, which were situated beyond the three-mile limit, and the similar banks on the German and Dutch coasts, were held to be territorial dependencies of the coast; and so strong was the objection of the British Government to their inclusion, that they instructed their ambassadors abroad, if an objection was raised by any Power, to have this definition reconsidered.[1179] The objection is theoretically well founded. Sand-banks of this character may be not permanent, and usually vary in extent, configuration, and position with lapse of time and even after a single tempest; and the extent of sea appendent will vary likewise. It would thus be difficult to fix a precise and permanent limit in connection with them. Moreover, since the banks may be covered by the sea except at low-water without losing their territorial value, it would sometimes require more than ordinary care on the part of foreign fishing-boats to avoid infringing the limit around them. On the other hand, for the purpose of regulations designed to protect fish life, such as are referred to in the sequel, banks of this nature are of especial value; and, in point of fact, few difficulties in practice appear to have arisen on this score in carrying out the convention.[1180]

On one or two points, however, the definitions in the convention might have been improved. Nothing is said as to the tides at which low-water mark is to be taken for measurements, though on certain coasts the extent of territorial water will vary much according to whether it is a neap or a high spring tide; and the question whether certain banks are or are not territorial and entitled to the limit may vary in the same way. It is to be presumed that the tide is an ordinary neap tide, as in English law. More important is the fact that “rocks” are not included along with islands. Quite recently the omission has given rise to difficulties in regard to three places on our coast--viz., the Eddystone, the Bell Rock, and the Seven Stones Rocks, off the Scilly Islands. The Seven Stones Rocks are a reef near the south-west extremity of Cornwall, about seven miles from Land’s End, and about a mile in length, and with a lightship at it; but it does not appear that any portion is above the sea-level at low-water of neap tides. Complaints were made to the Government by the Cornwall Sea Fisheries Committee that French fishing-boats fished within three miles from the rocks, and close to them; but it was stated by the Admiralty, and also by the Foreign Office, that these rocks could not be claimed as being within British territorial waters.[1181] In this case, presumably, the decision might rest on the fact that the rocks do not appear at low-water of ordinary tides. The Eddystone is somewhat different. The rock or reef on which the lighthouse is placed lies about fourteen miles south-west of Plymouth, and while covered by the sea at high tide, is exposed to the extent of an area of about 500 yards at low-water of neaps. French fishermen also fish around it and close to it, a practice which caused the Devon Sea Fisheries Committee to complain. The gunboat Circe, in August 1905, seized and took into Plymouth two French “crabbers” for fishing within three miles from the Eddystone, but after communicating with the Board of Trade, instructions were sent to release the boats; and the Board of Agriculture and Fisheries, while saying that they were not in a position to express an authoritative opinion on the matter, called attention to the decision in 1902 regarding the somewhat similar case at the Seven Stones. Here, no doubt, the decision rested on the absence of the specific inclusion of “rocks,” as distinguished from islands, in the conventions, and one can understand the expression of surprise by the Devon Sea Fisheries Committee that a rock which was recognised as British, and was inhabited by lighthouse-keepers, was not considered as within the territorial limit for fishing purposes.

Similar complaints have been made concerning the Bell Rock, which lies about ten miles east-south-east of Arbroath, Forfarshire, and has a lighthouse upon it. It is entirely covered at high-water; at the ebb of spring tides it is uncovered to a depth of four feet, while at low-water of neap tides the top of the rock is just visible, and would then probably acquire validity for the measurement of three miles from it and around it, if rocks had been included in the conventions, as they are now included in the recent convention between this country and Denmark concerning Iceland and the Faroës (p. 647). The case of the Seven Stones and the Eddystone is, however, on a different footing; for while the limit of exclusive fishery along the coasts of the North Sea, with the exception of the part formed by Norway, was settled by the convention of 1882 (so far as concerns the fishermen of the signatory Powers), there appears to be some obscurity as to how far the three-mile limit operates on the coasts that lie outwith the boundaries of the North Sea,--such, for example, as the west coasts of England and Scotland and the coasts of Ireland. The second article of the convention declares, without qualification, that the three-mile limit shall apply “along the whole extent of the coasts” of the respective countries,--it does not say merely to the North Sea coasts,--and the view that this stipulation operates on all the coasts appears to be widely prevalent, and is expressed, for example, in the Belgian law which put the convention in force in that country.[1182] It is, however, held by legal authorities that since the special object of the convention was “for the purpose of regulating the police of the fisheries in the North Sea outside territorial waters,” and as the boundaries of the North Sea are defined “for the purpose of applying the provisions of the present Convention,” the definition of the exclusive fishery limits applies only within the area specified, and not to the other coasts of the signatory Powers.[1183] In the Convention Act, as in the Territorial Waters Jurisdiction Act, we accordingly find a distinction drawn between the exclusive fishery limits under international law and those under specific treaties or conventions. In the definition clause, the expression “British Islands” is explained to mean the United Kingdom of Great Britain and Ireland, the Isle of Man, the Channel Islands, and their dependencies, and it is declared that “the expression ‘exclusive fishery limits of the British Islands’ means that portion of the seas surrounding the British Islands within which Her Majesty’s subjects have, by international law, the exclusive right of fishing, and where such portion is defined by the terms of any convention, treaty, or arrangement for the time being in force between Her Majesty and any Foreign State, includes, as regards the sea-fishing boats and officers and subjects of that State, the portion so defined.”[1184]

From all this it would appear that, notwithstanding the ambiguity introduced by the unqualified phrase “the whole extent of the coasts of their respective countries,” the definition of the exclusive fishery limits in the convention of 1882 applies only to the coasts of the North Sea. In the convention of 1839 with France, on the other hand, there seems no reason to doubt that the three-mile limit was applied to all parts of the coasts of Great Britain and France respectively. By Article ix. it was declared that the exclusive right of fishing was reserved for subjects within that distance “along the whole extent of the coasts” of each country; and the British Act of Parliament to carry into effect this convention, and the international regulations agreed upon under it, so far from expressing any qualification or reservation as in the Act of 1883, made it clear that the limit applied generally. In the preamble it is stated that “Whereas a Convention was concluded between Her Majesty and the King of the French ... defining the limits of the oyster fishery between the island of Jersey and the neighbouring coast of France, and also defining the limits of the exclusive right of fishery on all other parts of the coasts of the British Islands and France”; and Article 85 of the regulations enacted that the fishing-boats of the one country, except under certain circumstances, “shall not approach nearer to any part of the coasts of the other country than the limit of three miles specified in Article ix. of the convention.”[1185]

In the convention of 1852 between Great Britain and Belgium, which was simply entitled “relative to fishery,” without any particular purpose, seas, or regions being specified, it was stipulated that “Belgian subjects shall enjoy, in regard to fishery along the coast of the United Kingdom of Great Britain and Ireland, the treatment of the most favoured foreign nation.” The most favoured foreign nation at that time was France, and although no distance was fixed in the Belgian treaty, there is no doubt the three-mile limit applied, and was indeed, as stated above, enforced, on the east coast of Scotland against the Belgians as well as against the French.

In the convention of 1867 the same limit was assigned “along the whole extent of the coasts” of the two countries; and the provisions of the convention were expressly stated to apply beyond the exclusive fishery limits, in the one case “to the seas surrounding and adjoining Great Britain and Ireland,” and in the case of France to the seas adjoining the coast of that country between the frontiers of Belgium and Spain; and the object of the convention was “relative to fisheries in the seas between Great Britain and France.” As already stated, this treaty, with an unimportant exception, did not come into effect, and the convention of 1839 remained in force.[1186]

As no other treaties exist defining the exclusive fishery limits along our coasts than those referred to, the position in relation to conventional law appears to be as follows. With respect to France and Belgium, the three-mile limit, with the ten-mile line for bays, seems to be in force along the whole extent of the British and Irish coasts. With respect to the other Powers which were parties to the North Sea Convention of 1882,--namely, Germany, Denmark, and the Netherlands,--this limit is in force only on the eastern, or North Sea, coasts of England and Scotland. On the north and west coasts of Scotland, the south and west coasts of England, and the whole of the coast of Ireland, the limits of exclusive fishery as regards these countries, and as regards all countries except France and Belgium, fall to be determined by the principles of international law. With respect to all other nations, as, for example, the Norwegians, Swedes, and Spaniards, the limits on all parts of our coasts also fall to be determined under international law. The principles of international law, as expounded by the accredited writers, do not, as will be shown later, and as is implied in the quotations from the Acts above cited, support the view that the right of exclusive fishing, apart from treaty, must necessarily be restricted to the three-mile limit. The preponderance of opinion is that the boundary of the territorial sea, including, therefore, the exclusive right of fishery, coincides with the range of guns from the shore; and it is evident that as against such nations as claim for themselves a greater extent than three miles on their own coasts--viz., Norway, Sweden, and Spain--a larger limit than that contained in the conventions could be rightfully enforced on the British coasts.

There are many things to show that the unsatisfactory state of affairs, not to say confusion, with respect to the limits of exclusive fishing to which we are entitled on various parts of our coast, has been brought about partly by a widespread belief that the boundary under international law is three miles, partly also by what must be characterised as a want of knowledge and care on the part of those dealing with the question. Mr T. H. Farrer, the permanent Secretary of the Board of Trade, told a Committee of the House of Commons in 1876 that the convention and regulations with France were “hastily and recklessly” made,[1187] and the record of the proceedings at the conference at The Hague in 1881 shows that it would not have been a difficult matter to clear up some of the obscurity that exists. One point of importance is that, notwithstanding the absence of any treaty or agreement defining the extent of the limits of exclusive fishery with certain nations, the three-mile limit alone has been enforced against the vessels of such nations fishing on our coasts. This has been the case, except for a brief period, with respect to Norwegian and Swedish trawlers in the Moray Firth in Scotland, which is “closed” to British trawlers, and the vessels of these two nations are thus put on the same footing as those of other countries with which a convention has been made. It is also the case on the west coast of Scotland, where the limit of three miles is enforced against foreign trawlers, apparently irrespective of nationality, and certainly against Dutch and German vessels as well as against Belgians in the Clyde, from which British trawlers are excluded.[1188] How far this undoubted usage may modify the position under international law it would be of importance to determine.

A more recent convention must be referred to, which, however, does not relate to the coasts of this country, but to those of the Danish islands, the Faröes, and Iceland, where British trawling vessels carry on extensive operations. The Icelanders, who depend so much upon their fisheries, were desirous of having a considerable extent of the waters around their coasts reserved to themselves, and wished to have a limit of seven miles to protect the grounds from the action of foreign fishing-boats.[1189] As a result of negotiations, however, with Great Britain, Denmark agreed to the usual limit of three miles. The treaty was signed at London on 24th June 1901, and after ratification was brought into force on 31st March 1903 by an Order in Council of the 12th of that month. Its main object, apparently, was to regulate the fisheries of the subjects of the two countries outside territorial waters in a large part of the ocean surrounding the Faröe Isles and Iceland, in a small part of which extensive fisheries are now carried on by foreigners, especially by English and German trawlers; but its immediate effect was to impose the three-mile limit on the coasts in question. The article defining the territorial waters is the same as in the North Sea Convention, except that islets and rocks are included, which thus gets rid of some possible difficulties in interpretation, such as have arisen in connection with the Eddystone and Bell Rock.[1190]