JAMES II. AND AFTER.
In the short and troubled reign of James II. little was heard of the
claims of England to the sovereignty of the sea. Bad king as James
was, he rescued the navy from the deplorable condition into which it
had sunk in the later years of Charles,--of which Pepys has left so
graphic a picture,[938]--and the naval officers continued to enforce
the routine duty of the flag; but the domestic troubles with which
he was surrounded prevented him from turning it to account against
any of his neighbours, even if he had been so inclined. And with the
Revolution of 1688 the whole aspect of the question was changed. The
English pretension, as we have seen, had been specially directed
against the United Provinces, but when the Prince of Orange was called
to the English throne as William III., and was thus the ruler in both
countries, it was not to be expected that he would show much zeal in
continuing the policy of the Stuarts against his own countrymen.
It is true that in the treaty which was concluded between England and
the Dutch Republic in 1689, the article on the flag in the treaty
of Westminster was repeated and confirmed. This, however, was very
much a matter of routine and formality, though it must be said the
Dutch ambassadors in London complained that William was as obstinate
and punctilious about the question of the flag as any purely English
sovereign could have been.[939] But from this time until well on in the
next century England and the United Provinces were united as allies
in the great wars with France. There was thus little room for serious
disputes with them about the flag, the right to the herring fishery,
or the sovereignty of the sea, even if the desire had existed. Against
France, however, William made use of the customary language as to the
English sovereignty of the sea. In the spring of 1689, after William
had been proclaimed King of England, Louis XIV. foresaw the formidable
coalition that would be formed against him, and he boldly issued what
was virtually a challenge to England on the subject. He published an
ordinance on 15th April in which he not only prohibited his officers
from giving the first salute to ships of other nations carrying flags
of equal rank to their own, but ordered them to demand the salute from
foreign vessels on whatever seas or coasts they might encounter them,
and to compel them by force if they refused.[940] That this challenge
of Louis to dispute the sovereignty of the sea was not too presumptuous
was shown in the following year, when the combined fleets of England
and Holland were defeated by the French off Beachy Head. In the
declaration of war against France, in May 1689, the ordinance of Louis
was made one of the reasons for hostilities. “The right of the flag,”
said William, “inherent in the crown of England, has been disputed by
his orders, in violation of our sovereignty of the Narrow Seas, which
in all ages has been asserted by our predecessors, and which we are
resolved to maintain, for the honour of our crown and of the English
nation.”[941] They were strange words to come from the mouth of one who
was Prince of Orange as well as King of England, but the times were
changing and such phrases were soon to become merely empty forms.
With respect to this ceremony of the flag, which the English professed
to regard as an acknowledgment of their sovereignty on the sea, it
may be said that from this time on it ceased to have much importance
in international affairs. The instructions issued by the Admiralty to
the naval officers continued to be explicit enough, and they indeed
suffered but little change for another century. The commander of one
of his Majesty’s ships, on meeting with any ship or ships belonging
to any foreign prince or state within his Majesty’s seas (which, it
was explained, extended to Cape Finisterre, Van Staten not being
mentioned), was to “expect” such ship or ships to strike their top-sail
and take in their flag, “in acknowledgment of his Majesty’s sovereignty
of those seas,” and if they refused or offered to resist, they were
to be compelled to do so. Within his Majesty’s seas his Majesty’s
ships were in no wise to strike to any; and in other parts only if the
foreign ship struck first or at the same time, except in a foreign
harbour or in a road within gunshot of a fort or castle, in which
case a salute with guns was to be given if the commander of the fort
agreed to answer gun for gun. If any British ship was so far forgetful
of its duty as not to salute the king’s ship by striking the top-sail
as it passed by, when it might be done without loss of the voyage,
they were to be “brought to the Flag” to answer their contempt, or
reported to the Admiralty for proceedings to be taken.[942] Similar
instructions were issued in succeeding reigns, the injunction to compel
by force those who refused to strike being limited to flag officers and
commanders.[943]
Disputes as to striking appear to have been much less common in the
latter part of the seventeenth and in the eighteenth century than they
were previously, but they sometimes occurred; and the ceremony seems
to have been enforced on Dutch ships, though they were allied with the
English fleet at the time. At all events, the Lords of the Admiralty
in 1694 wrote to the Duke of Shrewsbury saying that the instructions
required the respect of the flag from all nations whatsoever, without
any distinction, and that Sir Cloudesley Shovel had been advised to
that effect.[944] At this period, as indeed always, the Danes were
very punctilious as to Kronberg Castle on the Sound being saluted with
proper respect by foreign ships, and in 1694 Shrewsbury advised the
Admiralty that the king had signified his pleasure that all ships of
war sent to the Sound should salute Kronberg with three guns only, upon
assurance that their salute would be returned by the castle with a like
number of guns.[945]
Early in the reign of Anne, in 1704, a sanguinary encounter took place
with reference to the striking of the flag that equalled if it did not
surpass in brutality any case that happened under Charles. An English
squadron under the command of Admiral Whestone fell in with a Swedish
man-of-war convoying some merchant vessels. The Swedish commander
refused to strike to the English admiral, on the ground that he had
received strict injunctions not to do so to any flag whatever, even
in the Channel, and thereupon the English proceeded to compel him by
force. After about 150 Swedes had been killed or wounded, as well as
many English, the unlucky man-of-war, with all the merchantmen, was
brought into Yarmouth Roads.[946] Another case of a different kind
happened in 1728, early in the reign of George II. A French man-of-war,
the _Gironde_, under the command of Mons. de Joyeux, on going into
Plymouth Sound on 23rd November, was hailed by an English frigate,
which demanded that he should salute the fortress and the frigate.
The Frenchman replied that the bad weather had prevented his sending
an officer to the governor to agree about a salute, but that he owed
none to the frigate, which carried a pennant only, it being usual to
salute none but flags; and he passed quickly into the port, where the
captain of another frigate sent to ask him if he would not salute
the commodore, who carried a bare pendant, and he returned the same
answer. On coming out again on the 29th the frigate called upon him to
strike his pennant, and on his refusal threatened to fire upon him. M.
de Joyeux, feeling that it was by no means proper to hazard his ship
under the cannon of the castle and the batteries, then complied, and
also saluted the fort with eleven guns, as previously arranged. This
“insult” was made the subject of complaint by France, and when all the
papers had been submitted to the king he instructed that the officer
responsible, Lieutenant Thomas Smith of the _Gosport_, should be
forthwith dismissed the service as having in this particular exceeded
his instructions.[947]
In the writings of the naval historians of last century one may find
expressed the views which were then prevalent in naval circles as to
the striking of the flag and the sovereignty of the sea generally. They
claimed for the crown of England an exclusive propriety and dominion
in the British seas, both as to the right of passage and the right
of fishing, and the widest limits were assigned to those seas. Thus
Burchett, who was Secretary to the Admiralty, defined them as follows
in 1720: On the east they extended to the shores of Norway, Denmark,
Germany, and the Netherlands, so as to include the North Sea; on the
south they were bounded by the shores of France and Spain to Cape
Finisterre, and by a line from that Cape westwards to meet the western
boundary, thus comprising the Channel, the Bay of Biscay, and part of
the Atlantic Ocean; on the west they extended to an imaginary line in
the Atlantic in longitude 23 degrees west from London, passing from
the southern boundary to latitude 63 degrees north; and on the north
they were bounded by this parallel to the middle point of Van Staten.
These were declared to be the British seas proper, in which the crown
had the most absolute dominion and the right to the honour of the flag
from all other nations; but in addition, it was stated that on the
north and west as far as America and Greenland the crown had also “most
ample rights” in virtue of first discovery and occupation.[948]
No doubt much of the claim put forward by these writers on behalf of
the maritime dominion of England was stereotyped, and had more form
than substance. Entick, indeed, in 1757, although asserting the right
of Great Britain to an absolute sovereignty of the sea, and to the
striking of the flag as an acknowledgment of it, himself described
this duty as “but an indifferent honorary ceremony.” The changed
point of view in which the matter was regarded was shown also in the
declaration of war by Great Britain against the United Provinces in
1780, because they had joined the Armed Neutrality. It contained
nothing referring either to the flag or to the sovereignty of the sea;
and it was doubtless as a mere matter of form and precedent that a
brief article relating to the striking of the flag was inserted among
the preliminary articles of peace, drawn up at Paris in 1783, and in
the definitive treaty of peace concluded with the United Provinces in
the next year.[949] The time was approaching when this ceremony was
to pass away altogether as a symbol of our maritime sovereignty, even
in the eyes of Englishmen. There was little need of claiming it as
an acknowledgment of our actual naval supremacy during the greater
part of the eighteenth century, for it was obvious to all the world
that British sea-power was supreme. From the reign of Anne onwards the
naval force of Great Britain was overwhelming, and formed a determining
factor in the history of Europe. This country was undisputed mistress
of the seas,--or tyrant of the seas, as our enemies preferred to put
it,--and our old rival, the Netherlands, was left far behind in the
race for naval power as well as in commerce.[950] Nor was it longer
necessary to insist on the honour of the flag in order to stimulate the
valour of our seamen, to keep alive the spirit of maritime glory in
the nation, or to evoke the reverence of foreign peoples. The forcing
of all foreign ships to strike in the British seas became a political
encumbrance unsuited to the times. It was allowed to fall into disuse
when its inconvenience had long outgrown any utility it had possessed,
and the battle of Trafalgar, in 1805, gave the opportunity of departing
from the ancient claim. The naval power of France and Spain having been
humbled, it was thought a convenient time spontaneously to abandon a
pretension which “could not probably have been maintained much longer
except at the cannon’s mouth.”[951] The Admiralty, with the approbation
of the Government, accordingly omitted the arbitrary article from their
instructions for the fleet.[952]
In the closing years of the seventeenth century and the earlier part of
the next there were many signs that the era of claiming an exclusive
sovereignty over extensive regions of the sea was passing away; and
that, on the other hand, the policy of fixing exact boundaries for
special purposes, either by international treaties or national laws,
was taking its place. Such signs may be observed in the writings of
public men, as in the letter of recantation which Evelyn indited
to Pepys in 1682 (see p. 514), which included a long reasoned
argument against the English pretensions. Still more to the point was
the appearance of an extremely able work by Sir Philip Meadows in
1689, immediately after the Revolution, in which these pretensions
were subjected to the most destructive criticism.[953] Meadows had
considerable experience of public affairs. As Latin Secretary to
Cromwell’s Council--an office to which he was appointed in 1653 in
order to relieve the poet Milton, whose blindness interfered with his
duties--he was conversant with the negotiations then proceeding with
the Dutch; and later, as ambassador to Denmark and then to Sweden, he
had opportunities of acquainting himself with the claims to maritime
sovereignty put forward by those countries. The keynote of Meadows’
work was, that as the dominion of the seas was apt to become a specious
pretence to a war between England and Holland, while the real causes
of such a war were hidden and remote, nothing would conduce more
effectually to preserve a lasting peace than a true knowledge and right
understanding of the matter. If the claim of England as expounded by
Selden was to be considered the proper standard of right and wrong
between us and other nations, “if what was well written must be fought
for too, not being to be gained but by a longer tool than a pen,”
then the King of England would be cast upon this hard dilemma--either
of being involved in endless and dangerous quarrels with all his
neighbours abroad, or of having his honour and reputation prostituted
at home, as tamely suffering “the best jewel of his crown to be
ravished from it.” The English pretension, he pointed out, differed
from that of Venice, inasmuch as it related not to a bay or gulf, but
to a sea open on both sides which formed the passage of communication
for the northern and southern nations of Europe. Persistence in the
pretension would therefore result in war between the island and the
Continent, as to whether the island should have the sea to herself, or
whether the Continent should have a share of it with her. No nation
had ever acknowledged the claim of England, which, moreover, was not
enforced, because if one foreigner did violence to another, outside
the King’s Chambers, but in the Channel or any part of the so-called
British sea, he did not come under the jurisdiction of the King of
England but under that of his own state.
While strenuously opposing the pretensions to the sovereignty of the
sea, Meadows agreed with all other authors in holding that every
country had an exclusive right to certain parts of the sea adjoining
its coasts: the difficulty was to fix the bounds. “If there is no
certain standard in nature,” he says, “whereby to ascertain the precise
boundaries of that peculiar Marine Territory I am now speaking to,
which belongs to every prince in right of his land, yet, by treaty and
agreement, they may easily be reduced to certainty. For, as to the
judgment and opinion of private persons, we cannot fetch from thence
any true measure; for though they all agree unanimously that there is
something due of right, yet they vary in the _quantum_, or how much.
Therefore the surest way is to prescribe the limits of fishing betwixt
neighbouring nations by contract, and not by the less certain measure
of territory. For, if no bounds be fixed, how many inconveniencies,
and what a licentious extravagance, may such a liberty run into?”
The Dutch, he said, unless boundaries were fixed, might dredge for
oysters on the coast of Essex, as they did formerly; or fish within
the mouth of the Thames, or in our creeks, havens, and rivers; and
it was unreasonable not to draw a distinction as to fishing between
natives and aliens. Meadows therefore, foreshadowing modern practice,
urged that the boundaries of exclusive fishing should be determined by
treaty, and he prepared a draft article for the consideration of those
concerned.[954] In a later unpublished treatise he advocated much
the same method of mutual agreement with France, with respect to the
striking of the flag, as had been formerly proposed by Richelieu--that
in our half of the Channel they should strike to us, and that in the
half next France we should strike to them.[955]
Whether or not the writings of Meadows had any influence upon the
practice, or, what is more likely, merely reflected the change in
opinion that had begun, it is from about this time that we find
instances of definite boundaries being fixed, usually in connection
with the rights of fishery, instead of the vague claims that commonly
prevailed. The first case of the kind happened indeed a few years
earlier. In a treaty between James II. and Louis XIV., which was
concluded in 1686, concerning the rights of trading and fishing in
the British and French possessions in America, it was agreed that
the subjects of each were to abstain from fishing or trading “in the
havens, bays, creeks, roads, shoals or places” belonging to the other,
and the liberty of innocent navigation was not to be disturbed.[956]
Though no definite limit was laid down in this treaty, the meaning of
the terms used was well understood; they were practically the same
as those used in the proclamations as to neutral waters in 1668 and
1683. They are interesting as being the first definitions of the kind
which apply to the coasts of America, and they do not materially differ
from the terms used in the treaty of 1818, the interpretation of which
has given rise to so much dispute. Another example for a different
purpose is to be found in a convention between France and Algeria in
1689, which established a limit of ten leagues along the Mediterranean
coasts of France in connection with the operations of the Barbary
corsairs.[957]
In the treaty above referred to, between Great Britain and France, the
rights of trading and fishing went together. This was a very common
thing in those times, particularly in remote seas, where the two
pursuits were often combined, and it was especially the case in the
northern seas which were supposed to be under the sway of the King of
Denmark. The disputes which occurred between Denmark and the United
Provinces of the Netherlands are of interest in this regard, since
they reveal the methods and the stages by which a defined boundary
was eventually substituted for a general claim to maritime dominion.
They show, moreover, that at the end of the disputes Great Britain
stood by the side of Holland in opposing the Danish pretension to
_mare clausum_, and was altogether in favour of the free sea. It was
apparently the assertion of James I. to a monopoly of the whale-fishing
at Spitzbergen (see p. 181) that induced Denmark to put forward a
similar pretension with regard to Greenland. As early as 1615 a Danish
man-of-war demanded a contribution from Dutch whalers for liberty to
fish there, and the King of Denmark complained to the States-General
that their subjects were carrying on the fishery without his license
and contrary to his rights. The Dutch opposed this claim and sent armed
ships to the scene, which kept the Danes from active interference. A
little later, in 1623, Denmark raised fresh complaints in connection
with the fishing at Jan Mayen, an island discovered by the Dutch, and
which, therefore, according to the charter of the Dutch Arctic Company,
belonged to them. In 1639 Danish men-of-war again interfered with Dutch
whalers, this time at Spitzbergen, in virtue of a decree prohibiting
fishing without a license from the King of Denmark; but the firm
attitude of the States-General, whose fleets were then all-powerful,
cooled the ardour of the Danes. Denmark also raised difficulties
in connection with the cod-fishing in the northern seas. In 1616
foreigners were prohibited from fishing either at Færöe, Iceland,
or on the coast of Norway, an injunction renewed in 1636 and 1639,
and various limits were assigned with respect to the cod-fishing at
Iceland. In 1636 the Norwegian Government declared that the exclusive
right of fishing pertained to subjects within a distance of four to six
Scandinavian leagues from the coast, which is equal to from sixteen to
twenty-four geographical miles. The Danish claim to _mare clausum_ also
included a monopoly of trade in those remote regions, and the Hanseatic
towns as well as the Dutch were forbidden to carry on traffic with the
natives. But the efforts of Denmark to preserve a monopoly of fishing
and trading in the Arctic seas were intermittent and ineffectual. The
great Dutch Arctic Company (_Noordsche Compagnie_), by their charter
granted in 1614, were entitled not only to the exclusive right, so far
as concerned Dutchmen, “to trade and fish from the United Provinces on
or to the coasts of the lands between Nova Zembla and Davis’ Strait,”
including Spitzbergen, Barent’s Island, and Greenland, but also to the
possession and fishery of any islands they might discover in those
seas. The rights granted to this powerful company were thus directly
opposed to the Danish claim to _mare clausum_, and owing to the
preponderating naval force of the United Provinces, which was behind
them, they eventually prevailed. In February 1691, after the defeat
by the French of the allied British and Dutch fleets off Beachy Head
and the suspension of the Dutch whale-fishing by reason of the war,
King Christian V. issued another decree prohibiting whale-fishing at
Greenland to all but Danish subjects; and in the following year Hamburg
was forced to conclude a treaty with Denmark to enable her citizens to
carry on fishing and navigation in Davis’ Strait.
It was at this time, nevertheless, that Denmark substituted a fixed
limit at other parts of her dominions for her previous vague and
general claim to maritime sovereignty. By a decree of 26th June
1691, the sea between the south coast of Norway and the coast of
Jutland, within a straight line drawn from Cape Lindesnæs to Harboore
in Rinkjobing, a distance of over a hundred geographical miles, was
declared to belong to Denmark; and it was further ordained that in
places where the king possessed only one of the coasts, the sea was
under his dominion up to the distance at which the land was lost sight
of--_i.e._, within the range of vision. At the end of the following
year (3rd December 1692) another edict was issued declaring that no
one without royal authority would be allowed to carry on whale-fishing
within ten Norwegian leagues, or forty geographical miles, of the
coast.[958] This tendency of Denmark to formulate defined boundaries in
the seas along her coasts was carried further, as we shall see, in the
eighteenth century.
Within the areas above mentioned, Denmark enforced her authority with
considerable vigour. In 1698 a Dutch ship was seized and confiscated
for fishing at the Færöes; and in the period 1738-1740 great energy was
displayed in repressing violations of the Danish decrees. Several Dutch
ships were fired on by Danish men-of-war for trading at Greenland;
the crews were turned adrift in open boats, and the vessels taken to
Copenhagen, where they were condemned as prize in the Admiralty Court.
In retaliation, a Danish ship was seized at Amsterdam, and then Danish
men-of-war fell upon the Dutch doggers fishing around Iceland, about a
hundred in number, captured four, and dispersed the others without, it
was alleged, offering to molest the British and French smacks fishing
along with them. While bringing the captured doggers to Denmark, one of
them managed to escape, and carried off to Holland the prize crew on
board, consisting of a Danish midshipman and three seamen--an episode
that recalls John Brown’s experience in 1617. These occurrences were
naturally followed by diplomatic controversies. Denmark at first based
her action in seizing the doggers on a decree of 1733, reserving to her
own subjects the exclusive right of fishing and navigating within four
leagues of the coast of all Danish possessions in the Arctic seas; and
the Dutch were accused of carrying on an extensive illicit trade at
Iceland, under cover of fishing. The States-General used the familiar
arguments about the freedom of the seas for fishing and navigation,
urged long-continued possession, and cited an old treaty of 1447 which
gave the Dutch the right to navigate “usque ad Boreæ oras.” Then
Denmark placed her case on its ancient basis, declaring that the kings
of Denmark and Norway had enjoyed from time immemorial the dominion of
the northern seas, and were therefore entitled, even according to the
teaching of Grotius, to the exclusive fishing. They denied that the
Dutch had ever possessed the right of fishery in these seas, alleging
that clandestine acts, punished as soon as discovered, could not be
construed into possession. This revival of _dominium maris_ called
forth an energetic protest from the States-General, and affairs took a
bellicose turn. Denmark sent a squadron north to maintain her claims,
and Holland provided an armed convoy for her whalers and Iceland
cod-smacks, “to defend themselves against the pretensions of the
Danes.” Hostilities were averted by the intercession of Sweden, and of
the British and French Ministers at Copenhagen, in favour of the Dutch
Republic and the freedom of the seas.
Occasional disputes of the same kind occurred between Denmark and
the United Provinces later in the century. In 1757 a Dutch ship was
arrested--it was said in the open sea--on the ground that it had been
trading in Davis’ Strait, and the matter was adjusted a few years later
by an undertaking that the Dutch vessels would refrain from trading
within the precincts of the Danish possessions. The States-General in
1762 issued a placard to this effect, and they also sent a ship of war
to enforce it. In 1776 an English brigantine and two Dutch vessels
were seized for trading at Greenland, and condemned by the Danish
Admiralty Court, and although on the protests of the British and Dutch
Governments the vessels were released, compensation for detention was
refused.[959]
Other and later examples of the tendency alluded to, of fixing definite
limits for the rights of the state in the seas washing its territories,
may be found in the international treaties, which were concluded during
the eighteenth century, concerning the rights of fishery on the coasts
and islands of the British possessions in North America, a region of
the world which has furnished numerous examples of agreements of the
kind. One of these, in 1686, has been already mentioned. By the great
treaty of Utrecht in 1713, following Marlborough’s successful campaigns
on the Continent, France ceded Newfoundland and Nova Scotia to Great
Britain; but certain concessions were made to French fishermen, who,
of course, previously enjoyed the right of fishing there, which
subsequently for a long period formed a fertile source of trouble and
dispute. In addition to certain privileges as to landing and drying
fish, French subjects were to be free to fish in the seas, bays, and
other places to thirty leagues from the south-east coast of Nova
Scotia.[960] Half a century later, by the treaty of Paris in 1763,
at the conclusion of the seven years’ war, Canada was ceded to Great
Britain, and the concessions to French fishermen at Newfoundland were
confirmed, with some modifications. Liberty of fishing was also granted
to them in the Gulf of St Lawrence, subject to the condition that they
did “not exercise the said fishery, except at a distance of three
leagues from all the coasts belonging to Great Britain, as well those
of the continent as those of the islands situated in the said Gulf of
St Lawrence.” On the coasts of the island of Cape Breton, outwith the
Gulf, they were not to fish within fifteen leagues of the shore.[961]
These provisions concerning the fishery in the Gulf of St Lawrence and
at Cape Breton were confirmed twenty years later by the treaty of
Versailles in 1783, the article regarding Newfoundland being at the
same time modified.[962]
In these various treaties the fisheries were dealt with in a special
and exceptional manner, in connection with the cession of the adjacent
territories by France to Great Britain. The French fishermen had always
enjoyed the right of fishing in these seas in virtue of the ownership
of the land; and though full sovereignty over the latter was acquired
by Great Britain, the liberty of fishing, under certain restrictions,
was continued notwithstanding the transference of territory. The
fisheries of Newfoundland and Canada were of great importance. They
were highly valued by France as forming nurseries of seamen for her
navy, and for this reason the preliminary treaty of 1762 was severely
criticised by the Opposition in the British Parliament, and especially
by Pitt, who perceived that the concessions with respect to the
fisheries would enable France to revive her naval power.[963]
A concession still more extensive, on the same principle, was granted
by Great Britain to the newly-established United States of America
in the treaty of 1783, by which their independence was recognised.
The question of the rights of fishery was very fully discussed in the
negotiations which preceded the treaty; and though Great Britain did
not deny the right of American citizens to fish on the Great Banks
of Newfoundland, or in the Gulf of St Lawrence, or elsewhere in the
open sea, she denied their right to fish in British waters, or to
land on British territory for the purpose of drying or curing their
fish. A compromise was arrived at, and the treaty provided that the
people of the United States should continue to enjoy, unmolested, the
right to take fish of all kinds on the Newfoundland Banks, in the
Gulf of St Lawrence, and at “all other places in the sea where the
inhabitants of both countries used at any time heretofore to fish”;
also on such parts of the coast of Newfoundland as British fishermen
should use, and “on the coasts, bays, and creeks” of all other parts
of the British-American dominions. They were further permitted to dry
and cure their fish on unsettled parts of the coast of Nova Scotia,
the Magdalen Islands, and Labrador, so long as these parts remained
unsettled.[964] It will be observed that by this treaty the liberty of
fishing in the territorial waters of the British possessions in America
was conceded to the citizens of the United States, who had exercised
the fishery before their independence was declared. They continued to
enjoy the right which they had had as British subjects after they had
ceased to be British subjects, and they did so until the war of 1812.
With regard to the fisheries at home, in whose interest James I. had
originally raised the question of the sovereignty of the sea, the
clamour against the Dutch gradually died out, or was only heard at
intervals and received but scant attention. Pamphleteers continued to
denounce the liberty allowed to foreigners to fish along the British
coasts, and drew the usual picture of the great national advantage that
would flow from the creation of native fisheries to rival those of the
Dutch.[965] Under James II., William, Anne, and the Georges, the policy
of fostering the fisheries by protective legislation and by means of
organised societies or associations was continued, with but little
good result. The most serious attempt was made in the middle of the
eighteenth century, when an Act was passed[966] for the incorporation
of “The Society of the Free British Fishery,” giving power to raise
a stock of £500,000, and guaranteeing 3 per cent interest on the sum
raised within eighteen months,--which amounted to £104,509,--as well
as conferring various privileges and immunities, including a tonnage
bounty to encourage the equipment of busses. This society, which
was incorporated in the autumn of 1750, with the Prince of Wales as
Governor, had a chequered career. Its headquarters were pitched at
Southwold, Suffolk, where docks were built and buildings erected. In
1756 it possessed thirty busses and six “yagers” to carry the pickled
herrings to Hamburg and Bremen, the masters of the busses being Dutch
or Danish, and the crews chiefly from Orkney, the fishing being carried
on at the Shetlands and down the coast to Yarmouth. Financial and
other difficulties were encountered, some of the vessels being taken
by French privateers, and all the remaining busses and effects were
sold in 1772 for £6391. Half a century later, the relics of some of the
discarded busses were dug out of the mud at Southwold.
The Act above referred to was the parent of many others designed to
encourage the fisheries, chiefly by providing bounties; but probably
more effective than such measures in stimulating the native industry
was the decay which overtook the fisheries of the Dutch. This decay
was no doubt due to several causes, but among the chief must be
reckoned the frequent maritime wars of the eighteenth century in which
the United Provinces were engaged. Their herring-busses were often
captured or destroyed, sometimes in large numbers at a time, as in
1703, when a French squadron fell upon them at Shetland and burned many
of them--variously stated at from 150 to 400.[967] Not infrequently
their herring fishery was entirely suspended, it might be for a series
of years, owing to the inability of the States-General to protect the
fishing vessels from the French or the British cruisers; and such
interruptions told seriously upon a business which depended so largely
on the export trade of the cured herrings. From these repeated blows
the Dutch fisheries never recovered, and the fleets of busses gradually
dwindled. In 1703, 500 of them fished at the Shetlands and southwards
along the coast; half a century afterwards there were but little over
200; and in the later years of the century the number sank as low as
120, which scarcely exceeded the vessels from Denmark, Prussia (Emden),
and Belgium. Thus the part of the pretension to the sovereignty of
the sea which related to the fisheries along the British coasts was
gradually solved, the British fisheries, now the greatest in the world,
rising on the ruins of the Dutch.
SECTION II.
THE TERRITORIAL WATERS
CHAPTER 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]
CHAPTER 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).
[Illustration: Fig. 14.--_Facsimile of part of the chart, showing where
the “Twee Gebroeders” were taken._ From Robinson, Admiralty Reports.]
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]
[Illustration: Fig. 15.--_The Bristol Channel._]
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]