It is evident from the foregoing that the territorial sea that may be

claimed as belonging to this country is not restricted to a distance

of three miles from the shore on an open coast, though a certain

jurisdiction and certain rights may be confined to that distance by

municipal law or international agreement. The determination of the

extent is left to the law of nations, and there is but little doubt

that by the law of nations the true principle of delimitation is the

actual range of guns from the coast, where the coast is washed by the

open sea. It is to be noted that in the Territorial Waters Jurisdiction

Act nothing is said about bays: criminal jurisdiction is confined to

“the open sea” within one marine league of the coast. Offences such as

come under the Act may obviously be committed as well in territorial

bays and arms of the sea as within the three-mile limit on the open

coast; and the omission to include bays was no doubt deliberate, bays

in England being left under the common law on the principle previously

explained, the range of vision, and in Scotland presumably under Scots

law--_i.e._, “within land” (see pp. 545, 547).

Other Acts of Parliament which fix limits of jurisdiction beyond three

miles from the shore include those relating to smuggling, the public

health, and slave-ships. In 1736, and later, statutes were made by

Parliament, known as the Hovering Acts, by which vessels with certain

cargoes on board, destined for British ports, might be seized within

four leagues of the British coast; and foreign vessels so taken have

been brought for adjudication before British courts and forfeited for

illicit trade.[1094] By later Acts concerning the customs, differential

limits were fixed with respect to jurisdiction over vessels having

dutiable goods on board. Those belonging wholly or in part to British

subjects, or having half the persons on board British subjects, found

or discovered to have been within four leagues of the coast between

the North Foreland and Beachy Head, or within eight leagues of any

other part of the coast; or any foreign ship with one or more British

subjects on board, found or discovered to have been within three

leagues of the coast, or any foreign ship irrespective of British

subjects within one league, might under certain specified conditions be

forfeited; and power was conferred on the commander of a ship of the

royal navy to fire on such vessel if it refused to bring to after a

warning gun had been given.[1095]

Other nations have also assigned boundaries for customs jurisdiction,

which in nearly all cases exceed the ordinary limits of territorial

waters. The United States in 1799 extended its jurisdiction for such

purposes to four leagues from the coast, and in 1807, in an Act

against the importation of slaves, the seizure of vessels laden with

certain cargoes within that distance was also authorised.[1096] In

Spain the customs limit is six miles, and therefore corresponds to

the territorial zone which is claimed;[1097] in Sweden it is also six

miles, but measured on the Scandinavian system from the outermost

rocks; in Norway it is four miles, measured on the same principle, but

a treaty between Norway and Mexico, concluded in 1886, places it as

between these countries at three leagues from low-water mark.[1098]

In Italy the boundary is ten kilometres; in France two myriametres,

or about four leagues; in Austria it is also four leagues; while in

Canada it is three leagues.[1099] Wide limits for jurisdiction have

also been fixed by certain quarantine Acts. By the British Act of 1753,

all vessels coming from places whence the plague might be brought were

required to make signals on meeting other ships within four leagues

of the coast, a distance which was reduced to two leagues by a later

Act.[1100]

Such extension of jurisdiction as is indicated for customs or

quarantine purposes over foreign ships approaching the ports of a

country, has only been sanctioned in a few cases by international

treaties. It is now generally held to rest upon another basis than the

absolute rights possessed by a state in its territorial waters proper;

although it is quite in agreement with the principles laid down by

the older publicists, as Puffendorf, Vattel, and Von Martens, and by

several recent writers, as Latour,[1101] that a nation is justified in

exercising jurisdiction in the sea as far as its security or interests

render it necessary. The current opinion is that such rights can only

be enforced against foreigners under the comity of nations or by their

tacit assent, as a matter of mutual convenience, and in practice

they are acquiesced in by other Powers.[1102] But it is important to

observe that, as will be more apparent when we come to deal with the

exclusive right of fishing, maritime nations find it necessary for the

protection of their just interests to extend their jurisdiction beyond

the somewhat narrow boundary at present ordinarily assigned.

The statement made above, that the true principle for determining the

extent of the territorial sea on an open coast is the range of guns

from the shore, is borne out by an examination of the writings of the

accredited authorities on the law of nations. A review of the opinions

of the leading publicists of the earlier part of last century shows

that while the majority accepted Bynkershoek’s principle of cannon

range, comparatively few restricted it to the distance of three miles,

and many logically insisted that the extent must necessarily vary with

the improvements in artillery. Works of a purely polemical nature may

be passed over, such as those of the worthless Barrère[1103] and of

Champagne.[1104] They were inspired by hatred of Great Britain and the

desire of flattering Napoleon rather than by love of the truth, and

were written in order to show that the British were the tyrants of

the sea. Another contemporary French author, of much superior merit,

who dealt with the question was Rayneval, although his views were

also somewhat coloured by national prejudice. In 1803 he published a

treatise on international law,[1105] and in 1811 another on the liberty

of the sea.[1106] The latter for the most part consists, like the work

of Champagne, of an examination of the writings of Grotius and Selden

regarding the _mare liberum_ and the _mare clausum_, and also of the

trenchant little book of Jenkinson (Lord Liverpool) on the conduct of

the British Government in relation to neutrals. But in the earlier

treatise, which is still cited as an authority, Rayneval expounded the

law of nations respecting the territorial sea with marked impartiality.

On the general question of the freedom of the sea and the appropriation

of straits and bays the usual opinions were expressed. He held that the

sea bathing the coasts of a country makes part of it; that the security

and tranquillity of the state require that it should be held as a

rampart against hostile surprise or violence and illicit trading; and

that the fisheries form a natural appendage to this zone. With regard

to the extent of sea that may be appropriated, Rayneval stated that it

had not been determined by any uniform rule. Some, he said, carried it

to a hundred miles, or to sixty miles, from the coast, others only to

three miles, and others placed it at the distance of gunshot from the

shore. On the southern coast of France it had been fixed by agreement

at ten leagues with respect to the Barbary privateers. Like Meadows and

several preceding writers, he held it to be desirable in the interests

of the peace of nations that a general rule, or at least particular

rules clearly determined, should be adopted on a matter so important

and exposed to such uncertainties and disputes. Authors, he said, had

usually fixed the distance at the range of cannon, but their opinion

was not founded on a general regulation nor on uniform practice; and

the most equitable limit according to some was the range of vision from

the coast or the apparent horizon. Rayneval was of opinion that within

the territorial seas the neighbouring state had the right to forbid

navigation, except in cases of stress and necessity--a claim generally

discarded, though still made by Norway. Any liberty to foreigners to

fish along the coasts or in the bays of a country, he thought, was a

matter of tolerance, founded principally on the supposed abundance of

fish; and he held the opinion, which is at variance with that of most

other writers,--unless when confined to the territorial zone,--that a

state does not lose the right to forbid foreigners from fishing in the

waters along its coasts because it at one time allowed them to do so.

Much more definite and restricted was the opinion of a contemporary

English lawyer, Chitty, who published a work on the law of nations

in 1812.[1107] Quoting Vattel, that the whole extent of the sea

within cannon-shot of the coast is considered as making part of the

territory, and that a vessel taken under the guns of a neutral fortress

is not lawful prize, he says that the same doctrine is enforced by

Von Martens; and he refers to the decisions in the English Court of

Admiralty in the cases of the _Twee Gebroeders_ and the _Anna_, which

established the principle in English law. Chitty, however, makes no

allusion to the three-mile limit as an alternative to the range of guns.

Bynkershoek’s principle, and also a fixed distance in place of it,

were likewise accepted by Schmalz, Professor of Law in the University

of Berlin. Writing in 1817,[1108] he declared that the adjacent sea

pertained to the neighbouring land as far as it could be defended by

cannon from the shore; that this principle had been systematically

adopted; and that the distance had been fixed arbitrarily at three

marine leagues,[1109]--an erroneous statement, no doubt derived from

G. F. von Martens, which has been previously referred to,[1110] and

was copied from one book into another. Two years later another and a

greater German authority, Klüber, also adopted the principle of the

range of guns, without, however, proposing an equivalent distance

in miles.[1111] He allowed to the state the waters susceptible of

exclusive possession, over which it had acquired, by occupation or

convention, and maintained, its sovereignty. Among the parts so

comprised are (1) the sea adjoining the continental territory of a

state--at all events, “according to the generally received opinion,” to

the extent to which it can be reached by cannon-shot from the shore;

(2) parts extending into the land, as bays and gulfs, which can be

commanded by guns on shore; (3) straits which are equally commanded by

guns; (4) gulfs, straits, and seas adjoining the continental territory

of a state, which, though not entirely under the range of guns on

shore, are recognised by other Powers as closed seas--that is, under

one dominion, and inaccessible to foreign vessels without permission.

Wheaton, an eminent American jurist, whose first work was published

about this time, likewise accepted the principle of cannon range, or,

as an alternative, a distance of three miles from the shore.[1112]

The territorial jurisdiction of a neutral Power, he says, “extends to

the ports, harbours, bays, and chambers formed by headlands of the

neutral Power. The usual addition allowed to this is a distance of

three English miles, or a marine league, or as far as a cannon-shot

will carry from the coasts or shore.” His statement is based on the

decisions in the English Admiralty Court, and on the writings of

Vattel, Bynkershoek, Von Martens, and Azuni. In his great treatise on

the law of nations, first published in 1836,[1113] the same views are

expressed, it being stated that the general usage of nations superadds

“to bays, ports, &c., a distance of a marine league, or as far as

a cannon shot will reach, along all the coasts of the state”; and,

incorporating into his text Lord Stowell’s observation, he says, “The

rule of law on this subject is _terræ dominium finitur, ubi finitur

armorum vis_, and since the introduction of fire-arms, that distance

has usually been recognised to be about three miles from the shore.”

Wheaton also states that the exclusive territorial jurisdiction of

the British crown over the enclosed parts of the sea along the coasts

of Great Britain has immemorially extended to those bays called the

“King’s Chambers,”[1114] and that a similar jurisdiction is also

asserted by the United States over Delaware Bay, and other bays and

estuaries forming portions of their territory, and that a state had the

exclusive right of fishing within its territorial waters.

Chancellor Kent, who was another high American authority, expressed

somewhat different opinions from those of Wheaton, in a treatise

published in 1826, and seemed inclined to extend territorial

jurisdiction much farther into the sea than the latter writer.[1115]

The extent of such jurisdiction over the neighbouring sea is, he

says, often a question of difficulty and of dubious right, but as far

as a nation can conveniently occupy, and that occupancy is acquired

by prior possession or treaty, the jurisdiction is exclusive. It

is difficult, he states elsewhere, to draw any precise conclusion,

amidst the variety of opinion, as to the distance to which a state

may lawfully extend its exclusive dominion over the sea adjoining its

territories, and beyond harbours, gulfs, bays, and estuaries, where

its jurisdiction unquestionably extends. “All that can reasonably be

asserted is, that the dominion of the sovereign of the shore over

the contiguous sea extends as far as is requisite for his safety,

and for some lawful end. A more extended dominion must rest entirely

upon force and maritime supremacy. According to the current of modern

authority,” he continues, “the general territorial jurisdiction extends

into the sea as far as cannon-shot will reach, and no farther; and

this is generally calculated to be a marine league.” These opinions

do not differ materially from those of Puffendorf and Vattel, and the

tendency of this writer to allow an extended maritime jurisdiction

is shown by his statement regarding bays. He holds that the American

Government have the right to claim for fiscal and defensive regulations

an extensive jurisdiction, and that it would not be unreasonable to

assume, “for domestic purposes connected with our safety and welfare,”

the control of the waters within lines stretching from quite distant

headlands, as from Cape Ann to Cape Cod, and from Nantucket to Montauk

Point, and from that point to the capes of the Delaware, and from the

south cape of Florida to the Mississippi; that is to say, within areas

in comparison with which the “King’s Chambers” are insignificant,

since a straight line from the south cape of Florida to the Mississippi

measures about 500 miles, and encloses a tract of sea as much as 180

miles in breath. Kent adds that the Government of the United States

would certainly view with uneasiness, in the case of war between other

maritime Powers, the use of the waters of the American coast, far

beyond the reach of cannon-shot, as cruising ground for belligerent

purposes.

Manning, an English publicist, writing a little later,[1116] adopts the

usual opinion, stating that the distance to which the special right

of jurisdiction or the qualified dominion of a state extends on the

adjacent sea has been variously measured, the most prevalent distances

being those of a cannon-shot or of a marine league from the shore.

Heffter, a publicist of high authority, asserting as incontestable

the right of all maritime nations, both for defence and for the

protection of their commercial and revenue interests, to establish an

active surveillance on the neighbouring sea, declares that for these

purposes a state has the power of fixing, according to the particular

conditions of its coasts and waters, the distance to which its rights

shall extend. A common usage, he says, has established the limit at

the range of guns, a principle sanctioned by the laws and regulations

of many nations. But he maintains with Vattel that the dominion of

the state in the adjacent sea extends as far as it is necessary for

its security, and it can enforce it,--qualifying this declaration,

however, by adopting Rayneval’s suggestion that the horizon should be

the extreme boundary of the territorial sea. In his opinion the range

of guns, although the principle commonly adopted, affords no invariable

basis, and the distance may be fixed, at all events provisionally, by

the laws of each state: formerly, he adds, it included two leagues, and

now usually three marine miles.[1117]

A much more restricted view of the extent of the territorial sea was

taken by Reddie, an English writer whose work appeared in the same

year.[1118] He adopted Bynkershoek’s doctrine of the range of guns,

but makes no mention of the three-mile limit or any other alternative

distance. A certain breadth of the adjacent open sea is, he says,

necessary for defence and security, and it is that portion within reach

of cannon-shot, capable of being protected and commanded by artillery

from the land, and thus susceptible of exclusive and permanent

dominion, if not of appropriation. Beyond the range of artillery

the sea is common; within that range each nation has the right of

sovereignty, legislative, judicial, and executive, and the exclusive

fishery. This part of the sea cannot be used by nations generally,

without diminishing the use or enjoyment of others, and its produce is

by no means inexhaustible.

Ortolan, a French publicist of eminence, writing about the same

time, not only adopted the principle of Bynkershoek, but affirmed

in a positive manner that the extent of the territorial sea should

correspond to the actual range of artillery at the time.[1119] Although

the gunshot limit was the one recognised, there was nothing, he says,

to hinder two or more states from fixing between themselves, by treaty,

another limit, but such would be binding only on those who were parties

to the agreement. Bays and arms of the sea whose shores belong to the

same state are also territorial, provided that their width does not

exceed twice the actual range of guns, or that the entrance can be

commanded by artillery, or is naturally protected by islands, banks,

or rocks. Within the territorial sea as thus defined the state has the

power of making laws and regulations for its safety, prosperity, and

interests, but it has not the right of property,--Ortolan, like so many

other writers, drawing a distinction between property and jurisdiction.

The opinion that the real range of guns is the true principle for the

determination of the extent of the territorial sea was also affirmed

by Hautefeuille, another French writer of authority.[1120] According

to him, it extends to the distance a ball can be actually thrown from

the shore and no farther. Within the space thus commanded the rights of

the state are absolute, both in regard to jurisdiction and property,

and even to the prohibition of navigation. The right of fishery is

exclusive, since the products of the sea are not inexhaustible, and

the pursuit of them requires to be kept under proper regulation. On

this view, therefore, the fisheries of right belong to the neighbouring

state up to the limit of gunshot from the coast.

Other French writers of authority have maintained the same opinion

as to the principle for the delimitation of the territorial waters.

Thus, Pistoye and Duverdy[1121] state that each Power is able, in a

given zone, measured by the range of cannon, to impose its laws and

enforce obedience to them. It cannot take bodily possession of the

waves, but it can maintain over them direct and constant domination.

While there has been much discussion, they say, as to the extent of

the territorial sea, the principle upon which its appropriation rests

serves also to determine its bounds, “and it must be acknowledged

that the range of cannon from the shore is the only real and true

boundary of the sea in question.”[1122] No measure, they add, has been

generally agreed upon between different nations as to the distance

which the range of guns may be supposed to cover; but they think the

eyes of experienced officers on the coast may be trusted to judge how

far a given spot is within the distance. Still another French author

of repute expressed the same view as to the extent of the territorial

sea. Massé, in his elaborate work on commercial law in relation to the

law of nations,[1123] pointed to the fact that the arbitrary opinions

of the older writers had been rejected, and stated that the real basis

of delimitation was the range of guns--a distance which he places at

“about three miles”; but he says that this rule is not always followed

in practice. Bays and gulfs are declared to be undoubtedly part of

the territorial sea, even when they are not capable of being defended

from the shore. The reasons for this opinion are the same as those

advanced by Hubner--namely, that such areas form natural harbours and

anchorages, sheltering vessels from tempests: the vessels are thus

under the protection of the coasts, and consequently of the sovereign

of the coasts. The true boundary in such cases Massé regards as the

line joining the headlands, or passing between the islands that may lie

off the mouth, even if the distance be greater than the range of guns,

or than what has been fixed by convention for an open coast.

It is obvious from the above review of the opinions of publicists in

the first half of last century that no complete agreement had been

reached in theory or principle respecting the extent of the territorial

sea. Many of the writers held to the opinions expressed by Puffendorf,

Wolff, and Vattel, which allowed a more or less wide and vague

jurisdiction in the neighbouring sea for the security of the state;

and most of them refer to the cannon-range limit as the one usually

adopted. Few, however, accept the three-mile boundary as an alternative

to the range of guns: most of the authors indeed do not even mention

it, and those who do, appear to have been guided in the main by Lord

Stowell’s decisions. On the other hand, the later of the French writers

affirm that the boundary of the territorial waters is determined by

the actual range of artillery from the shore at the time, which is a

virtual repudiation of the three-mile limitation. Their view is summed

up by Pistoye and Duverdy when they say that the principle on which the

appropriation of the bordering sea rests serves also to determine its

bounds--_i.e._, control and command from the shore.

CHAPTER III.

THE FISHERY CONVENTIONS.

Compared with the eighteenth century and the earlier part of the

nineteenth, the period which has elapsed since the close of the

Napoleonic wars has been singularly free from occurrences raising

the question of the extent of the territorial sea in connection with

the rights of belligerents and neutrals. There has been no great

maritime war in Europe since the enormous advance in the power of

artillery rendered the three-mile limit untenable for the security

of a neutral state against the operations of belligerents in the sea

off its coasts, though some questions involving the inadequacy of

that limit came to the front during the civil war in America. The

chief questions affecting the boundary of the territorial waters were

concerned with sea fisheries, and several conventions were made between

European nations in which limits were fixed for exclusive fishing.

They originated in the perennial disputes between British and foreign

fishermen.

In previous chapters it has been shown that the intermittent efforts of

the British Government to establish an exclusive right to the fisheries

along the coasts of this country were without definite result, except

that it came to be tacitly understood by the Dutch fishermen that

they should keep out of sight of the shore. At various times during

the eighteenth century complaints were made to the Government of the

encroachments of Dutch, French, and Danish fishermen along our coasts

and in the Channel, and representations were in several instances made

to the foreign Government concerned. An examination of these complaints

shows that in many cases the foreigners were alleged to fish within

the bays and close to the shore, destroying the spawn and brood of

fish. In other cases they were accused of fishing in British waters

when they were between three and four, or even between six and seven,

miles from the coast,--the real ground of complaint being that they

occupied the localities where the fish were most abundant, and where

the native fishermen mostly carried on their industry.[1124] From

causes previously described, the number of Dutch fishermen frequenting

the British coasts diminished very much during the eighteenth century,

while at the same time French fishermen, and on the coast of Scotland

also Danes and Prussians, as well as fishermen from the Austrian

Netherlands, came in increasing numbers. During the war with France

and Holland the fishermen of these nations were unable to pursue their

fishing on the British coasts. But shortly after the restoration of

peace they returned, and complaints of their encroachments, especially

on the coast of Scotland and the south coast of England, soon became

prevalent. In 1819 the Board of British White Herring Fishery

received numerous complaints of foreign, and more particularly Dutch,

herring-busses shooting their nets too near the coasts, and committing

depredations on the lines and nets of the native fishermen. The Board

were urged to prevent foreigners from fishing “within a certain

distance” of the shore; but they considered they had no power to do so,

and forwarded copies of the petitions to the Lords of the Treasury. The

clamour continued, and in 1821, and again in 1822, the Board strongly

recommended the Government to take action. In the latter year the

Government made representations on the subject to the Government of the

Netherlands; and as a result a royal decree was issued in 1824 by the

King of the Netherlands prohibiting Dutch fishermen from fishing on the

main coast of Scotland, or even, in the absence of urgent necessity,

from approaching it within a distance of two leagues, twenty making a

degree, or twice the limit of three miles.[1125] In 1827--and thus

only twelve years before the Anglo-French convention fixed a three-mile

limit--this Dutch ordinance was renewed, and from that time few

complaints were made of the encroachments of Dutch herring-busses on

the Scottish coast. They continued to conduct their herring fishery,

for the most part, at distances ranging from twelve or fourteen to

forty or fifty miles, as they still do at the present day.

As the disputes with the Dutch fishermen were thus amicably arranged

by the recognition of a six-mile zone of reserved water, similar

contentions sprang up, and continued for a long period, with fishermen

from France. In 1824, some years after the peace, they began to

frequent the coast of Scotland, and they came in great numbers in

each succeeding year, fishing at the Shetlands, Orkneys, and along

the north and east coasts from Cape Wrath to Berwick, and down the

English coast as far as Flamborough Head.[1126] Several circumstances

connected with the French fishery tended to provoke disputes. While the

Dutch fished from their busses at a distance from the coast, where the

largest and best herrings were caught, and were forbidden under heavy

penalties from buying or selling herrings while at sea, or even from

entering any foreign port except by reason of urgent necessity, the

French fished, as a rule, near the shore from small boats, which they

even hired for the season, not uncommonly from Scotch fishermen. They

frequented the Scottish ports; they bought herrings in large quantities

surreptitiously from native boats engaged to local fish-curers, for

money, brandy, tobacco, biscuits, and other articles; and they were

allowed to dry their nets, and even sometimes to salt their herrings,

on shore for a small payment.[1127] They were thus intimately

associated with the native fishermen along the coast, and they carried

on their fishery near the shore in the waters which were mostly used by

the natives.

In the English Channel disputes between British and French fishermen

were still more frequent and acrimonious. British naval supremacy

during the long war had given a monopoly of the fisheries to the people

of the English coast, but after peace was concluded French fishermen

swarmed in the Channel, and began to fish along the English shores.

Complaints became rife of the decadence of the English fisheries, owing

to the alleged encroachments of the French and a general diminution

in the abundance of fish. In 1833 a Select Committee of the House of

Commons was appointed to inquire into the state of the British Channel

fisheries and the laws affecting the fishing trade of England, with a

view to their amendment. After taking evidence, the Committee reported

that they found those fisheries, and the interests connected with

them, to be in a very depressed and declining state; that the decline

had begun with the peace in 1815; that the number of fishermen and

boats had diminished; and that the fishermen and their families were

indigent.[1128]

The principal causes of the depression were found to be the extensive

interference and aggressions of the French fishermen on the coasts of

Kent and Sussex, the large quantity of foreign-caught fish illegally

imported, and the great decrease and comparative scarcity of fish

in the Channel. Large fleets of French fishing vessels from Calais,

Boulogne, Dieppe, and other ports were in the habit of fishing along

the English coasts, frequently within half a league of the shore, and

occasionally nearer, as well as in the bays and shallow waters, “in

which,” said the Committee, “it is particularly necessary for the

preservation of the brood of fish, that such as frequent those waters

during the breeding season should not be disturbed, or their young

destroyed before they have attained maturity.” The French fishing

vessels were more numerous and larger than the English boats,--between

two and three hundred coming from Boulogne alone,--and they had caused

great injury to the nets and gear of the English fishermen, especially

in the herring and mackerel seasons. At other times of the year it was

proved that they were in the habit of coming in great numbers every

morning into English bays, and dragging there for bait in the shallow

waters close upon the shore, taking and destroying an immense quantity

of young and unsizeable fish, at periods when they were prevented by

French laws from conducting similar operations in their own bays.[1129]

These laws, the Committee reported, were understood to be enforced also

against English fishermen within three leagues of the coast of France;

on approaching nearer they were warned off by French cruisers, and told

that they would not be allowed to fish within that distance.

The Committee considered it to be proved that the scarcity of fish in

the Channel (with the exception of herrings and mackerel) had been

occasioned by the great destruction of the spawn and brood of fish in

the shallow waters. They recommended as remedies for the evil “that

foreign fishermen should be prevented at all seasons of the year from

fishing within one league, or such other distance of the English coast,

as by the law or usage of nations is considered to belong exclusively

to this country,” and that they should also be required to observe,

during the spawning or breeding season of fish, all such laws or

regulations as might be imposed upon English fishermen for the better

preservation of the spawn and brood of fish in the bays and shallow

waters on the coast.[1130] In order to accomplish these objects, they

recommended that customs and revenue officers and the commanders

of cruisers should be instructed to prevent foreign fishermen from

fishing “within such prohibited distance of the shore,” to enforce the

observance by foreigners as well as by subjects of our fishery laws and

regulations, and to protect the English fishermen from aggression at

sea.

The Committee had considerable difficulty in arriving at their

conclusion respecting the limit which should be fixed for exclusive

fishing on the English coast. They were influenced partly by what they

understood to be the usage, that the sea for one marine league from

the shore was considered to be the territory of the adjoining country,

partly by the practice of the Customs’ authorities in connection with

the prevention of smuggling, and partly by considerations affecting

the preservation of the fry and brood of fish. Under the Customs’

regulations, vessels and boats of certain descriptions, including

fishing-boats, required a license, and the Commissioners of Customs

had discretionary power[1131] to prescribe within what distance of the

English coast they might be employed. In some cases fishing-boats were

restricted to a distance of four leagues, in other instances they were

allowed to fish to within one league of a foreign coast, one league

of sea being regarded by the Customs’ authorities as belonging to the

territory of the adjacent country. With regard to the right of fishing,

however, it was generally understood among the English fishermen that

the limit on the French coast reserved for French fishermen was three

leagues; and they desired that the same limit should be applied on

the English coast. The Committee laid great stress on the fixing of a

limit of exclusive fishing in order to preserve the spawn and brood of

fish. It was universally believed, and stated by all the witnesses,

including Mr James Cornish, an ichthyologist of repute, that the fish

spawned in the shallow water near the shore,--an erroneous opinion

that has prevailed almost to the present day, but which was shown

to be incorrect by the observations made by the Fishery Board for

Scotland[1132] and others.

It was deemed to be of great importance that the breeding fish, and

the eggs which they were supposed to deposit near the shore, should be

protected from alleged injurious modes of fishing; and the Committee

recommended statutory enactments to establish close-times, and to

prohibit the use of trawl or drag nets within a league from the shore

or in water less than ten fathoms in depth. They inquired carefully

as to the limit which would be sufficient for this purpose. Most of

the fishermen were of opinion that the distance of one league would

be sufficient to include the “breeding-grounds,” and bring them under

the protection of the law; but they held that the distance should be

measured not from the shore, following its sinuosities, but from a

straight line drawn from one headland to another,--an opinion with

which the Committee concurred.

No immediate action was taken by the Government to establish a

definite boundary for exclusive fishing, and petitions and memorials

continued to pour in from various parts of the coast complaining of

the depredations of French fishermen. They were accused of interfering

with British fishermen engaged in dredging for oysters fifteen miles

from the shores of France; of fishing for herrings and mackerel within

less than a mile of the British coasts, compelling the native fishermen

to shoot their nets to the seawards of them; of maliciously destroying

fishing gear, and of recklessly extirpating the spawn and brood of fish

in the shallow waters along the English coast. The Government were

urged to give effect to the recommendations of the Committee of 1833,

and they were asked by the Commissioners for the Herring Fishery to

issue instructions to the naval superintendent in Scotland to prevent

the encroachments complained of.[1133]

From a perusal of these petitions it is evident that much doubt

existed at the time, not only in the minds of fishermen but among many

in authority, as to what was the precise limit of exclusive fishery

that might be claimed or enforced. As a general rule, it was believed

to extend much farther than a league from the shore. Many fishermen

maintained that the boundary was three leagues, an opinion strongly

held in Scotland as late as 1862. The fishermen of Eyemouth, probably

influenced by traditions of the extent of the “reserved waters” in

earlier times, asked that foreigners should be “kept without the

limits prescribed by law, and that limits (_sic_) be seven leagues,”

declaring that they went that distance themselves, and were annoyed and

endangered by foreign vessels taking up the ground.

On the part of French fishermen there were also numerous complaints

against the English, the most bitter referring to the dredging for

oysters off the French coast. In 1837 a mixed commission was appointed

by the British and French Governments in connection with these

complaints, and especially to ascertain and define the limits within

which the subjects of the two countries respectively should be at

liberty to fish for oysters between Jersey and the neighbouring coast

of France. The opportunity was taken at the same time “to define and

regulate the limits within which the general right of fishery on all

parts of the coasts of the two countries shall be exclusively reserved

to the subjects of Great Britain and of France respectively,” and a

convention was concluded at Paris in 1839 defining these rights.[1134]

By its articles a very considerable stretch of water containing

oyster-beds, in the Bay of Granville on the French coast, between

Cape Carteret and Point Meinga, south-east of Jersey, and extending

far beyond the three-mile limit, was reserved exclusively for French

fishermen, the boundaries being minutely defined and laid down on a

chart annexed to the convention; and British fishermen were prohibited

from carrying on any kind of fishing, even for floating fish, within

this area. The bay thus appropriated is over seventeen miles in

breadth, and the closing line passes in some places about fourteen

miles from the shore.[1135] This concession to France was a recognition

of the principle that fisheries of this nature--that is, for objects

which are attached to or stationary on the bottom--require special

treatment.

The article defining the general fishery limit on the coasts of the two

countries was as follows:--

“ARTICLE IX. The subjects of Her Britannic Majesty shall enjoy the

exclusive right of fishery within the distance of three miles from

low-water mark, along the whole extent of the coasts of the British

Islands; and the subjects of the King of the French shall enjoy the

exclusive right of fishery within the distance of three miles from

low-water mark, along the whole extent of the coasts of France; it

being understood that upon that part of the coast of France which lies

between Cape Carteret and Point Meinga, French subjects shall enjoy the

exclusive right of all kinds of fishery within the limits assigned in

Article I. of this Convention, for the French oyster fishery.

[Illustration: Fig. 16.--_Showing the Limits reserved for French

Fishermen in Granville Bay._]

It is equally agreed, that the distance of three miles fixed as the

general limit for the exclusive right of fishery upon the coasts of the

two countries shall, with respect to bays, the mouths of which do not

exceed ten miles in width, be measured from a straight line drawn from

headland to headland.”

* * * * *

The next article defined the miles to be geographical miles, of which

sixty make a degree of latitude; and it was also provided that with a

view to prevent the collisions which from time to time took place “on

the seas lying between the coasts of Great Britain and of France,”

between the trawlers and the line and long-net fishermen of the two

countries, a mixed commission should be appointed to prepare a set

of regulations for the guidance of the fishermen in the seas above

mentioned. The code of regulations so arranged was confirmed by the

respective Governments in June 1843, and was in this country embodied

in an Act of Parliament. They embraced a large number of subjects,

many of them beyond what was contemplated in the convention. Besides

what may be termed police regulations, such as the numbering and

lettering of fishing-boats, there were others defining and restricting

the fishing apparatus to be employed;[1136] and all this machinery of

regulation was to be applied to British and French fishermen pursuing

their industry in the extra-territorial waters.

This convention was the first to establish by an international

agreement the three-mile limit as the boundary of exclusive fishing

on the British coasts, so far as French fishermen were concerned.

In view of the numerous conflicts and disputes, it was clearly of

importance that some limit should be precisely fixed, but the

selection of so narrow a strip of the adjacent sea was in some respects

unfortunate, and has probably acted injuriously on the interests of

the sea fisheries. It was imposed, no doubt, partly because it was

the limit already recognised in England and America as bounding the

territorial seas for the purposes of neutrality, and because it was

deemed sufficient to afford protection to the breeding fishes and

fish-spawn, one of the objects the Parliamentary Committee had in view

in recommending it.

The disputes between the fishermen of the two nations were not set at

rest by the convention. Numerous infringements of the new boundary of

exclusive fishing occurred, and the difficulty of causing it to be

respected was for many years considerable.[1137] As many as twenty-one

French vessels were seized and taken into Berwick at one time for

transgressing the limit, and the convention was naturally not looked

upon with favour in certain French seaports.[1138] Nor was it generally

regarded among the fishery classes in this country as a triumph of

diplomacy. In Scotland it was thought that the British Government had

made a very bad bargain in parting with the exclusive right to fish for

herrings beyond a limit of only three miles instead of three leagues,

the boundary maintained to be the “legal” and just distance, for the

sake of obtaining, as it was supposed, some fancied advantage for the

English oyster fishermen.[1139]

The convention, moreover, was binding only on French and British

subjects. It left unsettled the limit in relation to other nations,

and the inconvenience of this was shown by the action of Belgian

fishermen. While the French were excluded from the three-mile zone, the

Belgians not only fished within it, but in many cases they anchored

their vessels in the Scottish harbours and bays and fished in the

neighbouring waters from their small boats. In 1848 the commissioners

for the British fisheries brought the question before the Board of

Trade, and they were advised to enforce the boundary laid down in the

Anglo-French convention with respect to Belgian and all other foreign

boats also.[1140] Against this procedure strong remonstrances were made

by the Belgian fishermen, and these were followed by representations

from the Belgian Government. The Fishery Commissioners, who were

anxious that the law in regard to foreigners fishing on our coasts

should be made clear, continued to press the matter. The Belgian

fishermen then produced to the naval superintendent a copy of the

charter that had been granted by King Charles II., in 1666, to the

citizens of Bruges,[1141] under which they claimed equal privileges

with British subjects. That charter appears to have been generally

regarded as fictitious; but, acting on the advice of the Queen’s

Advocate, the Board of Trade directed that for the ensuing season of

1851 Belgians should be allowed to fish on the same system as before,

but that afterwards this liberty should cease, except in the case of

such as had been able to prove special privileges under the asserted

charter in the English courts of law. The dispute was settled by

a convention between Great Britain and Belgium in 1852, in which,

without mention of any specified limit, it was stipulated that Belgian

fishermen should enjoy the same rights of fishing on the coasts of

the United Kingdom as the most favoured foreign nation, and, in like

manner, that British subjects should enjoy corresponding rights on

the coast of Belgium.[1142] This convention was more beneficial to

Belgium than to us, as the Fishery Commissioners pointed out, owing to

the extent of the respective coasts conceded for fishing, but it was

thought to be satisfactory, inasmuch as defined rights were substituted

for vague and disputed privileges. Nevertheless, as the Belgian

Minister remonstrated that sufficient time had not been afforded for

trying in the British courts the validity of the charter “alleged” to

have been granted to the fishing vessels of Bruges, the vessels of that

port were allowed for one season more (namely, 1852) the privilege of

using the Scottish harbours for their fishing vessels and of fishing

from them with small boats.[1143] When the authorities attempted in

1852 to enforce the convention against Belgian vessels other than those

of Bruges, by excluding them from our harbours, so much dissatisfaction

was caused that the Belgian Minister again appealed to the British

Government, and the restriction was relaxed for another year for all

Belgian boats, so that the enforcement of the three-mile limit against

them did not come into operation till 1853.

The violations of the boundary by French vessels, above referred to,

continued for many years, and the disputes were sometimes so frequent

and serious as to occasion the employment of seven or eight gunboats

on the east coast of Scotland to maintain the law. Yet the three-mile

limit, as the Commissioners declared, was but “a slender privilege”

to retain for the native fishermen. “The extent of it,” they truly

said, “when looked at from the sea appears small indeed, seeming but

a narrow slip lying close under the high cliffs of the land, and when

it is taken into account that the whole sea outside is free to every

comer, whether British or foreign, the slight boundary within shore

ought to be strictly kept.” Sometimes, however, the French were accused

of infringing the limit from a common misconception on the part of our

fishermen that the boundary was the traditional one of three leagues

or nine miles, instead of only three miles. Upon explanation, they

admitted their misapprehension, “but,” said the Commissioners, “with a

significant expression of their wish that it had been leagues instead

of miles.”

The French herring vessels swarmed chiefly about Berwick and the coast

of Northumberland, and in 1853 a question of the limit at the Farne

Isles was raised by the French commodore. He interpreted the words of

the convention (which did not specify islands) as meaning that the

three miles was to be measured from low-water mark on the mainland,

which would have allowed the French to fish close to the islands. The

British naval superintendent, on the other hand, held that the limit

extended to three miles from low-water mark on the islands as well,

but, pending a legal opinion, he released two French vessels he had

seized for fishing within that distance from them. The Queen’s Advocate

decided in favour of the latter interpretation, and the point does

not appear to have been again raised.[1144] The infringement of the

boundary by the French gradually became less frequent, and in 1867 it

was reported that they had begun to fish at a greater distance from the

coast than formerly, and even out of sight of land.

At this time it was found to be desirable to conclude another fishery

convention with France. Nearly all the elaborate regulations under the

convention of 1839 had turned out to be unworkable or were disregarded,

and much difference of opinion existed as to what actually were “the

seas lying between the British Islands and France” to which they

applied.[1145] In this second convention, in 1867, the exclusive

fishery limits of the two countries were defined as in the convention

of 1839, and the boundaries of the large area in the Bay of Granville

or Cancale, reserved for French fishermen, were precisely the same as

before.[1146] The international “extra-territorial” regulations under

this convention were much less detailed than in the previous one.

Fishing beyond the reserved limits was to be entirely free, with the

exception that a close-time for oysters was established for the English

Channel. The police regulations were to apply to “the seas surrounding

and adjoining Great Britain and Ireland,” and adjoining the Atlantic

coast of France, between the frontiers of Belgium and Spain. The

conditions under which the fishing-boats of one nation might enter the

exclusive fishery limits of the other, such as by stress of weather,

were carefully specified; and each boat while there was to hoist a blue

flag, and was again to leave as soon as the exceptional circumstances

had ceased. The convention was to continue in force for ten years, and

afterwards from year to year, terminable on twelve months’ notice. But,

although confirmed by an Act of the British Parliament, in 1868,[1147]

it was not ratified by France, and its provisions never came into

practical operation, except with regard to the close-time for oysters,

owing to certain objections raised by the French Government.[1148]

Certain of its provisions, including, amongst others, the article in

the convention defining the exclusive fishery limits, were repealed by

the Sea Fisheries Act, 1883.[1149]

Both conventions, as we have seen, dealt with oyster fisheries in a

special manner, and on the coast of France a large area, extending

much beyond the three-mile limit, was reserved to French fishermen on

account of the valuable oyster-grounds it contained. An interesting

point was raised by the Irish authorities. It happened that Ireland

also possessed productive and extensive oyster-beds on the coast of

Wexford, stretching for many miles beyond the exclusive fishery limits

laid down in the convention, and the Irish authorities claimed the

right of control over the whole of them. They had enforced regulations

there before the first convention with France, in 1889, had been

entered into, and at that time they protested against its application

to Ireland. Accordingly, in the Act of 1843 giving effect to the

convention, a clause was inserted empowering the Board of Trade, with

the sanction of the Privy Council, to suspend the operation of the

convention in Ireland or any part thereof, so long as the fisheries

there should be carried on exclusively by British subjects, and also to

make bye-laws for enforcing the Act as soon as French boats frequented

Irish waters for the purpose of fishing.[1150] On the day following the

passing of the Act an Order in Council was issued directing “that the

said Act and articles of regulation shall be suspended with respect to

the fisheries of the whole coasts of Ireland, so long as such fisheries

shall be carried on exclusively by the subjects of Her Majesty.”

The matter was again raised in connection with the convention of 1867,

and it was associated with a recent act of jurisdiction by the Irish

authorities beyond the three-mile limit. Some Welsh boats which had

been dredging for oysters on the coast of Wexford, at a distance, it

was said, of four or five miles from the shore, were arrested, taken to

Wexford, the fishermen fined, and the oysters forfeited. The Board of

Trade thereupon asked the Irish Department, with reference to an Act

that had been passed in 1842 to regulate the Irish fisheries,[1151] to

state what were “the limits of the Act to regulate Irish fisheries” in

pursuance of the provisions of which they presumed they had acted, and

“whether the oysters in question were captured within those limits.”

The reply was that the oysters were taken two and a half miles from

the shore, but that the most extensive and valuable oyster-beds on

the east coast of Ireland lay at a distance of from five to ten miles

from and parallel to the shore, and so far as they, or any other beds,

were “within the reach of ordinary shore boats, and were habitually

frequented by and afforded the means of living to a shore population,

the Commissioners conceive they are justly entitled to be considered

Irish beds, and to come within their control.”[1152]

The Irish Members of Parliament strenuously supported this contention,

and they succeeded in getting a clause inserted in the Convention

Act of 1868 enabling the Irish Commissioners, with the approval of

the Queen in Council, to regulate the dredging for oysters on any

oyster-beds situated within the distance of twenty miles seawards from

a straight line between Lambay Island and Carnsore Point--an area

of nearly 1300 square (geographical) miles, outside the three-mile

limit, including the Arklow and Wexford banks, and stretching from

twelve and a half to nineteen miles beyond the ordinary limit. All

such regulations were to “apply equally to all boats and persons on

whom they might be binding,” and they were binding “on all British

sea-fishing boats, and on any other sea-fishing boats in that behalf

specified in the Order, and on the crews of such boats.”[1153] By an

Order in Council, dated 29th April 1869, regulations were made under

this section of the Act appointing a close-time; but no other boats

than British boats were therein specified.[1154]

In the interval between the two conventions with France, referred to

above, there were some other treaties that dealt with territorial

waters to which allusion may be made. The provisions of the treaty

of 1818 with the United States respecting the fishery rights on the

coasts of the British dominions in America (see p. 581) had given rise

to disputes, and in particular the words “within three marine miles of

any of the coasts, bays, creeks, or harbours.” This was interpreted by

the British and Colonial Governments as meaning that the boundary of

three miles was to be drawn, not everywhere along the coast following

all its sinuosities, but, where bays or creeks existed, from a straight

line passing from one headland to another across their mouth or

entrance--that is, according to the principle now known as the headland

doctrine. The United States, on the other hand, generally contended

that the words meant that the three-mile limit was to be measured

everywhere along the coast from the line of the shore, following it in

all its curves and indents, thus eliminating altogether any special

treatment for inlets or bays, and dealing with all parts of the coast

as if it were an open coast. There is little doubt that the British

interpretation was the correct one. This is evident from the previous

usage with regard to bays as shown by the rules relating to the King’s

Chambers and the practice of the Admiralty Court in England, and the

reserved firths in Scotland, and by the claim advanced by the United

States with respect to neutral rights in 1806. It is also evident from

the language of previous treaties. That of 1686 between France and

Great Britain referred to “havens, bays, creeks, roads, shoals, or

places”; in that of 1783 between Great Britain and the United States,

“coasts, bays, and creeks” are spoken of; and in that between the same

Powers in 1794, with respect to neutral rights, it was agreed that

ships should not be taken “within cannon-shot of the coast, nor in

any of the bays, ports, or rivers of their territories.” It is clear

that a distinction was drawn between coasts and bays--a distinction

which is now and always has been recognised in international law,

which is made in the North Sea and other fishery conventions of recent

times, and is claimed by the United States with regard to their own

coasts.[1155] If no such distinction between coast and bays was meant

in the clause of the treaty of 1818, then the words “bays, creeks, and

harbours” are without meaning and superfluous, a construction which

is contrary to the rule which requires that effect be given to every

word in a contract or treaty. That the British construction was correct

was virtually admitted by Mr Webster, the American Secretary of State,

when he said in a State paper, 6th July 1852, that “it was undoubtedly

an oversight in the convention of 1818 to make so large a concession

to England, since the United States had usually considered that those

vast inlets, or recesses of the ocean, ought to be open to American

fishermen as freely as the sea itself, to within three miles of the

shore.” He admitted, moreover, that the word bay applied equally to

small and large tracts of water situated between capes or headlands.

[Illustration: Fig. 17.--_Bay of Fundy._ A, _United States territory_.]

In 1824, and again in 1838 and 1839, British cruisers seized American

vessels for fishing within the Bay of Fundy, the Bay of Chaleurs, and

elsewhere in contravention of the treaty of 1818; and in 1843 the

schooner _Washington_ was arrested for fishing in the Bay of Fundy at a

distance of ten miles from shore, taken to Yarmouth, Nova Scotia, and

sold. In the diplomatic correspondence which followed these seizures,

the two Governments took up the position as to the interpretation of

the treaty which is referred to above; but eventually, in March 1845,

Lord Aberdeen intimated that the British Government, while adhering

to their interpretation, would as a matter of courtesy relax the

rule with regard to the Bay of Fundy, and allow “the United States

fishermen to pursue their avocations in any part of it, provided they

should not approach, except in cases specified in the treaty of 1818,

within three miles of the entrance of any bay on the coast of Nova

Scotia or New Brunswick.” The Bay of Fundy (fig. 17) is a very large

but typically landlocked inlet of the sea, passing between Nova Scotia

and New Brunswick for a distance of about 140 miles from its mouth.

As with many other bays, there is more than one cape or projection of

land that might be taken as its headlands, but one of them is clearly

in the United States; and the distance from it to the opposite coast is

from forty to fifty-five nautical miles, while the bay itself at sixty

or seventy miles from the entrance is over twenty-five miles in width.

Chaleur Bay, between New Brunswick and Quebec, is a little over sixteen

miles in width and over sixty miles long (fig. 18).

The United States declined to receive the above-mentioned privilege

as a favour, and the colonists made a strong representation to London

as to the injurious results that would ensue if the proposed policy

were adopted; and in 1849 the British law officers of the Crown gave

their opinion on the provisions of the treaty, “that the prescribed

distance of three miles is to be measured from the headlands or extreme

points of land next the sea of the coasts, or of the entrance of the

bays, and not from the interior of such bays or inlets of the coast;

and consequently that no right exists on the part of American citizens

to enter the bays of Nova Scotia, there to take fish, although the

fishing, being within the bay, may be at a greater distance than three

miles from the shore of the bay.”

In terms of the convention of February 8, 1853, the case of the

_Washington_, above described, came before referees in London, and

on their disagreement it was decided by the umpire, Mr Joshua Bates,

in favour of the United States. His conclusion was that the Bay of

Fundy was not a British bay, nor a bay within the meaning of the word

as used in the treaties of 1783 and 1818, but belonged rather to the

class which comprised such bays as the Bay of Bengal and the Bay of

Biscay, over which no nation can have the right to assume sovereignty.

He also pointed out that one of its headlands was in the United States;

and he thought that the doctrine of the headlands had “received a

proper limit” in the Anglo-French convention of 1839, where a ten-mile

base-line was adopted.

[Illustration: Fig. 18.--_Bay des Chaleurs._]

A few years before this, negotiations had been opened between the

Governments with the view of establishing reciprocal free-trade between

Canada and the United States, and in June 1854 a treaty was signed at

Washington, commonly known as the Reciprocity Treaty, by which certain

articles of produce of the British colonies and of the United States

were admitted to each country respectively free of duty, and reciprocal

rights of fishery were granted. The subjects of either state were to be

free to fish along the coasts and in the bays, harbours, and creeks

of the other, without any restriction as to distance from the shore,

in Canada, New Brunswick, Nova Scotia, and Prince Edward’s Island, and

on the eastern coast of the United States north of the 36th degree

of north latitude. On each side salmon and shad fisheries, and the

fisheries in rivers and the mouths of rivers, were reserved.[1156]

This treaty was to endure for ten years, and it was terminated by

the United States and came to an end on 17th March 1866, when, in

consequence, the provisions of the treaty of 1818 again came into

force. The British Government, however, being very desirous to prevent,

as far as possible, the loss to the citizens of the United States by a

sudden withdrawal of the privileges which they had enjoyed for twelve

years, decided to allow American fishermen to continue to fish in all

provincial waters upon the payment of a small fee.[1157] From the

neglect of American fishermen to obtain the licenses, the fee for which

had been raised from fifty cents to two dollars per ton, the system

was discontinued in 1870, and orders were given to British cruisers

to exclude American vessels from fishing in territorial waters, and

several of them were seized and forfeited. The Canadian Minister of

Marine and Fisheries issued instructions, in May 1870, for the same

limits as are contained in the Anglo-French convention of 1839 to be

put in force against American fishermen; but, on representations from

London, these were withdrawn and other instructions issued to the

commanders of the cruisers, in which bays of six miles or less in width

at the mouth were alone reserved.[1158]

Further negotiations between the Governments ended in the treaty

of Washington in 1871, in which reciprocal rights of fishing were

re-established in much the same way as in the treaty of 1854, but

the liberty to British subjects to fish on the coast of the United

States was restricted to the part north of the 39th degree of north

latitude.[1159] Under this treaty it was agreed to appoint joint

commissioners to determine the amount of compensation, if any, which

should be paid by the United States for the greater privileges granted

to American citizens by the treaty; and this commission met at Halifax

in 1877, the sum of 5,500,000 dollars being so awarded. The award was

not received with favour in the United States, and notice was given at

the end of the stipulated ten years for the abrogation of the treaty,

and the articles referring to the fisheries were so terminated on July

1, 1885, the provisions of the convention of 1818 again, for the third

time, coming into force. Further troubles and disputes occurred, not so

much in relation to fishing within territorial waters, as to American

vessels frequenting colonial ports for the purchase of bait, salt, &c.,

a liberty which was not granted by the treaty of 1818, and several

of them having been seized, retaliatory measures were threatened by

the United States. After negotiations between the two Governments

another treaty was signed at Washington, on February 15, 1888, the

principal British plenipotentiary being Mr Joseph Chamberlain. This

treaty provided for the appointment of a mixed commission to delimit

“the British waters, bays, creeks, and harbours of the coasts of Canada

and of Newfoundland, as to which the United States, by Article I. of

the Convention of 20th October 1818, between Great Britain and the

United States, renounced for ever any liberty to take, dry, or cure

fish.” The delimitation was to be marked upon charts by a series of

lines regularly numbered and described, the three marine miles being

measured from low-water mark, “but at every bay, creek, or harbour,

not otherwise specially provided for in this treaty, such three marine

miles shall be measured seaward from a straight line drawn across the

bay, creek, or harbour, in the part nearest the entrance at the first

point where the width does not exceed ten marine miles.” A large number

of bays were specially dealt with by lines specified, that of Chaleurs

being closed, or by other special lines from which the three miles

was to be measured; and other articles in the treaty regulated the

entry of American fishing vessels into colonial ports. It was further

provided that whenever the United States removed the duties on fish and

fish-oils from Canada and Newfoundland, United States’ vessels would

be licensed, free of charge, to enter the colonial ports and harbours

to purchase provisions, bait, ice, seines, and all other supplies and

outfits, to tranship their catch, or for the shipping of crews.

But, inasmuch as the above treaty could not possibly be ratified

before the commencement of the next fishing season, the British

plenipotentiaries, in order to avoid a recrudescence of the usual

friction and irritation, and to afford evidence of their anxious desire

to promote good feeling, agreed, in a protocol of the same date, to a

“temporary arrangement for a period not exceeding two years, in order

to afford a _modus vivendi_ pending the ratification of the Treaty.”

This arrangement granted the privilege to American fishing vessels of

entering the bays and harbours, on payment for an annual license of a

fee at the rate of one and a half dollars per ton, in order to purchase

bait, ice, and all other supplies and outfits, to tranship their catch

and ship crews, and gave them some other privileges, declaring also

that forfeiture was to be exacted only for the offence of fishing or

preparing to fish in territorial waters.[1160]

Unfortunately, this treaty failed to pass the Senate of the United

States and was never ratified, and the system temporarily adopted as

a _modus vivendi_ has been regularly renewed since, and is still in

force.[1161]

It is to be noted that the arrangement in the treaty, both as to

drawing lines on charts to separate the common from the exclusive

fishing waters and for the adoption of a ten-mile base-line for bays,

was proposed, not by the British Government, but by that of the United

States. The British Government, indeed, strongly objected to a ten-mile

line as involving “a surrender of fishing rights” and making “common

fishing-grounds of the territorial waters which, by the law of nations,

have been invariably regarded, both in Great Britain and the United

States, as belonging to the adjacent country,” and they cited the Bay

of Chaleurs as an example. They argued that in the convention with

France in 1839, and in other similar conventions, the boundary-lines

selected were due to special configuration of the coast, and could not

be well settled “by reference to the law of nations”; and attention was

called to the claims of the United States to Delaware Bay and other

bays on their coasts. In reply to these observations of the British

Government, the United States said they had proposed the width of ten

miles not only because it had been adopted in fishery conventions,

but also because it was deemed reasonable and just in the case in

question; “while they might have claimed a width of six miles as a

basis of settlement, fishing within bays and harbours only slightly

wider would be confined to areas so narrow as to render it practically

valueless, and almost certainly expose the fishermen to constant danger

of carrying their operations into forbidden waters; a width of more

than ten miles[1162] would give room for safe fishing more than three

miles from either shore, and thus prevent the constant disputes which

this Government’s proposal, following the conventions above noticed,

was designed to avert.”[1163]

Nevertheless, notwithstanding this proposal by the United States’

Government, the limit now enforced for bays on the coasts of British

North America is that of six miles, with the exception of the Bay of

Chaleurs.[1164] It was apparently found that the attitude adopted

by the British Government in 1870, then stated to be temporary and

exceptional, of allowing the United States’ fishermen to fish “except

within three miles of land, or in bays which are less than six miles

broad at the mouth,” ought to be adhered to, during the existence of

the _modus vivendi_ and pending the ratification of the treaty of 1888.

If a recent statement of the Under-Secretary for Foreign Affairs, made

in the House of Lords, represents the policy of the British Government

at the present day, this six-mile limit for bays is to be regarded as

established not alone for British North America, but for every part of

the British dominions unless specially provided for otherwise. (See p.

730.)

From the foregoing summary of the disputes, negotiations, and treaties,

concerning the rights of Americans to fish on the coasts of the British

possessions in North America, it is evident that the British Government

has gradually given way to the pressure exerted by the United States.

In allowing a six-mile line for bays they have, indeed, as just shown,

gone further than was demanded, and have departed from the terms of the

fishery conventions which they have concluded with European Powers.

The basis of the delimitation adopted in the treaty of 1888 was, as Mr

Chamberlain intimated to Lord Salisbury, derived from the North Sea

Convention of 1882, to which important treaty we must now turn our

attention.

It has been already said that the fishery convention with France in

1867 was not ratified by that country, and never came into operation

in the general police regulation of the fisheries in extra-territorial

waters. The desirability of international regulations to preserve

the peace between the fishermen of various countries frequenting

the neighbouring seas, and particularly the North Sea, soon became

apparent. Complaints of malicious interference with one another

increased in number. The Belgians and French were accused of cutting

and stealing the lines of Scottish fishermen, and the Dutch of taking

their derelict nets, and the Fishery Board for Scotland accordingly

pressed upon the Government, as early as 1876, the advantage of

negotiating a fishery convention with Holland.[1165] A little later

the free use by foreign trawlers of a destructive implement known as

“the devil,” or “the Belgian devil,” aroused a strong feeling among

British drift-net fishermen. The instrument consisted of a shank and

sharpened flukes, which was hung overboard and was designed for the

sole purpose of cutting fishing-nets in the sea which might impede

the movement of the boat making use of it. It was a product of the

disputes and difficulties that occurred in carrying on trawling and

drift-net fishing in the same localities at the same time. The British

Government in January 1880 appointed Mr W. H. Higgin, Q.C., to make

an inquiry on the subject. His report[1166] showed that the state of

things with regard to fishing operations in the North Sea by British,

Belgian, French, and Dutch boats was unsatisfactory. He found that

grievous injury and damage had been done to the drift-nets and tackle

of English fishermen in the North Sea by trawlers belonging to France,

Belgium, and Holland;[1167] that there was no international law or

convention between England and France, England and Belgium, or England

and Holland, affecting the fisheries in the North Sea,--the convention

with France in 1867 never having been ratified, while that of 1839

was, he said, confined to the English Channel and referred only to

French fishermen; and he stated that some international law of the

kind was urgently required, as it would be impossible otherwise to put

a stop to the outrages described. In consequence of this report the

Government invited the co-operation of France, Belgium, Holland, Sweden

and Norway, and Denmark in devising a remedy, suggesting that separate

agreements might be made for the purpose. At the instance of Holland,

it was agreed to have one joint convention, and a conference of the

North Sea Powers was convened at The Hague, in 1881, to negotiate it,

Germany, at her own request, being included.[1168]

In the proceedings at the conference the question that caused

the greatest difficulty and discussion was the definition of the

territorial waters or exclusive fishery limits. The British Government,

in curious contrast to their action earlier in the century, desired

to avoid any definition at all. The memorandum prepared by them as

the basis of the deliberations, stipulated that the convention should

“apply to the high seas generally outside the fishery limits of the

countries joining in the convention.” This somewhat vague, not to

say illogical, phraseology did not meet with the approval of the

other Governments. It was objected to by France in particular. That

Power had accepted the invitation to the conference on condition

that the regulation to be agreed upon should be restricted to police

rules intended to prevent conflicts between fishermen of different

nationalities, “and to secure to them the free practice of their

calling in the common waters of the North Sea.” In making a special

convention dealing with the open sea which was common to all, it seemed

to it impossible to do otherwise than begin by defining the limits

within which it was intended to operate.[1169] The French delegates at

the conference therefore proposed that the extent of the territorial

waters should, for fishery purposes, be defined in precise terms,

and they endeavoured further to get the limit made as contracted as

possible. They urged that the boundary should be fixed everywhere at

three geographical miles from low-water mark, whatever might be the

configuration of the coast. As to fixing a larger measurement for bays,

as in the Anglo-French convention of 1867, they argued that the rules

laid down on this subject in the convention in question ought not to

apply to the North Sea; in many instances these rules had reference

only to the interests of oyster fisheries, which, they said, did not

exist in the North Sea. The French contention regarding bays was thus

similar to that of the United States in the negotiations concerning the

treaty of 1818; and it was of course to the interest of France, whose

own coast would be but little affected, and whose fisheries along the

British coast in the North Sea were of great importance, to have the

exclusive fishery limit made as narrow as possible.

The proposal that the territorial waters for fishery purposes ought to

be precisely defined, and that the limit on the open coast should be

fixed at three geographical miles from low-water mark, was generally

accepted, Belgium alone supporting the British view that it was better

not to define them in the convention. But as regards bays, objection

was taken to the French scheme on the part of Germany, with special

reference to the mouth of the Elbe, which was declared to be a part of

the sea belonging exclusively to Germany; and on the part of Norway,

on the ground that that country could not agree to fix the limit at

three miles, particularly with respect to bays. The rights which

particular states might have acquired, it was urged, ought not to be

prejudiced, and “bays should continue to belong to the State to which

they at present belonged.” The French delegates then formulated their

proposition in the following terms: “In the North Sea the limit of

the part known as territorial waters (_mer territoriale_) is fixed,

whatever may be the configuration of the country, at three miles from

low-water mark, along the whole length of the shores of ... It is,

however, understood that this shall not be taken to modify in any way

the rights acquired on certain parts of their coasts by the different

Powers to whom the shore belongs;” or else, “It is, however, understood

that the present convention shall not be taken to modify in any way the

rights which any Government may possess outside the three-mile limit in

bays.”

As the British and French delegates could not agree on this subject,

further discussion was postponed until the former had consulted their

Government. When this was done, they announced that their instructions

did not permit them to adopt the French proposals; and they continued

to press the draft article for acceptance, declaring that the question

of defining the limits of the maritime jurisdiction of the various

countries did not fall within the province of the convention. The

other delegates, however, did not share this view, and when a complete

definition was insisted on, the British representatives ultimately

agreed to accept the terms employed in the first article of the

Anglo-French convention of 1867, and they submitted the following

article: “The fishermen of each country shall enjoy the exclusive right

of fishery within the distance of three miles from low-water mark

along the whole extent of the coasts of their respective countries. As

regards bays, the entrances of which do not exceed ten miles in width,

the distance of three miles shall be measured from a straight line

drawn from headland to headland.” The counter-proposal on the part of

France did not materially differ from this, except by the inclusion of

islands, by the better definition regarding bays, and by the insertion

of a clause providing for the right of free navigation and anchorage

in territorial waters.[1170] The German delegate, anxious about the

waters at the mouths of German rivers, urged that flats or banks

uncovered at low water should also be included, as well as islands.

This proposal had been agreed to by the British Government in 1868,

after correspondence between the Foreign Office and the German Embassy

in London, and though apparently not now desired by Great Britain, it

was formally adopted.[1171]

The article as finally agreed upon was as follows: “The fishermen

of each country shall enjoy the exclusive right of fishery within

the distance of three miles from low-water mark along the whole

extent of the coasts of their respective countries, as well as of the

dependent islands and banks. As regards bays, the distance of three

miles shall be measured from a straight line drawn across the bay,

in the part nearest the entrance, at the first point where the width

does not exceed ten miles. The present Article shall not in any way

prejudice the freedom of navigation and anchorage in territorial waters

accorded to fishing-boats, provided they conform to the special police

regulations enacted by the Powers to whom the shore belongs.”

[Illustration: Fig. 19.--_Showing the Sandbanks at the mouth of the

Ems._]

It is interesting to note that, at the instance of the Dutch president,

the conference agreed that the provisions of the convention would

not be applicable to the Zuiderzee; and that in deliberating on the

boundaries of the North Sea within which they would apply, it was

agreed to exclude the Skagerrack, the fisheries of which, it was

stated by the president, were not international, but were “essentially

within the jurisdiction of the States to which the shores belong.” The

greater part of the Zuiderzee, however, would have been excluded by

the definition of bays in the convention, and the rest of it by the

inclusion of “banks”; but the Skagerrack, on the other hand, is nowhere

less than sixty geographical miles from shore to shore. Neither Norway

nor Denmark has asserted since the convention exclusive jurisdiction in

its moiety of these waters, where, in point of fact, both English and

German vessels now carry on an extensive fishing.[1172]

Some other points of interest were raised during the deliberations of

this important conference. It was asked by the president: What would

be the fate of the convention during war, in which one or two of the

Governments joining in it should be belligerents? Would the fishery

cruisers of the Powers concerned merely retire from the North Sea

and leave fishermen of their nationality without protection or help?

He recommended that the conference should adopt the principle that

fishing-boats, _bonâ fide_ engaged in fishing, should be declared

neutral. This was to revive a subject that had earlier, especially

during the time of Napoleon I., caused much discussion, and which was

remote from the object of the convention; and the proposal, though

sympathetically received by the French delegates, was not supported

by any of the Governments. A proposal of another kind was made by

the German delegate. He thought it was necessary that restrictive

measures should be enforced to prevent the destruction of the fry of

fish and the taking of small fish; for example, by forbidding trawling

within a certain distance of the shore, so as to provide a shelter for

the free development of fish, and by regulating the construction of

trawl-nets. The British and French delegates were opposed to any system

of restriction, relying on the results of the inquiry which had been

then recently made by Messrs Buckland and Walpole,[1173] and on the

part of France the following draft clause was formulated for insertion

in the convention: “In the extra-territorial part of the North Sea,

fishery shall be free at all seasons, and with all kinds of implements,

without any sort of distinction.” The clause was not adopted, and it

was generally agreed that the question was not ripe for decision by

that conference, which was moreover concerned with the police of the

fisheries, and not with the reproduction of fish, in the North Sea.

The North Sea Convention was concluded in 1882, the signatory Powers

being Great Britain, Germany, France, Belgium, Denmark, and the

Netherlands.[1174] Although the delegates of the United Kingdom of

Sweden and Norway signed the protocol and were present at the final

deliberations, those Powers did not join in the convention, objections

being raised as to the definition of the territorial waters and on some

other points.[1175] An additional article was inserted providing that

the King of Sweden and Norway might adhere later, for both or either

country; but this has not been done, though the coast of Norway forms

a not inconsiderable part of the boundary of the North Sea as defined

in the convention. The reasons which induced these countries to abstain

from joining in a friendly agreement with the neighbouring Powers of

western Europe, after having accepted the invitation to the conference

and taken part in its deliberations, must have appeared to them strong;

and from the delay that occurred in coming to a decision it is evident

that the matter received full consideration. They believed, however,

that to agree to so restricted a boundary for their territorial waters

in respect to fishery would be disadvantageous to them: it is probable,

moreover, that the raising of the question was not foreseen, since the

object of the conference was to consider the police of the fisheries in

extra-territorial waters in the North Sea. It is curious, indeed, that

the limits for exclusive fishery, both in the convention with France in

1839 and with the other North Sea Powers in 1882, were fixed as it were

incidentally.

The duration of the convention was to be for five years from the

date at which it came into operation, unless one year’s notice to

terminate it were given by any of the contracting Powers; and it was

to continue in force from year to year subject to similar notice. That

none of the signatory Powers have withdrawn from the convention is the

best proof of its general utility. From the number and influential

position of these states, and from the character of the sea to which

it applies,--one of the most productive in the world,--this convention

is an international document of high importance to the sea fisheries,

and deserves careful consideration. The first article declares that the

provisions shall apply to the subjects of the high-contracting parties,

the object being “to regulate the police of the fisheries in the North

Sea outside territorial waters”; and the limits of the North Sea were

carefully defined.[1176] The provisions of the convention relate to

the registration, lettering, and numbering of boats, the operations

of fishermen pursuing different methods of fishing at the same place

at the same time, the malicious use of instruments for cutting nets,

the salvage of derelict fishing-gear, and the superintendence by

cruisers. It was put in force in this country in 1883 by an Act of

Parliament,[1177] which also extended its application, so far as

British sea-fishing boats were concerned, to the whole of the seas

around the British Islands, whether within or without the exclusive

fishery limits. In this Act the stipulation in the second article

of the convention, as to the freedom of navigation and anchorage in

territorial waters on the part of foreign fishing-boats, received

a limiting definition. The clause in question was inserted in the

convention at the instance of France, and was accepted with some

reluctance by the British delegates, who agreed to it in general terms

only, without the recognition of a right.[1178] By the Act foreign

fishing-boats were prohibited from entering the exclusive fishery

limits of the British Islands except for purposes recognised by

international law, or by any treaty or arrangement in force between

this country and any foreign state, or for any lawful purpose. If a

foreign boat did enter, it was to return outside the limits as soon

as the purpose for which it entered had been answered, and fishing or

attempting to fish within the limits was, of course, forbidden under

penalties.

The definition of the exclusive fishery limits in the North Sea

Convention differed in two respects from that contained in the previous

conventions with France. The rule for the measurement of bays was

modified, and the dependent islands and banks were expressly included

as part of the coast from which the limit should be measured. In the

Anglo-French conventions of 1839 and 1867 bays which did not exceed

ten miles in width at the mouths were comprised in the reserved

waters, and the three-mile limit was measured from the line joining

the “headlands.” Thus some bays whose width at the mouth, or between

their headlands, exceeded ten miles were deprived of the benefit of

the principle applied to bays and came under the three-mile rule,

even although at a small distance within the entrance the width might

not exceed ten miles. Since all bays have not headlands, the French

proposal at The Hague conference to substitute “the two extreme points

of the bay” for that term was an improvement. Still better was the

definition finally adopted, to place the base-line at the first point

nearest the entrance where the width did not exceed ten miles. The

specific inclusion of islands removed such difficulties as were raised

in 1853 by a French commodore at the Farne Islands (see p. 618), though

it had long been established in connection with the rights of neutrals

that islands carried with them, no less than the mainland, the belt

of territorial sea. The inclusion of banks was, however, novel, and

was not received with favour by the British Government. It was feared

that it would lead to difficulties and complications in future if such

banks as the Goodwin Sands, which were situated beyond the three-mile

limit, and the similar banks on the German and Dutch coasts, were

held to be territorial dependencies of the coast; and so strong was

the objection of the British Government to their inclusion, that they

instructed their ambassadors abroad, if an objection was raised by any

Power, to have this definition reconsidered.[1179] The objection is

theoretically well founded. Sand-banks of this character may be not

permanent, and usually vary in extent, configuration, and position

with lapse of time and even after a single tempest; and the extent of

sea appendent will vary likewise. It would thus be difficult to fix a

precise and permanent limit in connection with them. Moreover, since

the banks may be covered by the sea except at low-water without losing

their territorial value, it would sometimes require more than ordinary

care on the part of foreign fishing-boats to avoid infringing the

limit around them. On the other hand, for the purpose of regulations

designed to protect fish life, such as are referred to in the sequel,

banks of this nature are of especial value; and, in point of fact,

few difficulties in practice appear to have arisen on this score in

carrying out the convention.[1180]

On one or two points, however, the definitions in the convention

might have been improved. Nothing is said as to the tides at which

low-water mark is to be taken for measurements, though on certain

coasts the extent of territorial water will vary much according to

whether it is a neap or a high spring tide; and the question whether

certain banks are or are not territorial and entitled to the limit

may vary in the same way. It is to be presumed that the tide is an

ordinary neap tide, as in English law. More important is the fact

that “rocks” are not included along with islands. Quite recently the

omission has given rise to difficulties in regard to three places on

our coast--viz., the Eddystone, the Bell Rock, and the Seven Stones

Rocks, off the Scilly Islands. The Seven Stones Rocks are a reef near

the south-west extremity of Cornwall, about seven miles from Land’s

End, and about a mile in length, and with a lightship at it; but it

does not appear that any portion is above the sea-level at low-water

of neap tides. Complaints were made to the Government by the Cornwall

Sea Fisheries Committee that French fishing-boats fished within three

miles from the rocks, and close to them; but it was stated by the

Admiralty, and also by the Foreign Office, that these rocks could

not be claimed as being within British territorial waters.[1181] In

this case, presumably, the decision might rest on the fact that the

rocks do not appear at low-water of ordinary tides. The Eddystone is

somewhat different. The rock or reef on which the lighthouse is placed

lies about fourteen miles south-west of Plymouth, and while covered

by the sea at high tide, is exposed to the extent of an area of about

500 yards at low-water of neaps. French fishermen also fish around

it and close to it, a practice which caused the Devon Sea Fisheries

Committee to complain. The gunboat _Circe_, in August 1905, seized

and took into Plymouth two French “crabbers” for fishing within three

miles from the Eddystone, but after communicating with the Board of

Trade, instructions were sent to release the boats; and the Board

of Agriculture and Fisheries, while saying that they were not in a

position to express an authoritative opinion on the matter, called

attention to the decision in 1902 regarding the somewhat similar case

at the Seven Stones. Here, no doubt, the decision rested on the absence

of the specific inclusion of “rocks,” as distinguished from islands, in

the conventions, and one can understand the expression of surprise by

the Devon Sea Fisheries Committee that a rock which was recognised as

British, and was inhabited by lighthouse-keepers, was not considered as

within the territorial limit for fishing purposes.

Similar complaints have been made concerning the Bell Rock, which lies

about ten miles east-south-east of Arbroath, Forfarshire, and has a

lighthouse upon it. It is entirely covered at high-water; at the ebb

of spring tides it is uncovered to a depth of four feet, while at

low-water of neap tides the top of the rock is just visible, and would

then probably acquire validity for the measurement of three miles

from it and around it, if rocks had been included in the conventions,

as they are now included in the recent convention between this country

and Denmark concerning Iceland and the Faroës (p. 647). The case

of the Seven Stones and the Eddystone is, however, on a different

footing; for while the limit of exclusive fishery along the coasts of

the North Sea, with the exception of the part formed by Norway, was

settled by the convention of 1882 (so far as concerns the fishermen

of the signatory Powers), there appears to be some obscurity as to

how far the three-mile limit operates on the coasts that lie outwith

the boundaries of the North Sea,--such, for example, as the west

coasts of England and Scotland and the coasts of Ireland. The second

article of the convention declares, without qualification, that the

three-mile limit shall apply “along the _whole extent_ of the coasts”

of the respective countries,--it does not say merely to the North Sea

coasts,--and the view that this stipulation operates on all the coasts

appears to be widely prevalent, and is expressed, for example, in the

Belgian law which put the convention in force in that country.[1182]

It is, however, held by legal authorities that since the special

object of the convention was “for the purpose of regulating the police

of the fisheries in the North Sea outside territorial waters,” and

as the boundaries of the North Sea are defined “for the purpose of

applying the provisions of the present Convention,” the definition of

the exclusive fishery limits applies only within the area specified,

and not to the other coasts of the signatory Powers.[1183] In the

Convention Act, as in the Territorial Waters Jurisdiction Act, we

accordingly find a distinction drawn between the exclusive fishery

limits under international law and those under specific treaties or

conventions. In the definition clause, the expression “British Islands”

is explained to mean the United Kingdom of Great Britain and Ireland,

the Isle of Man, the Channel Islands, and their dependencies, and it is

declared that “the expression ‘exclusive fishery limits of the British

Islands’ means that portion of the seas surrounding the British Islands

within which Her Majesty’s subjects have, by international law, the

exclusive right of fishing, and where such portion is defined by the

terms of any convention, treaty, or arrangement for the time being in

force between Her Majesty and any Foreign State, includes, as regards

the sea-fishing boats and officers and subjects of that State, the

portion so defined.”[1184]

From all this it would appear that, notwithstanding the ambiguity

introduced by the unqualified phrase “the whole extent of the coasts of

their respective countries,” the definition of the exclusive fishery

limits in the convention of 1882 applies only to the coasts of the

North Sea. In the convention of 1839 with France, on the other hand,

there seems no reason to doubt that the three-mile limit was applied

to all parts of the coasts of Great Britain and France respectively.

By Article ix. it was declared that the exclusive right of fishing was

reserved for subjects within that distance “along the whole extent of

the coasts” of each country; and the British Act of Parliament to carry

into effect this convention, and the international regulations agreed

upon under it, so far from expressing any qualification or reservation

as in the Act of 1883, made it clear that the limit applied generally.

In the preamble it is stated that “Whereas a Convention was concluded

between Her Majesty and the King of the French ... defining the limits

of the oyster fishery between the island of Jersey and the neighbouring

coast of France, and also defining the limits of the exclusive right

of fishery on all other parts of the coasts of the British Islands

and France”; and Article 85 of the regulations enacted that the

fishing-boats of the one country, except under certain circumstances,

“shall not approach nearer to any part of the coasts of the other

country than the limit of three miles specified in Article ix. of the

convention.”[1185]

In the convention of 1852 between Great Britain and Belgium, which

was simply entitled “relative to fishery,” without any particular

purpose, seas, or regions being specified, it was stipulated that

“Belgian subjects shall enjoy, in regard to fishery along the coast

of the United Kingdom of Great Britain and Ireland, the treatment of

the most favoured foreign nation.” The most favoured foreign nation at

that time was France, and although no distance was fixed in the Belgian

treaty, there is no doubt the three-mile limit applied, and was indeed,

as stated above, enforced, on the east coast of Scotland against the

Belgians as well as against the French.

In the convention of 1867 the same limit was assigned “along the whole

extent of the coasts” of the two countries; and the provisions of the

convention were expressly stated to apply beyond the exclusive fishery

limits, in the one case “to the seas surrounding and adjoining Great

Britain and Ireland,” and in the case of France to the seas adjoining

the coast of that country between the frontiers of Belgium and Spain;

and the object of the convention was “relative to fisheries in the seas

between Great Britain and France.” As already stated, this treaty, with

an unimportant exception, did not come into effect, and the convention

of 1839 remained in force.[1186]

As no other treaties exist defining the exclusive fishery limits

along our coasts than those referred to, the position in relation

to conventional law appears to be as follows. With respect to France

and Belgium, the three-mile limit, with the ten-mile line for bays,

seems to be in force along the whole extent of the British and Irish

coasts. With respect to the other Powers which were parties to the

North Sea Convention of 1882,--namely, Germany, Denmark, and the

Netherlands,--this limit is in force only on the eastern, or North

Sea, coasts of England and Scotland. On the north and west coasts of

Scotland, the south and west coasts of England, and the whole of the

coast of Ireland, the limits of exclusive fishery as regards these

countries, and as regards all countries except France and Belgium,

fall to be determined by the principles of international law. With

respect to all other nations, as, for example, the Norwegians, Swedes,

and Spaniards, the limits on all parts of our coasts also fall to be

determined under international law. The principles of international

law, as expounded by the accredited writers, do not, as will be shown

later, and as is implied in the quotations from the Acts above cited,

support the view that the right of exclusive fishing, apart from

treaty, must necessarily be restricted to the three-mile limit. The

preponderance of opinion is that the boundary of the territorial sea,

including, therefore, the exclusive right of fishery, coincides with

the range of guns from the shore; and it is evident that as against

such nations as claim for themselves a greater extent than three miles

on their own coasts--viz., Norway, Sweden, and Spain--a larger limit

than that contained in the conventions could be rightfully enforced on

the British coasts.

There are many things to show that the unsatisfactory state of

affairs, not to say confusion, with respect to the limits of exclusive

fishing to which we are entitled on various parts of our coast, has

been brought about partly by a widespread belief that the boundary

under international law is three miles, partly also by what must be

characterised as a want of knowledge and care on the part of those

dealing with the question. Mr T. H. Farrer, the permanent Secretary

of the Board of Trade, told a Committee of the House of Commons in

1876 that the convention and regulations with France were “hastily

and recklessly” made,[1187] and the record of the proceedings at the

conference at The Hague in 1881 shows that it would not have been a

difficult matter to clear up some of the obscurity that exists. One

point of importance is that, notwithstanding the absence of any treaty

or agreement defining the extent of the limits of exclusive fishery

with certain nations, the three-mile limit alone has been enforced

against the vessels of such nations fishing on our coasts. This has

been the case, except for a brief period, with respect to Norwegian and

Swedish trawlers in the Moray Firth in Scotland, which is “closed” to

British trawlers, and the vessels of these two nations are thus put on

the same footing as those of other countries with which a convention

has been made. It is also the case on the west coast of Scotland,

where the limit of three miles is enforced against foreign trawlers,

apparently irrespective of nationality, and certainly against Dutch and

German vessels as well as against Belgians in the Clyde, from which

British trawlers are excluded.[1188] How far this undoubted usage may

modify the position under international law it would be of importance

to determine.

A more recent convention must be referred to, which, however, does

not relate to the coasts of this country, but to those of the Danish

islands, the Faröes, and Iceland, where British trawling vessels carry

on extensive operations. The Icelanders, who depend so much upon their

fisheries, were desirous of having a considerable extent of the waters

around their coasts reserved to themselves, and wished to have a limit

of seven miles to protect the grounds from the action of foreign

fishing-boats.[1189] As a result of negotiations, however, with Great

Britain, Denmark agreed to the usual limit of three miles. The treaty

was signed at London on 24th June 1901, and after ratification was

brought into force on 31st March 1903 by an Order in Council of the

12th of that month. Its main object, apparently, was to regulate the

fisheries of the subjects of the two countries outside territorial

waters in a large part of the ocean surrounding the Faröe Isles and

Iceland, in a small part of which extensive fisheries are now carried

on by foreigners, especially by English and German trawlers; but its

immediate effect was to impose the three-mile limit on the coasts in

question. The article defining the territorial waters is the same as in

the North Sea Convention, except that islets and rocks are included,

which thus gets rid of some possible difficulties in interpretation,

such as have arisen in connection with the Eddystone and Bell

Rock.[1190]

[Illustration: Fig. 20.--_Showing the Limits for the Anglo-Danish

Fishery Convention of 1901._]

CHAPTER IV.

THE MODERN PRACTICE OF STATES AND THE OPINIONS OF RECENT PUBLICISTS.

We may now pass to the consideration of the modern practice of states

with respect to the extent of territorial sea which is claimed or

allowed by them, and of the opinions of the later writers on the

law of nations as to the extent that may be rightfully conceded

or appropriated. It will be found that there is apparently a very

considerable discrepancy between the one and the other. For while

the opinions of publicists have on the whole become more decided

and definite as to Bynkershoek’s principle being the true principle

for the delimitation of territorial waters, and the inadequacy of

the three-mile limit has been formally declared, the general usage

of states is indicated by the common adoption of the latter limit

for several purposes. As elsewhere stated, this general use of the

one marine league is in large measure owing to the example, or the

pressure, of Great Britain and the United States of America, and

perhaps chiefly, if indirectly, to the influence of the latter.

Although the United States more than any other Power has varied her

principles and claims as to the extent of territorial waters, according

to her policy at the time--now claiming the vague and wandering

“boundary” of the Gulf Stream or the whole of Behring Sea, and now the

liberty to fish right up to the shores of the Falkland Islands,--she

has been consistent in this, that she has steadily and constantly

pressed for the narrowest limit she could get in favour of her own

fishermen on the coasts of the British North American Colonies. The

unhappy heritage of the British Foreign Office that came from the

abnegation of territorial dominion over large parts of the waters

in question by Great Britain in former times, has been as fruitful

of trouble as Lear’s renunciation of his sovereignty. The numerous

negotiations as to the rights of fishing on the coasts of British North

America have always resulted in concessions to the United States, and

appear to have been conducted, as they were almost bound to be, rather

in the light of the general political relationship of the two Powers

than on the intrinsic merits of the particular question at issue; and

thus in Canada and Newfoundland British diplomacy on this subject

has often been criticised. Obviously, when British policy takes this

course in regard to North America, one must expect for the sake of

consistency, if on no other ground, that it will tend to take the same

course elsewhere. An example of this was quite recently shown, when

a concession of the kind referred to, as to the rule for bays, which

was granted during a _modus vivendi_ as a temporary act of grace,

was spoken of as if it were now definitely incorporated in British

international policy (see p. 730).

The discrepancy alluded to between the authorities on the law of

nations and the common usage is perhaps more apparent than real. The

international treaties and municipal laws in which a limit is fixed

refer to a few subjects, and in particular to fisheries, and they

relate to times of peace. The most vital attributes of the territorial

sea relate to the security, the obligations, and the rights of neutral

states in time of war; and there has happily been no great maritime war

in Europe for a long time to put the principles to the test. But when

such a war does come, there is little doubt that during hostilities the

three-mile limit will be set aside by the neutral states concerned, and

another and greater limit fixed for security, in closer correspondence

with the actual range of guns. It is to be further noted, that

notwithstanding the numerous municipal enactments and the international

conventions in which the three-mile limit is fixed for certain

purposes, no state seems to have formally and deliberately defined the

absolute extent of the neighbouring sea which it claims as pertaining

to it under all circumstances. Many states--and Great Britain is one of

them--have taken pains to make it clear that in adopting a three-mile

limit for particular purposes they do not abrogate their right to the

farther extent of sea that may be necessary for other purposes.

Though Germany has not defined the extent of her territorial waters

by municipal law,[1191] she has entered into agreements with various

Powers respecting the limits of exclusive fishery. The first of these

was made with Great Britain in 1868, and the rules for the guidance

of British fishermen, issued by the Board of Trade in accordance with

it, stated that,--“The exclusive fishery limits of North Germany are

designated by the North German Government as follows: that tract of the

sea which extends to a distance of three sea-miles from the extremest

limit which the ebb leaves dry of the German North Sea coast, of the

German Islands or Flats lying before it, as well as those bays and

incurvations of the coast which are ten sea-miles or less in breadth,

reckoned from the extremest points of the land and the flats, must be

considered as under the territorial sovereignty of the North German

Confederation;” and it is further said that the exclusive rights of

fishery in the above spaces are reserved to Germans, and English

fishermen are not at liberty to enter these limits except under

certain specified circumstances, as of wind and weather.[1192] These

limits were again formally recognised by Great Britain in July 1880,

and, according to Perels, were further confirmed by the North Sea

Convention of 1882. It is obvious that “the extremest limit which the

ebb leaves dry,” both for the open coast and for bays, will differ

considerably on such a coast as that of Germany from the low-water mark

of ordinary tides, and that the space included in the measurement will

be correspondingly enlarged. Germany also agreed with Denmark, in 1880,

to the three-mile limit for the adjacent coasts of the two countries

in the Baltic, with a ten-mile base-line for bays, the mid-line or

_thalweg_ applying where the waters between the respective coasts were

less than six miles in width. More recently, an agreement has been

concluded precisely defining on charts the exclusive fishing waters of

the two countries in the Little Belt.[1193]

Denmark is one of the Scandinavian countries which, as previously

mentioned, claimed a wide extent of territorial sea. In 1812 the

limits, both for Norway and Denmark, were defined as follows in a

royal ordinance: “We will that it be established as a rule in all

cases where it is a question of determining the maritime boundary of

our territory, that that territory shall be reckoned to the ordinary

distance of one marine league from the outermost islands or islets

which are not overflowed by the sea.”[1194] The league in these

Scandinavian ordinances, as previously mentioned, is one-fifteenth of

a degree, or four geographical miles, and therefore one mile more than

the ordinary three-mile limit. But, in point of fact, owing to the

method of measurement adopted, the space of sea included as territorial

is much greater. Instead of computing the four miles from low-water

mark on the shore, which is the base usually taken, it is measured

from an imaginary straight line connecting the outermost points of the

permanently visible isles or rocks lying farthest from the coast. In

some places the extent of water thus cut off as territorial is very

considerable. Though the other Scandinavian countries, Norway and

Sweden, have maintained this limit to the present day, it has been

in practice abandoned by Denmark, which has adopted the three-mile

limit in certain agreements with Germany, in the North Sea Convention

of 1882, and in the recent treaty with Great Britain with respect to

Iceland and the Faröes. In the Skagerrack and Cattegat she concedes the

three-mile limit to German and British fishermen, and no doubt also

to the fishermen of the other nations which were parties to the North

Sea Convention; and it is of interest to note, with reference to the

discussion on a former page as to the extent of coast really comprised

in the North Sea Convention, that it is in virtue of this convention

that the old boundary of four miles has been abandoned there.[1195] But

while Denmark has taken up this attitude with reference to English

and German fishermen, it is claimed on her behalf by an eminent

Danish authority that it is within her right still to maintain the

old geographical league as the boundary of her territorial sea,[1196]

and this has indeed been recently done in a fishery convention with

Sweden, which claims the same limit with regard to the fisheries in the

Cattegat, the Sound, the Baltic along the Swedish coast from Falsterbo

to Simbrishamn, and around the islands Bornholm and Kristiansö.[1197]

[Illustration: Fig. 21.--_Showing the two Limits in Danish Waters; the

dotted line shows the Scandinavian Limit._ From ‘Dansk-Fiskeritidende.’]

It is to be noted that the terms used in this treaty in defining the

limit differ from those in the ordinance of 1812. The ordinance speaks

of islands and islets which are not submerged or overflowed by the sea,

while the treaty mentions the outermost islets or rocks which are not

_constantly_ submerged or overflowed by the sea,--a distinction which

might make a very considerable difference in the extent of the waters

reserved.

We thus see that Denmark enforces two limits in connection with

fishery--one of four miles, measured according to the Scandinavian

method, in the Baltic, &c., as against Sweden (and doubtless also

against Norway); and the ordinary one of three miles in the Baltic,

&c., as against Great Britain and Germany at least, and also in the

North Sea and at the Faröes and Iceland. The various limits are shown

in the accompanying figure, which is a reproduction of the official

chart. It also shows how complicated the three-mile limit is among the

islands.

[Illustration: Fig. 22.--_The White Sea, showing the line between Cape

Kanin and Cape Sviatoi._]

The views of Russia with respect to the limits of territorial waters,

as expressed during the negotiations with Great Britain in the

earlier part of last century, have been referred to (p. 581), and

it appears from the Russian Code of Prize Law, 1869 (Art. 21), that

the jurisdictional waters, the extent of which had been fixed in her

treaties at the end of the eighteenth century at the range of guns,

are limited to three miles (about 5647 metres) from the shore. The

same distance was assigned for customs purposes; and as no general

boundary has been prescribed for the exclusive right of fishing, it

may be presumed that that right is restricted to the same space.[1198]

It appears that Russia also claims the White Sea as a _mare clausum_,

or _mer fermée_, within a line between Cape Kanin (Kanin Nos) and Cape

Sviatoi (Sviatoi Nos), where it is about eighty geographical miles in

width.[1199] If this claim is now made by Russia, it would probably be

difficult for her to make it good before an international tribunal, did

such exist. For not only is the mouth of the width stated, but the area

included is nearly 30,000 square geographical miles, only about twenty

per cent of which is within the ordinary three-mile limit. Until lately

the only foreigners who fished in the neighbourhood of the White Sea

were Norwegians, but in each summer since 1905 both English and German

steam-trawlers have carried on an important fishery in the vicinity of

Cape Kanin, but not within the White Sea itself, where the rocky nature

of the bottom is said to prevent this method of fishing.[1200]

In France, fishing in the sea beyond three miles from low-water mark

was declared by a decree of 10th May 1862 to be free all the year

round, except for oysters; but certain fisheries were allowed to be

temporarily suspended beyond the three-mile limit, if it was found

necessary for the preservation of the bed of the sea, or of a fishery

composed of migratory fishes.[1201] The first Article of the law of 1st

March 1888, which originated in the North Sea Convention, states that

“fishing by foreign vessels is prohibited in the territorial waters of

France and Algeria within a limit which is fixed at three marine miles

seawards from low-water mark,” with the same arrangement for bays as

in the North Sea Convention. The distance stated does not, however,

necessarily represent the bounds of the territorial sea, properly

so called, the extent of which has never been precisely defined by

France.[1202] No doubt France, like other countries, reserves her right

to a wider limit should occasion arise to make that necessary.

It appears that as early as 1832 the three-mile limit was declared by

Belgium to be the boundary of her territorial waters,[1203] and by a

law promulgated in 1891, and based upon the North Sea Convention, “all

foreign boats” were prohibited from fishing within three miles of the

Belgian coast.[1204]

In the Netherlands also, in connection with the North Sea Convention,

the boundary of exclusive fishing has been declared to be at the

distance of three miles from low-water mark, and this applies to all

foreign fishermen. No distinction has been formally made between the

fishery limit and the limit of the territorial sea for political

purposes.[1205]

In Austria-Hungary, whose coast is confined to the eastern shore of the

Adriatic, the three-mile limit has been adopted, subject to certain

qualifications respecting the right of fishery under treaties with

Italy. The regulations concerning foreign vessels of war authorise a

shot to be fired from the nearest battery at any such vessel which

does not show its flag on coming within range of the guns, and within

the same distance of a fortified port they are prohibited from taking

soundings, practising with firearms, &c.; other regulations forbid

vessels laden with goods which form the object of a monopoly of the

state from approaching within gunshot. By a decree of 23rd August

1846, and a circular of 28th April 1849, it was declared that the

expression “range of guns” in these ordinances was equivalent to three

marine miles of sixty to a degree. The customs regulations operate

within the same limit, but the manifest can be demanded within a

farther distance of four marine miles.[1206] With respect to the right

of fishing, the regulations are somewhat complex. The boundary of

exclusive fishing is fixed at three miles,[1207] but inasmuch as the

fisheries in the Adriatic are carried on almost only by Austrian and

Italian subjects, it was found convenient to arrange by treaty for the

fishermen of either country to fish within the territorial waters of

the other, except within a distance of one marine mile from the shore,

and subject to certain restrictions regarding the fisheries for corals

and sponges, and the observance of the local regulations.[1208] This

mutual arrangement with regard to the right of fishery was renewed and

continued in a later treaty of 11th February 1906.

The fishings within one marine mile of the shore are reserved to

the inhabitants of the commune to which the coast appertains; but

in certain specified circumstances fishermen from other places may

be allowed to fish within this communal zone. The use of drag-nets

and trawl-nets is prohibited in all places where the depth is under

eight metres; within the first maritime or communal zone at certain

seasons, irrespective of depth, and altogether within five miles of the

coast when employed from steamers. Owing to the absence of tides, the

shoreward limit is not measured from a low-water mark, but from a line,

fixed by local authorities, where the water ceases to be constantly

brackish.[1209]

It is doubtful how far the three-mile limit has been adopted in Italy.

In a Bill of 1872 a distinction was proposed between the territorial

waters and the exclusive fishing waters, but this distinction was not

made in the law of 1877.[1210] The question was taken up later by the

Commission for Fisheries, and the opinions elicited from the local

authorities at various parts of the coast, who were consulted, varied,

the recommendations for the boundary of the territorial waters (_mare

territoriale_) ranging from one and a half miles to ten kilometres,

and very commonly the limit suggested was four geographical miles.

The boundary recommended for the exclusive fishing waters (_mare

pescatorio_) also varied, but in this case the depth of the water

rather than the distance from shore was held to be the more important

factor in deciding on a limit, an opinion with which the Commission

agreed so far as concerned steam trawling. In view of the fishery

conventions of the western Powers, the Commission recommended a limit

of three miles and ten miles for bays, as in those conventions,[1211]

but the proposal was not accepted by the Italian Government. The

subject was again considered by the Commission in 1904 and 1906,

with particular reference to steam trawling and dredging, but no

proposition to determine the boundary of the territorial waters for

fishing purposes was adopted. A decree of 4th September 1908, however,

introduced a limit of three miles, but only with reference to the use

of dredges in some districts of the Tyrrhenian Sea.

With respect to the extent of the territorial sea for political

purposes, no definition has been given in Italian laws; it depends

therefore upon the general principles of international jurisprudence.

It is interesting to note that in some comparatively recent decrees the

boundary is stated to depend on the range of guns. Thus, instructions

issued by the Minister of Marine in June 1866 commanded the officers of

the navy to refrain from all hostile acts in the ports and territorial

waters of neutral Powers, and reminded them that the limit of the

territorial waters was the range of cannon from the shore; and in a

circular from the same Ministry in March 1862 it was stated that the

extent of the territorial sea varied in different countries and in

the opinion of different publicists, but that the general opinion was

that the range of guns was the sole rule on the matter.[1212] It may be

added that by the customs law of 1896, the manifest of vessels may be

demanded within ten kilometres of the coast.[1213]

In Greece, another of the Mediterranean states, the three-mile limit

was adopted in 1869, when a circular of the Minister of Marine

prohibited foreigners from fishing within that distance of the shore.

Previously, in virtue of a royal decree issued in 1834, foreign boats

were allowed to fish for sardines in the Gulf of Corinth, but this

concession was withdrawn.[1214]

As already mentioned, the three-mile limit is the one in force in

all the British colonies, in Japan,[1215] in the United States of

America, and in some at least of the South American states. The Chilian

Government, for example, has defined the extent of the territorial

sea belonging to it as one marine league from low-water mark, within

which distance the right of fishing is reserved to Chilian citizens

or domiciled foreigners. At the same time it is stated that “police

administration for the purposes of the security of the State or the

carrying out of fiscal regulations extends to a distance of four marine

leagues, measured in the same manner.”[1216]

Quite lately, however, one of the chief states of South America has

advanced a claim to a very wide extent of sea along its coasts--so far,

at least, as the right of fishery is concerned. In September 1907 the

Minister of Agriculture for the Argentine Republic issued a series of

ordinances for the regulation of the fisheries,[1217] in which it is

declared that, with respect to the fisheries, a zone of water up to

a distance of ten miles (18,520 metres, or about 10¼ nautical miles)

from high-water mark on the land is under the control of the state.

The great gulfs and bays are, moreover, included, such as the Gulf of

San Matias, the Gulf of St George, and the Gulf of Nuevo, the closing

line in some cases considerably exceeding one hundred nautical miles

from point to point, and extending for more than seventy miles beyond

a three-mile limit. All living animals in the sea are considered as

objects of sea-fishing, with the exception of those which reproduce

on the land, as birds, seals (_lobos_), and fish-otters. Within the

declared limits the exercise of sea-fishing is free, provided that the

regulations are adhered to. The one referring to trawling prohibits

that method of fishing by sailing-boats within three miles of the

shore, but allows such boats to trawl outside that distance if the

meshes of the nets have an aperture not less than 16 centimetres (6¼

inches); steam trawling, on the other hand, is prohibited within five

miles of the shore. Commercial fishing is forbidden within the great

extent of water referred to unless by vessels entered on the official

list (_matricula nacional_), and foreigners are thus excluded. A

novel feature, but one in complete harmony with the results of modern

fishery investigations, is the reservation of the right to close

any area within the limit claimed, so that such area or areas may

act as reserves to replenish neighbouring grounds and increase the

multiplication of the fish. The right to establish close-times is also

reserved, and the sale of undersized fish is prohibited unless for

certain specified purposes.

Special regulations are made for sealing. Concessions for this purpose

will be granted for a term of five years on various parts of the coast

under certain conditions, and it is enacted that for a distance of

twenty miles from the coast in such places the right of taking seals is

confined to those who have obtained the concession. Penalties for the

infraction of the laws are provided, fines varying from five to five

hundred pesetas, and offenders may be imprisoned for a period of from

one to sixty days.

Later regulations issued by the Minister of Agriculture, applying

to that part of the coast between the Rio de la Plata and the Rio

Negro, provide that all those engaged or who desire to engage in sea

fishing there, must first receive official permission to do so. Within

a zone of twelve miles from low-water mark, trawling by steamers is

prohibited, but trawling by sailing-boats, and fishing with various

kinds of lines and with drift-nets, are allowed; and all vessels

employed must fly the national flag, and have their crews partly

national, in accordance with the laws.[1218] It may be noted that

these regulations are declared to be for the purpose of preventing the

extermination of certain species of fish, and that the grantees must,

when requested, allow officials to be on board for scientific study.

The adjoining state of Uruguay also lays claim to jurisdiction, with

regard to fisheries at least, beyond the ordinary three-mile limit

in the extensive inlet of the Rio de la Plata, which lies between

Uruguay and Argentina, and is nearly sixty miles wide at its mouth,

with an estimated area of about 5000 square miles. In 1905 a Canadian

sealer, the _Agnes G. Donohoe_, was arrested for the contravention

of a presidential decree which prohibits sealing within these

Uruguayan waters, but it was subsequently released. The British

Government formally protested against this claim to jurisdiction

outside the three-mile boundary, which, however, is strongly supported

by the Argentine Government, which is equally concerned in its

maintenance.[1219]

It is evident from the foregoing that most maritime states, and all the

great ones, either by treaty or in their municipal laws and decrees,

have adopted the three-mile limit, at least for fishery purposes. It

is quite appropriate, therefore, to refer to it as the “ordinary”

limit, as was done by the Tribunal of Arbitration on the rights of

seal-fishing in the Behring Sea, though the tribunal did not affirm,

and could not affirm, that it found the three-mile limit to be, as

a matter of fact, universally accepted.[1220] But though it is the

ordinary limit, it is not the only one enforced, and it is erroneous

to declare, as some of the less instructed writers on international

law have stated, that territorial jurisdiction cannot be carried

further.[1221]

In point of fact, no fewer than four of the maritime states of Europe

reject the three-mile limit, while a fifth has in part deviated from

it. Norway, Sweden, Spain, and Portugal, all claim to enforce a wider

boundary, and Denmark has adopted the old Scandinavian limit in her

recent treaty with Sweden (see p. 655). Thus, along nearly 4000

miles of the coasts of Europe, or for about one-third of their whole

extent, the three-mile limit is not accepted by the bordering state.

The right claimed by these countries to a wider extent of territorial

sea has been embodied in treaties between some of them, and has been

successfully maintained in specific instances against the opposition

of other Powers. It is to be noted, moreover, as is shown later, that

their claims to the wider space have been quite lately fully justified

and homologated by the most authoritative exponents of international

law, the French Institute and the British Association on the Law of

Nations, as well as by various international congresses of fishery

experts dealing with the subject from a fishery point of view.

We have already stated that Spain in the eighteenth century declared

that her territorial sea extended to a distance of six miles from the

coast (see p. 569). At that time such a limit must have been regarded

as moderate, but during last century, after the principle of cannon

range had been commonly translated into one marine league, the right

to a zone of double that extent was called in question both by the

United States and Great Britain. During the civil war in America the

question came to the front, more particularly with reference to the

waters around Cuba. In 1862 the American Government intimated that they

were not prepared to admit that Spain, without a formal concurrence of

other nations, could exercise exclusive sovereignty upon the open sea

beyond a line of three miles from the coast; while Spain, relying on

the legal principle governing the extent of the territorial sea, argued

that the improvement of modern artillery made the three-mile limit

ineffective. Two years later a discussion on the subject took place

between the British and American Governments, the former desiring that

during the existence of hostilities the limit of neutral waters should

be greatly extended, so that shots from belligerents might be prevented

from falling, not only on land, but within the neutral waters, and

limits of ten, eight, and five miles were mentioned.[1222] In 1874 the

British Government had itself occasion to object to the claim of Spain;

and on communication with the Government of the United States, they

were informed that that Government had always protested against it,

and on the same grounds, that by the law of nations jurisdiction could

only extend to one marine league from the coast.[1223] Notwithstanding

the opposition of the two chief maritime Powers, Spain did not abandon

its claim, for by a royal order of 16th May 1881, passed with special

reference to the jurisdiction over American vessels in Cuban waters,

it was declared that full jurisdiction extended to a distance of six

miles from the coast. This limit was also fixed for customs purposes in

Spanish waters by royal decrees in 1830 and 1852, and in the general

ordinances of the customs in 1884, the six miles being stated to be

equivalent to eleven kilometres.[1224]

With regard to fisheries, Spain has entered into various treaties

with Portugal as to the right of fishing along their respective

coasts. By a convention in 1878, reciprocity was established in the

territorial waters of the two countries, subject to the observance of

local regulations and certain specified conditions, as the prohibition

of the use of drag or trawl nets (“_artes de Bou ou parelhas, chalut,

muletas_”) within twelve miles from the coast.[1225] In another treaty

concluded between these Powers on 2nd October 1885, and slightly

amended in 1888, two fishery zones were established, the first

extending to three miles from the coast, which was exclusively reserved

for nationals, and the second, from three to six miles, in which the

fishermen of both countries were at liberty to fish. In a later treaty

of commerce and navigation, which came into force in October 1893,

the zone of exclusive fishing was extended to six geographical miles

from the coast of either country--that is, to the extreme boundary

of the jurisdictional waters, measured from low-water mark of spring

tides (“de la línea de bajamar de las mayores mareas”), and a ten-mile

base-line for bays was adopted. Within this space the fishery and its

regulation were reserved by each state; but in the frontier rivers, the

Miño and Guadiana, the fishery was specially dealt with, as in previous

treaties. Each Government also agreed to prohibit certain injurious

modes of fishing (_parejas_, _muletas_, &c.) within twelve miles of

their coasts, and a series of regulations, like those of the North Sea

Convention of 1882, were included with respect to the entry of the

fishing-boats of one of the countries within the territorial waters of

the other, and the police supervision of the fishing-boats of either

country beyond the six-mile limit.[1226] In Spain the reservation

of six miles was regarded as unjust, since the water off the coast

of Portugal was much deeper than off the Spanish coast, and in the

following year the Portuguese Government allowed Spanish fishermen to

fish, under certain conditions, to within three miles of the coast of

Algarbe.[1227]

While it is evident that Spain and Portugal claim jurisdiction to

the extent of six miles from the coast, it appears that an exclusive

fishery to that distance is not enforced against all other nations.

It seems that on the Mediterranean coast, the three-mile, and not the

six-mile, limit is applied against French fishermen,[1228] and the

British Government, in the interests of British trawlers, recently

intimated that they did not recognise any claims of the Spanish or

Portuguese Governments to exercise jurisdiction over British vessels

beyond the three-mile limit; and, in point of fact, British and German

trawlers now fish off the Portuguese and Spanish coasts up to three

miles from the shore.[1229] They have developed an important and

extensive trawl-fishery there during the last few years; and although

the local fishermen strongly object to their presence within waters

where they are themselves prohibited to trawl, and it is stated that

negotiations on the matter have taken place between the London and

Lisbon Governments, they have not been ordered out of them, and still

continue their trawling. Both in Spain and Portugal meetings have been

held with reference to the territorial waters, at which resolutions

were passed calling for an international arrangement for the extension

of the limits to ten or twelve miles; and some unpleasant encounters

have occurred between the local and foreign fishermen. On these coasts,

however, a limit so extensive would largely prevent foreigners from

fishing, owing to the great depth of the water at such distances from

the shore. On the other hand, it is argued that as the available

fishing-ground is so narrow and small, there is all the more reason

why it should be protected from the destructive methods of fishing

pursued by the foreign vessels, and preserved as far as possible for

the inhabitants of the coast.[1230] Quite recently, it appears, the

Portuguese Government have regularised their position with regard to

foreign trawlers and foreign fishermen generally, by passing a law

forbidding them to fish, under severe penalties, within a zone of three

sea miles from the shore. They have thus accepted the inevitable, in

view of the pressure applied by at least one of the great maritime

Powers. With regard to bays, however, the limit specified in the

fishery conventions is not adopted. The zone of three miles in respect

to bays has to be reckoned according to the principles of international

law.[1231]

Spain, it may be added, after the victorious campaign of 1859-60,

concluded a treaty with Morocco, by which Spanish subjects are allowed

to fish on the coast of that country up to the shores, for corals,

sponges, and other marine products, as well as for fish.[1232]

The extent of the territorial waters claimed by Norway and Sweden is

even greater than that claimed by Spain and Portugal, owing to the

method of measurement, the distance of four geographical miles being

measured either from the coast or from the outermost part of the

outermost isle or rock which is not submerged by the sea at high tide.

Such isles and rocks are numerous on the Scandinavian coasts, so that

the fishermen distinguish the waters “within the rocks” (_inom skärs_)

from those “without the rocks” (_utom skärs_) or at sea, and in many

places the extent of water reserved by the rule is very considerable.

There appears, however, to be a difference in Sweden and Norway as

to the precise method of measurement. In Norway such isles and rocks

are appropriate for the base-line, if they are not farther from the

mainland than eight geographical miles of sixty to a degree; and it

seems to follow from the rule that the measurement from the coast or

shore must be made at high-water, but this is not expressly said.[1233]

In Sweden the isle or rock is spoken of as within one geographical

league of the coast, and it may be such as is not _continuously_

submerged, but is periodically uncovered, which implies a base of

low-water.[1234] On some parts of the Norwegian coast the territorial

sea may thus extend to twelve miles from the mainland. Bays and fjords

are, moreover, included in the territorial waters irrespective of

whether their width at the mouth is or is not greater than ten miles;

and in including these, as much importance is attached to the islands

which may lie at their entrance as to the distance between headlands.

With regard to large open ways or stretches of sea partly enclosed, no

fixed rule has been laid down, but Norway reserves the right in certain

cases to exceed the limit derived from the general principle as above

explained. On some parts of the coast special laws regulate the extent

of the sea in which the exclusive right of fishing is reserved to

subjects. The rich cod-banks on the coast of Söndmöre, Romsdal, and

Nordmöre are thus included within the territorial waters, the base-line

being drawn between various islands, in the manner described above.

The first of these was a royal decree of 16th October 1869, which

prescribed that a straight line drawn at a distance of one geographical

mile (of fifteen to a degree) from and parallel to a straight line

drawn between Storholmen and Svinö, shall be taken as the boundary of

the waters off the coast of the Söndmöre district, in which the fishing

is entirely reserved for the inhabitants of the country. Another

royal decree of 9th September 1889 continued this boundary farther to

the north-east. It ordained that a line drawn at a distance of one

geographical mile from and parallel to a line from Storholmen through

Skraapen (outside of Harö), Gravskjær (outside of Ona), and Kalven

(the last of the Orskjærens), to the last of the Jevleholme, outside

of Grip, was the boundary of the waters off the coast of the Romsdal

district, in which fishing is entirely reserved for the inhabitants of

the country.[1235]

[Illustration: Fig. 23.--_Showing the Limit at Romsdal Amt, Norway._

A, The base-line; B, the line of closure; C, the three-mile limit.]

This special line from Svinö (which lies about eight miles north of

Stadtland, or Van Staten) to Jevleholm stretches for about eighty-five

geographical miles along the coast,[1236] the distance between the

islets through which the base-line passes being respectively 28, 14½,

7, 23½, and 12 geographical miles, and some of them are over seven

miles distant from the mainland or the nearest large island. The extent

of water reserved is thus large, the area between the base-line and

the boundary-line being alone about 340 square miles; but the extent

of sea included which would be outside the ordinary three-mile limit

is much less than might be expected, owing to the great number of

isles and islets along the coast. In the accompanying figure (fig.

23),the part of the coast embraced by the law of 1889 is represented,

the base-line, the boundary of the reserved waters, and the ordinary

three-mile limit being shown. The area of water between the latter

and the Norwegian limit amounts, approximately, to 140 square miles.

The figure also shows how complicated a three-mile boundary based on

the provisions of the North Sea Convention would be on such a coast.

It is to be noted further, that within the limits prescribed by the

royal decrees a series of stringent regulations have been made for the

orderly prosecution of the fishery.[1237]