Of much greater international importance is the claim made by the

Norwegians to the exclusive right of fishing in the Vestfjord, an arm

of the sea which extends between the coast of Nordland and the Lofoten

Islands, where from time immemorial the greatest cod-fishing in Europe

has been carried on.[1238] It is, strictly speaking, a strait, as

indicated in the accompanying figure (fig. 24), bounded on one side

by a chain of islands and on the other by the mainland, opening to

the northwards by several narrow channels, and to the south by a wide

mouth about forty-five geographical miles in breadth. The waters of

the Vestfjord have for centuries been considered as territorial, and

the fisheries within them as reserved for the Norwegian people; but

no decree or law has as yet been promulgated respecting the boundary

between the reserved waters and the open sea.[1239] Locally, however,

as at Bodö, it is supposed that the line of closure runs from

Moskenæs on the west to Stot on the east, which are about forty-five

miles apart, and the length of the fjord from this line is about

sixty-five miles. As stated below, however, it appears from a letter

of the Minister of Foreign Affairs, in 1868, that the line may be

drawn from the southern part of Röst, a group of isles situated nearly

fifty miles from the mainland and about 110 miles from the extreme

head of the fjord. The total area within a line drawn from the south

end of Moskenæsö (Lofoten Point) to Möst Fjord is over 2000 square

(geographical) miles, about 900 square miles of this lying outside the

ordinary three-mile limit. Within a line from Röst to Kunna the total

area is nearly 3900 miles, about half being beyond the ordinary limit.

[Illustration: Fig. 24.--_The Vestfjord, Lofoten Islands._]

Another large expanse of sea, the Varangerfjord, in East Finmarken

(fig. 25), has been closed, with special regard to whaling, for a

distance up to one geographical mile (of fifteen to a degree) outside

a line drawn from Kibergnæs on the north to Jacobs River on the south;

and it is stated by the Norwegian Minister for Foreign Affairs that

the boundary mentioned has always been considered as indicating the

true limit of the territorial waters in the Varangerfjord. This arm

of the sea, claimed as territorial, is thirty-two miles wide at the

entrance and about fifty miles in length. The total area of the fjord

is about 630 square (geographical) miles, of which approximately 225

square miles are beyond the ordinary three-mile limit. Various laws

have been made by the Norwegian Government affecting whaling in this

quarter.[1240]

A Swedish decree of 5th May 1871 concerning the fisheries, defined the

extent of the territorial waters from the Norwegian frontier along the

coast to Kullen, at the entrance to the Sound, as one Swedish league

(equal to four geographical miles of 60 to a degree), reckoned from

the coast, or the farthest out island or rock which is not constantly

overflowed by the sea;[1241] and by the treaty with Denmark in 1899,

already referred to, the same limit is carried on from Kullen to

Falsterbo and up to Simrishamn in Christianstad. There does not appear

to be any corresponding decree for the eastern coast of Sweden.

[Illustration: Fig. 25.--_The Varanger fjord._]

Within the territorial waters as described above, Norway claims the

exclusive right to the fisheries and all the sovereign rights that

are usually exercised in territorial seas, as well as one that is not

as a rule included--namely, the right to control all navigation. All

vessels within the territorial waters are likewise subject to the

control of the customs authorities, while in Sweden the Customs Law of

1877 extends jurisdiction to a distance of one Swedish league from the

base-line. The Government does not rest its claim to so large an extent

of the bordering sea merely on the principle which is usually held to

determine its bounds--the range of cannon fire,--though it is pointed

out that the Norwegian boundary is in reality more in conformity with

the range of modern artillery than is the three-mile limit. They argue,

very truly, that the zone of one marine league, although adopted in

conventions between several Powers, has not been definitely established

in international law, and they have themselves always refused to agree

to a limit so narrow. But the principal reasons advanced are those of

necessity and utility. The Norwegian coast is peculiarly irregular.

It is engirdled by a multitude of islands, reefs, and rocks, and is

broken up by numerous fjords which penetrate deeply into the land.

A three-mile limit applied to such a coast on the principle adopted

in the North Sea Convention would be intricate, confusing, and

impracticable. The boundary would be exceedingly irregular, and patches

and strips of extra-territorial water of the most diverse size and form

would be intermingled with the territorial water; and in practice it

would be extremely difficult or impossible for foreign fishermen to

observe the complicated boundary, or for the authorities to enforce it.

Constant disputes would result.

Another reason put forward is a moral one. The country is comparatively

sterile; the climate is rigorous; the people are poor, and the

fisheries are of the utmost importance for their maintenance. A large

proportion of the population derive, and have always derived, their

livelihood from the sea, “with which they wage a desperate war in

the darkness and tempests of winter and spring to gain their daily

bread.”[1242] It is therefore only just that this natural source of

food along their coasts should be conserved as much as possible, so

long as the manifest rights of other nations are not violated, and that

the poor native fishermen, pursuing a hard and laborious calling, which

necessity has imposed on them, should be protected from the intrusion

of foreign vessels, better equipped and with more capital at their

disposal. It is further urged that the Norwegian fishermen have enjoyed

the wider area for many centuries. From immemorial times the right of

fishing has been regarded as pertaining to the land. This principle

was enunciated in the old provincial laws (_landskapslagar_) of Sweden

in the middle ages, and was continued in the laws of the kingdom since

the fourteenth and fifteenth centuries.[1243] It is also declared that

a smaller extent of territorial sea would interfere with the efficacy

of the regulations enforced for the preservation of the fisheries.

A lesser boundary would intersect the more important fishing-banks,

“making it impossible,” to quote the words of the Minister of the

Interior, “for the state to regulate the fisheries on the whole

bank, and it would be fatal to those fisheries which are necessary

for the subsistence of the coast population.” This consideration,

it is pointed out, is likely to have still more weight in future,

owing to the increase of the population and the impoverishment of the

fishing-grounds along the coast.

The claim of Norway to the wider extent of territorial sea has been

as a rule respected by foreigners, probably owing in the main to the

fact that its coasts are but little visited by foreign fishermen,

but it has not remained without challenge. The French Government on

one occasion complained that a French vessel had been prevented from

fishing in the Vestfjord; but the prohibition was justified by Norway

on the grounds that by the law of nations the Lofoten fisheries, and

especially those in the Vestfjord, which was “part of the territorial

sea,” belonged exclusively to the inhabitants, and that for centuries

no foreign vessels had attempted to take part in them.[1244] In

communicating the decision to the French Government, the Minister for

Foreign Affairs declared that the prohibition applied equally to

the adjacent sea and to the entrance to the fjord up to the distance

of a marine league (of four miles), measured from the most southerly

point of the isles called “Röst”--a group which lies about twenty-six

geographical miles west and south of Moskenæs, and about sixty

geographical miles from the mainland.[1245] In 1870 another foreign

Government raised objection to the limits defined off Romsdal by the

royal decree of 16th October 1869, on the ground that the base-line

drawn between the islands Svinö and Storholmen exceeded eight ordinary

marine miles in length, which was the maximum distance according to

the Norwegian principle, already referred to, for the inclusion of the

“outermost” island. The Norwegian Government, however, declared that

by the law of nations it was competent to include a bay or a gulf of

“not too large an extent” by drawing the line from one advanced point

to another, and that it was necessary to consider local circumstances

and what was natural, convenient, and just. The line that had been

drawn, they said, coincided with a natural depression in the bottom of

the sea which separated the inshore from the offshore fishing-banks,

and it formed a natural boundary which could be readily ascertained

by the use of a sounding-lead. To adhere strictly to the four-mile

line in this case would make the limit intricate and impossible to

be observed, and it would pass across the inshore banks. It was also

argued that till lately foreign fishermen had never attempted to fish

in the neighbourhood, even within a space far more extensive than that

comprised in the decree.[1246]

Since the period referred to, the limit claimed by Norway is said to

have been respected by foreign states and by foreign fishermen; and the

Scandinavian Government has officially declared on several occasions,

and notably in December 1874 to the British Government, that it would

never adhere to any international convention which established a

maritime zone of less than four marine miles. It declined to become a

party to the North Sea Convention of 1882 for this reason, and because

the line for the closure of bays was in its opinion much too small. The

only treaties with foreign countries in which a limit has been fixed

are the one between Sweden and Denmark, previously mentioned, in which

the Scandinavian boundary is maintained, and one with Mexico, in 1886,

for customs purposes, which stipulates for three marine leagues from

low-water mark.[1247]

It is evident that Sweden and Norway, besides claiming a greater extent

of territorial water than other countries, also claim in particular

cases to depart from the principles which in general govern their own

system of delimitation, in order to include other waters lying off

their coasts, when they deem it necessary to reserve the fisheries

there for their own subjects. In such cases it is said to be impossible

to be guided by geographical rules of an absolute kind, and it is

urged that any general international rules on the question should be

sufficiently elastic to allow of similar exceptions elsewhere.[1248]

There is little doubt that the wider area claimed by the Scandinavian

states is, from the point of view of sea fisheries, preferable to the

narrower zone adopted in the North Sea Convention. It will appear

later, that both the authorities on sea fisheries in various countries

and the authorities on international law agree as to the inadequacy of

the three-mile limit for fishery purposes: and it is hardly probable

that the Government of any other country will now seriously contest

the right of Sweden and Norway to the larger area they claim, unless

under exceptional circumstances. Norway has been fortunate in this

respect, that her coasts are rarely visited by foreign fishing vessels;

but this immunity is not likely to continue. During the last few years

the great feature of the sea fisheries both in Great Britain and also

on the Continent has been the enormous development of steam-fishing,

particularly trawling (see p. 698). Confined for a time to the North

Sea and the neighbourhood of their own coasts, steam fishing-vessels

now regularly visit distant quarters in large numbers, and trawlers

from England and Germany make the long voyage to the grounds off the

White Sea, traversing the whole coast of Norway, in quest of fish. The

absence of foreign competition in the fisheries of the Norwegian coast

is due largely to the generally rough and rocky nature of the bottom

and the great depth of the water, which make trawling difficult or

impossible; but there are, no doubt, within the territorial limits,

more or less restricted areas where trawling could be carried on with

success, and if these be discovered by foreign vessels, and they are

outside the ordinary three-mile boundary to which they are accustomed,

there is little doubt the question of the Norwegian claim will be

raised again. Line-fishing by steamers is now, moreover, greatly

developed, and this method of fishing can be pursued, and is now

pursued by the Norwegians, in deeper water and on rocky bottom, as

in the Vestfjord and off Romsdal. In the summer of 1907, indeed, one

or two British trawlers were seized by the Norwegian authorities for

fishing within their territorial waters at Finmarken, but were released

later.[1249]

From the account which has been given above of the recent practice of

civilised states it is apparent that the majority of them have adopted

the three-mile limit, with a ten-mile base-line for bays, for fishery

purposes. There is a tendency, moreover, for this process to be

continued and extended, as is shown by the recent treaty between Great

Britain and Denmark concerning the ocean around Iceland and the Faröes,

and the action of the British Government respecting the six-mile limit

on the coasts of Spain and Portugal. It is possible, and indeed likely,

that the Spanish and Portuguese Governments have protested against the

infringement of what they regard as their just rights; but if they are

unable or unwilling to maintain them, and the three-mile limit comes

to be the only one observed on their coasts, the usage will settle

the matter in the course of time. Up to the present, however, Norway

and Sweden have very justly resisted all attempts to impose on them

the ordinary limit and bring them into line with other Powers, and

they have successfully caused their wider bounds to be respected. The

diversity in practice between the Iberian and Scandinavian states and

the other states of Europe may be traced to the modes by which the

limits were evolved. In the former case, the boundaries were fixed in

the middle of the eighteenth century, without special reference to the

range of the guns of the time. The three-mile zone, on the other hand,

was developed early in last century from the doctrine of Bynkershoek,

three miles being then looked upon as approximately the range of cannon.

The general adoption of this limit, as previously said, was due in

great measure to the preponderating influence of Great Britain and

America in maritime affairs, the lesser states following their example,

willingly or with reluctance. It is not too much to say, indeed,

that the three-mile boundary in its origin and development is an

Anglo-American doctrine, its authors being Washington and Lord Stowell.

It is thus of interest to consider the opinions of modern writers on

international law on the question, and to see how far they agree with

or differ from their predecessors, whose opinions have been previously

passed under review. It will be found that, considering the extent to

which the three-mile limit has been actually applied in practice, the

writers who accept it as the established rule in international law

are singularly few, and are for the most part English or American. It

will be also noticed how extremely loose some writers, even of high

authority, are in their use of the terms “three miles _or_ the range

of guns,” as if they were now synonymous, which they are not. Such

looseness of phrase is not absent from some judicial decisions on the

question, as in that of Lord Cockburn in the case of Regina _v._ Keyn,

previously referred to (p. 591).

Another statement that one not uncommonly finds in the text-books,

and to which currency was given by Lord Stowell, is that _since_ the

invention of firearms the distance at which the power of the state,

and therefore the territorial waters, terminated, has usually been

recognised as about three miles from the shore. Calvo, a writer of much

authority, also makes this statement, affirming at the same time the

doctrine of Bynkershoek as the principle of delimitation.[1250] In view

of the range of modern artillery, he, however, considers this space too

small, and is of opinion that it ought justly, on grounds of logic and

reason, to be extended; but until this extension has been sanctioned

by a majority of states he looks upon the three-mile limit as the

established rule of international law. Much the same view is expressed

by Bluntschli.[1251] He defines the territorial sea according to the

range of guns, and says that international treaties or the laws of

states may fix more precise limits, such as one marine league from the

coast at low-water; but, considering the increased range of artillery,

he is disposed to think the three-mile limit insufficient. Phillimore,

one of the greatest English authorities, agrees with Calvo.[1252] He

states that the rule of law may now be considered as fairly established

that absolute property and jurisdiction in the adjacent open sea “does

not extend, unless by the specific provisions of a treaty, or an

unquestioned usage, beyond a marine league (being three miles) or the

distance of a cannon-shot from the shore at low tide.” The limit, he

says, was fixed at a marine league because that was supposed to be the

utmost distance to which a cannon-shot from the shore could reach;

and he adds that the great improvements recently effected in artillery

seem to make it desirable that this distance should be increased, but

he holds that this can be done only by the general consent of nations,

or by specific treaty with particular states. Phillimore, like most

of the other writers, was apparently ignorant of the fact that the

Scandinavian and the Iberian Powers claimed a limit much farther than

three miles.

Halleck follows Wheaton in saying that the general usage of nations

superadds to bays, &c., an exclusive territorial jurisdiction over

the sea for the distance of one marine league, or the range of a

cannon-shot, along all the shores or coasts of the state, and that the

maxim of law on the subject is _terræ dominium finitur ubi finitur

armorum vis_, “which is generally recognised to be about three miles

from the shore.”[1253] On the other hand, Lawrence, in his edition

of Wheaton (p. 321), says very definitely that all the space through

which projectiles thrown from the shore pass, being protected and

defended by these warlike instruments, is territorial and subject to

the dominion of the Power that controls the shore: “The greatest reach

of a ball fired from a cannon on the land is, then, really the limit of

the territorial sea.” Bishop, also accepting Bynkershoek’s principle,

says that a cannon-shot is estimated for the purpose of delimiting

the territorial seas at a marine league, but, like so many others, he

argues from the improvement of artillery that, “in reason, the distance

would now seem to require extension.”[1254] Woolsey, likewise adopting

the three-mile limit “or” cannon range, is of opinion that, “as the

range of cannon is increasing, and their aim becoming more perfect, it

might be thought that the sea-line of territory ought to be wider,”

though this author does not think the point likely to become of great

importance.[1255] Dana expresses the usual vague opinion of the English

and American writers in regarding it as “settled that the limit of the

territorial waters is, in the absence of treaty, the marine league,

_or_ the cannon-shot.”[1256] Sir Travers Twiss also speaks of the

range of guns, which, he says, with the common lack of information

respecting some other countries, “by consent is now taken to be a

maritime league seawards along the coasts of a nation.”[1257]

Rather different opinions are expressed by Fiore, an Italian writer

of eminence. While pointing out that publicists are not agreed as to

the extent of the territorial sea, he thinks it should be determined

by the necessity of the case and the nature of the particular rights

claimed, as fishing, dues connected with navigation, and defence: for

the latter purpose he is of opinion that the zone should increase with

the improvement of artillery. With regard to the rights to certain

fisheries, he says that the fishing for coral,--an important industry

in Italy,--for example, belongs to the people of the neighbouring coast

where it is found.[1258] Pradier-Fodéré holds strongly to the doctrine

of cannon range. The extent of the territorial sea, he says, depends

upon the power of artillery from shore; the farthest distance a shot

can be thrown, according to the progress of military art, is the limit

of the territorial sea, and he adds that this is the principle almost

universally adopted, although, “since the invention of firearms,” this

distance has usually been considered as three miles.[1259] Perels, a

German writer of eminence, accepts the doctrine of Bynkershoek that the

sovereign jurisdiction of a state extends in the sea to the distance

of a cannon-shot from the coast, and he says the extension of the

boundary-line depends upon the range of cannon-shot at the particular

period, but is the same at any period for all coasts. British and

American publicists, he adds, have generally adopted three miles as

an equivalent, but this has not usually been done by Continental

authorities.[1260] Another writer, Ferguson, gives a novel explanation

of the reason why three miles is generally adopted in practice. He

says the distance referred to is presumed to be the range of the coast

defences, but on the maxim that _terræ dominium finitur ubi finitur

armorum vis_, it should be stated to extend to any point on the sea

to which the cannon of actual coast defences on shore can carry a

projectile. Since, however, the carrying power of any given cannon is

such a vague measure, the three-mile radius is generally adopted.[1261]

In the opinion of Desjardins, the expression territorial sea must be

taken in the precise sense given to it by international law. Maritime

territory, he says, is only made effectively inviolable at the real

range of cannon from the coast, and the laws of police or customs

usually applied in time of peace cannot prevail against a principle

founded on the nature of things. In his opinion a prize taken beyond

three miles from the coast, but within the range of guns, would be

illegitimate, while it would be legitimate within the particular limits

fixed by a neutral state if beyond the range of guns.[1262] Latour,

another recent French writer, also argues that the three-mile limit is

not necessarily the true one, but that it depends on the actual range

of guns from the shore.[1263] On the other hand, Professor Kleen, in

his work on the laws of neutrality, considers the Scandinavian method

of delimiting the territorial sea the proper one, since the extent

depends not only on the mainland but on the “adjacent isles.” Admitting

that the distance from the coast at which the external limit is fixed

is, according to the positive international law of to-day determined

by the range of cannon, he thinks this measure is so susceptible of

change and controversy that it is desirable to replace it by a fixed

one, which ought not to be less than four marine miles. The range of

guns is much greater than four miles; and there are some coasts where

the geographical configuration requires that a larger area should be

subject to the territorial state, in order to avoid collision with

foreigners as well as encroachments on the natural rights of the

inhabitants. He is of opinion that Bynkershoek’s doctrine was wrong in

certain respects: it reposed on a basis of brute force; the range of

guns differs in different countries and at different times; and the

range of the most powerful modern gun is too much to allow a state

the exclusive possession of the sea up to that distance from the

shore. The range of guns, he says, is admissible in respect of war and

neutrality, but in all other respects the distance ought to be fixed

and mathematically determined independent of military force, and

should be the same everywhere.[1264]

Another Scandinavian publicist, Professor Aschehoug, also argues for a

wide extent of territorial sea under international law, according to

the principles previously described. He thinks that it is impossible

to exclude from the territorial sea of a people that space which is

commanded by their guns on shore; and _vice versa_, this space is

necessary to preserve the shores from the projectiles of belligerents.

The state has all the rights of sovereignty in this area, as those

connected with neutrality, police, inspection, jurisdiction, and the

exclusive right of fishery and other usufructs, except the right of

forbidding navigation.[1265]

The eminent Russian authority, Professor de Martens, expresses a

strong opinion that the three-mile limit is now quite inadequate,

and that a state has the power to extend it. The only true boundary

of the territorial sea is, he says, the range of guns from the

coast, Bynkershoek’s aphorism--_terræ dominium finitur ubi finitur

armorum vis_--forming the only legal and rational foundation for the

delimitation. Within the zone so determined the bordering state has

exclusive sovereignty and dominion, and the exclusive right of fishing.

The limit of the territorial waters ought therefore to change with the

modifications in the range of cannon. If at one time the reach of guns

was three miles, then the extent of the territorial sea at that time

was only three miles. If at the present day, he says, cannon carry

to twelve, or even fifteen, miles, the territorial waters extend to

the same distance. De Martens, however, thinks that an international

agreement with regard to such limits is necessary to ensure the success

of the measures of protection established in the open sea for the

preservation of the legitimate interests of each nation, especially

with regard to fisheries. But he holds that until such an international

arrangement has been accomplished, each state has the incontestable

right to declare as its territorial sea the waters which are dominated

by batteries on its coasts. In view of the necessity of precisely

defining the range of cannon, and the exigencies of international

commerce, the bordering state, he says, may limit this distance to a

number of miles fixed by law; and he himself advocates a limit of ten

miles, instead of three miles, as being more in conformity with the

actual range of guns, and better fitted to protect the interests of the

coast population who subsist by sea fisheries.[1266]

The latest English writer of authority on international law, Mr

W. E. Hall, who has given a lucid and philosophical account of

the territorial sea, is also of opinion that the three-mile limit

is inadequate. The boundary, he says, is generally fixed at three

miles, but this distance was defined by the supposed range of guns

of position, and the effect of the recent increase in the power

of artillery has not yet been taken into consideration, either as

supplying a new measure of the space over which control may be

efficiently exercised, or as enlarging that within which acts of

violence may be dangerous to persons and property on shore. “It may be

doubted,” he continues, “in view of the very diverse opinions which

have been held until lately as to the extent to which marginal seas

may be appropriated, of the lateness of the time at which much more

extensive claims have been fully abandoned, and of the absence of

cases in which the breadth of the territorial waters has come into

international questions, whether the three-mile limit has ever been

unequivocally settled; but in any case, as it has been determined,

if determined at all, upon an assumption which has ceased to hold

good, it would be pedantry to adhere to the rule in its present form;

and perhaps it may be said without impropriety that a state has the

right to extend its territorial waters from time to time at its will

with the increased range of guns; though it would undoubtedly be more

satisfactory that an arrangement upon the subject should be come to

by common agreement.” In a later edition of his work, which appeared

after the results of the international conferences of publicists, to

be presently referred to, were known, he says that it is felt and

growingly felt, not only that the width of three miles is insufficient

for the safety of the territory, but that it is desirable for a state

to have control over a larger space of water for the purpose of

regulating and preserving the fishery in it, the productiveness of sea

fisheries being seriously threatened by the destructive methods of

fishing which are commonly employed, and in many places by the greatly

increased number of fishing vessels frequenting the grounds.[1267]

A still later writer, Oppenheim, has apparently much the same

opinion, for he says that although many states in municipal laws and

international treaties still adhere to a breadth of one marine league,

the time will come when by common agreement of the states concerned

such breadth will be very much extended.[1268]

While there is thus some diversity of opinion among modern writers on

the law of nations, both as to the actual extent of territorial sea

belonging to a state and in respect to the principles which should

govern its delimitation in certain cases, there is all but universal

acceptance of the rule that in general the limit is determined by the

range of guns. Practically all authorities are agreed that this is the

historical basis of the demarcation, and the majority of publicists, as

Schmalz, Klüber, Reddie, Ortolan, Hautefeuille, Pistoye and Duverdy,

Massé, Bluntschli, Pradier-Fodéré, Lawrence, Perels, Desjardins, De

Martens, and Aschehoug, adhere to it as the only true principle.

This adherence to Bynkershoek’s doctrine logically implies that the

range of artillery at any particular period governs the extent of the

territorial sea at that period, and several authorities, as Ortolan,

Lawrence, Perels, Desjardins, and De Martens, accept this view in its

bare and absolute form, while others, though willing to agree to it as

proper and reasonable, think that a mutual arrangement on the subject

is first of all desirable or necessary, or that it applies specially to

questions of neutrality. There are very few writers, on the other hand,

who are of opinion that the three-mile limit has become established

in international jurisprudence as the legal limit, notwithstanding

that it is the limit commonly adopted. Calvo and Phillimore are the

most important authorities who take this view, but both think the

extent is too small and ought logically to be increased owing to the

greater range of artillery,--an opinion which is shared by Bishop,

Woolsey, Fiore, and Hall. Nearly all those who mention three miles

as the boundary of the territorial seas--and they are almost wholly

English or American--couple with it the alternative, “_or_ the range of

cannon,” as Wheaton, Manning, Halleck, Phillimore, Bishop, Dana, Twiss,

Ferguson, and Woolsey. In this they merely adopt the language used by

Lord Stowell at the beginning of last century, and which was quite

appropriate at the time. But for more than half a century the range

of guns has exceeded three miles, and to use the terms now as if they

were synonymous tends only to confusion. Some modern publicists, it may

be added, as Kent, Heffter, and Fiore, follow Wolff and Vattel in the

opinion that the limit of territorial waters may be extended in certain

cases beyond the range of guns.

Moreover, quite lately the subject of the territorial sea has been

jointly and exhaustively inquired into by the leading publicists of

Europe, and with important results. In 1887 the International Law

Association appointed a committee to consider the definition and

_régime_ of the territorial waters, and two years afterwards the

Institut de Droit International followed the same course.[1269] A

long series of questions was circulated among the members to elicit

their opinions on the various points connected with the subject;

the whole matter was discussed and considered at various subsequent

annual meetings; and the rules as finally adopted and approved by

the Institute and the Association may therefore be fairly taken as

representing the latest views of European publicists.

With regard to the question of the limits of the territorial sea. it

was very generally held that a distinction should be drawn between

various sovereign rights, as the right of fishery and the rights of

neutrals during war. The two limits commonly recognised--namely, cannon

range and three miles from low-water mark--were no longer identical.

Three miles was now too small a distance for safeguarding the coasts

of a neutral from the projectiles of belligerents, and the range of

modern artillery fluctuated, and was besides considered to be too great

a distance for the exercise of exclusive rights of sovereignty. Sir

Thomas Barclay’s proposal was therefore to reaffirm the limit of cannon

range as the public law of Europe, but to confine its application

to the right of the neutral as founded in reason, and to establish

another and a lesser boundary for the exercise of the exclusive

sovereign rights of the neighbouring state. The former limit was a

“zone of respect”; the latter bounded the true territorial sea. There

was general agreement that the neutral line or zone of respect should

coincide with the actual range of guns; but some were of opinion that

the range should be considered not from the coast, on the principle of

Bynkershoek, but from the sea, and others that the neutral zone should

be measured from the boundary of the true territorial sea, in order to

prevent violation of the latter by the bullets of belligerents. Since

the range of guns, however, is uncertain and variable, and the line

of respect must necessarily vary with it, it was decided finally not

to adopt a fixed distance, but to recommend that in case of war the

neutral state, taking the range of guns as the basis, should itself fix

and declare the extent of its neutral waters beyond the limit of the

territorial sea.

There was not the same agreement as to the limit which should be

recommended as the boundary of the territorial sea, within which the

rights of the state are much more complex, and of which the extent

should be precisely fixed. The historical principle of demarcation--the

range of cannon--having been transferred to the line of respect, the

only other limit in common use was the three-mile limit, and this was

the distance at first proposed by Sir Thomas Barclay in the draft

rules, mainly because it was the one which was usually recognised by

international usage. But the preponderating opinion of Continental

publicists favoured a more extended boundary, in view more particularly

of the right of fishery, the distances proposed varying from five

to ten miles from low-water mark;[1270] and Professor Auber, of

Christiania, advocated the extension of jurisdiction with respect to

fisheries beyond the limit fixed for the territorial sea, to apply

equally to subjects and foreigners, each state assigning boundaries

for such jurisdiction, either itself or by convention between the

Powers interested, and a similar proposal was made by the Canadian

representative, who suggested that the jurisdictional zone should

extend to nine miles. Owing to these opinions, and also to the report

of the Sea Fisheries Committee of the House of Commons in 1893,

presided over by Mr Marjoribanks (the late Lord Tweedmouth), which

proposed an extension of the territorial waters in the interests of the

fisheries,[1271] the three-mile limit was abandoned, and one of six

miles from low-water mark recommended instead. This particular distance

was selected in order to secure a limit which would correspond to that

of Spain and the Scandinavian Powers, and thus make the practice in all

European countries more uniform.

With regard to bays, the draft proposal was at first to adopt a

base-line of six miles from headland to headland, and afterwards one of

ten miles, as in the fishery conventions, was proposed. The Institut

finally adopted a base-line of twelve miles--_i.e._, double the width

of the territorial zone,--but the International Law Association

preferred the old limit of ten miles. The Scandinavian publicists were

of opinion that these limits were too small, and that instead of having

a fixed and rigid rule for the delimitation of bays, each state should

be permitted to fix the boundaries according to the local configuration

of the coast and the local requirements. While this suggestion was

not accepted, it was admitted that certain bays whose width exceeded

ten miles were necessarily, by their situation, placed under the

sovereignty of the neighbouring state, as the Bay of Cancale, the Bay

of Chaleur, and the Scottish Firths.[1272]

The various rules concerning sovereignty and jurisdiction were applied

to straits whose width does not exceed twelve miles, with the following

modifications: (1) straits of which the coasts belong to different

states form part of the territorial sea of the bordering states, which

exercise their sovereignty there up to the middle line; (2) straits

whose coasts belong to the same state, and which are indispensable

for maritime communication between two or several states other than

the bordering state, always form part of the territorial sea of the

bordering state, and they cannot be closed; (3) in straits whose

coasts belong to the same state, the sea is territorial even though

the distance between the coasts is greater than twelve miles, if at

each entrance of the strait this distance is not exceeded; (4) straits

which serve as a passage from one free sea to another free sea can

never be closed. The rules were adopted by the Institut in 1894, and

by the International Law Association, with slight amendments, in the

following year, when Sir Richard Webster (now Lord Alverstone, the Lord

Chief Justice of England) was in the chair.[1273] The rules as finally

adopted in London are given in Appendix O.

CHAPTER V.

THE INADEQUACY OF THE THREE-MILE LIMIT FOR FISHERY REGULATIONS.

The recommendation of the International Law Association and of the

French Institute that the territorial waters should be extended to

six miles from the shore, or double the width usually enforced, was

avowedly made, as we have seen, chiefly in the interests of the sea

fisheries; and it may be presumed from the opinions of the majority

of accredited writers on the law of nations, as reviewed in these

pages, that it is open to any Power so to extend its territorial sea,

except in so far as such extension may be opposed to the provisions

of treaties with any other Power or Powers. It is undoubtedly the

case that in by far the greater number of instances in which the

limits of territorial waters, or the rights of the bordering state in

the adjacent sea, have been disputed, or have come under discussion,

between one nation and another, it was the right of fishery that was at

issue. From the reign of James I. this has been the case, and it has

been exhibited on all coasts, and in almost all countries. How replete

our history is with such disputes may be gathered from foregoing

chapters, while nearly all recent international treaties in which

limits in the neighbouring sea are dealt with have been concerned with

fishery questions. The numerous treaties and agreements with the United

States and France respecting the vexed rights of fishing on the coasts

of British North America, the North Sea conventions in Europe, and the

various other agreements between European Powers, as between Spain and

Portugal, Austria and Italy, Denmark and Sweden, Denmark and Germany,

Great Britain and France, Belgium and Germany, and with Denmark

concerning Iceland, are instances in point. The fishery interest is

thus the determining interest, and the one which has made these various

conventions desirable.

There appears to be little doubt that, in many cases at least, the

three-mile boundary which has been commonly fixed in the fishery

conventions is inadequate from the point of view of the fisheries,

and this is the opinion of most of the experts and authorities, as is

explained below. It must not be forgotten that the three-mile limit

was selected, not on any grounds special to fisheries, but because it

had been already recognised and put into force in connection with the

rights of neutrals and belligerents in time of war, as representing

the approximate range of guns at the time. It is in reality a product

of the maritime wars in the latter part of the eighteenth and the

beginning of the nineteenth century, and its application to the

right of fishing is accidental and arbitrary. The boundaries which

were formerly proposed as limiting the right to exclusive fishery,

independently of any question of the rights of neutrals or the range

of cannon, were invariably greater than three miles. The range of

vision was employed in Scotland and on the English coast later; its

equivalent of fourteen miles was embodied in the Draft Treaty of Union

between England and Scotland in 1604, and was proposed again in 1618;

and Sir Philip Meadows, the most able opponent of extravagant claims to

maritime sovereignty, favoured a similar distance in 1689. Limits of

eight miles and ten miles to be enforced against foreigners were fixed

in the Fishery Bill passed by the House of Commons in 1660, while as

late as 1824 and 1827 the Dutch Government decreed a limit of six miles

for their fishermen on the British coasts. We have seen, too, that the

wider extent of sea in which rights of exclusive fishery are claimed

by the Scandinavian and Iberian states exists in great measure because

those Powers established their limit without reference to Bynkershoek’s

doctrine, and before indeed it became prevalent.

The same need of a wider limit is shown in the municipal legislation

of many countries, which was specially designed with the object

of preserving sea fisheries, as well as in certain international

agreements. There are two classes of sea fisheries which have received

special treatment beyond the ordinary limits of territorial waters,

and both on the same principle--viz., that the action of man, if

unrestrained, would lead to their destruction and economic extinction.

They are those for marine mammals, as seals and cetaceans, and for

certain shell-fishes and coral. A considerable number of countries have

legislated for the preservation of seals, and some of the enactments

at least apply beyond the ordinary limits. Examples may be found in

the Canadian statute of 1886,[1274] which refers also to whales and

porpoises; the Russian law dealing with the sealing industry in the

White Sea; the Norwegian law fixing a close-time for whales in the

Varangerfjord; and the concurrent international legislation of Great

Britain, Sweden, Norway, Russia, Germany, and Holland concerning the

Jan Mayen seal fishery in the Atlantic east of Greenland.[1275] A

recent instance is afforded by the regulations which were prescribed

for British and American citizens and subjects by the Tribunal of

Arbitration for the purpose of protecting and preserving the fur-seal

in Behring Sea. By these regulations the killing, capture, or pursuit

of this animal was forbidden within a zone of sixty geographical miles

around the Pribilov Islands, comprising about 15,000 square miles of

sea; a close-time was fixed between 1st May and 31st July on the high

sea within an immense area--viz., north of 35 degrees North latitude

and eastwards of 180 degrees West longitude; only specially licensed

sailing vessels, with canoes or undecked boats propelled by paddles,

oars, or sails, were at liberty to carry on fur-sealing operations

where and when the fishing was allowed; the use of nets, firearms, and

explosives was forbidden, except shot-guns outside of Behring Sea, and

some minor conditions were laid down.[1276]

Another instance is the agreements entered into between Russia on the

one hand and Great Britain and the United States on the other, by

which a zone of ten marine miles on all the Russian coasts of Behring

Sea and the North Pacific Ocean, and a zone of thirty marine miles

round the Commander Islands and Robben Island, were closed to sealing

for the fur-seal.[1277]

The other class of fisheries referred to, for sedentary animals

connected with the bottom, such as oysters, pearl-oysters, and coral,

which are found in shallow water, as a rule, and usually near the

coast, have always been considered as on a different footing from

fisheries for floating fish. They may be very valuable, are generally

restricted in extent, and are admittedly capable of being exhausted or

destroyed; and they are looked upon rather as belonging to the soil or

bed of the sea than to the sea itself. This is recognised in municipal

law, and international law also recognises in certain cases a claim to

such fisheries when they extend along the soil under the sea beyond

the ordinary territorial limit. Cases in point are the pearl-fisheries

on the banks in the Gulf of Manar, Ceylon, which extend from six to

twenty-one miles from the coast, and are subject to a colonial Act of

1811, which authorises the seizure and condemnation of any boat found

within the limits of the pearl-banks, or hovering near them: boats

or vessels navigating the inner passage are prohibited from hovering

or anchoring in water deeper than four fathoms, and those navigating

the outer passage from hovering or anchoring within twelve fathoms.

These pearl-fisheries are very valuable, and have been treated from

time immemorial by the successive rulers of the island as subjects

of property and jurisdiction; and the laws referred to apply also

to foreigners. Another case is the pearl-fisheries in Australia. In

Western Australia certain Acts are applied far beyond the three-mile

limit, though apparently only against British subjects,[1278] and a

similar Act, of 1888, applied in Queensland to extra-territorial waters

west of Torres Strait. The pearl-fisheries of Mexico and Columbia

are also subject to regulation beyond the ordinary three-mile limit.

Examples of extra-territorial jurisdiction over beds of the common

edible oyster are to be found in the British conventions with France

in 1839 and 1867, by which the Bay of Granville was reserved to France

(see p. 612), and in the last of these conventions (Article ix.) a

close-time was provided in the English Channel; and likewise in the

proceedings concerning the Arklow and Wexford banks, off the Irish

coast (see p. 621). Coral-beds in the Mediterranean, off the coasts

of Algeria, Sardinia, and Sicily, are in a similar way regulated by

Italian and French laws beyond the ordinary three-mile limit.

Even in regard to the class of fisheries for what is termed “floating”

fish--that is to say, the ordinary fisheries for sea fishes, carried on

usually by nets and lines--there are a number of enactments conferring

jurisdiction, or which have conferred jurisdiction, beyond the distance

of three miles from shore. Old English and British Acts, previously

referred to (p. 608), fixed limits of four-and-a-half and five miles

from the coast, within which distance the use of certain apparatus,

as drag-nets and trawls, was prohibited. In the Herring Fishery Act

of 1808, which provided for the appointment of commissioners for the

herring fishery, and for the regulation of the fishery and the curing

of herrings, jurisdiction was extended over “all persons” engaged in

catching, curing, and dealing in fish in all the lochs, bays, and arms

of the sea, and also within ten miles of the coasts.[1279] At the Isle

of Man an Act of Tynwald prohibited herring-fishing at a certain season

within nine miles of the shore,[1280] and other instances might be

given where municipal Acts extended jurisdiction beyond the ordinary

three-mile limit for similar purposes.

It is, however, in connection with the great development of

trawl-fishing from steamers in recent years, that the question of the

inadequacy of the ordinary three-mile limit for the preservation and

regulation of fisheries has been brought to the front, and it is around

this method of fishing that most of the controversies affecting the

territorial waters, at least in Europe, have gathered.[1281] It is

therefore necessary to understand something about it, and how it is

that it has given rise to demands for the extension of the ordinary

limits and for the closure of large areas beyond these limits. It is

the most effective and at the same time the most destructive method of

fishing ever made use of. It differs from hook-and-line fishing, in

which only a few kinds of fish are taken at the same time, according

to the size of the hook and the kind of bait, and from gill-net or

drift-net fishing, which is adapted, according to the dimensions of the

mesh, to capture a particular fish, as herring or mackerel. Trawling

consists essentially in dragging along the bottom of the sea a great

bag of netting, which captures a large variety of fishes, big and

little; and it may involve, at certain places and in certain seasons,

the destruction of immense quantities of edible fishes too small to be

marketable, and which are thrown back, dead, into the sea.[1282] It

is a very old method, but until about a century ago it was confined

on the British coast to the mouth of the Thames and neighbourhood and

to certain localities in the Channel, its headquarters being Barking

and Brixham. Trawling was then restricted to shallow water; the boats

were small and the trawls were such as a man could carry on his

shoulders. At the close of the French war, Brixham trawlers began to

migrate eastwards, prospecting for new grounds, fixing their temporary

headquarters first at Dover, then at Ramsgate in 1818, and at Harwich

in 1828. Continuing their explorations, the Dutch coast was visited

about 1830 and the southern part of the Dogger Bank a few years later,

and in 1837 a great impetus was given to trawling by the discovery of

enormous quantities of soles in the Great Silver Pit, south of the

Dogger. Trawlers flocked thither from all quarters; the Brixham men

fixed upon Hull, first as their temporary, and then as their permanent

home, and from this time North Sea trawling was firmly established. It

was not until 1858, little more than half a century ago, that trawlers

began to be employed from Grimsby, which is now by far the greatest

fishing-port in the world. Gradually the enlarging fleets of trawlers

pushed northwards and eastwards as new grounds were discovered. By 1860

the whole of the Dutch coast and the coast of Schleswig was frequented;

ten years later the Danish coast was included, and, for the first time,

the whole of the Dogger Bank, as well as large areas north and west of

it, off the coast of England and Scotland. About 1875 the Great Fisher

Bank, which lies about 200 miles east of the Scottish coast, began

to be visited, and in 1891 the English trawlers boldly pushed on to

Iceland, where enormous catches of fish were obtained.

During this period, while the fishing-grounds were being vastly

extended, great improvements were made in the means of catching the

fish and bringing them to market. The trawling vessels gradually

increased in numbers, size, speed, and storage capacity; the trawl-net

grew larger and more efficient; the use of ice for the preservation

of the fish enabled distant grounds to be visited, and the deeper

waters of the north necessitated the substitution of steam-power for

hand-labour in hauling the nets on board; the “fleeting” system, by

which steam-carriers collected the fish each morning and brought them

rapidly to market, allowed the fleets of sailing smacks to remain on

the grounds constantly fishing for many weeks at a time. Then the

industry was revolutionised by the substitution of steam vessels for

the sailing smacks, a change which began about 1878; and trawling,

which was at first a summer occupation owing to the frailty of the

boats, and then a winter pursuit, as plenty of wind was required to

drag the heavier nets, became independent of the season, and almost

of the weather. A further improvement was the introduction in 1895 of

the otter-trawl instead of the unwieldy beam-trawl, the mouth of the

net being kept open by the divergence of two boards, one at each side,

on the principle of the kite. This allowed the net to be made very

much larger, and also to be used in much deeper water, and commercial

trawling is now carried on in depths down to about 200 fathoms.

There has thus occurred during the last generation or so an enormous

development in the extent and efficiency of trawl-fishing. The

British fleet since about 1885 has grown from some 200 small vessels,

of twenty to twenty-four tons, and using trawls of from twenty to

thirty feet beam, to an aggregate of 3170 vessels in 1907, of which

1609 were steamers and 918 deep-sea sailing smacks.[1283] These

figures, however, convey but little impression of the real increase

in the catching power. It has been computed, both by practical men

and by scientific experts, that the modern steam otter-trawler is

approximately eight times more effective in catching fish than was

one of the large sailing smacks of a generation ago,[1284] and thus

the British deep-sea trawling fleet in 1907 was equal to about 13,790

of the older sailing smacks. But in addition to these there are the

foreign steam-trawlers which fish on the same grounds, for many other

countries have followed the English example in developing deep-sea

trawling. The aggregate number of such vessels at the end of 1907 was

about 634, of which 224 were French, 239 German, and 81 Dutch;[1285]

and they would represent 5072 sailing smacks, so that the total

trawling fleet of Western Europe was then equal to about 18,862 of the

sailing trawlers of twenty or thirty years ago, the sailing trawlers in

use on the Continent being left out of account. It has been calculated

that the area of the sea-bottom which is swept each day by the nets of

this great fleet is equal to about 2000 square miles.

Now, this extraordinary extension of trawl-fishing in recent times

bears upon the question of territorial waters in two ways. One relates

to the impoverishment of the older fishing-grounds near the coast and

in the North Sea. The other relates to the incursion of steam-trawlers

on foreign coasts as affecting the fishing of the inhabitants of such

coasts.

With regard to the first, there have been many inquiries made by

Royal Commissions and Parliamentary Committees, as well as by fishery

departments and experts, which show that the excessive fishing has

depleted the older banks. In the first of these inquiries, which began

in 1863, when there were only from 650 to 700 smacks trawling in the

North Sea (and then only in a part of it), the reporters expressed

their belief that this method of fishing “in the open sea” was not

wastefully destructive, and required no legislative interference,

for if any ground were over-fished, the fishing there would become

unprofitable, and the trawlers would go elsewhere.[1286] The next

Commission, in 1878, by which time trawling had greatly developed, came

to much the same general conclusions; but they found that a decrease

of soles had occurred, and also a decrease of plaice and flounders in

some localities, and they recommended that power should be given to the

Secretary of State to forbid trawling “in any of the territorial seas,”

which power was conferred in 1881.[1287] This inquiry was noteworthy

as first revealing complaints by the trawlers themselves of the

diminution of certain fish and the impoverishment of inshore grounds,

and for the advocacy by Grimsby smack-owners of the prohibition of

trawling at localities where small fish abound, as the inlets on the

Dutch and German coast, the Wash, and off Yarmouth, and even within

a nine-mile limit all round the shores of the North Sea. At the next

Commission of inquiry, in 1883, the complaints of the trawlers were

stronger, and the remedies they proposed more drastic. Those of Hull

and Grimsby stated that the numbers of flat fishes, particularly soles,

had much diminished; that the nearer grounds were impoverished, and

that they had to go much greater distances for their supplies of fish.

They expressed the belief that most damage was being done by trawling

along the coasts, especially on the Continental side of the North

Sea, and that the most effectual remedy would be to prohibit trawling

within a ten-mile limit around the whole of the North Sea coasts. The

conclusions reached by the Commission were that soles had decreased,

and also flat fishes and haddocks in many parts of the territorial

waters between Grimsby and the Moray Firth, and they recommended that

the Scottish Fishery Board should receive powers to regulate or suspend

trawling within territorial waters.[1288]

[Illustration: Fig. 26.--_Showing the three-mile limit and a

thirteen-mile limit in the North Sea._]

From this time onwards the demand of the trawlers for some legislative

restrictions on trawl-fishing increased to a clamour. At a conference

of practical fishermen held in 1883, in connection with the

International Fisheries Exhibition at London, statements were made by

trawlers as to the enormous destruction of under-sized fish and the

depletion of the grounds, and a resolution was passed calling upon the

Government to bring about an international conference to consider the

desirability of recommending legislation.[1289] At another conference,

in 1888, they declared that a large and distressing diminution of

flat-fishes had occurred in the North Sea; that they viewed the future

with alarm unless some steps were immediately taken to protect immature

fishes; and they called upon the Government to try to arrange for an

international law for the purpose.[1290] As no result followed from the

representations to the Government, the trawl-owners on the East Coast

took independent action in 1890, and formally agreed, as a preliminary

step, to prevent their trawlers from fishing in the summer within a

very large area of extra-territorial water off the German and Danish

coasts, where immature fish were generally caught in great abundance.

The line of closure of this area extended along the coast for 130

miles, passing, to the west of Heligoland, at a distance varying from

twenty to over fifty miles from the shore, and embracing no less

than about 3600 square (geographical) miles of water lying outside the

three-mile limit as defined by the North Sea Convention. The Conference

also pressed for legislation of a national and international character

to prevent the sale and purchase of immature fish, and they defined

what they meant by that term.[1291] For some time at least the vessels

of the great trawling companies abstained from fishing within the large

area above referred to, but the voluntary arrangement fell through

owing to the action of independent “single-boaters,” and the grounds

were never effectually closed. The Government went so far to meet

the wishes of the trawlers as to issue, through the Foreign Office,

invitations from the National Sea Fisheries Protection Association

to various Continental Governments to send delegates to a conference

in 1890, and representatives from Belgium, France, Denmark, Germany,

the Netherlands, and Spain attended a meeting at Fishmongers’ Hall in

that year, but no representative of this country was present in an

official capacity. Statements of the usual kind were made as to the

impoverishment of the fishing-grounds and the necessity of remedial

measures in order to keep up the fish supply, and it was resolved, in

view of an official international conference being called, to circulate

a set of questions regarding the scientific and statistical aspect of

the subject.[1292]

[Illustration: Fig. 27.--_Showing the area of the Small-fish Grounds,

which the English trawlers desired to have closed for the preservation

of immature fish._]

The complaints continuing as to the deterioration of the fisheries, the

Government in 1893 appointed a Select Committee of the House of Commons

to inquire into their condition and to report as to what remedies

might be required. The trawlers again gave strong evidence as to the

impoverishment of the grounds in the North Sea from over-fishing,

the banks having been “fished out” in succession as they were

discovered, so that they were compelled to go to distant regions, as

Iceland and the Bay of Biscay, to keep up the supplies. Some of them

still pressed for an extension beyond the three-mile limit and the

prohibition of trawling within ten miles from the shore, especially

on the foreign coasts on the eastern side of the North Sea, and in

particular that large areas in the extra-territorial waters should

be closed by international agreement. The prohibition of the sale of

immature flat fishes was also strongly advocated as an indirect means

of closing these grounds. The Committee reported that the evidence of

all classes of witnesses, “whether trawlers or linesmen, smack-owners

or fishermen, scientific experts or statisticians,” showed that a

considerable diminution had occurred among the more valuable classes

of flat-fishes in the North Sea, which was to be attributed to

over-fishing by trawlers in certain localities; and they recommended

that the sale of undersized flat-fishes should be forbidden, and that

the three-mile limit should be extended for fishery purposes alone,

provided it could be effected on an international basis.[1293]

It does not appear that any action was taken by the British Government

in consequence of this report; and as the trawlers had failed to get

the large area of the German and Danish coasts closed to them directly,

they got a Bill introduced into Parliament to prohibit the sale of

undersized flat-fishes, in the belief that an enactment of that kind

would result in closing the grounds indirectly. The reasoning on

which they proceeded was this. Trawling, to be remunerative, depends

upon the capture of a variety of fishes, and it is not possible by an

enlargement of the mesh of the net to allow of undersized flat-fishes

escaping, without also and at the same time permitting the escape of

numerous large marketable round-fishes, as haddocks, as well as of

many marketable soles, and fishing under such conditions would be

unprofitable. It was also known that it would be futile to return to

the sea the undersized fishes after they had been brought on board,

because in commercial trawling they are dead or moribund, and might as

well be taken ashore as thrown back into the water. It was admitted

that the only effective way to protect the immature fish was to

prevent the trawl from being used on the grounds; and if this could

not be done by direct closure of the area, it might be accomplished

by prohibiting the sale of undersized flat-fishes generally; for on

these particular “small fish” grounds, or “nurseries,” large fishes are

so scarce that trawling is remunerative only by reason of the great

quantity of small fishes taken. If the sale of these were forbidden,

then trawling in such localities would cease. For an enactment of this

kind to succeed, it was obviously necessary that it should apply to

the whole kingdom, and it was opposed by fishermen on other parts of

the coast; and as it was felt to be extremely problematical whether

it would secure the cessation of trawling on the small-fish grounds

without at the same time injuriously affecting the fisheries on our own

coast and raising the price of fish, the Bill was abandoned. Several

subsequent Bills of the same kind shared the same fate, usually after

a more or less exhaustive inquiry by a Parliamentary Committee. One

of those Committees, consisting of thirteen members of the House

of Commons, took evidence in 1900 from the representatives of the

trawlers and others, of the character previously described, advocates

of the Bill admitting that in their view it was a tentative measure,

and that the direct closure of the grounds would be preferable. The

Committee thought that it was proved beyond all doubt that there was a

serious diminution of flat-fishes, particularly in the North Sea; that

the ancient fishing-grounds were much depleted; that the evil was a

growing one, and that in default of a remedy the consequences would be

disastrous to the industry.[1294] One of the causes of the diminution

was found to be the vast destruction of immature fish, the direct

remedy for which, the Committee said, was either the prohibition of the

taking and killing of such fish, or the prohibition of fishing within

areas where small fish abound. They were of opinion that the former

was practically impossible without prohibiting trawling altogether,

while the areas where the small fish congregate could only be closed

by a joint international arrangement. The indirect remedy was that

proposed by the Bill, and, for reasons such as are stated above, they

felt it would not be expedient to pass the Bill into law without

further inquiry and investigation. The Committee were of opinion that

the subject of the diminution of the fish supply was a very pressing

one, and that the situation was going from bad to worse, and they

recommended that no effort should be spared, first, to arrange for

international treatment of the subject generally, and especially for

regulation of the North Sea area; and second, to provide for the

adequate equipment of the Government Departments in charge of the

subject.[1295]

The trawlers still pressed for legislation to deal with the wasteful

destruction of undersized fish, and continued to pass resolutions

on the subject;[1296] and another and somewhat modified Bill was

introduced into the House of Lords in 1904 by the Department of

Agriculture and Fisheries, and remitted to a Select Committee of

that House. The Committee, after taking much evidence of the usual

kind, stated their opinion that the ideal manner of protecting the

fishing-grounds in the North Sea where young fish abound would be by

an international agreement between all the Powers concerned, and they

expressed the hope that the Government would not relax its efforts

to secure such a convention. It was thought that, as the first step

towards attaining this result, the Bill ought to be passed into law;

but the opposition to it was too strong, and it shared the fate of its

numerous predecessors.[1297]

The statements of the trawlers that the older fishing-grounds are

impoverished, particularly those in the North Sea, are borne out by

the results of statistical and scientific inquiries. It was calculated

by Professor W. Garstang that the average catch of bottom fishes, per

fishing unit, decreased in the North Sea in the ten years 1889 to

1898 from 60·6 to 32·3; or, in other words, that while the average

take of each trawling smack in 1889 was sixty tons, it was only about

thirty-two tons in 1898.[1298] The official statistics published

annually by the Board of Agriculture and Fisheries show that the

quantity of bottom fishes taken from the North Sea is declining, while

on the other hand the quantity landed in this country from distant

waters is greatly increasing.[1299]

This brings us to the second point, in which the immense development

of trawling touches upon the question of territorial waters--namely,

the flocking of the trawlers to new grounds on foreign coasts. As the

North Sea became, comparatively speaking, more and more exhausted,

the vessels were compelled to go farther and farther away in order to

maintain the supply.[1300] The grounds at Iceland, now so important

not only to the British trawlers but to the Germans and the French,

were first visited in 1891, and those in the neighbourhood of the Faröe

Islands a little later. The operations of the trawlers were at first

limited to the south-east coast, but the catches were so enormous,

and the enterprise so profitable, that large and seaworthy vessels

were specially built for this fishing, which became one of the most

important for the English markets.[1301] Then the grounds in the Bay

of Biscay and those on the coasts of Spain and Portugal began to be

frequented, mostly from about the year 1902; and in the next year the

operations of the trawlers were extended farther south to the coast

of Morocco, as far at least as Agadir (20 deg. N. latitude), and even

in some cases to the coast of Mauritania in French West Africa. The

vessels fishing in these southern regions, many of them being fitted

with refrigerating rooms, land a considerable proportion of their

fish in Portugal and elsewhere. A year or two later, in 1905, the

enterprising English trawlers opened up new grounds far away to the

north-east in Barents Sea, at the very borders of the perpetual ice

of the Arctic regions, and increasing numbers make the long double

voyage of some 3500 miles thither every summer, and bring back from the

neighbourhood of Cape Kanin great quantities of plaice for the English

markets.

Thus the great enterprise and energy of British trawlers, supported

by large capital, have enabled them to exploit the available grounds

from far beyond the Arctic circle almost to the tropics, and it is

from those distant regions that an increasing proportion of the fish

supply is being drawn.[1302] The influx of alien vessels, the most

powerful and efficient fishing machines in existence, along these

foreign coasts is not, as was naturally to be expected, viewed with

satisfaction by the native fishermen. They see the fishing-grounds

which they had so long been accustomed to consider as their own--in

many cases lying within the territorial waters preserved to them by

the laws of their own country, though possibly outside “the ordinary

three-mile limit”--invaded and exploited by foreigners, and their own

livelihood threatened. They fear that what has occurred in the North

Sea will happen along their own coasts; that the fishing-grounds, often

of limited extent, will be impoverished and exhausted for the sole

benefit of the foreigners, and their efforts to maintain themselves

and their families rendered difficult or impossible. They observe from

their boats the immense hauls of fish made by the huge trawl-nets,

and the great waste that is often involved.[1303] One cannot be

surprised that the fishermen, and those who sympathise with them,

feel indignation at the invasion of their waters by foreign trawlers,

and that great meetings have been held, as in Spain and Portugal, to

demand redress, and that at least the same limit as applies to natives

pursuing similar methods should be enforced on the foreigners, or an

international conference called to arrange for an equitable limit, or

equitable treatment, which would have regard for the rights of all

concerned.[1304]

From the foregoing description of the problems associated with the

modern development of trawling, it will not be difficult to understand

the scope and nature of the legislation which has been devised in

various countries to preserve the native fisheries for the inhabitants

of the coast. It may be said that in practically all of them,

trawl-fishing is either entirely prohibited within territorial waters

or is subjected to various regulations, for the most part with the

view of allowing minor forms of trawling, as that for shrimps, to be

carried on. In those countries which have a zone of territorial water

extending beyond the ordinary three-mile limit, it is prohibited within

that zone, as in Norway, Spain, and Portugal, and even up to twelve

miles from the shore; while in some others in which three miles is in

use as the ordinary limit for exclusive fishing, trawling is forbidden

at distances beyond that limit. In Italy and Austria steam-trawling is

not allowed within five miles of the coast. In Scotland and Ireland it

is prohibited in certain specified waters, which extend much beyond a

three-mile boundary. As recent legislation, or byelaws made with the

authority of Parliament, bearing upon these prohibitions have given

rise to much controversy, it is desirable to consider them with a

little care.

In England, where the administration of the local fisheries around the

coast is in the hands of various Sea Fisheries District Committees,

numerous byelaws have been made and are in force, with the sanction

of the Board of Agriculture and Fisheries, prohibiting or regulating

trawling of one kind or another in the waters under the control of the

Committees. None of the byelaws appear to apply to parts of the sea

beyond the ordinary three-mile zone, though it is open to question

whether the wording of the Act, by which the Committees were created,

does not give power in that direction.[1305]

The Irish Fishery Department have made a very large number of byelaws,

at various times and under various Acts, for the regulation or

prohibition of trawling. Of these some forty-four are at present in

force, twenty-two applying to all trawling and twenty-two to steam

trawling alone, and one or two of them date from the years 1842 and

1851.[1306] Under these byelaws trawling in one form or another is

prohibited entirely or under certain conditions at most parts of the

coast of Ireland; and on certain parts of the coast not inconsiderable

stretches of the sea, beyond the three-mile limit and the limit for

bays as defined in the fishery conventions, are closed against this

method of fishing. The lines around the coast within which trawling is

prohibited, in many instances pass between headlands which may be as

much as twenty-six, and even forty-three, miles apart; not infrequently

they are drawn, not between headlands, but from one light-ship to

another, and these light-ships may be four or five miles from land and

twenty miles apart. Sometimes the closing line is placed three miles to

the seawards of such base-lines; and they may pass from about two to

seven or eight miles outside the limit as defined in the conventions,

and in some instances up to ten or eleven miles from low-water mark on

the shore.

It is obvious that the principle upon which these lines have been drawn

has been one of convenience. They differ entirely from the lines of

closure in the two Scottish Firths referred to below, which are _inter

fauces terræ_ with the lines passing from headland to headland. But all

the lines on the Irish coast are well within the range of guns from

the shore, and are thus, according to the Law of Nations, within the

territorial sea. The aggregate area beyond the ordinary limits of the

conventions amounts to a little over 400 square (geographical) miles.

It does not appear that foreign trawlers have been found contravening

the Irish byelaws to any great extent. Between June 1904 and September

1905 seven steam-trawlers and one sailing-trawler were captured fishing

within the limits, one of the former being registered in a foreign

country, and, with regard to it, the official report says “it was

found impossible to enforce the order made by the magistrates against

the owner and skipper.” It is added that “it is thought, however,

that means have been found within the existing law of compelling

foreign trawlers to observe the byelaws affecting Irish territorial

waters.”[1307]

It is, however, with reference to the legislation for Scotland,

under which certain areas are closed against trawling, that the main

controversies have been raised. Several statutes gave power to the

Fishery Board for Scotland to regulate trawling. The first was an

Act of 1881,[1308] which empowered the Board of Trade to restrict or

prohibit this method of fishing “in any area being part of the sea

adjoining the United Kingdom, and within the territorial waters of

Her Majesty’s dominions, within the meaning of the Territorial Waters

Jurisdiction Act, 1878” (see p. 591); which power was transferred to

the Scottish Board by subsequent Acts.[1309] Then the Sea Fisheries

(Scotland) Amendment Act, of 1885,[1310] empowered the Board to make

byelaws for restricting or prohibiting, either entirely or subject to

such regulations as might be provided, any method of fishing “in any

part of the sea adjoining Scotland, and within the exclusive fishery

limits of the British Islands,” when they were satisfied that such

mode of fishing was injurious to any kind of sea fishing within that

part, or in order to make experiments and observations to ascertain

this, or for fish-culture: and such byelaw was not to be valid until

it had been confirmed by the Secretary for Scotland. Several byelaws

under this Act were made, prohibiting trawling within certain areas on

the coast of Scotland within the ordinary limits.[1311] It may well be

questioned, in view of the definition of the “territorial waters of

Her Majesty’s dominions” in the Territorial Waters Jurisdiction Act,

and of the “exclusive fishery limits of the British Islands” in the

Sea Fisheries Act, 1883,[1312] whether these powers were restricted to

the three-mile limit and to bays whose width was not greater than ten

miles; but it is noteworthy that a byelaw with reference to the Firth

of Clyde was not confirmed by the Secretary for Scotland, presumably

because it was considered at the time to be _ultra vires_.[1313]

In 1889, however, an Act was passed which directly prohibited trawling

“within three miles of low-water mark of any part of the coast of

Scotland” (except the Solway and Pentland Firths), and within the

waters specified in a schedule annexed, except in such parts as might

from time to time be permitted by byelaws of the Fishery Board; and the

Board was further empowered to forbid trawling within any area or areas

in the Moray Firth between Duncansby Head and Rattray Point, which

may be regarded as its headlands.[1314] The waters specified in the

schedule included the areas closed under the then existing byelaws, as

well as a number of bays, lochs, and areas, the most important of which

was “the waters inside a line drawn from Corsewall Point, in the County

of Wigton, to the Mull of Cantyre, in the County of Argyll”--that

is to say, the Firth of Clyde. In this Act, it will be noted, nothing

is said about bays, save in this schedule, and an examination of the

charts shows that the waters specified in the schedule, twenty-five

in number, would all, with a single exception, be included in the

limits of exclusive fishing as defined in the North Sea Convention.

Presumably the bays on the coast of Scotland which are not mentioned

in the schedule do not come under the provisions of this Act beyond

the distance of three miles from low-water mark on their shores. The

exception referred to is the Firth of Clyde (fig. 29), where the line

of closure is about twenty-eight miles in length, within which trawling

was directly prohibited by the Act. The area of water outside the

ordinary limits of the conventions which is thus embraced amounts to

about 380 square (geographical) miles.

[Illustration: Fig. 29.--_The Firth of Clyde, showing the line of

closure and the ordinary three-mile limit._]

Under the section referring to the Moray Firth, a byelaw was passed

in 1890 giving effect to its provisions within a straight line drawn

from the Ord of Caithness to Craighead near Buckie, the extent of

water enclosed, beyond the ordinary limits, being about 310 square

miles. This was replaced by another byelaw in 1892, in which the

line of closure to trawling was from Duncansby Head to Rattray Head,

a distance of about 73 geographical miles, the area of sea enclosed

between it and the ordinary limits amounting to approximately 1480

square (geographical) miles (fig. 30). It is this byelaw that has of

late given rise to discussion in relation to the operations of foreign

trawlers within the Moray Firth, as is explained below.

In 1895 another Bill was introduced into the House of Lords by the Lord

Privy Seal (Lord Tweedmouth), with the object, among other things, of

extending a similar jurisdiction over the waters washing the east coast

of Scotland. The line at first chosen in this case was a very long one,

running along the open coast from Rattray Head to the Farne Islands,

a distance of about 120 miles, and passing a little over thirty miles

east of Fife Ness.[1315] It was proposed later to give power to

prohibit trawling in any area or areas within eighteen miles of the

coast.[1316] In the Act as passed the distance was reduced to thirteen

miles from the coast in areas under the jurisdiction of the Crown, and

no area was to be so regarded unless the powers conferred had been

accepted as binding upon their own subjects with respect to such area

by all the states who were parties to the North Sea Convention.[1317]

This section of the Act has remained inoperative, and no byelaws have

been made under it; and there appears to be no evidence as to whether

the views of other Powers have been obtained.

In the Moray Firth, closed to trawling by the byelaw above referred

to, foreign trawlers began to make their appearance first of all in

1895, when a Danish vessel came. Two years later it returned, and a

German trawler also, which was prevented from landing its fish at

Aberdeen,--an act of the Crown, which was tested by a case in the Court

of Session and upheld by it. In 1898 foreign trawlers appeared in the

Firth in considerable numbers, and, it was reported, carried on their

operations in such a reckless manner as to involve a great deal of

damage to the gear of the net and line fishermen.[1318] These vessels

appear to have been mainly Danish, but there were a few Belgian, Dutch,

and German, and they came for the most part intermittently and for

brief periods, some of them appearing only once or twice in a year.

Soon, however, the Firth was invaded by a fleet of trawlers flying the

Norwegian flag, although it was known that Norway possessed no steam

trawlers,[1319] and these vessels fished regularly in the Moray Firth,

carrying their fish to Grimsby, where they were landed and sold. It

was soon discovered, and admitted, that these trawlers were in reality

English, so far as capital, management, and crew were concerned, but

they were registered in Norway in order to evade the British statute,

and they soon obtained a practical monopoly of trawling in the Moray

Firth. In 1901 there were fourteen or fifteen of them, but by 1905 they

had increased to twenty-nine or thirty; while the visits of trawlers of

other nationalities had diminished to nine in 1903, to six in 1904, and

to two in each of the three following years. In 1903 and 1904 thirteen

convictions were recorded against foreign trawlers, eight in connection

with the Moray Firth and five in connection with the Clyde; in 1905

the number rose to fifteen for the Moray Firth and six for the Clyde.

In all these cases the charge was for trawling within the ordinary

three-mile limit. In 1905 a case was brought against Martin Olsen, the

Norwegian “flag-master” of one of the trawlers registered in Norway,

the _Catalonia_, for trawling within the Dornoch Firth in contravention

of the Act of 1889, and byelaw No. 2, made under the Act of 1885. The

place where the offence was committed was beyond the distance of three

miles from the shore, but it was within three miles of the ten-mile

base-line across the Dornoch Firth, and therefore within the exclusive

fishery limit as defined in the conventions, and within one of the

areas scheduled in the Act of 1889. The Sheriff-Substitute at Dornoch

sustained Olsen’s plea of no jurisdiction, on the ground that the

_Catalonia_ was registered in Norway, and Norway was not one of the

Powers signatory to the North Sea Convention. On appeal to the High

Court of Justiciary the decision was reversed, the judges holding that

the prohibition in the Act of 1889, being quite general in terms, was

applicable to foreigners as well as to British subjects, and that

it was not for them to draw a distinction which had not been made by

Parliament.[1320]

[Illustration: Fig. 30.--_The Moray Firth, showing the line of

closure._]

This decision was the means of raising the question whether the byelaw

did not apply to foreigners equally with British subjects in the

whole extent of the Firth, and a series of cases were brought before

the Sheriff to test the point. Three prosecutions were instituted,

one against Emmanuel Mortensen, a Dane, master of the _Niobe_, of

Sandefjord, Norway, for trawling at a point about five miles off

Lossiemouth; another against Thomas Robinson, a British subject, master

of the _Verbena_ of Stavanger, Norway, for trawling at a point five

miles S.S.E. of Garty Point, Sutherlandshire; and the third against

Arthur Lambert, a British subject, fishing-master of the _Pinewold_,

registered at Sandefjord, Norway, for trawling at a distance of seven

miles from Tarbetness. Convictions were obtained in all cases in the

Sheriff Court of Dornoch, mainly on the same ground as in the above

case, that the statute was general and applied to all persons, but

Sheriff (now Lord) Guthrie also held that the Moray Firth was within

the territorial waters of Scotland.[1321]

The case in regard to Mortensen was appealed and was heard by the

full bench of twelve judges of the High Court of Justiciary, who

unanimously upheld the conviction and dismissed the appeal. The

leading opinion was delivered by the Lord Justice-General (Lord

Dunedin), who treated the question as one of construction, and of

construction only, since the court had nothing to do with whether

an Act of the Legislature was _ultra vires_ or in contravention of

international law; they had only to give effect to it. The terms of

the Act, applying to “every person” committing the offence within an

area which was precisely defined, made the inference strong that it

was meant to apply to all persons whatsoever; and this inference was

further strengthened by the consideration that the clear object of

the Act was to stop trawling, and that object would be defeated or

rendered less effective if the prohibition applied only to British

subjects, while leaving those of other nations free. With regard to

the territorial or non-territorial character of the place where the

_Niobe_ had been trawling, Lord Dunedin said that while it might be

assumed that within the three-mile limit the territorial sovereignty

would be sufficient to cover such legislation, that was not a proof of

the counter proposition, that outside the three miles no such result

could be looked for. There were at least three points which went far

to show that the _locus_ was _intra fauces terræ_: (1) the dicta of

the Scottish Institutional Writers, as Stair and Bell;[1322] (2) the

fact that the same statute puts forward claims to analogous places, as,

_e.g._, the Firth of Clyde; (3) there were many instances in decided

cases where the right of a nation to legislate for waters more or less

landlocked, though beyond the three-mile limit, had been admitted.

“It seems to me, therefore,” continued Lord Dunedin, “without laying

down the proposition that the Moray Firth is for every purpose within

the territorial sovereignty, it can at least be clearly said that the

appellant cannot make out his proposition that it is inconceivable

that the British Legislature should attempt for fishery regulation to

legislate against all and sundry in such a place. And if that is so,

then I revert to the considerations already stated, which, as a matter

of construction, make me think that it did so legislate.” He did not

think any argument could be drawn from the definition of “exclusive

fishery limit” in the North Sea Convention, inasmuch as the Convention,

as a whole, did not deal with what was here in question--viz., mode

of fishing; and the Act treated subjects and foreigners alike in the

matter.

Lord Kyllachy also held that, on the point of construction, the

intention of the Act was that in no part of the area should trawling be

practised by anybody; the terms were definite and applied to a quite

definite area; it would be easier to suppose that the Legislature

had reached even an erroneous conclusion as to the extent of its

jurisdiction, than that it had resolved deliberately to impose a

futile restriction upon its own countrymen and at the same time to

create a hurtful monopoly in favour of foreigners. With regard to

the territorial or non-territorial character of the Moray Firth, it

seemed vain to suggest that according to international law there was

any part of it which was simply an area of the open sea, and thus in

the same position as if it were situated, say, in the middle of the

German Ocean. The whole Firth was _prima facie_ a “bay,” with two

well-marked headlands, and stretching inwards for many miles into the

heart of the country. All that could be said against this was that at

its outer end the Firth was very wide, and of a size, if not also of

a configuration, somewhat beyond what is usually characteristic of

bays and estuaries; but that might or might not be so, and the cases

of the Bristol Channel, the Firth of Clyde, and the Firth of Forth

would have to be considered before the proposition could be affirmed.

There was no established rule on the subject in international law, and

in particular no rule “so arbitrary and artificial as that of the

ten-mile limit measure,” for which the appellant contended. Perhaps the

most interesting part of Lord Kyllachy’s opinion concerned the bearing

of the North Sea Convention on the case. If the question had been one

of _exclusive fishing privileges_, the bearing of the Convention might

have been important. “But exclusive fishing privileges--or, at all

events, exclusive fishing privileges as defined by convention--are

one thing; territorial jurisdiction, proprietary or protective, is

a different thing.... There is certainly nothing in the Convention,

at least nothing was brought under our notice, which in the least

conflicts with the right of the several contracting nations to

impose each of them within its territorial limits (whatever these

are) restrictions universally applicable against injurious practices

or modes of fishing such as are by this statute and byelaw imposed

here. In other words, there is nothing in the statute and byelaw in

question which at all interferes with the exclusive fishing privileges

of the several nations.” He could not consent to the argument that

the Convention had introduced a new chapter into international law

establishing, with respect to the definition of bays and estuaries, new

and artificial rules. The other judges who gave their reasoned opinions

expressed similar views, both as to the construction of the Act, the

possibility or probability that the Moray Firth was a territorial bay

by the law of nations, and as to the distinction between the limits of

exclusive fishing as defined in the Convention and the right of the

bordering state to regulate the fishery beyond that limit and within

its territorial waters, provided the regulations applied equally to

all.[1323]

It is to be noted that although the question was strictly one of the

construction of the Act, the judges had necessarily, in reaching

its true meaning, to consider certain aspects of international law

in relation to the territorial sea. From the above summary of their

opinions, it is evident that the most eminent Scottish lawyers are in

agreement with the modern publicists whose views have been referred

to in a previous chapter, both in rejecting the three-mile limit

as the farthest boundary of territorial sovereignty and as to the

ten-mile rule (to say nothing of the six-mile theory) for bays. It

may, however, be questioned as to how far the doctrine of independent

territorial regulation of fisheries beyond the limit of exclusive

fishing, as defined in the Conventions, will be accepted as applied

to the signatories of the Conventions. It is not expressly stated in

the Conventions that the waters outside the exclusive fishery limits

shall be free and common to all; but that is implied even in the title

of the last of them,[1324] and the Convention, in point of fact, lays

down such regulations for the conduct of the fishery, outside the

exclusive fishery limits, as appeared to the signatories at the time

sufficient for the equitable enjoyment of the common right. It would

be easy to conceive of general regulations being applied independently

at particular places by one state, which would have the effect of

abridging the common right of the other states, without affecting the

interests of its own subjects--on the principle of the invitations

which the fox and the stork issued to one another in the fable. That

the intention was to leave the fisheries outside the limits mentioned

free, except in so far as the regulations agreed upon affected them, is

clear from the proceedings at the conference at The Hague. As regards

other states, however, such as Norway, which were not signatories of

the Conventions, it is equally clear that, up to the utmost bounds of

the territorial waters, regulations may not only be imposed on their

subjects, but they may be excluded from the fisheries altogether.

The effect of the decision of the High Court of Justiciary was

apparently to keep the foreign trawlers out of the Moray Firth for

a short time. But very soon a number of them came back again from

Grimsby, with express instructions from the owners to fish in the Moray

Firth. On 31st January 1907 six masters, all foreigners, of trawlers

registered in Norway, were charged at Elgin Sheriff Court with thirteen

separate contraventions of the byelaw, committed between 23rd November

and 22nd December 1906, at various distances from about five to twelve

miles from the coast; on conviction, penalties of £100 or sixty days’

imprisonment were imposed, and five of the men went to prison. On 4th

February other two masters of foreign trawlers were convicted of a

corresponding offence at Wick Sheriff Court. At the trial at Elgin, the

Norwegian Vice-Consul at Aberdeen read a protest, at the instance of

the Foreign Minister of Norway, against the conviction of the masters

of three of the Norwegian vessels which he named, provided the trawling

with which they were charged had taken place “outside the territorial

limits.”[1325]

Representations were also made to the British Foreign Secretary by

the Norwegian Minister in London (Dr F. Nansen), and the men were

released on 9th February,[1326] the decision of the Scottish High

Court being thus in effect set aside. It was subsequently explained

that in taking this action Norway was merely making a formal stand

for the rights of her flag, since the trawlers had been registered

in Norway in a legal way, Norwegian subjects were concerned, and no

claim had been put forward on behalf of the British Government to the

Moray Firth as being territorial in character. In point of fact, the

Norwegian Government was in full sympathy with the policy of keeping

the pseudo-Norwegian vessels out of the Moray Firth,[1327] and they

immediately, after the formal protest referred to, issued orders

warning all owners of Norwegian trawlers fishing in the Moray Firth to

cease from doing so, and not to expect the support of their Government

in case of proceedings being taken against them in Scotland.[1328]

It does not appear that any advantage was taken of this proceeding

for further prosecutions of Norwegians contravening the law; but it

was decided to proceed against British subjects who might be found on

the foreign vessels which were violating it, and who were undoubtedly

under the jurisdiction of British courts. On March 20th twelve cases

were brought before the Elgin Sheriff Court, the men charged being

the “fishing-masters” of the foreign trawlers,[1329] and the only one

who appeared was fined fifty pounds for each of three offences, or

fifteen days’ imprisonment. A little later, on 17th April, fifteen

fishing-masters of foreign trawlers, one of which was Swedish, all

British subjects belonging to Grimsby, were charged in the same court

for trawling within the Moray Firth outside the ordinary limits, and

on conviction small fines were imposed. Similar cases were brought

against eleven men in July, who were charged with twenty-eight offences

committed between 2nd March and 24th June, and still smaller penalties

were imposed.[1330]

Considerable discussion was evoked by the various occurrences above

referred to. Resolutions were passed at various meetings of fishermen

in Scotland in favour of the byelaw being strictly enforced, and asking

that an international arrangement should be come to if necessary to

enable that to be done. At meetings of trawl-owners, on the other

hand, held at Grimsby and elsewhere, resolutions to the opposite

effect were agreed to, and the Government were requested to maintain

the “three-mile international territorial limits as now defined.”

In the Houses of Parliament also numerous questions were put to

Ministers on the subject, and there were several debates of a more or

less formal kind. It appears that the Foreign Office had come to the

conclusion that the Act of Parliament as interpreted by the High Court

of Justiciary was in conflict with international law;[1331] and that

view having been taken, it was obvious that it would be necessary,

if the statute was to have equal effect on foreigners, that some

international arrangement, such as had been previously recommended

by the Select Committees of the House of Commons and the House of

Lords,[1332] should be reached. It appears that there would have been

no difficulty in arranging such an agreement with Norway, which was

desirous of entering into negotiations for the purpose; but it was

felt by the Foreign Office that, while an arrangement of the kind

would not bind other Powers, questions of reciprocity might be raised,

and British trawlers might be excluded from similar areas on foreign

coasts. They therefore declined to enter upon negotiations with foreign

Powers until the whole policy had been carefully considered.[1333]

One point of view which was taken was indicated in a speech of the

Under-Secretary for Foreign Affairs (Lord Fitzmaurice) in the course

of a debate in February 1907, which had been initiated by Lord Balfour

of Burleigh. He stated that according to the views hitherto accepted

by the chief departments of the Government--the Foreign Office, the

Admiralty, the Colonial Office, the Board of Trade, and the Board of

Agriculture and Fisheries--and apart from the provisions of special

treaties, territorial waters were: “First, the waters which extend

from the coast-line of any part of the territory of a State to

three miles from the low-water mark of such coast-line; secondly,

the waters of bays the entrance to which is not more than six miles

in width, and of which the entire land boundary forms part of the

territory of a State. By custom, however, and by treaty and in special

convention, the six-mile limit has frequently been extended to more

than six miles.”[1334] The Lord Chancellor, it may be said, was absent

through illness; and the declaration quoted, though it represents

what has been the general, but by no means the invariable, attitude

of the British Foreign Office in dealing with territorial waters,

is not in accordance with the law of nations, as is shown in the

foregoing chapters. Nor does it agree with the opinions expressed in

a former debate by the late Lord Salisbury, so long the distinguished

Foreign Minister of this country, by Lord Halsbury, the former Lord

Chancellor, and by Lord Herschell, the then Lord Chancellor (see p.

592), in which Lord Salisbury said “great care had been taken not to

name three miles as the territorial limit.” Nor is it in agreement

with the carefully considered and most explicit reservations made in

the Territorial Waters Jurisdiction Act, both in regard to the extent

of the territorial waters and the rightful jurisdiction of the Crown

beyond three miles from the shore under the law of nations, conferred

by Act of Parliament, or by law existing, and the similar reservations

in certain other Acts previously referred to. Even more singular is the

novel statement as to what constitutes a territorial bay. A six-mile

limit of the kind will obviously confer in the great majority of cases

no greater extent of sea than the three-mile limit on an open coast,

and it is thus opposed to one of the best-recognised principles of

international law relating to the subject. The only part of the world

where it appears to be in force is in British North America, with

reference to subjects of the United States. The history of how it came

to be applied at all is told in a previous chapter, in which it is also

shown that the British Government as late as 1887 rejected even the

ten-mile limit for bays, as involving a surrender of fishing rights,

and as being contrary to the law of nations (p. 629), and they have

made declarations equally emphatic on other occasions.[1335]

But in a subsequent debate Lord Fitzmaurice appears to have qualified

his statement, and quoted the observation of Lord Salisbury that where

the coast was “folded and doubled,” as where bays exist, it was an

unsettled question in international law how far territorial waters

extend in such cases.[1336]

Rather a different view was taken by the Lord Chancellor, a few weeks

later, in the course of another debate about the Moray Firth. Lord

Loreburn confined himself to saying that the obvious contention of

other nations, and one very difficult to encounter, if we tried to

make byelaws under our own law in regard to waters within a line

from headland to headland eighty-five miles apart, would be that

we might be trying to legislate for the high seas.[1337] And in a

debate in July 1908, the Secretary for Foreign Affairs (Sir Edward

Grey) put the matter in an exceedingly lucid manner. Parliament had

recognised the contention, he said, that there ought to be special

regulations, especially in regard to the Moray Firth, going far beyond

the three-mile limit; and, like other members of the Government, he

condemned the action of British subjects who, knowing perfectly well

the law, made use of a foreign flag to evade the regulations of the

Moray Firth, which it was obviously the desire of Parliament should

be enforced. But when they came to the question of enforcing the law

on foreign subjects, they were placed in a very difficult position.

The national policy of this country hitherto “had been to uphold the

three-mile limit, but to protest against and to resist by every means

in our power the pretension of any foreign country to enforce its own

jurisdiction on the sea beyond the three-mile limit.” We had contended

before international tribunals, as in the Behring Sea Arbitration, that

the three-mile limit is the only one we can recognise as the limit of

foreign jurisdiction over British vessels; and suppose we attempted to

enforce a doctrine going far beyond the three-mile limit on foreign

ships, how could we contend before an international tribunal for a

doctrine precisely the reverse of that which we have always upheld on

previous occasions? It followed from this that “if there was to be

a modification of the rules relating to trawling in the North Sea,

it must be by agreement with foreign Powers”--that was really the

practical point upon which the matter turned. But in an important

question affecting the interests of the country at large, it was

impossible for the Foreign Office to approach other Powers with the

view of reaching an agreement until it was quite clear that it was in

the interest of a policy which had been adopted, affirmed, and declared

by the Government to be a policy which was in the general national

interest of the United Kingdom. Judging from the very great force with

which the case in such regions as the Moray Firth had been presented,

and the strong feeling that existed and which was not confined to the

Moray Firth, it had always seemed to him that there was a case for

grave consideration as to whether any new regulations were required for

the preservation of the fishing industry in the North Sea at large.

Trawling was a perfectly legitimate industry in which large capital was

invested, and if further restrictions were to be imposed on it, it must

be because a really important national interest required it; it would

not be right to adopt in the interests of particular localities any

special restrictions which might result in diminishing the supply and

raising the price of fish. But, having laid down these two principles,

Sir Edward Grey thought it was equally true that if the supply of fish

from the North Sea is being affected by want of further regulations,

then the interests of any particular industry must be subordinated

to the general interest, which in the long-run was also the interest

of the industry itself. “If it be the case,” he proceeded, “that in

areas like the Moray Firth, which are important breeding-grounds, the

supply of fish is being seriously interfered with by the prosecution

of trawling in narrow waters, then it becomes a matter of national

interest that we should, as soon as possible, come to some agreement

with foreign Powers under which we should be able to make the

arrangements which prove to be necessary in the national interest at

large.” The subject was one requiring the deliberate investigation of

the Government, and the investigation was proceeding; and they should

know in the course of a reasonable time whether or not the Government

thought they had a case for approaching other Powers, and if so what

were the grounds and propositions they should ask those Powers to agree

to. With regard to bays, the Foreign Secretary said it had generally

been understood that the qualification of the three-mile limit applied

to bays ten miles wide, and they must be very careful as to how far

they pressed the doctrine as to the width of a bay, or laid down an

international doctrine on any particular bay. They must think of what

the application of it might be in other parts of the world.[1338]

In this statesmanlike speech the case was put temperately and fairly.

Whether the Moray Firth is or is not a territorial bay, it has been the

general practice of the British Government to contend for the ordinary

three-mile limit, at least on open coasts, in relation to fishery

questions. If there are clear reasons for the extension of this limit

at any part of the coast, or in the North Sea generally, in the common

interests of the fisheries, as recommended by the Select Committee

of the House of Commons in 1893; or for the prohibition of trawling

within a great area on the Continental coast, as urged by the English

trawlers, and recommended by the Parliamentary Committees of 1900 and

1904; or if it is believed to be necessary to regulate the fisheries in

any way beyond the ordinary limit, then obviously the best method is to

endeavour to come to an arrangement with the other Powers concerned.

There are precedents for this course in British policy. By treaties

with France, the British Government agreed to bind British subjects not

to fish for oysters or any kind of fish within Granville Bay in waters

beyond the ordinary limit. In the interests of the preservation of the

fur-seal, in which the United States was mainly concerned, they agreed

to prohibit British subjects from taking them within a limit of sixty

miles around the Pribilov Islands, and to compel them to observe a

close-time on the high seas, and to use only the primitive spear. They

have also by treaty agreed to respect various other limits beyond the

ordinary three miles in the interest of the preservation of other kinds

of seals. The case of the North Sea, or of that inlet of it known as

the Moray Firth, is on the same footing as these. The question is not

one of the extension of territorial sea _qua_ territorial sea, but of

special regulations independent of it, and exclusively relating to the

fisheries.

From what has been said in foregoing pages as to the impoverishment of

the fishing-grounds in the North Sea, and the various remedies that

have been at one time or another proposed by the English trawlers and

by Parliamentary Committees with the view of maintaining the fish

supply, it might appear that a very good case already existed for

approaching foreign Powers with the object of arranging for general

regulations beyond the ordinary limit, and one far weightier than that

which brought about the conference at The Hague and the North Sea

Convention in 1882 (see p. 631).

Two probable reasons may be advanced for the delay in giving effect

to the recommendations of the various Committees of Parliament. The

first is that a very important international investigation of the North

Sea and adjacent waters has been in progress for a number of years

and is still going on. On the invitation of the Swedish Government,

representatives of Great Britain, Germany, Russia, the Netherlands,

Denmark, Sweden, and Norway met at Stockholm in June 1899, and again

at Christiania in May 1901, to discuss and arrange an organisation

and a programme for an international scientific investigation of the

North Sea, the Norwegian Sea, and the Baltic, in the interests of

the fisheries; and in July 1902, the first meeting of the body so

constituted, the International Council for the Exploration of the

Sea, was held at Copenhagen. Since then all the maritime countries of

Western Europe, with the exception of France, have engaged in these

researches.[1339] This country entered into the arrangement with

special reference to the fisheries in the North Sea, and with a very

practical end in view--namely, to secure a careful inquiry into the

effect of the methods of fishing in the North Sea, and to promote a

scheme for determining whether protection against overfishing was

required; and, if so, where, when, and how such protection should be

given.[1340] Much strong criticism has been passed as to the origin,

the methods, and the programme of these investigations,[1341] and while

they have naturally resulted in large additions to our knowledge of the

physical and biological conditions of the sea, of the life-history of

fishes, and of certain fishery questions, no report has yet appeared

dealing with the fundamental problem as to overfishing and any remedies

which may be required to safeguard the fish-supply; and it is doubtless

such information that is referred to by the Foreign Secretary as

essential before Foreign Powers can be approached. An opinion was,

however, early expressed as to the particular question of the Moray

Firth. The Conference held at Christiania in 1901, at which all the

Powers signatory to the North Sea Convention (with the exception of

France) were represented, passed a resolution to the effect that “in

distinct areas of the sea, as for example the Moray Firth, in which

any Government has undertaken scientific experiments in the interest

of the fisheries, and in which the success of the experiments is being

hindered by the operations of trawlers, it is to be desired that

measures be adopted for the removal of such hindrances.”[1342]

The second probable reason that nothing has yet been done to arrive at

an international understanding appears to be that the representatives

of the great trawling industry have changed their minds within

the last few years. Since foreign coasts have been exploited with

immediate financial success to the trawling companies, their interest

in the North Sea has diminished. They fear that if the question of

fishery regulations beyond the ordinary three-mile limit is opened

up with foreign Powers in the interest of the North Sea fisheries,

proposals may be made, as a _quid pro quo_, by some of the other

Powers for similar regulations on their coasts; and it is evident

from the statements made in Parliament that this view has hitherto

prevailed.[1343] One would have thought that a _quid pro quo_ which

closed to trawling the great area off the Continental coast, which

English trawlers for more than fifteen years have been vainly asking to

be closed by international arrangement, would be satisfactory to them.

Or that a fishery limit of nine or ten miles on the other side of the

North Sea, or all around it, which they thought some years ago to be

the best remedy for the depletion of the fishing-banks, would meet

with their approval. These areas, compared with the whole of the North

Sea, are comparatively of small extent (see fig. 26). The area of the

North Sea between the three-mile line and a nine-mile limit amounts to

about 12,000 square miles, or 7·4 per cent of the whole area beyond

three miles from the shore; and the area between the three-mile line

and a thirteen-mile limit amounts to about 20,000 square miles, or 12·3

per cent.

Meanwhile, the condition of the fishing-grounds in the North Sea is

described as serious by those who ought to know most about it--the

trawlers who are daily working there; and if no remedy is timeously

applied, the measures which will eventually be necessary will transcend

those which are now proposed.[1344]

But if it be imprudent to postpone indefinitely the seeking of an

international remedy for the depleted fisheries of the North Sea,

because the trawling industry fears that retaliatory measures may be

proposed against British trawlers on some foreign coasts, it may be

questioned, on the other hand, whether the action taken to obviate

such measures has always been well-judged or in accordance with the

true comity of nations. On strictly selfish grounds, and for immediate

profit, it is doubtless justifiable to make every fishing-bank,

wherever it is situated, available for the enterprise of British

capital, irrespective of the interests of the inhabitants of the

adjoining coast, if that can be managed. If, indeed, the resources of

the sea were inexhaustible,--if it was impossible for the operations

of man to diminish the abundance of fish,--then no limit of exclusive

fishing would be necessary: only such regulations would be required

as would enable fishing operations to be conducted in an orderly

manner. But the condition of the North Sea alone proves the opposite.

It shows also, what is well enough understood, that unrestrained

trawling on any banks will, in course of time, materially reduce

their productiveness; and the rapidity of the impoverishment will

very largely depend upon the intensity of the fishing and the extent

of the grounds. That being so, it may well be said that a measure of

protection on the banks which are still productive along foreign coasts

would be in the permanent interest of the English trawling industry

itself, as well as in the interest of the coast population.[1345]

On some of those coasts the local population are dependent on the fish

they catch on the neighbouring grounds, which are often of limited

extent, and it is reasonable and just that they should endeavour to

preserve this supply for their own use and advantage. At Iceland, for

example, the area of the possible fishing-grounds between the ordinary

three-mile limit and a depth of 200 metres (or 109 fathoms), including

places where trawling is not practicable, amounts to about 36,600

square miles, compared with nearly 312,000 square miles between the

same limits off the British Isles.[1346] It was recently stated in the

House of Lords, by Lord Heneage, that the Icelanders, with the view of

preserving their fishing-grounds, a few years ago brought forward a law

in the _Althing_, or local Parliament, to extend the limit of exclusive

fishing to seven miles around their coast. It was also said that in

1901 they passed laws for enclosing extra-territorial waters. As soon

as these proceedings came to the knowledge of the English trawl-owners,

the National Sea Fisheries Protection Association made a representation

on the subject to the Foreign Office, and in consequence of this the

Danish Government took action, and the law was prevented from coming

into operation.[1347] And any such action in the future was effectually

prevented by the immediate negotiation of an international convention

in which a three-mile limit was fixed for Iceland and Faröe (see p.

647) so far as concerned British fishermen. Then with respect to the

coasts of Spain and Portugal, where the available grounds are narrow,

amounting altogether between the three-mile limit and the 200-metre

line to 15,460 square miles (see fig. 28), intimation has been made

by the British Foreign Office, at the instance of the National Sea

Fisheries Protection Association, that jurisdiction will not be

recognised over British vessels beyond three miles from the shore,

and the national regulations in regard to trawling are thus rendered

comparatively ineffective. With regard to Norway, moreover, where the

area between the three-mile limit and the 200-metre line exceeds 30,000

square miles, it appears that soon after her separation from Sweden,

in 1905, the British Foreign Office made the proposal that she should

join in the North Sea Convention (which, along with Sweden, she refused

to do in 1882), so that the ordinary three-mile limit might be imposed

along the Norwegian coast; but the proposal was rejected.[1348]

In view of the evidence that has been adduced, the recommendations

of the various Committees of Parliament that have inquired into the

subject, and the statements made in the House of Commons, it may be

assumed that an international conference of the Powers bordering the

North Sea will be convened, to consider how fishery regulations may be

made more effective, whether by extension of the limits of exclusive

fishery or otherwise, as soon as the results of the international

fishery investigations justify that course.

APPENDIX A.

(P. 45.)

THE LIBEL REGARDING REYNER GRIMBALD.

DE SUPERIORITATE MARIS ANGLIÆ ET JURE OFFICII ADMIRALLATUS IN EODEM.

(Chancery Rolls, Miscellaneous. Treaties and Diplomatic. Bundle 14, No.

15, Mem. 12.)

A vous Seignurs Auditours Deputez par les Roys Dengleterre et de

Fraunce a redresser les damages faitz as gentz de lour Roialmes et

des autres terres subgiz a lour seignuries par meer et par terre en

temps de pees et de Trewes monstrent les Procureurs[1349] des Prelatz

et Nobles et del Admiral de la meer Dengleterre et des Comunaltes

des Citees et des Villes et des Marchanz Mariners Messagers et

Pillerins et de tous autres[1350] du dit Roialme Dengleterre et

des autres terres subgies a la seignurie du dit Roy Dengleterre et

daillours sicome de la Marine de Genne Cateloigne Espaigne Alemaigne

Selaunde Heylande Frese Denemarch et Norweye et de pluseurs autres

leux del empyre qe come les Roys Dengleterre par raisoun du dit

Roialme du temps dount il na[1351] memoyre du contraire eussent

este[1352] en paisible possession de la souereigne seignurie de la

meer Dengleterre et des Isles esteans en ycele[1353] par ordinance et

establicement des lois estatuz et deffenses darmes et des vesseaux

autrement garniz qe vesseaux de Marchandise et de seurte prendre

et sauuegarde doner en tous cas qe mestier serra et par ordinance

de tous autres faitz necessaires a la garde des pees droiture et

equite entre toute[1354] manere des genz taunt dautri seignurie

come leur propre[1355] par illeqes passanz et[1356] par souereigne

garde et[1357] tote manere de conisance et Justice haute et basse

sur les dites loys estatuz ordinances et deffenses et par tous

autres faitz queux a le gouernement[1358] de souereigne seignurie

appartenir purront es leux auantdiz. Et A. de B. Admiral de la dite

meer deputez par le Roy[1359] Dengleterre et tous les autres Admirals

par meisme celui Roy Dengleterre[1360] et ses Ancestres iadiz Roys

Dengleterre eussent este[1361] en paisible possession de la dite

souereigne garde[1362] oue la conisance et Justice et tous les autres

appurtenances auantdites horspris[1363] en cas dappel et de querele

faite de eux a lour souereignes Roys Dengleterre de deffalte de droit

ou de mauueis iuggement et especialment par empeschement mettre et

Justice faire[1364] seurte prendre de la pees de tote manere des genz

vsanz armes en la dite meer ou menanz Nefs autrement apparaillees ou

garnies qe nappartenoit au[1365] Neef Marchande et en tous autres

pointz en queux homme poet auoir resonable cause de suspecion vers

eux de roberie ou des autres mesfaitz.[1366] Et come les Meistres des

Neefs du dit Roialme Dengleterre en absence des diz Admirals eussent

este en paisible possession de conustre et juggier de tous faitz en la

dite meer entre tote manere des gentz solonc les loys estatus et les

deffenses franchises et Coustumes.[1367] Et come en le primer article

de lalliaunce nadguers faite entre les diz Roys en les traitiz sur la

darraine pees de Paris soient comprises les paroles qe sensuient en

vne cedule anexe ayceste.[1368] Primerement il est traite et acorde

entre nous et les messages et les procureurs desurdiz en nonn des diz

Roys qe yceux Roys serrount lun a lautre desores en auant bons verays

et loiaux amys et eydanz countre tout homme sauue lesglise de Rome en

tiele manere que si ascun ou pluseurs quicunques ils fuissent voloient

deponticer [_sic_] empescher ou troubler les diz Roys es franchises es

libertez priuileges es droiz es droitures ou es custumes de eux et de

lour Roialmes qils serront bons et loiaux amys et aydanz countre tout

homme qi puisse viure et morir a defendre gardir et mainterer[1369]

les franchises les libertez les priuileges les droiz les droitures et

les coustumes desusdites Excepte[1370] le dit Roy Dengleterre Monsieur

Johan Duc de Braban en Brabant et ses heirs dessenduz de lui et de la

fille le Roy[1371] Dengleterre et excepte pur le dit nostre seigneur

le Roy de Fraunce excellent Prince Monsieur Aubert Roy Dalemaigne

[et] ses heirs Roys Dalemaigne et Monsieur Johan Counte de Henau en

Henau. Et que lun ne serra en consail ne en ayde ou lautre perde vie

membre estat ne honur temporel [Mem. 12_d_] Monsieur Reymer Grymbaltz

Meistre de la Nauie du dit Roy de Fraunce qi se dit estre Admiral de

la dite Meer deputez per soun seignur auantdit pur sa guerre countre

les Flamaings apres la dite alliaunce faite et affirmee et[1372] contre

la fourme et la fource de meisme lalliance et lentencion de ceux qi

la firent loffice deladmiralte en la dite Meer Dengleterre[1373] par

commission du Roy[1374] de France torsenousement enprist et usa un an

et plus en parnant les gentz et[1375] marchantz du Roialme Dengleterre

et daillours par la dite meer passanz euesque leur biens[1376] et

les gentz ansi prises liuera a la prison de soun dit Seignur le Roy

de Fraunce et lour biens et[1377] Marchandises a les Receiuours par

meisme celui Roy de Fraunce[1378] a ce[1379] deputez en les Portz de

soun dit Roialme come a lui forfaites et acquises fist amener par

soun iuggement et agard[1380] et la prise et detenue des dites gentz

oue[1381] lour diz biens et marchandises et soun dit iuggement et

agard sur la forfaiture de eaux et acqueste[1382] ait Justice deuant

vous Seignurs Auditours en escript par my lautorite de la[1383] dite

commission sur ladmiralte auantdite par lui ansi vsurpee et par my

vne deffense communement faite par le Roy[1384] Dengleterre par my

soun poer solonc la forme du[1385] tiers article de lalliaunce auant

dite qi contient les paroles desouzescriptes en requerant que de ce

il en fuisse quitz et assouz en grant damage et preiudice du dit Roy

Dengleterre et des Prelatz et Nobles et autres desusnomez par quoy

les diz procureurs en les nouns de lour diz Seignurs[1386] Auditours

auantdiz prient que deliuerance dewe et hastiue des dites gentz ouesqe

leur biens et marchandises ansi prises et detenues facez estre faite

al Admiral du dit Roy Dengleterre a qi la conisance de ce appartient

de droit sicome desus est dit ansi qe[1387] sans destorbance de vous

et dautri[1388] puisse de ce conustre et faire ce qe appartient a

soun office auant dit et qe le dit Monsieur Reyner soit condampne et

destreint affaire dewe satisfaction a tous les diz damagez si auant

come etc.[1389] Item vous requirent les diz procureurs que come solone

les anxnienes[1390] loys franchises et coustumes du Roialme Dengleterre

a la garde des queles vostre dit seignur le Roy et ses auncestres Roys

Dengleterre soloient estre liez par lour sermentz Lour Admirals de la

Meer Dengleterre oue[1391] les Maistres et Mariners nefs[1392] des

Portz de la Marine Dengleterre esteans en les[1393] armees des diz

Admirals ne deuoient[1394] respondre deuant nuls Justices des Roys

auantdiz[1395] sur fais en la Meer susdite durans lours[1396] guerres

countre lour enemis et le dit Admiral vostre dit seignur le Roy et

plusours des Maistres et Mariners des Portz auantdiz ore esteans en sa

Armee countre les[1397] enemis Descoce et lour aydans et alliez par

expres mandement de vostre dit seignur le Roy soiient accusez deuant

vous par gentz de Normandie et de Bretaigne et daillours sur ascuns

faitz en la dite Meer en temps de trewes et puis la pees afferme entre

les diz Roys Dengleterre et de Fraunce et auant la guerre comencee

entre eaux a ce qest dit. Vous plaise surseer es proces countre eux ia

comencee et deporter de comencer nouel durant la guerre susdite ansi

qils naient mestier de se[1398] complaindre a vostre dit seignur et as

Prelatz et Nobles de soun dit Roialme par leur serment liez a les dites

loys franchises et coustumes garder et maintenir.

APPENDIX B.

(P. 49.)

PROCEEDINGS BEFORE THE AUDITORS DEPUTED BY THE KINGS OF ENGLAND AND

FRANCE FOR THE REDRESS OF THE GRIEVANCES BETWEEN THE SUBJECTS OF THE

TWO COUNTRIES. 27-33, Edw. I.

(Abstract of Chancery Miscellaneous Roll. Bdle. 5, No. 6.)

RICHARD BUSH _against_ REYNER GR MAUS.

LIBEL (_Libellus_).

Richard Bush of London complains that a ship called “la Blacog̃” of

London, going from Winchelsea to Dieppe in August 1301, containing

goods to the value of £157, was attacked by Michel de Navere and

others of Calais, and his said goods taken thither and there disposed

of by said Michel and Henry de Ganewe. Said Richard demands restoration

of goods and £20 damages.

DENIAL (_Contestatio negativa_).

The said “Cheual̃” asserts that he was not in that country at the time

specified, nor for nearly a year afterwards.

REJOINDER (_Repplicatio_).

To the answer of the “chevalier” that he was not admiral till some time

after the events specified, the attorneys of said Richard reply that

they will advise with their master as to the truth.

William Bush of London loaded a ship called “la Mariote de Seland” at

Antwerp for London with goods to the value of £175, 17s. 8d. Michel de

Nauere and others of Calais came with three galleys to the foreland of

Thanet at the mouth of the Thames in May 1298; took said ship to Calais

and there disposed of the goods by the aid of Henri de Ganewe. Said

William demands restoration and £20 damages.

To the demand of William Bush the said John[1399] replies “en la

maniere q̃ il fait a la demande Cecile,”[1400] that it does not concern

him, but “mos̃ Henri et Michel de Nauare.”

Said William further complains that he loaded a ship called “la Blithe”

of London in Brabant for London with goods, value £40. John Pederogh

seized them at the mouth of the Thames in July 1303, took them to

Calais, and there disposed of them by the aid of Edward de Mabusshon.

William demands restoration and £8 damages.[1401]

Said John replies that at the time specified he was not on the sea at

all but in Paris or on the road to Calais.

THOMAS CROS _against_ JOHN PAYDRO.

LIBEL.

Thomas Cros of London, executor of the will of Thos. Cros his father,

who was executor of Henry Box of London, complains that said Henry

loaded the ships William le fiz Henri, Godefroi de Duffle, Michel de

Middelborgh, Johan Athelard, Johan le Chaundeler in London, to go to

Brabant (which ships were of Brabant) with goods value £672; Michel de

Nauuere and others of Calais with three galleys seized said ships off

the foreland of Thanet in May 1298, took the goods aforesaid from said

ships and in their galleys to Calais, and there disposed of them by the

aid of Henry de Genewe. Said Thomas Cros demands restoration and £100

damages.

EXCEPTION REQUIRING DELAY (_Excepc̃o dilatoria_).

The said John says it is not for him to reply, as the complaint

concerns not him but mos̃ Henri de Genes and Michel de Nauare, who are

abroad where they cannot be had.

“Watier le Hert de Mallins” and Rose de Salisbery of London loaded at

London a ship called the Johan Azelard de Mallins with goods value

£28, 19s. 2d. Michel de Nauare and others of Calais with three galleys

seized said goods out of said ship, then anchored off the foreland of

Thanet (May 1298), took them in their galleys to Calais, and disposed

of them by the aid of mons̃. Henri de Genewe. Said Watier and Rose

demand restoration and £6 damages.

Cecile atte More of London loaded at London for Brabant the ships

William Petersone of Seland, William Henriessone of Seland, Johan le

Chandeler, with goods value £158, 19s. Michel de Nauere and others of

Calais in May 1298 seized said goods out of said ships (then anchored

off Thanet) and disposed of them at Calais by the aid of Henri de

Genewe. Cecile claims restoration and £20 damages.

Cecile atte More complains that in July 1303 Johan Pederogh and others

seized goods of the said Cecile at the mouth of the Thames out of a

ship called “la Blithe de Londres” coming from Brabant, and disposed

of them at Calais by the aid of mos̃ Edward de Mabusshon: value £10.

Cecile prays restoration and 40s. damages.

Said John replies that at the date specified he was at Paris or on the

road to Calais, and not on the sea at all.

Thomas atte Hurst of London loaded at Berwick the “Distaf de Haneford”

for London, with goods to the value of £11, 18s. 8d. They were seized

by men from Calais off Blakeney on the Tuesday after Saint Bartholomew

1303,[1402] and disposed of at Calais. Thomas prays restoration and

damages.

The said John [_sic_] says that the above demand concerns “mi sire

Reniers de Grimaus” only, for he was then admiral, and said John was on

shore at the date specified. Said John was only in the company of said

Reniers “en Sellande et en Horlande.”

To the demand of Thos. atte Hurst touching goods seized from the

“Distaf de Haneforde” by Johan Peidroge, Clay Clinkhamer, Piers Hues,

and others in 1302 [_sic_], the said “Oudart” [_sic_] replies as he did

to the claim of Alayn de Thorndon. [_See below._]

Aleyn de Thornden, burgess of “Lenn,” loaded a ship in Scotland

belonging to Nichol de Caith̃ with goods value £133 for Brabant,--mons̃

Odard de Maubusshon, Johan Peidrgroge, Johan de la B..ge.lour, “soen

frere Lani yacop” Gusse Odin, Johan le parker, vaaseur le Mariner,

Hirnolet le Man and Petre le Puttere, in August 1304 seized the ship

off Kirkele, killed the crew, and disposed of ship and goods at Calais.

Aleyn demands restoration and damages, value in all £143.

The said John replies that he and others named in above plaint at the

date specified were in Holland and Zeeland. “Car le iour de la Seint

Laurence[1403] il se combatieront en Selande as Flamens as Baion̄ois et

as Engleis qi estoient en lour aide.”

William Quineberge, burgess of Lynn, loaded his own ship, the

“Nicholas,” at Lynn for Scotland with goods, value £35, 15s. 8d.--Odard

de Maubusshon, Johan Perdroge, Johan Huard, Gusse Odin, Simond Danyn,

Johan Allestein, Clay Clinchamer, Vaaseur le Mariner, Johan Paye, and

Petre le Pottere in August 1303 plundered the ship off Scarborough,

killed a mariner, and disposed of the goods at Calais. William demands

restoration and £10 damages.

Adam Honson of Gloucester loaded the ship of “Williame de Douere” at

Antwerp for England with goods, value £220. Odard de Maubusshon and

Johan Peidroge of Calais, in September 1303, plundered said ship in

sight of Dover, “et illoeques la Nief deliuereront al auant dit William

de Douere” [_sic_]. Adam demands restoration and £60 damages.

Johan de Hetheye, William le Scherman, Rich. le Goldsmith, Johan le

Blunt, Will. de Nesse, Johan Gode, and Wauter Top loaded the ship of

William Gare called “Michele de Arwe” in London with goods, value £556,

3s. 8d., for Brabant.

Sire Reyner Grimbaud, admiral, on the high seas, the Sunday after

Michaelmas 1303,[1404] seized said ship and goods and took them “a Roem

en Normandie”; sent the crew to Calais, where some were put in prison,

and one still remains. Plaintiffs demand restoration and £100 damages.

To the complaint touching “la Michele de Arwe,” seized on the Sunday

after Michaelmas 1304 [_sic_], the “chiualer” confesses he took such a

ship in that year but not of the value named: “ains fu prise la dite

Nief a la Suyne a la pointe du Jour oue poer des enemys as Ancres.”

He seized it rightfully, the said ship consorting with the enemies of

France. The crew were taken, without force, and letters were found in

the ship to those of Bruges concerning money to be received in that

town; those put in prison all escaped except Johan de Masworth, who is

still there. The “chiualer” deems both persons and goods forfeit to the

King of France.

To the demand of John de Masworth for restoration of goods and liberty,

the “chiualer” says he is in prison as a malefactor against the King of

France, and that the commission of the deputies does not extend to such

cases.

ADAM DE FULHAM _against_ JOHN PAYDROGE.

LIBEL.

Adam de Fulham of London complains that in the year 1302 men of Calais

attacked the “Margarete de Jernemuth” off Orfordenessh going to London,

killed the crew, and took the ship and goods to the value of £20 to

Calais and there disposed of them. Demands restoration and damages.

DENIAL.

To the demand made by Adam de Fulham against said John and others

touching violence done to him between “le Seint Martin et le

Chaundeler” in 1302, said John replies as he did to Johan de Chelchethe.

EXEMPTION REQUIRING DELAY.

To another demand of said Adam, said John replies as he did to William

Seruat.

JOHN DE CHELCHETE _against_ REYNER DE GRYMAUS.

LIBEL.

John de Chelchethe of London complains that in 1302 John Padrogh

and others of Calais attacked the “Margarete de Jernemuth” off

Orfordenessh, killed the crew, and took ship and goods to Calais.

Demands restoration and damages, value in all £39, 5s. 8d.

EXEMPTION REQUIRING DELAY.

Said John Padrogh replies as he did to William Seruat.

EDMUND LAMBY ... _against_ JOHN PAYDROGE.

LIBEL.

Said Edmund complains as others have done concerning the “Margaret of

Yarmouth.” His goods therein were of the value of £12.

GILBERT DE ASSHENDON _against_ JOHN PAYDROGE.

LIBEL.

Said Gilbert de Asshendon of London complains that the “Distaf de

Haneford” loaded at Berwick for London was taken off Blakeney in 1303

(Tuesday after St Bartholomew). Demands restoration and damages, value

in all £8, 10s. 4d.

DENIAL.

Said John replies that at the date specified he was on dry land at

Calais.

To this demand against Johan Peidroge, Clay Clinkhanner, Piers Hues,

Stace Swares, and Johan Huares, Oudart replies as he did to Alein de

Thornden.

APPENDIX C.

(P. 65.)

LICENSE FOR FISHING AT THE “ZOWE” BANK IN THE CHANNEL.

(State Papers, Domestic. James I., Vol. 81, No. 3. 1615.)