torri, e spiagge del Gran Ducato non potrà usarsi atto veruno di
ostilità nella distanza, che potrebbe circoscriversi da un tiro di
cannone.” _Op. cit._, 24.
[1048] 4th March 1779. “Nè generalmente dentro la distanza di un tiro
di cannone da terra.” _Op. cit._, i. 52.
[1049] 1st July 1779. “Nei porti, golfi, e spiagge del nostro dominio
nella distanza, che potrebbe circonscriversi da un tiro di cannone.”
_Op. cit._, 64.
[1050] 9th Sept. 1779, Arts. viii., ix. “Ed in tutti mari ad essi
adjacenti, limitati, almeno allo spazio circoscritto dalla portata d’un
grosso cannone di batteria.” _Op. cit._, i. 78.
[1051] Jenkinson (Lord Liverpool), _A Discussion on the Conduct of the
Government of Great Britain in respect to Neutral Nations_ (1758), ed.
1801, Pref. Phillimore, _Commentaries_, iii. 273. Wheaton’s _Elements_
(ed. 1864), 1024. Martens, _Recueil_, iii. 158, _seq._
[1052] Mutual protection was to be afforded “dans leurs ports ou rades,
mers internes, passages, rivières, et aussi loin que leur jurisdiction
s’etend en mer.” 8th Oct. 1782, Art. v. Martens, _op. cit._, 433.
[1053] “À la portée du canon des châteaux de l’autre.” _Vide_ Martens
and De Cussy, _Rec._, i. 381.
[1054] 26th Sept. 1786, Art. xli. “Leurs dites Majestés ne souffriront
point que sur les côtes, à la portée du canon, et dans les ports et
rivières de leur obéissance, des navires et des marchandises des sujets
de l’autre soient pris par des vaisseaux de guerre, ou par d’autres
qui seront pourvus de patentes de quelque prince, république, ou ville
quelconque,” &c. Martens, _Rec._, iv. 178.
[1055] 11th Jan. 1787, Art. xxviii. “... Hors de la portée du canon des
côtes de son allié ... dans les ports, havres, golfes et autres eaux
comprises sous le nom d’eaux closes.” By Article xx. the salute was
abolished. _Ibid._, 207, 210. The mention of closed waters no doubt
referred to the Baltic, which was declared to be a closed sea (_une
mer fermée_), into which the armed vessels of belligerents were to
be refused entry, by a decree of the King of Denmark in 1780, and by
conventions between Russia and Denmark and Sweden in the same year, and
between Russia and the United Provinces and Prussia in the following
year. _Ibid._, iii. 175, 195, 219, 250.
[1056] 17th Jan. 1787, Art. xix. _Ibid._, iv. 237.
[1057] 7th August 1803. Martens, _Recueil_, 2. viii. 105.
[1058] Martens, _Recueil_, iii. 763, 10th Sept. 1784, Art. vi.
[1059] See p. 527.
[1060] Oct. 28, 1790, Art. iv. Martens, _ibid._ iv. 489, 497. Wheaton,
_Elements_, 307 (ed. 1864).
[1061] Wheaton, _Elements_, 723 ; President’s Proclamation of
Neutrality, April 22, 1793; Mr Jefferson, Secretary of State, to M.
Genet, 8th Nov. 1793; Wharton’s _Digest of the International Law of the
United States_, i. c. 2, s. 32.
[1062] Opinion of Attorney-General, 14th May 1793; Letter of Sec. of
State to the French Minister, 15th May 1793; Kent’s _Commentaries_,
i. 30. Delaware Bay, it may be said, has always been, and still is,
claimed as territorial water by the United States. _Vide_ reply of
Government of United States to Observations of British Government on
Draft Treaty, 1887. Correspondence relative to the Fisheries Question,
1887-1888. _Parl. Papers (Canada)_, 1888, p. 70.
[1063] Act of Congress, 5th June 1794, c. 50. Kent’s _Commentaries_, 30.
[1064] Wheaton, _Elements_, 724.
[1065] Wharton’s _Digest_, i. c. 2.
[1066] Mr Madison to Messrs Monroe and Pinckney, 17th May 1806. Kent,
_Commentaries_, i. 31.
[1067] Hall, _A Treatise on International Law_, Part II. c. ii. s. 2.
[1068] The High Court of Admiralty, for instance, decided in 1760 that
a French vessel taken by an English privateer at Hayti was not good
prize, as it had been attacked while in a port belonging to the King of
Spain, “within reach of his cannon and under his protection” (Marsden,
_Report of Cases determined by the High Court of Admiralty_, 175).
[1069] There were two cases of _Twee Gebroeders_--the first (Alberts,
master) tried on 29th July 1800; the second (Northolt, master) tried on
27th November 1801.
[1070] Robinson, _Reports of Cases Argued and Determined in the High
Court of Admiralty_, iii. 162. London, 1802.
[1071] _Ibid._, 339.
[1072] _Ibid._, v. 373.
[1073] _Vide_ Chief Justice Cockburn, _Law Reports, Excheq. Div._,
ii. 178. It is a curious circumstance that many English writers on
municipal law, even after this time, adhering to a different line of
inquiry, clung tenaciously to the husk of the old claims of England to
the sovereignty of the sea. Hale, as we have seen, followed Selden, as
did Hargrave and Blackstone, though with apparent diffidence. Chitty,
in his _Treatise on the Law of the Prerogative of the Crown_, published
in 1820, relying on Selden, Hale, and Molloy, declares that “the king
possesses the sovereign dominion in all the narrow seas, that is, the
seas which adjoin the coasts of England, and other seas within his
dominions” (p. 173); and that he “has an undoubted sovereignty and
jurisdiction, which he has immemorially exercised, through the medium
of the admiralty courts, over the British seas, that is, the seas which
encompass the four sides of the British islands; ... the law of nations
and the constitution of the country have clothed the sovereign with
this power, that he may defend his people and protect their commercial
interests” (p. 142). He also assigns the soil under the sea to the
king. Hall, in his _Essay on the Rights of the Crown and the Privileges
of the Subject in the Sea Shores of the Realm_, published in 1830,
states the doctrine even more nakedly. After defining the British seas
according to Selden, he says, “Over the British Seas, the King of
England claims an absolute dominion and ownership, as Lord Paramount,
against all the world. Whatever opinions foreign nations may entertain
in regard to the validity of such claim, yet the subjects of the King
of England do, by the common law of the realm, acknowledge and declare
it to be his ancient and indisputable right.” Hall also assigns the
bottom or _fundum_ of the British seas to the king, the authorities
cited being Coke, Callis, Molloy, Hale, and Blackstone. Loveland, the
editor of the second edition of Hall’s _Essay_, which was published in
1875, does not attempt to qualify the statements. It was not, indeed,
till after the decision in the case of the _Franconia_ in 1876, and
the Territorial Waters Jurisdiction Act of 1878, that the doctrine was
abandoned in theory by English lawyers. Even Moore, the editor of the
third edition of Hall’s _Essay_, which appeared in 1888, while pointing
out the alteration of the law by the decision in the _Franconia_ case,
and by the Territorial Waters Jurisdiction Act, thought it undesirable
to vary Hall’s text, having regard to the diversity of the opinions
expressed by the judges in the case referred to. _Vide_ p. 590.
[1074] Convention, 1818, Art. i. “... And the United States hereby
renounce for ever any liberty heretofore enjoyed or claimed by the
inhabitants thereof to take, dry, or cure fish on or within three
marine miles of any of the coasts, bays, creeks, or harbours of his
Britannick Majesty’s dominions in America not included within the
above-mentioned limits.” Wheaton, _Elements_, 324, 463 (ed. 1864).
_Parl. Papers, North America_, No. 1 (1878). Henderson, _American
Diplomatic Questions_, 497.
[1075] Martens, _Nouv. Recueil_, V. ii. 358; Behring Sea Arbitration,
British Case, _Parl. Papers, United States_, No. 1 (1893), p. 38, App.
I. No. 1.
[1076] The Duke of Wellington to Count Nesselrode, 17th Oct. 1822; G.
Canning to the Duke of Wellington, 27th Sept. 1822; Count Nesselrode to
Count Lieven, 26th June 1823; G. Canning to S. Canning, 8th Dec. 1824;
S. Canning to G. Canning, 3rd April 1825. _Parl. Papers_, _ibid._, 41,
42, 44, 46, 56, App. II. pt. i. 14, 15, 29, 52, 57.
[1077] _American State Papers, Foreign Relations_, v. 452; _Parl.
Papers_, _ibid._, App. II. pt. ii. No. 5; Wheaton, _Elements_, 308.
[1078] Treaty between Russia and the United States, April 17th, 1824,
Art. i. iv.; treaty between Great Britain and Russia, 28th Feb. 1825,
Art. i. vii. Martens, _Nouv. Recueil_, vi. 684. _Parl. Papers_,
_ibid._, 52, 53.
[1079] In 1842. _Parl. Papers_, _ibid._, 83.
[1080] In 1846. _Ibid._, 84.
[1081] _Ibid._, 87.
[1082] _E.g._, the case of the _Leda_, in which Dr Lushington claimed
that the term United Kingdom included the waters to a distance of
three miles from the shore (Swa., _Adm._, 40); General Iron Screw
Company, in which Lord Hatherly said that it was “beyond question that
for certain purposes every country may, by the common law of nations,
legitimately exercise jurisdiction over that portion of the high seas
which lies within three miles from its shores,”--whether this limit was
determined by the range of cannon was not material, since it was clear
it extended at any rate to that distance (1 J. and H., 180); Whitstable
Fishery Case, in which it was said that the soil of the seashore to the
distance of three miles from the beach was vested in the crown, and
in which Lord Chelmsford observed that “the three-mile limit depends
upon a rule of international law, by which every independent state is
considered to have territorial property and jurisdiction in the sea
which washes their coast within an assumed distance of a cannon-shot
from the shore” (11 C.B. (N.S.), 387; 2 H.L.C., 192); the _Annapolis_,
in which Dr Lushington said. “Within British jurisdiction, namely,
within British territory, and at sea within three miles from the
coast” (1 Lush., _Adm._, 306); Rex _v._ Forty-nine Casks of Brandy, in
which Sir John Nicholl said that “as between nation and nation, the
territorial right may, by a sort of tacit understanding, be extended
to three miles” (3 Haggard, 257); Gammell _v._ Commissioners Woods
and Forests and Lord Advocate, in which Lord Wensleydale referred to
the distance of three miles as belonging, by the acknowledged law of
nations, to the coast of the country, and “under the dominion of the
country by being within cannon range, and so capable of being kept in
perpetual possession” (3 MacQueen, H.L., 419).
[1083] This subject is treated of by Mr A. H. Charteris, Lecturer in
International Law, University of Glasgow, in a paper read before the
International Law Association at Berlin in 1906 (_Twenty-third Report_,
103).
[1084] Two small islands in the Channel.
[1085] Bell, _Crown Cases Reserved_, 72. See Hall, _Internat. Law_, 5th
edit., p. 156; Westlake, _Internat. Law_, i. 118.
[1086] The Direct United States Cable Company _v._ the Anglo-American
Telegraph Company, Privy Council, 1877. _Law Reports_, Appeal Cases,
ii. 394.
[1087] 33 & 34 Vict., c. 90.
[1088] See pp. 592, 632.
[1089] Regina _v._ Keyn, _Law Reports, Excheq. Div._, ii., 1876-7, p.
63.
[1090] _E.g._, p. 204: “There are several treaties by which nations
have engaged, in the event of either of them being at war with a third,
to treat the sea within three miles of each other’s coasts as neutral
territory,” the treaties being those referred to on p. 572. “After
the three-mile theory had been propounded by Bynkershoek,” p. 177. Mr
Justice Amphlett went further, and attributed a similar doctrine to
Grotius: “All the earlier writers, including Grotius, the vigorous
advocate of the free navigation of the high seas, and many of the later
writers, maintained that within the zone of three miles the state had,
without qualification,” &c., p. 122.
[1091] 41 & 42 Vict., c. 73.
[1092] 58 & 59 Vict., c. 42.
[1093] _Hansard_, xxxiii. 504. The Lord Chancellor (Lord Herschell),
who followed, said : “He was far from saying that three miles was
to be the limit of territorial waters for all time. Originally the
distance was fixed by gunshot, and it was always said that the distance
a gun could fire to was three miles. How far this principle was to
be extended, and whether it was to be extended indefinitely, was a
question for consideration, and it was a question which would not be
without its difficulty.” Lord Salisbury referred to a gun which was
fired on Jubilee Day and carried twelve miles, and Lord Herschell to
one which had a range of thirteen miles.
[1094] 9 Geo. II., c. 35; 24 Geo. III., c. 47; Twiss, _The Law of
Nations in Time of Peace_, 261; Hall, _A Treatise on the Foreign Powers
and Jurisdiction of the British Crown_, 244.
[1095] 16 & 17 Vict., c. 107, ss. 212, 218; 39 & 40 Vict., c. 36, s.
179.
[1096] Kent, _Commentaries_, i. 31; Wheaton, _Elements_, 267, 323.
[1097] Riquelme, _op. cit._ See p. 569.
[1098] _Fifteenth Ann. Rep. Assoc. for Reform and Codification of the
Law of Nations_,. 18, 22; _Seventeenth_, _ibid._, 302; _Annuaire de
l’Institut_, xi. 151.
[1099] _Fifteenth Rep._, _ibid._, 84, 121; _Ann. de l’Institut_ for
1894. Customs Act of Canada, 49 Vict., c. 32, s. 21.
[1100] 26 Geo. II.; 6 Geo. IV., c. 78.
[1101] _Mer Territoriale_, 222; and see pp. 551, 560, 564.
[1102] Twiss, _op. cit._, 261-264; Phillimore, _Commentaries_, i. 236;
Kent, _loc. cit._; Wheaton, _loc. cit._; Hall, _loc. cit._ The latter
author states that they “repose on an agreement which, though tacit, is
universal,” and that “no civilised country encourages offences against
the laws of a foreign state when it sees that the laws are just and
necessary.”
[1103] _De la Liberté des Mers, ou le Gouvernement Anglois devoilé_,
1798.
[1104] _La Mer Libre, La Mer Fermée_, 1803.
[1105] _Institutions du Droit de la Nature et des Gens._
[1106] _De la Liberté des Mers._
[1107] _A Practical Treatise on the Law of Nations relative to the
Legal Effect of War on the Commerce of Belligerents and Neutrals._
London, 1812.
[1108] _Das Europäische Völkerrecht_, Berlin, 1817, p. 141.
[1109] “So weit der Schuss des Geschütses vom Ufer es bestreichen möge;
dies selbst nahm man mit noch ungebundenerer Will-Kühr auf 3 Lieues an.”
[1110] P. 564.
[1111] _Europäisches Völkerrecht_, Stuttgart, 1821, p. 204; _Droit des
Gens moderne de l’Europe_, 1819, III. ii. 130 (ed. 1831).
[1112] _A Digest of the Law of Maritime Captures or Prizes_, New York,
1815, c. ii. p. 55.
[1113] _Elements of International Law_, c. iv. ss. 6-10. London, 1836.
[1114] The King’s Chambers were, however, confined to the coast of
England. See p. 122.
[1115] _Commentaries on American Law_, i. Part I. Lect. iii.
[1116] _Commentaries on the Law of Nations_, p. 119. 1839.
[1117] _Das Europäisches Völkerrecht der Gegenwart_, Berlin, 1844. _Le
Droit International de l’Europe_, Paris, 1873, s. 75. “La ligne de la
portée du canon elle-même, bien qu’elle soit regardée comme de droit
commun, ne présente aucune base invariable et peut-être fixée par les
lois de chaque État, du moins d’une manière provisoire.”
[1118] _Researches in Maritime International Law_, i. 16. 1844.
[1119] _Règles Internationales et Diplomatie de la Mer_, i. 177.
[1120] _Histoire des Origines, des Progrès, et des Variations du Droit
Maritime International_, ed. 1858, p. 22.
[1121] _Traité des Prises maritimes_, i. 93. Paris, 1855.
[1122] “La portée du canon, placé à terre, est la seule limite réelle
et vraie des mers territoriales.”
[1123] _Le Droit commercial, dans ses rapports avec le Droit des Gens
et le Droit Civil_, Paris, 1844-47, tom. i. Liv. ii. tit. i. c. i. ss.
103-105.
[1124] _Plans and Proposals transmitted to the Committee on the
Fishery_, No. 1, &c.
[1125] _Reports by the Commissioners for the British Herring
Fishery_ for 1819, 1821, 1822; _Staatsblad_, No. 28, 4th April
1824, for a copy of which I am indebted to Mr H. van Hall, of the
Universiteits-Bibliotheek, Amsterdam. After a reference to the
previous decrees prohibiting the taking of herrings “between the
banks and rocks of Scotland,” as being injurious to the reputation
of Dutch pickled herrings (see p. 201), it is stated that the Board
for the Great Fishery is of opinion that, in the interest of this
branch of national industry, the fishing should be carried on at a
farther distance from the main coast of Scotland (_Schotsche vaste
kust_), and it is determined and resolved as follows: “Art. I. Het
zal aan geenen Nederlandschen visscher geoorloofd zijn, de groote of
pekelharingvisscherij op eenen naderen afstand der vaste kust van
Schotland uitteoefenen, dan dien van twee uren hemelsbreedte (20
zoodanige uren eenen graad uitmakende), noch onder eenig voorwendsel
hoe ook genaamd (alleen met uitzondering van het geval van dringende
noodzakelijkheid bij art. 22 der voormelde wet voorzien), gedurende
den tijd dat hij de vangst van pekelharing bedrijft, de vermelde kust
op eenen minderen afstand te naderen.” The second article excepted the
fishing at Shetland (Hitland) and Fair Isle (Fair-hill), the autumn
fishing on the English coast and off Yarmouth, and the fresh-herring
fishery; but these exceptions were withdrawn by a royal decree of 5th
June 1827 (_Staatscourant_, 1827, No. 278). It may be said that in
1818 the old prohibition of fishing between the sandbanks and rocks of
Norway, Shetland, and Scotland had been renewed. _Staatsblad_, No. 15,
12th March 1818.
[1126] _Rapport fait en Exécution des Ordres du Ministre de la Marine_,
par M. L. de Montaignac, Capitaine de frégate, Commandant la Station de
la Mer du Nord.
[1127] Montaignac, _op. cit._; _Parl. Papers_, Sess. 1837-38; _Rep.
Com. Brit. Herring Fishery_, 1834.
[1128] _Report from the Select Committee on British Channel Fisheries,
Parl. Papers_, Sess. 1833, No. 676.
[1129] An ordinance of the French Marine Department, of 15th January
1829, prohibited the use of certain nets, as drag and trawl nets,
within _three leagues_ of the shore from 15th April to 1st September,
and within two leagues from 1st September to 15th April.
[1130] Some of the English fishery Acts then in force, at least
nominally, extended jurisdiction beyond the distance of one league with
regard to the use of certain nets, &c., and the Committee apparently
desired that, besides a zone of exclusive fishery, foreigners should
be bound to observe the municipal law for the protection of the spawn
and brood of fish that might apply beyond such zone. The Acts referred
to were 3 Jac. I., c. 12 (1605), for the better preservation of sea
fish, which, _inter alia_, prohibited the use of certain nets within
five miles of any harbour, haven, or creek; 14 Chas. II., c. 28 (1662),
regulating the pilchard-fishing in Devon and Cornwall, which prohibited
the use of any “drift, trammel, or stream net,” between 1st June and
30th November, within one and a half leagues of the coasts of these
counties; 1 George I., stat. 2, c. 18 (1714), which prohibited the use
“at sea upon the coast of England” of certain nets, and the landing or
sale of undersized fish; the Act 33 Geo. III., c. 27 (1759), prohibited
the taking or knowingly possessing “any spawn, fry, or brood of fish,
or any unsizeable fish, or any fish out of season.”
[1131] Under the Act 6 Geo. IV., c. 108, 1825.
[1132] Mr Cornish, quoting from his MS. treatise on zoology, said: “It
is generally supposed that all sea fish, the cetaceous (_sic_) and
cartilaginous excepted, deposit their ova in sand-banks, in creeks,
bays, and shallow water near the shores, because it is imagined that a
certain, though a small, degree of the sun’s action on the water and
atmosphere is necessary to bring such ova to maturity. This we know to
be the case with the salmon species, which always ascend to the shallow
parts of rivers for that purpose, and never lay their eggs in deep
water, and therefore we infer that the same influence prevails over the
sea fish: this cannot, however, be proved, and rests mainly on opinion
and probable conjecture, founded on such facts as we are acquainted
with.” It may be said that a Select Committee of the House of Commons,
appointed in 1817 to inquire into the condition of the fisheries on
the south coast of Devon, strongly recommended Parliamentary action
for the protection of the fisheries, founding on the same erroneous
assumption that the fishes spawned near the shore. A Bill was
accordingly introduced in the session of 1819, and again in 1822, for
the appointment of conservators or overseers of the bays, creeks, and
arms of the sea, to supervise regulations for the preservation of the
fish coming there to spawn, and of their brood and fry, and applying
to a distance of one and a half leagues from the shore; but it did not
pass the Lords. _Rep. Select Com. on the State and Condition of the
Fisheries on the South Coast of Devon_, 1817; _Parl. Bills_, xxii. 587,
601. _Eighth Ann. Rep. Fishery Board for Scotland_, Part III., pp. 13,
258 (1890); _Tenth, ibid._, pp. 19, 235; _Eleventh, ibid._, p. 13.
[1133] Memorials, &c., received by Her Majesty’s Government since
1st January 1832, complaining of the Aggressions of French fishermen
on the British Coasts, _Parl. Papers_, Sess. 1837-38; Supplementary
Papers relative to the Complaints respecting the Aggressions of French
fishermen on the British Coasts, 1838, _ibid._, 1839; _Reports by the
Commissioners for the Herring Fishery_, for 1834, 1835, 1839.
[1134] _Convention between Her Majesty and the King of the French,
defining and regulating the Limits of the Exclusive Right of the Oyster
and other Fishery on the Coasts of Great Britain and of France._ Signed
at Paris, August 2, 1839.
[1135] The line of closure, as will be seen from fig. 16, was not a
single straight line, as usual, but a series of lines determined by
landmarks. The area between this series and the three-mile limit, from
which British fishermen were excluded, measures a little over 100
square (geographical) miles. On the other hand, all of the closing
line north of 49° 3´ (and thus the greater part of it) is, curiously,
_within_ the three-mile zone; the area outside this line to the
three-mile line is about 23 square miles.
[1136] 6 & 7 Vict., cap. 79. “An Act to carry into Effect the
Convention between Her Majesty and the King of the French concerning
the Fisheries in the Seas between the British Islands and France,” 22nd
August 1843. The mesh of trawl-nets, the length of the trawl-beam,
the weight of the trawl-irons and of the ground-rope, the mesh of
herring, mackerel, “bratt,” and trammel nets, were in no case to be
over or under a specified standard. A series of detailed regulations
for oyster-fishing was also made, including a close-time and a minimum
size. This Act was repealed by the Sea Fisheries Act, 1868 (the
Convention Act), 31 & 32 Vict., c. 45, but it was revived by Parliament
in 1877 (40 & 41 Vict., c. 42), the Convention of 1867 not having been
ratified by France.
[1137] _Reports of the Commissioners for the Herring Fishery_, 1839,
1840, 1841.
[1138] It was denounced in the Boulogne Chamber of Commerce as the
greatest blunder the French Government had ever made, and many
complaints were received from French fishermen of their boats having
been captured or pursued by British cruisers. Deseille, _Histoire de la
Pêche à Boulogne-sur-Mer_, 229. The French cruisers were no less active
in apprehending British transgressors. _Parl. Papers_, Sess. 1854-5,
459.
[1139] Mitchell, _The Herring: Its Natural History and National
Importance_, 243.
[1140] The Board pointed out that the fishermen of other foreign
countries were not disposed to observe the limits laid down in the
Anglo-French convention, specifying Dutch as well as Belgians, and
that the naval superintendents were perplexed from the want of fixed
instructions on this point. The letter from the Board of Trade was as
follows (_Report of the Commissioners for the year ended 5th January
1849_):--
“OFFICE OF COMMITTEE OF PRIVY-COUNCIL FOR TRADE,
“WHITEHALL, _14th September 1848_.
“SIR,--With reference to your letter of 4th ultimo, requesting, on
the part of the Commissioners of British Fisheries, to know whether
Foreign Fishermen are permitted to fish within three miles of the
Shore; I am directed by the Lords of the Committee of Privy-Council
for Trade, to inform you, that it is the opinion of this Board, that
no such permission is recognised by the British Government, and
accordingly, that it is the duty of the Superintendents of British
Fisheries, to warn Dutch, Belgian, or any other Foreigners, as well as
French Fishermen, to keep outside of the limits above mentioned.--I
am, sir, your obedient servant,
(Sd.) DENIS LE MARCHANT.
The Honourable B. F. PRIMROSE, Secretary,
Board of Fisheries, Edinburgh.”
[1141] See p. 461.
[1142] Convention between Her Majesty and the King of the Belgians
relative to Fishery. Signed at London, March 22, 1852. “Art. I. Belgian
subjects shall enjoy, in regard to fishery along the coast of the
United Kingdom of Great Britain and Ireland, the treatment of the most
favoured foreign nation. In like manner, British subjects shall enjoy,
in regard to fishery along the coast of the Kingdom of Belgium, the
treatment of the most favoured foreign nation.” The convention was to
endure for seven years, and it was to remain in force thereafter until
the expiry of twelve months after either party notified to the other
its intention of terminating it.
[1143] _Reports by the Commissioners for the British Fisheries_,
1848-51. _Parl. Papers_, Sess. 1856.
[1144] _Reports of the Commissioners for the British Fisheries_, 1852,
1853, 1862.
[1145] _Report of the Commissioners appointed to Enquire into the Sea
Fisheries of the United Kingdom_, I. lxix. (1866).
[1146] _Convention between Her Majesty and the Emperor of the
French, relative to the Fisheries in the seas between Great Britain
and France._ Signed at Paris, 11th November 1867. Art. I. “British
fishermen shall enjoy the exclusive right of fishery within the
distance of three miles from low-water mark, along the whole extent of
the coasts of the British Islands; and French fishermen shall enjoy
the exclusive right of fishery within the distance of three miles from
low-water mark along the whole extent of the coast of France, the only
exception to this rule being that part of the coast of France which
lies between Cape Carteret and Point Meinga. The distance of three
miles fixed as the general limit for the exclusive right of fishery
upon the coasts of the two countries shall, with respect to bays, the
mouths of which do not exceed ten miles in width, be measured from a
straight line drawn from headland to headland. The miles mentioned in
the present Convention are geographical miles, whereof sixty make a
degree of latitude.” In neither of the conventions was it expressly
said that the ten-mile closing-line for bays was to be measured from
low-water mark of the headlands, but it was so declared in the Act of
1843, 6 & 7 Vict., c. 79.
[1147] 31 & 32 Vict., c. 45.
[1148] _London Gazette_, 9th Feb. 1869. C. E. Fryer, _The Relation of
the State with Fishermen and Fisheries. Parl. Papers, Commerc._, 24
(1882), p. 1.
[1149] 46 & 47 Vict., c. 22, sec. 30.
[1150] 6 & 7 Vict., c. 79, s. vi.
[1151] 5 & 6 Vict., c. 106.
[1152] _Parl. Papers_, Sess. 1867-68, Fisheries (Ireland), 135.
[1153] 31 & 32 Vict., c. 45, s. 67.
[1154] _Report from the Select Committee on Oyster Fisheries_, 8, 166
(1876).
[1155] Had the coasts of the United States been visited by British
fishermen, it is not unlikely that the Government of that country would
have been more willing to admit the ordinary interpretation with regard
to bays. British vessels do not, however, fish on the coasts of the
United States, and the United States fishermen, having exhausted the
once productive waters of their own coasts of the New England States,
go to catch a large part of their fish to the waters on the coasts of
British North America, and hence it is to their interest that the limit
of exclusive fishing on the latter should be as small as they can get
it made. The position is very similar to that of the English trawlers
who, having impoverished the North Sea, now go to foreign coasts, as
Iceland, to keep up the supplies. See p. 707.
[1156] Treaty between Her Majesty and the United States of America,
signed at Washington, 1st June 1854, Art. i., ii. I. “It is agreed by
the high contracting parties that in addition to the liberty secured
to the United States’ fishermen by the above-mentioned convention of
October 20, 1818, of taking, curing, and drying fish on certain coasts
of the British North American Colonies therein defined, the inhabitants
of the United States shall have, in common with the subjects of Her
Britannic Majesty, the liberty to take fish of every kind, except
shell-fish, on the sea coasts and shores, and in the bays, harbours,
and creeks of Canada, New Brunswick, Nova Scotia, Prince Edward’s
Island, and of the several islands thereunto adjacent, without being
restricted to any distance from the shore, with permission to land
upon the coasts and shores of those Colonies and the islands thereof,
and also upon the Magdalen Islands, for the purpose of drying their
nets and curing their fish; provided that, in so doing, they do
not interfere with the rights of private property, or with British
fishermen, in the peaceable use of any part of the said coast in
their occupancy for the same purpose.” The second article accorded
to Canadian fishermen similar privileges in the waters of the United
States, north of 36 degrees N. latitude.
[1157] Before this arrangement was made, the British Government, on
12th April 1866, instructed the Admiralty “that American fishermen
should not be interfered with, either by notice or otherwise, unless
they are found within three miles of a line drawn across the mouth of
a bay or creek, which is less than ten geographical miles in width, in
conformity with the arrangement made with France in 1839.”
[1158] 27th June 1870. “The limits within which you will, if necessary,
exercise the power to exclude United States’ fishermen, or to
detain American fishing vessels or boats, are for the present to be
exceptional.... Her Majesty’s Government are clearly of opinion that,
by the Convention of 1818, the United States have renounced the right
of fishing, not only within three miles of the Colonial shores, but
within three miles of a line drawn across the mouth of any British
bay or creek. It is, however, the wish of Her Majesty’s Government
neither to concede, nor for the present to enforce, any rights in this
respect which are in their nature open to any serious question. Until
further instructed, therefore, you will not interfere with any American
fishermen, unless found within three miles of the shore, or within
three miles of a line drawn across the mouth of a bay or creek, which,
though in parts more than six miles wide, is less than six geographical
miles in width at its mouth. In the case of any other bay--as Bay des
Chaleurs, for example--you will not interfere with any United States’
fishing vessel or boat, or any American fishermen, unless they are
found within three miles of the shore.”
[1159] Treaty between Her Majesty and the United States of America,
signed at Washington, 8th May 1871, Art. xviii., xix.
[1160] _Parl. Papers_, No. 1 (1888), (C.--5262).
[1161] The number of American fishing vessels which take the licenses
for Canadian waters is usually about 100, the fees aggregating 10,000
or 12,000 dollars per annum. _Ann. Reports, Marine and Fisheries_,
Ottawa.
[1162] The three-mile limit is measured from the ten-mile arc.
[1163] Mr Phelps to the Marquis of Salisbury, 3rd August 1887,
enclosing ad interim arrangement proposed by the United States’
Government, with “Observations” by the British Government and Reply of
the Government of the United States.
[1164] Gordon, _15th Ann. Rep. Assoc. for Reform of Law of Nations_
(8). 1893.
[1165] _Report by the Commissioners for the Herring Fishery_, Scotland,
1869, p. 4; _Report by the Commissioners of the Fishery Board,
Scotland_, 1876, p. 7.
[1166] Report of W. H. Higgin, Esq., Q.C., on the Outrages committed
by Foreign upon English Fishermen in the North Sea. _Parl. Papers_
(C.--2878), 1881.
[1167] After all, however, the damage from the monetary point of view
was not very great, amounting, according to the detailed information
collected by Mr Higgin, to £4372, 3s. over the years 1870-1880, or at
the rate of about £400 per annum.
[1168] Correspondence respecting the Conference at The Hague and the
Convention of the 6th May 1882, relative to the Police of the Fisheries
in the North Sea. _Parl. Papers, Commercial_, No. 24, 1882.
[1169] M. Barthélemy St Hilaire to Lord Lyons, 2nd July 1881; M. de
Freycinet to M. Challemel-Lacour, 2nd March 1882.
[1170] “The fishermen of each country shall enjoy the exclusive right
of fishery within the distance of three miles from low-water mark
along the whole extent of the coasts of their respective countries and
of the dependent islands. As regards bays, the entrances of which do
not exceed ten miles in width, the distance of three miles shall be
measured from a straight line joining the two extreme points of the
bay. The present article shall not in any way prejudice the right of
free navigation and anchorage in territorial waters accorded to vessels
of all sizes, provided they conform to the special police regulations
enacted by the Powers to whom the shore belongs.”
[1171] Messrs Kennedy and Trevor to Mr Farrer, Oct. 31, 1881. In the
Anglo-French convention of 1867 the British negotiators unsuccessfully
pressed for the insertion of the words, “the islands ... and their
dependencies.” M. de Freycinet to M. Challemel-Lacour, 2nd March 1882.
[1172] Vide _Fiskeri-Beretning for Finansaaret_, 1907-1908, p. 178.
Kjobenhavn, 1908.
[1173] _Report on the Sea Fisheries of England and Wales_, 1879. The
British delegate laid stress on one of the conclusions reached by Mr
Buckland, to the effect that “nothing that man has done, and nothing
that man can do, can affect the supply of herrings in the seas.” Even
if this were proved for the herring in the absolute form in which it is
expressed,--and it is clearly illogical and unwarrantable to pledge the
future in this loose way,--it obviously might not, and in point of fact
does not, apply to the great bulk of the fishes that would have been
affected by the German suggestion.
[1174] _International Convention for the Purpose of Regulating the
Police of the Fisheries in the North Sea outside Territorial Waters._
Signed at The Hague, 6th May 1882.
[1175] Sir H. Rumbold to Earl Granville, 16th March 1882; H.M.
Plenipotentiaries to the same, 8th May 1882.
[1176] The boundaries specified are, on the north, the parallel of the
61st degree of latitude; on the east and south, the coast of Norway
between the above parallel and Lindesnæs Lighthouse, a straight line
thence across the Skagerrack to Hantsholm Lighthouse in Denmark, the
coasts of Denmark, Germany, the Netherlands, Belgium, and France, as
far as Cape Gris Nez Lighthouse; on the west, a straight line from Gris
Nez Lighthouse to the easternmost lighthouse at the North Foreland in
Kent, the eastern coasts of England and Scotland, a line from Duncansby
Head in Caithness to the southern point of South Ronaldsha in the
Orkneys, the eastern coasts of the Orkney Islands, a straight line
from North Ronaldsha Lighthouse to Sumburgh Head Lighthouse in the
Shetland Islands, the eastern coasts of these islands, and the meridian
of the North Unst Lighthouse as far as the parallel of the 61st degree
of latitude. The Dutch proposed the 60th degree of latitude as the
northern limit, and the British the 62nd degree.
[1177] 46 & 47 Vict., c. 22. An Act to carry into effect an
International Convention concerning the Fisheries in the North Sea, and
to amend the laws relating to British Sea Fisheries.
[1178] Messrs Kennedy and Trevor to Mr Farrer, 31st Oct. 1881. _Doc.
cit._
[1179] Dispatch to Hon. E. Ashley, 17th Nov. 1881; Earl Granville to
Her Majesty’s Representatives at Paris, Brussels, The Hague, Berlin,
Copenhagen, and Stockholm, 6th December 1881.
[1180] A case occurred in 1908 in which the master of an English
trawler, the _Taurus_, was convicted in a German court for trawling
within the three-mile limit on the German coast, and the case was
appealed on the ground that the place was outside the territorial
waters, and was so shown on the English fishery charts. It was found,
however, that the three-mile line on these charts did not take into
account the dependent banks, whereas the German charts did take them
into account, the limit running in some cases six or seven miles
from the coast. It may be mentioned that as considerable parts of
the Goodwin Sands are visible at low-water of neap tides, such parts
are entitled to a three-mile limit in the same way as the dependent
banks on the German coast. Recently, also, it has been found that
the three-mile limit in the neighbourhood of the Scaw fluctuates
considerably owing to the shifting of the shoals, and the Danish
authorities, early in 1907, intimated that any case of alleged
infraction of the limit by foreign fishing vessels would be judged of
by the actual position of the line at the time, and not by what may
be shown on any chart in use. The point in regard to banks was raised
a century ago in connection with neutral rights in a case in which a
British privateer captured a French corvette, the _Africaine_, on the
coast of the United States, six miles from shore. It was argued that
the capture was unlawful, because the place was within the neutral
waters of the United States, the extent of which had been defined by
Congress in 1794 as one marine league from the coast (see p. 574). It
was contended that “coasts” included all the shoals or banks which,
in Florida, extended to a distance of twenty miles from the land, and
were therefore within territorial jurisdiction, and that the distance
of protection should be reckoned from the outermost shoal. The American
judge overruled the argument, because, although in a maritime sense
this interpretation of “coasts” might be correct, it was too vague
for juridical purposes, since the shoals vary, and there would be
no fixed rule by which the boundary could be ascertained; and that
the district courts would have to apply different rules at different
places, instead of the one marine league everywhere. A somewhat similar
question was argued in 1805 in the English Admiralty Court in the
case of an American ship, the _Anna_, captured by a British privateer
off the mouth of the Mississippi, at a point claimed to be within the
neutral waters of the United States--viz., 1½ mile from an island, and
“within view” of a fort, which was, however, five miles distant. A
question raised was whether certain small mud-islands, formed of earth
and drifted logs, and covered with reeds, where people occasionally
went to shoot wild-fowl, was United States territory from which the
marine league could be measured. It was argued that the islands had
not sufficient consistency to support the purposes of life, and were
sometimes scarcely distinguishable, and that since the distance
of neutral protection “is reckoned according to the efficacy of
protection, that is, within the range of firearms,” the land from which
the extension is measured should be a place from which this protection
could be in reality afforded. Lord Stowell, in deciding that they
were United States territory, stated that the right of dominion did
not depend upon the texture of the soil; and he quoted Bynkershoek’s
formula as the rule of law, saying that the distance “has usually been
recognised to be about three miles from the shore.” It may be said
here that in the earlier writings and decisions about the limit of
territorial waters, low-water mark is not specified, and in the case
of the _Twee Gebroeders_ (see p. 577) it is clear that sand-banks
uncovered at low-water were not regarded as entitled to an independent
zone, the distance being measured from _terra firma_.
[1181] _Fish Trades Gazette_, May 31st, 1902, p. 8; _ibid._, April 4th,
1903, p. 21.
[1182] “Les articles 2 et 3 de ce contrat stipulent que les pêcheurs
nationaux jouiront du droit exclusif de pêche dans le rayon de trois
milles géographiques de 60 au degré de latitude, à partir de la laisse
de basse mer, le long de toute l’étendue des côtes de leurs pays
respectifs, ainsi que des îles et des bancs qui en dépendent.” _Loi
relative à la pêche maritime dans les eaux territoriales. Exposé des
motifs._ Sess. 1890-91.
[1183] The Marquis of Lothian, Secretary for Scotland, in introducing
the Bill which became the Herring Fishery (Scotland) Act, 1889, said:
“With regard to the east coast there is no very great difficulty in
fixing the limits of territorial waters, because between Her Majesty’s
Government and what I may call the riparian powers of the North Sea
there is a Fisheries Convention; but on the west coast there is no
such convention, and therefore it has been thought desirable to attach
a schedule to this Bill in order to show exactly what are the waters
closed against trawlers apart altogether from the general international
rule as to the three-mile limit.” June 28th, 1889. Hansard, vol. 337,
p. 975.
[1184] 46 & 47 Vict., c. 22, s. 28.
[1185] 6 & 7 Vict., c. 79 (1843). The international regulations
agreed upon in virtue of the eleventh article of the convention were
to apply to “the seas lying between the coasts of Great Britain and
of France”; and differences of interpretation arose in this country
as to the extent of the seas coming under this denomination--_e.g._,
whether those on the west coast of Scotland were included. The power
given to the crown to suspend the operation of the Act on the Irish
coasts, and the obvious intention of the Act and articles, seemed to
the Royal Commissioners of 1863 to warrant the opinion that these
extra-territorial regulations applied to all the seas around the
British Isles (_Report, Royal Commission on Sea Fisheries_, i. p.
lxiii). On the other hand, it was contended that the words quoted
must be construed strictly, and included only those seas which were
situated geographically between the two countries. This difference of
opinion as to the interpretation of the phrase in question does not,
however, affect the validity of Article ix. of the convention, one of
the principal objects of which was to determine the limits of exclusive
fishery.
[1186] _Vide_ 46 & 47 Vict., c. 22, s. 24.
[1187] _Report from the Select Committee on Oyster Fisheries_, p. 1.
1876.
[1188] 19th, 22nd, and 23rd _Reports Fishery Board for Scotland_, Part
I. Corresponding particulars are not given in the English or Irish
fishery reports.
[1189] The preceding laws, however, left the territorial limits
indefinite, under the law of nations, or subject to any special
international agreement, as that of 12th February 1872, concerning
foreign fishermen at Iceland. (“1. Drive fremmede Nationers Fiskere
nogetsomhelst Fiskeri under Islands Kyster indenfor Søterritoriets
Grænse, saaledes som denne er bestemt ved den almindelige Folkeret,
eller ved særlige internationale Overenskomster for Islands Vedkommende
maatte blive fastsat, straffes de med Bøder fra 10 til 200 Rd.” C. F.
Drechsel, _Samling af Islandske Love, Forordninger, m.m. gældende for
Fiskeriet paa Søterritoriet ved Island_, 1892.) Later laws, both for
the Faröes and Iceland, merely referred to the “territorial sea.”
[1190] Convention between His Majesty the King of the United Kingdom
of Great Britain and Ireland and His Majesty the King of Denmark
for regulating the Fisheries of their respective Subjects outside
Territorial Waters in the Ocean surrounding the Faröe Islands and
Iceland. Art. ii. “The subjects of His Majesty the King of Denmark
shall enjoy the exclusive right of fishery within the distance of three
miles from low-water mark, along the whole extent of the coasts of the
said islands, as well as of the dependent islets, rocks, and banks.
“As regards bays, the distance of three miles shall be measured
from a straight line drawn across the bay, in the part nearest the
entrance, at the first point where the width does not exceed ten
miles.” The geographical limits for the application of the convention,
which embodies practically the same regulations as in the North Sea
Convention, are as follows: on the south, by a line commencing from
where the meridian of North Unst Lighthouse (Shetland Islands) meets
the parallel of 61st degree of north latitude to a point where the 9th
meridian of west longitude meets the parallel of 60° north latitude,
and from thence westward along that parallel to the meridian of 27°
west longitude; on the west, by the meridian of 27° west longitude; on
the north, by the parallel of 67° 30´ of north latitude; on the east,
by the meridian of the North Unst Lighthouse (which is about 50´ west
longitude). The area is thus very large, much larger than the North
Sea. The convention continues in force until the expiration of two
years from notice by either party for its termination, and a clause
is inserted providing for the adhesion of any other Government whose
subjects fish in the ocean surrounding the Faröe Islands and Iceland.
[1191] “Das positive deutsche Recht enthält keinerlei ausdrückliche
Bestimmung über die Grenze der Küstengewässer landwärts.... Auch
für die Grenze seewärts hat das deutsche Recht keine ausdrückliche
Bestimmung, und adoptiert in dieser Richtung lediglich die Regeln des
Völkerrechts.” Harburger, _Fifteenth Ann. Rep. Internat. Law Assoc._,
73. 1893.
[1192] Herstlet, _Commercial Treaties_, xiv. 1055. Perels, _Das
Internationale öffentlichs Seerecht der Gegenwart_, 38.
[1193] _Mittheilungen des deutschen Seefischerei-vereins_, Bd. xiii.
61. 1897.
[1194] “Vi ville have fastsat som Regel i alle de Tilfælde hvor
Spørgsmaal er om Bestemmelse af Vor Territorial-Hoiheds Græendse udi
Søen, at denne skal regnes indtil den sædvanlige Sø-Miils Afstand fra
den yderste øe eller Holme fra Landet, som ikke overskylles af Søen.”
_Rescripter Resolutioner_, &c., i. 626, 22 (25), Feb. 1812. A circular
of the Royal Danish Chancellory of 18th August 1810 made an exception
for the territorial waters near the fortress of Kronberg, on the Sound,
and of Glückstadt, on the Elbe, where the distance was to be computed
only up to the range of the guns of the fortress. Auber, _Annuaire de
l’Institut de Droit International_, xi. 146 (1894).
[1195] _Svensk Fiskeri Tidskrift 9e_ Årg., 78. Stockholm, 1900.
“Danmark räknar på grund af konvention samma [with Sweden] fyra mils
gräns mot oss, men däremot på grund af Nordsjötraktaten blott tre
mil gentemot de i denna deltagande makterna, t. ex. engelsmän och
tyskar.” Instruks for det ved Fiskerikontrollen ansatte Personale,
Landbrugsministeriet, den 20 Marts 1908, _Fiskeri-Beretning for Aaret_
1908-9.
[1196] Natzen, _Den Danske Statsforfatningsret_, i. 36. 1888.
[1197] Fiskerikonventionen mellem Danmark og Sverig, 14de July 1899.
_Fiskeri-Beretning for Finansaaret_, 1898-1899, Copenhagen, 1900. “Art.
I. I de til Kongerigerne Danmark og Sverig grænsende Farvande skal,
med de i Art. II. nævnte Undtagelser, det Omraade, hvor Fiskeriet
udelukkende er forbeholdt hvert Lands egne Undersaatter, udgøre en
Strækning af en geografisk Mil (1/15 Breddegrad) fra Kysten eller
yderste der udfor liggende Holme og Skær, som ikke til Stadighed
overskylles af Vandet,” &c. The definition in the Swedish is “en
geografisk mil (1/15 breddgrad) från kusten eller ytterst därutanför
liggande holmar och skär, som icke ständigt af vattnet öfversköljas.”
(_Svensk Fiskeri Tidskrift, 16e_ Årg., Häft 6, p. 189.) Article II.
makes the fishery in the Sound, including Kioge Bay, common to the
subjects of each state, except that on either side, _within a depth of
seven metres_ (four fathoms), subjects of the other country shall be
allowed to fish for herrings only, with nets; and mutual liberty of
herring-fishing with drift-nets is conceded in like fashion at certain
other specified places. Certain amendments were made to this agreement
in 1907, the chief one being the prohibition of trawling in the
Sound. _Fiskeri-Beretning for Finansaaret_, 1906-1907, p. 45. _Svensk
Författningssamling_, No. 79, År., 1907.
[1198] _Sixth Supplement to Section 44 of Customs Orders_, vol. vi.,
1886; _Ordinance of Home Department for the Regulation of the Fishery
Supervision on the Murman Coast_, 4th May 1887. See footnote, p. 657.
[1199] _Norsk Fiskeritidende_, 466, 1893: Revue Général de _Droit
International Public_, 1894, p. 440.
[1200] In July 1910, a British trawler, _Onward Ho_, while engaged
in fishing off the Kanin Peninsula, at a distance, according to the
skipper, of 40 miles from Russian Lapland, and admittedly much beyond
the three-mile limit, was arrested by a Russian cruiser and taken to
Archangel, on the charge of illegal fishing. The vessel was released
after representations had been made by the British Government, the
Russian authorities finding that it had been arrested outside the
boundary under the protection of the cruiser. The action was doubtless
taken in connection with a new law of 10th December 1909, establishing
a limit of 12 miles from the coast for customs purposes,--all vessels,
Russian or foreign, being held to be subject to the control of the
Russian authorities when within that distance. _Handelsberichten_, 12th
May 1910, p. 135.
[1201] “Art. 2. Sur la demande des prud’hommes des pêcheurs, de leurs
délégués et, à défaut, des syndics des gens de mer, certaines pêches
peuvent être temporairement interdités sur une étendue de mer au delà
de 3 milles du littoral, si cette mesure est commandée par l’intérêt
de la conservation des fonds ou de la pêche de poissons de passage.
L’arrêté d’interdiction est pris par le Préfet Maritime.”
[1202] M. de Chasseloup Lubat, in _Ann. di Agricoltura_, 50. 1891.
[1203] Law of 7th June 1832. Heffter, _Le Droit International de
l’Europe_, c. ii. s. 75.
[1204] “Loi relative à la pêche maritime dans les eaux territoriales,”
19th August 1891. A decree of 5th September 1892 regulated foreign
fishing-boats when within territorial waters.
[1205] Wet van 15 Juni 1883, _Staatsblad_, No. 73; Koninklijk Besluit
van 20 March 1884, _Staatsblad_, No. 40, putting in force the North
Sea Convention: “Art. 1. De bepalingen dezer overeenkomst, welke
ten doel heeft de politie der visscherij in de Noordzee buiten de
territoriale wateren te regelen, zijn toepasselijk op allen, die
tot de nationaliteit der Hooge contracteerende Partijen behooren.
2. De visschers van elken Staat zullen het uitsluitend recht van
visscherij genieten binnen een kring van drie mijlen, gerekend van de
laagwaterlijn, langs de geheele uitgestrektheid der kusten van elken
Staat en evenzeer langs de eilanden en banken, die daarmede zijn
verbonden,” &c. Wet van 7th December 1883, _Staatsblad_, No. 202; Wet
van 26th October 1889, _Staatsblad_, No. 135, “Tot vaststelling van
bepalingen tegen het visschen door opvarenden van vreemde vaartuigen
in de territoriale wateren van het Rijk”; the limits, as laid down in
the convention of 1882, are applied to all foreign fishing vessels.
There are special agreements with Belgium as to the fishings in the
Schelde. H. van der Hoeven, _Wetgeving betreffende de Zee- en de
Zalmvisscherijen_. Leiden, 1897.
[1206] Strisower, _Annuaire de l’Institut de Droit International_. 1894.
[1207] Verordnung der Ministerien des Handels und des Ackerbaues, im
Einvernehmen mit dem Ministerium des Innern, vom 5 December 1884,
betreffend die Seefischerei, s. 3.
[1208] Handels- und Schiffahrtsvertrag vom 27 Dec. 1878, zwischen
Oesterreich-Ungarn und Italien. Schlussprotokoll ad Art. xvii., xviii.;
Marchesetti, _La pesca lungo le coste orientali dell’ Adria_. Trieste,
1882.
[1209] Vorschriften über die See-Fischerei giltig in Oesterreich-Ungarn
seit 12 December 1884.
[1210] Legge sulla pesca del 4 marzo 1877, No. 3706 (Serie 2^a).
[1211] _Annali di Agricoltura_, 1891. Atti della commissione consultiva
per la pesca, pp. 32, 86.
[1212] Definizione del mare territoriale e ordine di vigilare sugli
armamenti alla pesca. _Ann. del Ministero di Agricoltura, Industria e
Commercio_, i. parte i. 96. Genoa, 1871.
[1213] Corsi, in _Fifteenth Ann. Rep. Assoc. for the Reform and
Codification of the Law of Nations_, 83.
[1214] No. 7, 409, 2nd Dec. 1869. Apostolidès, _La Pêche en Grèce_, 86.
Athens, 1888.
[1215] Dr Kishinouye, _in litt._
[1216] Civil Code, Articles 593, 611.
[1217] Reglamentendo la pesca y caza, _Boletin official_, 20th
September 1907.
[1218] Reglamento para las concesiones de pesca en el litoral
oceánico de la Provincia de Buenos Aires, 4th June 1909. “Art. 3^o.
Los concesionarios solo podrán emplear redes arrastradas por vapores
en una zona distante no menos de doce (12) millas, contadas desde
las líneas de las más bajas mareas. Art. 4^o. Dentro de la zona de
doce millas hasta la línea de las más bajas mareas, podrán usarse
redes arrastradas por veleros. Se declara libre el uso de las líneas,
palangres ó espineles, nasas y redes verticales de deriva. Art. 6^o.
Las personas ó empresas que quisieran usar artes especiales de pesca
distintos de los indicados, deberán solicitar permiso especial de la
División de Ganadería y obtener la autorización correspondiente. Art.
7^o. Las embarcaciones llevarán bandera nacional y sus tripulaciones
se compondrán de una parte de individuos de nacionalidad argentina,
de acuerdo con las leyes y reglamentos de cabotaje nacional.” I
am indebted to the courtesy of Mr R. M. Bartleman, the American
Consul-General at Buenos Aires, for a copy of these regulations.
[1219] Reuter’s telegrams from Buenos Aires, 21st March, 30th June
1908. _Scotsman_, 23rd March, 2nd July 1908. _La Prensa_, one of the
leading journals of Buenos Aires, is quoted as declaring it hard to
believe that the British Government has decided to raise a question of
such exceptional gravity, seeing the first effect of such action would
be to bring about a conflict to which there could be no conciliatory
or friendly solution, since the immediate reply, which would be final,
would be absolute rejection of the claim put forward--that is, that the
waters of the estuary outside the limits of three miles from the coasts
are non-territorial.
[1220] Award of the Tribunal of Arbitration, p. 23, “outside the
ordinary three-mile limit.” The President, Baron de Courcel, has since
explained that the tribunal “s’est borné à constater que les parties
étaient d’accord pour admettre que l’étendue de trois milles à partir
de la côte comme formant dans l’espèce qui lui était soumise, la limite
ordinaire des eaux territoriales.” M. de Courcel to M. Auber, _App.
Ann. de l’Institut de Droit Internat._ for 1894, p. 282. _Vide_ Hall,
_A Treatise on International Law_, 4th ed., p. 161.
[1221] For example, Leoni Levi, “No territorial sovereignty exists or
can be claimed beyond the three miles zone.” _Internat. Law_, 112.
[1222] Mr Seward, Secretary of State, to Mr Tassara, 6th December 1862.
The same to Mr Burnley, 16th September 1864. Wharton, _A Digest of the
International Law of the United States_, i. 105. American ships were
charged with pursuing Confederate vessels into British waters, and
the balls from the guns they fired had struck objects on shore. The
facts were used to show that the hostile acts had occurred within our
territorial jurisdiction. Hansard, vol. 173, p. 509; February 1864.
[1223] Secretary Fish to Sir E. Thornton, 22nd January 1875. “We have
understood and asserted that, pursuant to public law, no nation can
rightfully claim jurisdiction at sea beyond a marine league from the
coast.” _Loc. cit._
[1224] Torres-Campos, in _Fifteenth Ann. Rep. Assoc. for Reform and
Codification of the Law of Nations_, 93. Negrin, _Tratado de Derecho
internacional maritimo_, 1883.
[1225] _Negocios Externos. Documentos apresentados ás Cortes na Sessão
legislativa de 1879 pelo Ministro e Secretario d’Estado dos Negocios
Estrangeiros. Questão das Pescarias_, p. 258. Lisboa, 1879. The volume
contains a full discussion of the questions between the two Governments.
[1226] Tratado de navegación y comercio entre España y Portugal,
firmado en Madrid el dí 27 de Marzo de 1893. Apéndice Sexto. Reglamento
de policía costera y de pesca. Sec. 1. Disposiciones aplicables á
las aguas de cada país, “Art. 1^o. La policía costera y de pesca en
las aguas jurisdiccionales de España y de Portugal, quedará sujeta
á las disposiciones siguientes. Art. 2^o. Los límites dentro de los
cuales el derecho general de pesca, queda reservado exclusivamente á
los pescadores sujetos á las jurisdicciones respectivas de las dos
naciones, se fijan en seis millas, contadas por fuera de la linea
de bajamar de las mayores mareas. Para las bahías cuya abertura no
exceda de diez millas, las seis millas se contáran á partir de una
linea recta tirada de una punta á la otra. Las millas mencionadas son
millas geográficas de 60 al grado de latitud. Art. 3°. Cada una de los
Estados tendrá el derecho de reglamentar el ejercicio de la pesca en
sus respectivas costas marítimas hasta una distancia de seis millas
de las mismas, límite dentro del cual solamente será permitido á los
Pescadores nacionales ejercer esta industria.” F. López y Medina,
_Colección de Tratados Internacionales, Ordenanzas y Reglamentos de
Pesca_, pp. 44, 49 (Madrid, 1906). I am indebted to Sir Reginald
MacLeod, K.C.B., late Under-Secretary for Scotland, for this volume.
[1227] _Revista de Pesca Marítima_, ix. 97 (1893); x. 209 (1894).
Various regulations have been lately made with respect to trawling
beyond the six-mile limit at certain parts of the Spanish coast (_vide_
López y Medina, _Primer Apéndice a la Colección de Tratados, &c._,
pp. 34-45. Madrid, 1907), and also on the coast of Portugal (_vide
Collecção de Leis e Disposições diversas com relação á Pesca e Serviço
maritimo dos Portos_, pp. 28, 54, 276, 535. Lisboa, 1907). In no other
countries, it may be added, have more regulations been made restricting
all kinds of trawling than in Spain and Portugal.
[1228] Prof. A. F. Marion, _in litt._
[1229] The National Sea Fisheries Protection Association:
_Twenty-fourth Ann. Rep. of the Committee of Management_, 1905, p. 7.
“Spanish and Portuguese Territorial Limits. Communications were made to
the Foreign Office on the subject of Spanish and Portuguese Territorial
Limits, and, in reply, the Association was informed that His Majesty’s
Government did not recognise any claims of the Spanish or Portuguese
Governments to exercise jurisdiction over British vessels beyond the
three-mile limit.”
[1230] _Fish Trades Gazette_, 10th Dec. 1904, p. 23. London. _Boletin
Oficial de la Liga Marítima Española_; _Vida Marítima, Revista de
Navegación y Comercio, Pesquerias, &c._ Madrid. In 1905 no less than
forty-five English trawlers, as well as four German trawlers and one
Spanish, landed fish at Lisbon and Oporto, which had been caught in
neighbouring waters and as far as Morocco, the value being 332,220
milreis, or about £74,750. _Estatistica das Pescas Maritimas, Anno de
1905._ Lisboa, 1907.
[1231] A summary of this new law, which received the sanction of the
King of Portugal on 26th October 1909, is given in _Mitteilungen
des Deutschen Seefischerei-Vereins_ for February 1910 (Bd. xxvi.
No. 2), from _Diario do Governo_, No. 247, viz.: Portugiesisches
Gesetz betreffend das Verbot für fremde Fahrzeuge zum Fischen
in den territorialen Gewässern. “Art. 1. In den portugiesischen
Territorialgewässern innerhalb einer Zone von 3 Seemeilen, von der
Linie des Niedrigstwasserstandes an gerechnet, ist fremden Fahrzeugen
das Fischen verboten. In den Buchten ist die Zone von 3 Seemeilen
gemäss den Grundsätsen des internationalen Rechts zu berechnen.”
[1232] Tratado de comercio con el emperador de Marruecos, 20th November
1861, _Revista de Pesca Marítima_, xiv. 149, 1898. López y Medina, _op
cit._, 72.
[1233] This is also the interpretation made by Mr Arctander (_Norsk
Fiskeritidende_, Tolvte Aargang, 1893, p. 464) of the wording of the
ordinances, that the line must be drawn through points that lie above
the water at high tide (_flod_), the rule thus differing from the usual
one. On the other hand, the Norwegian Department of the Interior, in
replying to certain queries from the International Law Association,
stated, with reference to the royal ordinance of 1812 (see p. 653),
that “it is not expressly said whether the distance is to be reckoned
at half-tide, high-water, or low-water”; and they did not suggest which
ought to be adopted. _Rep., Seventeenth Conference_, 1895, p. 301. The
Danish terms agree with the Swedish. See p. 655.
[1234] Professor Auber thus states the practice in Norway: “Nous avons
regardé comme tout naturel que, l’île n’étant pas située plus qu’à,
deux anciens milles marins (deux quinzièmes de degré) de la terre
ferme, l’étendue de la mer territoriale doive être compter jusqu’à un
mille au delà de l’île, et ainsi de suite d’île en île” (_Annuaire de
l’Institut de Droit International_ for 1889, p. 139). M. Kleen, on
the other hand, speaks of the outermost isle being included “sous la
condition que cette île ou ce brisant ne soit pas situé plus loin de
la côte qu’une lieu géographique” (_Fifteenth Ann. Rep., Internat.
Law Association_, p. 20). The Norwegian law refers to “the island or
islet farthest from the mainland, and not covered by the sea,” while M.
Kleen says: “Comme brisant à compter sera alors considéré chacun qui
n’est pas _continuellement_ submergé par la mer ... pourvu qu’il soit à
découvert périodiquement et que la mer ne le couvre pas _toujours_.”
[1235] _Kongelig Resolution_ af 16 Oktober 1869: “At en ret linie,
trukket i en geografisk mils afstand fra og parallelt med en ret linie
mellem Storholmen og Svinö, bliver at betragte som grændsen for den
havstrækning udenfor den tilsvarende kyst af Söndmöres fogderi, paa
hvilken fiskeriet er landets egen befolkning udelukkende forbeholdt.”
_Kongelig Resolution_ af 9 September 1889: “En linie, trukket i en
geografisk mils afstand fra og parallelt med en linie fra Storholmen
over Skraapen (udenfor Harö), Gravskjær (udenfor Ona) og Kalven (det
yderste af Orskjærene) til yderste Jevleholme udenfor Grip, bliver
at betragte som grændsen for den havstækning udenfor den tilsvarende
kyst af Romsdal amt, paa hvilken fiskeriet er landets egen befolkning
udelukkende forbeholdt.”
[1236] From about 62° 20´ N. lat. and 5° 13´ E. long, to about 63° 13´
N. lat. and 7° 35´ E. long.
[1237] Provisorisk Anordnung angaaende vaartorskefiskeriet ved
Söndmöres kyster, 3 Jan. 1870; Lov angaaende vaartorskefiskeriet ved
Söndmöres kyster, 6 June 1878; Lov om vaartorskefiskeriet ved Romsdals
amts kyst og fjorde, 1 July 1907.
[1238] It is referred to in A.D. 888. The fishery is prosecuted from
about the middle of January to the end of April; in 1908 over 20,000
fishermen, drawn from all the neighbouring parts of the coast, took
part in it. _Aarsberetning vedkommende Norges Fiskerier for 1908_:
4^{de} Hefte. _Lofotfiskeriet_, 1908.
[1239] “Le droit exclusif de la pêche dans le golfe du Vestfjord,
consacré par un usage plusieurs fois seculaire, n’a jusqu’ici été
l’objet d’aucune disposition legislative.” Letter of the Minister for
Foreign Affairs, 6th August 1908. “The Vestfjord through centuries
has been considered as Norwegian territorial waters, but no decree
or decision as to the special frontier or limit between this fjord
and the open sea has been issued up to the present.” Letter from his
Excellency M. J. Irgens, the Norwegian Minister, 13th June 1908. Having
some difficulty in getting authentic copies of the various Norwegian
decrees, I applied to Dr Fridtjof Nansen, then Norwegian Minister in
London, and later received full information from three sources--from
Mons. J. Irgens, Dr Nansen’s successor, and now the Foreign Minister of
Norway; by the courtesy of Sir Reginald MacLeod; and through Dr Baty,
the Secretary to the International Law Association.
[1240] 5th January 1881; 19th June 1880; 14th June 1890; 17th December
1896; 7th January 1904. In the law of 17th December 1896 the limits
are mentioned as follows: “Paa Havstrækningen ved Tromsø Amts og
Finmarkens Amts Kyst i en Afstand af indtil én geografisk Mil fra
Kysten, regnet fra den yderste Ø eller Holme, som ikke overskylles
af Havet, skal det indtil videre være forbudt at jage, anskyde eller
dræbe Hval i Tidsrummet fra 1ste Januar til Udgangen af Mai. For
Varangerfjordens Vedkommende i Finmarkens Amt bliver Grændsen for den
fredede Strækning udad mod Havet en ret Linie trukket fra Kibergnæs
til Grændse, Jakobselv, dog saaledes, at det ogsaa udenfor denne Linie
skal være forbudt i den ovenanførte Tid at jage, anskyde eller dræbe
Hval i kortere Afstand fra Kysten ved Kibergnæs end én geografisk Mil.”
See also Auber, Annuaire, xi. 136, 1892; Kleen, _Fifteenth Ann. Rep.
Internat. Law Assoc._, 17; Aschehoug, Norges nuvarende Retsforfatning,
90; Kleen, _Neutralitetens Lagar_, 1889; _Norsk Fiskeritidende_, 1893,
461.
[1241] “Räknadt från kusten eller längst ut från denna liggande ö
eller skär, som ej ständigt af hafvet öfversköljes.” _Svensk Fiskeri
Tidskrift_, 9e Årg., p. 78.
[1242] Auber, _loc. cit._
[1243] Kleen, _op. cit._; Egerström, _Sveriges Landtbruksförvaltning_,
1896, p. 37. It is the same in Finland,--J. A. Sandman, _Uebersicht
ueber die Seefischerei Finnlands_, p. 145, 1906.
[1244] Minister of the Interior to Minister of Foreign Affairs, 28th
October 1868 ... “Cela s’explique: ces pêches, ayant lieu dans un golfe
considéré comme faisant partie de la mer territoriale de la Norvège,
out été regardées comme la propriété exclusive du pays. Cela ne peut
certainement pas cadrer avec les principes du droit international,
qu’on puisse tout à coup amener des changements dans une situation
légale qui repose sur une reconnaissance tacite de plusieurs siècles.”
[1245] Letter of the Minister for Foreign Affairs, 7th November 1868.
“Aussi il est défendu aux sujets étrangers de faire la pêche dans ce
golfe, et cette défense s’applique également à la mer voisine et à
l’embouchure jusqu’à une distance d’une lieue marine à partir du point
le plus méridional du group d’îlots dit ‘Röst.’”
[1246] Minister of the Interior to Minister for Foreign Affairs, 28th
January 1870.
[1247] 20th August 1886. “Art. 7 ... Les deux parties contractantes
conviennent de considérer comme limites des mers territoriales de
leur côtes respectives pour tout ce qui se rapporte à l’application
des règlements de douane et aux mesures prises pour empêcher la
contrebande, une distance de trois lieues marines comptées depuis de la
ligne de marée basse.” A similar customs treaty, it may be mentioned,
was concluded between Mexico and Great Britain on 27th November 1888,
in which three marine leagues was stipulated by each country “as a
limit of their territorial waters on their respective coasts,” strictly
for customs purposes. “The two Contracting Parties agree to consider,
as a limit of their territorial waters on their respective coasts, the
distance of three marine leagues reckoned from the line of low-water
mark. Nevertheless, this stipulation shall have no effect, excepting in
what may relate to the observance and application of the Custom-house
Regulations and the measures for preventing smuggling, and cannot be
extended to other questions of civil and criminal jurisdiction or of
international maritime law” (Hertslett, _Treaties_). It is of interest
to note, however, that the ordinary limit adhered to by the British
Government so rigorously in connection with fishery rights, may be
legitimately extended by treaty in order to protect the revenue.
[1248] Auber, _op. cit._, 141.
[1249] Foreigners are forbidden to carry on fishing within the
territorial waters, the most recent law relative to this subject
being that of 2nd June 1906. Instructions to the commanders of the
Norwegian cruisers, dated 22nd December 1906, with reference thereto,
describe the limit as an “ordinary sea mile” (measured as described),
the equivalent distance being stated at 7529 metres, which is equal to
4·065 mean nautical miles, or 4·68 English statute miles. A law of 1908
prohibits trawl-fishing within the territorial waters.
[1250] _Le Droit International_, i. 349; _Dict. de Droit
International_, 501. Bluntschli endeavours to place the doctrine on a
philosophical but absurd basis, by stating that the sovereignty over
the sea extended originally only to a stone’s-throw from the coast,
later to an arrow-shot, and then according to the range of firearms.
[1251] _Das Moderne Völkerrecht_, s. 307-9.
[1252] _Commentaries upon International Law_, I. viii. cxcviii.
[1253] _International Law_, 135.
[1254] _Commentaries on Criminal Law_, iv. c. 5, s. 74.
[1255] _Introduction to the Study of International Law_, s. 56.
[1256] Wheaton’s _International Law_, 8th ed., p. 359.
[1257] _The Law of Nations in Time of Peace_, s. 172.
[1258] _Trattato di Diritto Internazionale Pubblico_, ii. c. 3, pp.
65-67.
[1259] In Fiore, _Nouveau Droit International Public_, note, p. 372.
[1260] _Das Internationale Öffentliche Seerecht der Gegenwart_, p. 21
_et seq._
[1261] _International Law_, 399.
[1262] _Droit Commercial Maritime_, 10.
[1263] _La Mer Territoriale_, 36.
[1264] _Neutralitetens Lagar_, i. s. 160; _Annuaire de l’Institut de
Droit International_, xii. 140.
[1265] _Norges Offentlige Ret_, 79-81; _Annuaire_, xi. 141.
[1266] _Revue générale de Droit International Public_, No. 1.
[1267] _A Treatise on International Law_, 4th edition, 1895, p. 160.
[1268] _International Law_, i. 242 (1905).
[1269] The Committee of the Association was composed of ten
members--viz., Sir Travers Twiss, President; Sir George Baden-Powell;
Hon. D. Dudley Field, New York; Dr F. Sieveking, President of the
Hanseatic High Court of Appeal, Hamburg; Mr E. H. Schweigaard,
Christiania; Rear-Admiral P. H. Colomb; E. Edouard Clunet, Paris; Dr
E. N. Rahusen, Amsterdam; Mr T. H. Haynes; and Mr (now Sir) Thomas
Barclay, Paris, who was Secretary. The Committee of the Institut
comprised twenty-four members, including Sir Travers Twiss; Professor
Westlake; Professor Lorimer; M. Desjardins, Advocate-General of the
Court of Cassation; Feraud-Giraud, Judge of the French Court of
Cassation; Harburger, Judge of the Court of First Instance at Munich;
Hartmann, Privy Councillor, Hanover; Perels, Director of the German
Admiralty; Marquis d’Olivart, Ex-Professor of International Law,
Madrid; Edouard Rolin, Editor of the _Revue de Droit International_;
&c. M. Renault, the Paris Professor of International Law, was appointed
“reporter” to the Committee, but this position was soon occupied by Sir
Thomas Barclay.
[1270] Most of the English members who expressed their opinion, as Sir
Travers Twiss, Professor Holland, and Mr Moore, preferred to retain the
limit at three miles; Professor Westlake favoured five miles.
[1271] _Report from the Select Committee on Sea Fisheries_, 1893;
_Seventeenth Rep., International Law Assoc._, p. 103, 1896; _Annuaire
de l’Institut de Droit International_, xiii.
[1272] “Il en est ainsi pour les _firths_ écossais.... Toutes ces baies
sont considérées comme étant sous la domination exclusive de l’État
riverain.” _Annuaire_, 23.
[1273] _Annuaire de l’Institut de Droit International_, x., xi., xii.,
xiii. _Reports, International Law Association_, xv., xvi., xvii.
[1274] 49 Vict., c. 95.
[1275] 38 Vict., c. 18; Order in Council, 28th November 1876.
[1276] _Award of the Tribunal of Arbitration_, p. 23. Declarations made
by the Tribunal of Arbitration, 1893. As the Behring Sea case has been
often referred to in recent controversies about the right of fishing,
as having affirmed the three-mile limit as the true international
boundary of the territorial sea, the facts may be briefly recalled.
In 1867 the United States purchased from Russia the territory of
Alaska with its dependent islands, &c., and an American company,
very powerful financially and politically, was formed in 1870, which
obtained a lease of the Pribilov Islands in order to engage in the
fur-seal industry. Under the Act of Congress of 1870 which enabled this
to be done, it was made unlawful to kill any seals upon the islands,
“or in the waters adjacent thereto,” except during certain specified
months. Sealing vessels, both from the United States and from British
Columbia, began to frequent Behring Sea and the waters adjacent to
the islands; their competition impaired the practical monopoly of
the Company in the markets for seal-skins; and in 1886 three British
vessels were seized by American revenue cruisers at distances of 70,
75, and 115 miles from the land, and the masters and mates were fined
and imprisoned for illegal sealing. Up to 1890 other eleven British
sealers were similarly seized and dealt with for fishing at distances
between 15 and 96 miles from land, and five others were ordered out
of Behring Sea. In the negotiations which followed, the American
Government first pled a virtual _mare clausum_ for the whole of Behring
Sea; then that they had jurisdiction up to 100 miles from land; and
lastly, that they had special property in and right of protection over
the fur-seals in Behring Sea and frequenting the islands for breeding
purposes. The Tribunal of Arbitration decided that they had not this
right of protection or property “when such seals are found outside the
ordinary three-mile limit.” Then the Tribunal, in terms of the treaty
appointing them, prescribed the regulations above referred to, leaving
to Great Britain the honours of the contest, and to the United States
the advantage. The true lesson to be derived from this chapter of
international diplomacy, is not that the high tribunal reaffirmed the
three-mile limit as the legal boundary of the territorial sea, which
they did not do (see letter from Baron de Courcel, the President, p.
664), but that that limit may be set aside and a much wider boundary
fixed (in this instance 60 miles) if the protection and preservation
of a marine fishery require it. It may be added that of late years
pelagic sealing by Japanese has greatly increased in Behring Sea, and
since the regulations apply only to British and American subjects, the
Japanese carry on their operations up to the ordinary three-mile limit
around the Pribilov Islands, and sometimes within it, there having
been several encounters with the American patrol-boats involving loss
of life, and heavy fines have been inflicted on offenders. In the
summer of 1908 a fleet of thirty Japanese schooners, some with sixteen
boats, were thus engaged, and according to the Government agent, they
effectually blocked the escape of the seals from the islands. The agent
says that in the last ten years the seal herds have diminished almost
three-fourths, and if the slaughter by the Japanese is not put a stop
to, complete destruction of the industry will follow. Thus, while the
British are compelled to keep sixty miles off the islands, and can only
kill the seals with spears, the Japanese operate up to three miles from
shore, and can use firearms or any other method. It is stated that some
of the British Columbia sealers are endeavouring to nationalise their
vessels in Japan, so that they may be able to fish under the Japanese
flag. In April 1910, when the lease of the Company expired, the United
States Government did not renew it, but took the seals under their
own protection, and an Act was passed prohibiting the killing of the
fur-seal unless authorised by the Secretary of Commerce and Labour.
[1277] _Parl. Papers, Russia_, No. 1 (1895). Correspondence respecting
the Agreement with Russia relative to the Seal Fishery in the North
Pacific. Seal Fishery (North Pacific) Act, 1893, 56 Vict., c. 23; Order
in Council, 4th July 1893.
[1278] The Western Australian Pearl and Bêche-de-mer Fishery
(Extra-Territorial) Act, 1889.
[1279] An Act for the further Encouragement and better Regulation of
the British White Herring Fishery, 48 Geo. III., c. 110, s. 60, 46.
Section 60: “And whereas it may be useful to provide a jurisdiction
for preserving order and settling disputes among persons carrying on
the fishery for herrings on the coast and in the lakes of Scotland;
be it therefore enacted, That the jurisdiction of the sheriffs and
stewarts depute of Scotland, and their substitutes, shall be extended
over all persons engaged in catching, curing, and dealing in fish
in all the lochs, bays, and arms of the sea within their respective
counties and stewartries, and also within ten miles of the coasts of
their said counties and stewartries, and that in as full and ample a
manner as the same is exercised over the inhabitants of these counties
and stewartries; and if any loch, bay, or arm of the sea shall adjoin
to two or more counties or stewartries, or any part of the sea shall be
within ten miles of the coasts of two or more counties or stewartries,
the sheriffs and stewarts of the said counties shall have and exercise
a concurrent jurisdiction over such persons as aforesaid, in any such
loch, bay, or arm of the sea which shall be in or opposite to their
respective counties and stewartries, or any part of the sea within the
aforesaid distance of the coast thereof.”
[1280] _Report of Commission on Sea Fisheries_, 1863, p. lxvi.
[1281] Trawling, and, in particular, steam-trawling, is practically
unknown in America; but in recent years French steam-trawlers have
begun to frequent the Newfoundland banks.
[1282] _Annual Reports_, Fishery Board for Scotland; _Journal of the
Marine Biological Association, &c._
[1283] For the earlier periods the statistics are incomplete. In 1863
the number of sailing trawlers was 955, of which 650 to 700 fished in
the North Sea, 530 belonging to Ramsgate, Yarmouth, Grimsby, and Hull;
in 1883 the aggregate was estimated at 3000, some being large vessels
of ninety tons; in 1889 there were 230 steamers and 2323 smacks; in
1899 the steamers numbered 1186 and the smacks 1637.
[1284] Garstang, The Impoverishment of the Sea, _Journal Marine Biol.
Assoc._, vol. vii. p. 47, 1900.
[1285] Return of the Number of Steam Trawlers registered at Ports in
the States of Western Europe in the Year 1907, _Parl. Papers_, Cd.
4236, 1908.
[1286] _Report of the Commissioners appointed to inquire into the Sea
Fisheries of the United Kingdom_, vol. i., 1866. The late Professor
Huxley and Mr Shaw Lefevre (now Lord Eversley) were two of the
commissioners.
[1287] _Report on the Sea Fisheries of England and Wales_, 1879
(C.--2449). The commissioners were Mr Frank Buckland and Mr (afterwards
Sir) Spencer Walpole.
[1288] _Report of the Commissioners on Trawl-Net and Beam-Trawl
Fishing_, 1885 (C.--4328).
[1289] “That taking into consideration that the question of the
destruction of immature fish is one of international importance, it
is, in the opinion of this meeting, imperative in the public interest
that an International Conference be held to consider the desirability
of recommending legislation upon the subject; and this meeting of
practical fishermen further requests of Her Majesty’s Government to
take immediate steps to bring about such Conference at the earliest
possible date.” _Fisheries Exhibition Literature_, vol. iv. pp. 346,
355.
[1290] Conference of Representatives of the Trawl-Fishing Industry,
held at the Inns of Court Hotel, London, 13th November, 1888. “1.
That we find a large and distressing diminution in the North Sea
of soles, turbot, plaice, and all flat fish, and view with alarm
the future, unless some steps are immediately taken to prohibit the
catching of immature fish.” 2. “That the Conference petition Her
Majesty’s Government, urging them to enter into negotiations with all
Continental Governments to establish an international law to prohibit
the wilful catching of immature fish, and to make it unlawful to offer
such immature fish for sale.” 3. “That copies of the resolutions be
forwarded to the President of the Board of Trade asking for immediate
action, and to the President of the National Sea Fisheries Protection
Association, asking that Association to undertake the responsibility of
a measure for legislation, and to do all they can for the protection
of immature fish in and around the coasts of the North Sea and other
coasts of the United Kingdom upon which breeding-grounds exist.”
[1291] Conference of the Trawl-Fishing Industry of the East Coast
Ports, held at Hull, 30th April 1890. 1. “That this Conference of the
Trawl-Fishing Industry of the East Coast, consisting of delegates from
Hull, Grimsby, Yarmouth, Lowestoft, Scarboro’, and Boston, having
realised the enormous loss which the trade has sustained year by
year through the wholesale capture and destruction of immature and
inedible fish, hereby resolves that the time has come when a strong
and united effort should be made to put a stop to this growing evil;
and as a preliminary step in this direction, it is agreed by the whole
of the delegates here assembled, for themselves individually and the
Companies, Corporations, Fleets, and Associations they represent, to
abstain during the coming summer from fishing on the grounds where
immature fish are generally caught in great abundance, such grounds
being specified in the next Resolution.” 2. “That the Fishing Grounds
or Nurseries where experience has found immature fish to be most
prolific, and which are referred to in the foregoing Resolution, shall
be defined as follows: That part of the North Sea the Eastern Boundary
of which is the German and Danish Coasts; the Western Boundary,
Longitude 7 deg. 30 min.; the Northern Boundary, Latitude 56 deg.;
the Southern Boundary, 53 deg. 50 min.” The third resolution defined
immature lemon soles, soles, turbot, brill, and plaice; and the fourth
expressed the opinion that it was “highly necessary for the future
wellbeing of the trade, and for the preservation of an important
food-supply, that Parliament should be asked to impose restrictions
upon the sale and purchase of immature fish”; and the delegates
were instructed to press for legislative interference, national and
international.
[1292] International Conference of Representatives of Maritime Powers
convened under the auspices of the National Sea Fisheries Protection
Association, to discuss the Question of Remedial Measures necessary to
be taken for the Preservation and Development of the Fisheries in the
Extra-territorial Waters of Europe, 1890. _Minutes of Proceedings._
The Conference passed a resolution that an official international
conference of European maritime powers should be held with the view
of concluding a convention for the preservation of undersized fish;
and another, proposed by Dr P. P. C. Hoek, the delegate for the
Netherlands, that before such a conference met, “the different nations
interested in the sea fisheries of European waters should collect,
with as little delay as possible, sufficient information, scientific
as well as statistical, with regard to the damage done by the capture
of undersized fish by their fishermen.” The author, who was present,
conscious of the advantages of international co-operation, if the
programme and conditions were appropriate, proposed that Dr Hoek’s
resolution “should be modified in the way of recommending that a joint
scheme of investigation might be drawn up by the countries concerned”;
and on the motion of Captain C. F. Drechsel, the delegate for Denmark,
who approved of it, the delegates adjourned to consider this proposal.
The result, however, was merely the tabling of a resolution, which
was adopted, “That the National Sea Fisheries Protection Association
be requested to formulate a set of questions with a view to obtaining
scientific and statistical information in relation to undersized fish,
and forward it to each delegate, in order that he may submit it to his
Government for adoption”--with what result does not appear. _Ibid._,
pp. 21, 34, 36, 37.
[1293] “Your Committee are sensible of the difficulties of making
international regulations, but are nevertheless of opinion that the
best method for effectively governing the operations of the various
classes of fishermen, and, at the same time, for securing, so far as it
may be found possible, the proper protection of spawning and immature
fish, would be to throw the responsibility of these duties, so far as
the waters immediately adjacent to the various countries are concerned,
on those various countries; that, for the effective realisation of this
object, the present territorial limit of three miles is insufficient,
and that, for fishery purposes alone, this limit should be extended,
provided such extension can be effected upon an international basis,
and with due regard to the rights and interests of all nations. Your
Committee would earnestly recommend that a proposition on these lines
should be submitted to an international conference of the Powers who
border on the North Sea.” _Report from the Select Committee on Sea
Fisheries_, 377, 1893. The Chairman of the Committee, which consisted
of fourteen members, was Mr Marjoribanks (the late Lord Tweedmouth);
among the others were Sir Albert Rollit, Mr Buchanan, and Mr (now Lord)
Heneage. The report was presented to the House of Commons and ordered
to be printed on 17th August 1893.
[1294] _Special Report and Report from the Select Committee on the
Sea Fisheries Bill_, 1900 (287): “Your Committee think that it is
proved beyond doubt that there is a very serious diminution of the
supply of certain kinds of flat-fish, particularly in the North Sea.
Of late years the total quantity of such fish caught has remained
nearly stationary. This fact, when taken along with the enormously
increased catching power and the vastly larger area of sea subjected
to fishing operations, seems to show that the ancient fishing-grounds
are much depleted. The whole of the local evidence, differing in many
other respects, is practically unanimous as to this point. It seems
clear that the evil is a growing one, and that in default of a remedy
the consequences to the fishing industry in the diminished supply of
flat-fish will at no very distant future be disastrous.” The late Mr
(afterwards Lord) Ritchie, President of the Board of Trade, Mr Graham
Murray (now Lord Dunedin), and Captain Sinclair, now Lord Pentland,
Secretary for Scotland, were members of the Committee.
[1295] “Your Committee feel that the subject of the diminution of the
fish supply is a very pressing one, and that the situation is going
from bad to worse. In their view, no effort ought to be spared (1st)
to arrange for international treatment of the subject generally,
and especially for regulation of the North Sea area; and (2nd) to
provide for the adequate equipment of the Government Departments in
charge of the subject, so that they may effectively pursue scientific
investigation and ascertain with sufficiency and precision what has
been done, either in the way of scientific research or in the matter of
practical legislation, by other inquirers and by other countries, with
the view of determining whether any, and if so what, legislation may be
desirable to effect the objects of the Bill.” _Ibid._, iv.
[1296] _E.g._, “That this conference regards as conclusive the evidence
of a widespread diminution of the supply of food fishes in the North
Sea and adjacent grounds, and is of opinion that the only practicable
remedy is the prevention of landing and sale of immature and undersized
fish.” Nat. Sea Fisheries Protection Ass., 1902.
[1297] _Report from, the Select Committee of the House of Lords on
the Sea Fisheries Bill (H.L.)_, 1904 (36). The Earl of Onslow, Lord
Tweedmouth, and Lord Heneage were members of this Committee.
[1298] _Op. cit._
[1299] Thus from the year 1903 (when these statistics begin) to 1906
the number of tons of bottom fishes landed on the East Coast of England
by first-, second-, and third-class fishing vessels, from the North Sea
and from beyond the North Sea, was as follows:--
1903. 1904. 1905. 1906.
From North Sea 260,313 230,975 207,440 217,567
From beyond the North Sea 67,625 78,216 93,395 129,697
[Illustration:
Fig. 28.--_Chart showing the Fishing-grounds frequented by British
trawlers. Depths under 100 metres represented in black; those from 100
to 200 metres in shading._
From Report of the Board of Agriculture and Fisheries for 1906.]
The particulars for all coasts are only given for 1906, and they show
that almost half of the total supply of bottom fishes in England and
Wales come from grounds outwith the North Sea. The figures are: from
North Sea, 217,571 tons; from beyond the North Sea, 203,863 tons.
Captain Walter S. Masterman, of the Board of Agriculture and Fisheries,
in a valuable report on his research work in the North Sea, states that
while the total quantity of bottom fishes taken within the North Sea by
steam-trawlers and landed on the East Coast of England has decreased
in the four years, 1903-1906, by 39,650 tons, or nearly 17 per cent,
the decrease in flat fish has amounted to 23,590 tons, or nearly 42 per
cent; and that “the decrease has been continuous from year to year,
especially in the case of plaice.” _Report on the Research Work of the
Board of Agriculture and Fisheries in relation to the Plaice Fisheries
of the North Sea_, 1908 (Cd. 4227).
[1300] A leading representative of the trawling industry, Mr G. L.
Alward, thus described the process to the Committee of the Lords in
1904. The diminution, he said, was from over-fishing, “first of all
in our original old fishing-grounds. We denuded those, and found less
year by year as time went on. We then discovered new grounds, with,
in process of time, the same result. In going back originally, say to
about 1830 to about 1890, we found, at ground after ground, after being
fished for a few years, the same results; the fish became scarcer and
scarcer.” _Report_, p. 78.
[1301] The quantity brought to England from Iceland and Faröe in 1907
was nearly 117,000 tons, or nearly 26 per cent of the total quantity of
bottom fishes landed. _Board of Agriculture and Fisheries Annual Report
on Sea Fisheries for 1907_. Schmidt, _Fiskeriundersøgelser ved Island
og Færøerne i Sommeren_, 1903, p. 132.
[1302] A sidelight is thrown upon the risks as well as the enterprise
of their labours by the fact that in 1908 a trawler’s crew, on the
one hand, fishing on the coast of Africa, fell into the hands of the
Moors; while another, whose vessel was wrecked near the White Sea, were
saved from starvation by the kindness of Russian Laplanders, who killed
reindeer for their sustenance.
[1303] Trawlers, on discovering new and productive grounds, invariably
select out the fish that are most remunerative and throw the rest back
into the sea. “Hundreds of thousands of tons” of immature fish are
said to have been destroyed in this way in the North Sea, and what has
happened at Iceland with regard to mature fish is thus described in a
letter from one trawler to another, which was read by the recipient to
the Parliamentary Committee in 1893: “Dear Manton, ... At present the
trawlers who are running Iceland are throwing thousands of tons of good
mature fish away, which, if some scheme of storage were got up, the
fish sorted, and bought for food, would supply thousands in the year.
I have been to Iceland, and we have to throw away hundreds of tons of
good mature fish, such as haddock, supposed to be too large, and great
quantities of cod, ling, and other fish. The fact is, the ground, which
is valuable for fishing, is completely rotten with the refuse from the
trawlers. We have to haul every two hours, and we have to carry extra
hands to get rid of the fish and get the bit below we choose to save.
The ground is fairly poisoned, and the plaice-fishing not so brisk,
only in odd places; whereas before it was more general where there is
any trawling ground” (_Report cit._, p. 248). The grounds had only
been recently opened up when this was written. It is different to-day,
when 85 per cent of the fish brought back from Iceland are round fish,
chiefly haddocks and cod (_Ann. Rep. Sea Fisheries for 1906_, App., p.
15). It used to be the same in the North Sea, only prime fish being
taken, and haddocks, &c., thrown away.
[1304] _Vida Marítima, Órgano de la Liga Marítima Española_, 1904,
1905; _Boletin oficial_.
[1305] Sea Fisheries Regulation Act, 1888, 51 & 52 Vict., cap. 54.
Section 1 is as follows: “1.--(1) The Board of Trade may from time to
time on the application of a county council or borough council, by
order, (_a_) create a sea fisheries district comprising _any part of
the sea within which Her Majesty’s subjects have by international law
the exclusive right of fishing_, either with or without any part of the
adjoining coast of England and Wales; and (_b_) define the limits of
the district,” &c. _Sea Fisheries (England and Wales), Annual Reports
of the Inspectors_; _Board of Agriculture and Fisheries, Annual Reports
of Proceedings under Acts relating to Sea Fisheries_. An excellent
chart, showing the regulations with respect to trawling around the
English coast, is published in the _Report from the Select Committee of
the House of Lords on the Sea Fisheries Bill_, 1904.
[1306] _Department of Agriculture and Technical Instruction for
Ireland: Report on the Sea and Inland Fisheries for 1907._ Part I.,
General Report, pp. 56-62.
[1307] _Report on the Sea and Inland Fisheries of Ireland for 1904_, p.
xxv. _Manual of Fisheries (Ireland) Acts._ Section 3 (subsection 1) of
the _Steam Trawling (Ireland) Act_, 1889 (52 & 53 Vict., c. 74), gave
powers to the Inspectors of Irish Fisheries to make, alter, and revoke
byelaws for prohibiting steam-trawling “within three miles of low-water
mark of any part of the coast of Ireland, _or within the waters of
any other defined areas specified in any such byelaw_, and subject to
any conditions or regulations contained in such byelaw.” Subsection
2 enacted that “each and every person who uses any trawl-net, or any
method of fishing in contravention of any byelaw of the Inspectors of
Irish Fisheries made in pursuance of this section,” shall be subject
to a fine not exceeding five pounds for a first offence, or twenty
pounds for a second or subsequent offence, with forfeiture of the
gear employed. Section 4 made it unlawful for “any person” to land or
sell in Ireland any fish caught in contravention of any such byelaw.
Section 1 (subsection 1) of the _Fisheries (Ireland) Act_, 1901 (1 Ed.
VII., c. 38), makes “every person who uses any trawl-net or any method
of fishing in contravention of any byelaw” of the department made in
pursuance of the third section of the Act of 1889, liable on conviction
under the Summary Jurisdiction Acts to a fine not exceeding one hundred
pounds, with forfeiture of the gear, for the seizure of which any duly
authorised officer is empowered to “go on board any vessel propelled by
steam employed in fishing.” The Irish byelaws must be approved by the
Lord-Lieutenant and Privy Council of Ireland.
[1308] _Sea Fisheries (Clam and Bait Beds) Act_, 44 & 45 Vict., c. 11.
[1309] 48 & 49 Vict., c. 70; 50 & 51 Vict., c. 52.
[1310] 48 & 49 Vict., c. 70.
[1311] 1st Feb. 1886, 18th April 1887, 25th April 1887, &c. _Manual of
Sea Fisheries (Scotland) Acts and Statutory Bye-laws_, pp. 253-257.
[1312] See pp. 592, 643.
[1313] _Ibid._, p. 255.
[1314] _The Herring Fishery (Scotland) Act_, 1889, 52 & 53 Vict., c.
23. Section 7.--(1) “The Fishery Board may, by byelaw or byelaws,
direct that the methods of fishing known as beam trawling and otter
trawling shall not be used within a line drawn from Duncansby Head, in
Caithness, to Rattray Point, in Aberdeenshire, in any area or areas to
be defined in such byelaw, and may from time to time make, alter, and
revoke byelaws for the purposes of this section, but no such byelaw
shall be of any validity until it has been confirmed by the Secretary
for Scotland.” The next section prohibits the landing or sale in
Scotland of any fish caught in contravention of the Act or byelaws.
[1315] “11.--(1) The Fishery Board may, by byelaw or byelaws,
direct that the methods of fishing known as beam trawling and otter
trawling shall not be used within a line drawn from Rattray Point, in
Aberdeenshire, to the Farne Islands, in Northumberland, in any area or
areas to be defined in such byelaw, and may from time to time make,
alter, and revoke byelaws for the purposes of this section.”
[1316] _A Bill [as amended in Committee] intituled An Act for the
better Regulation of Scottish Sea Fisheries_ (52), s. 10, February 1895.
[1317] _Sea Fisheries Regulation (Scotland) Act_, 1895, 58 & 59 Vict.,
c. 42. Section 10.--(1) “The Fishery Board may, by byelaw or byelaws,
direct that the methods of fishing known as beam trawling and otter
trawling shall not be used in any area or areas under the jurisdiction
of Her Majesty, within thirteen miles of the Scottish coast, to be
defined in such byelaw, and may from time to time make, alter, and
revoke byelaws for the purposes of this section. Provided that the
powers conferred in this section shall not be exercised in respect to
any areas under Her Majesty’s jurisdiction lying opposite to any part
of the coasts of England, Ireland, or the Isle of Man, within thirteen
miles thereof.” (2) provided for a local inquiry to be held. (3)
“Provided that no area of sea within the said limit of thirteen miles
shall be deemed to be under the jurisdiction of Her Majesty for the
purposes of this section unless the powers conferred thereby shall have
been accepted as binding upon their own subjects with respect to such
area by all the States signatories of the North Sea Convention, 1882.”
[1318] _Eighteenth Ann. Rep. Fishery Board for Scotland_, Part I., p.
xxxii. The information relating to this part of the subject is taken
mostly either from the _Annual Reports_ of the Scottish Fishery Board
or from Hansard’s _Parliamentary Debates_.
[1319] See _Norges Officielle Statistik; Norges Fiskerier_, 1906,
pp. 17, 18. Sixteen steam trawlers were on the list as registered in
Norway in that year, but “they did not carry on fishing from Norwegian
ports,” and were not included in the list of _bona fide_ Norwegian
fishing-vessels.
[1320] _Peters_ v. _Olsen_, 7, _Court of Session Reports_, 5th Series
(_Justiciary Cases_); 42 _Scottish Law Reporter_, p. 735.
[1321] “In fact, the Moray Firth, within the line from Duncansby
Head to Rattray Point, is not the high seas, but is a bay or area
between these headlands _intra fauces terræ_,--between the jaws of the
land,--which has been called in England one of the King’s Chambers.
In law, such an area must be dealt with by the Courts of this country
as part of the territorial limits of Scotland, unless the Legislature
chooses to enact, in fairness to other countries or for any other
reason, that the extent of the space involved is too great to come
within the reasonable definition of a bay.”
[1322] See p. 545.
[1323] _Court of Session Reports_, 8 Fraser, p. 93.
[1324] “For the purpose of regulating the police of the fisheries
in the North Sea outside territorial waters.” The use of the words
“territorial waters” and “exclusive fishery limits” indifferently for
the same thing is common, but improper.
[1325] “I, George Milne Cook, Vice-Consul for Norway for Aberdeenshire
and the adjacent districts, by instructions of Herr Laveland, Minister
for Foreign Affairs of Norway, hereby protest, on behalf of the
Government of Norway, against any conviction of the masters of the
Norwegian trawling vessels _Stroma_, _Sando_, and _Catalonia_, provided
the trawling with which they were charged has taken place outside
the territorial limits, and I further protest against any punishment
or fines being inflicted in the Sheriff Court at Elgin on the said
masters.”
(Sd.) GEORGE M. COOK.
ELGIN, _31st January 1908_.
[1326] Hansard, vol. 169, pp. 557, 558, 988; vol. 170, pp. 1202, 1206.
[1327] A letter appeared in the _Fish Trades Gazette_, on 14th October
1905, from Mr Hans Johnsen, the Fisheries Agent for Norway in Great
Britain, stating that he had resigned his membership of the National
Sea Fisheries Protection Association owing to the President (Lord
Heneage) having prevented him from reading at the annual conference of
the Association at Aberdeen, with reference to a resolution regarding
the Moray Firth, a letter from the Norwegian fishery authorities. His
object in endeavouring to speak on the resolution, he said, “was to
clear the Norwegian flag from having anything to do with the piracy
practised by Grimsby steam trawl-owners in the Moray Firth, and which
the Government of Norway and the Norwegian Fishery Board is highly
indignant at.”
[1328] Hansard, vol. 170, pp. 472, 1206, 1246, 1383.
[1329] In these Norwegian vessels there were a “flag-master” and a
“fishing-master,” the former, nominally in charge of the vessel,
being a Norwegian in order to comply with the registration laws, but
often, or usually, occupying a humble position, such as cook. The
“fishing-master” had the real control and occupied the master’s rooms
on board. He, like all or most of the crew, was English, resident at
Grimsby.
[1330] In April the penalties ranged from £10 to £2, 10s., or two to
ten days’ imprisonment; in July they ranged from £1 or one day to £45
or fourteen days; three cases were dismissed, one was found not proven,
and in five the verdict was not guilty; four cases were appealed to
the High Court by the Procurator-Fiscal and the appeal sustained.
_Twenty-Sixth Ann. Rep. Fishery Board for Scot._, Part I., App. L., II.
[1331] Hansard, vol. 170, p. 472.
[1332] See p. 707 _et seq._
[1333] Hansard, vol. 169, pp. 832, 991, 1037; vol. 170, pp. 786, 1246,
1247; vol. 192, p. 832. &c.
[1334] _Ibid._
[1335] Thus, in the “Reply on behalf of Her Britannic Majesty’s
Government to the Answer of the United States of America,” submitted to
the International Fisheries Commission at Halifax in 1877, it was said:
“It is not understood that the Answer either raises or invites the
discussion of any rules or doctrines of international law, save such
as bear upon the question of what are to be considered the territorial
waters of a maritime State for the purposes of exclusive fishing. The
contention of the Answer in relation to these doctrines which requires
special attention, is that which asserts that Great Britain and other
Powers have traditionally recognised a rule, by which foreigners were
excluded from fishing in those bays only which are six miles, or less,
in width at their mouths. It is distinctly asserted on the part of Her
Majesty’s Government _that this alleged rule is entirely unknown to,
and unrecognised by, Her Majesty’s Government_, and it is submitted
that no instance of such recognition is to be found in the Answer or
the Brief accompanying the same, and that none can be produced.” This
was approved of by the Earl of Derby, Foreign Secretary (the Earl of
Derby to Mr Ford, August 31, 1877; the same to the same, Oct. 6, 1877).
[1336] 11th Nov. 1908. Hansard, vol. 196, p. 236. Very important
declarations as to the territorial character of bays will be found
in the decision of the Permanent Court of Arbitration at The Hague,
on the North Atlantic Fisheries (7th September 1910, Award No. V.),
received as these sheets are passing through the press. The application
of the three-mile limit to bays was rejected, the following rule being
formulated: “In case of bays the three marine miles are to be measured
from a straight line drawn across the body of water _at the place where
it ceases to have the configuration and characteristics of a bay_. At
all other places the three marine miles are to be measured following
the sinuosities of the coast.” In its practical application to British
North America, the Tribunal recommended a ten-mile limit generally,
except for certain specified bays (including Chaleurs, Miramichi,
Egmont) where special lines, enclosing much larger areas, are proposed.
[1337] Hansard, vol. 170, p. 1383. The miles referred to are English
statute miles.
[1338] Hansard, vol. 191, p. 1769.
[1339] Reports of the British Delegates attending the International
Conferences held at Stockholm, Christiania, and Copenhagen, with
respect to Fishery and Hydrographical Investigations in the North
Sea. _Parl. Papers_, Cd. 1313, 1903. Corresponding “Reports” to 1906
(_Parl. Papers_, Cd. 2966/06, 3033/06, 3165/06). Conseil Permanent
International pour l’Exploration de la Mer, _Rapports et Procès-Verbaux
des Réunions_, Copenhague. A summary on the subject, by Dr A. T.
Masterman, will be found in the Minutes of Evidence, Committee on
Fishery Investigations (_Parl. Papers_, Cd. 4304, p. 479, 1908).
[1340] “2. The delegates should propose that the scientific
investigations shall be accompanied by a practical _exposé_ of the
steps to be taken in order to bring the exercise of sea-fishing more in
accord with the natural conditions regulating the growth and increase
of fish in our seas, and thus permanently increase the supply of fish
in the markets of the countries adjoining the North Sea. 3. In making
this proposal, which they should do at the outset, the delegates should
make it clear that the principal object the British Government have in
directing them to take part in the Conference, is to secure a careful
inquiry into the effect of present methods of fishing in the North Sea;
and the delegates should give every assistance in promoting a scheme
for determining whether protection against overfishing is needed,
and, if so, where, when, and how such protection should be given. 4.
The delegates should propose that a thorough scheme for obtaining
statistical information with regard to the quantity and quality of fish
caught by the different methods of fishing shall be organised, with a
view of determining whether protection against overfishing is needed,
either by the prohibition of trawling in certain selected areas or the
limitation of fishing during certain selected seasons.”--Instructions
to the British Delegates for the Meeting at Stockholm, 15th June 1899;
Reports of the British Delegates, &c., p. 13. _Parl. Papers_, Cd. 1313,
1903; Committee on Fishery Investigations, Minutes of Evidence, &c., p.
278, _Parl. Papers_, Cd. 4304, 1908. The instructions of the British
Government to the Delegates for the Meeting in 1901, at Christiania,
were of similar tenour:--“His Majesty’s Government fully share in
the interest shown in the cause of scientific research, but having
regard to the importance of the evidence which was laid before the
Select Committee of the House of Commons [see p. 709], and which was
adopted by them as showing that the supply of fish in the North Sea is
decreasing, they are of opinion that the consideration of this subject
will admit of no delay, and you should press on your foreign colleagues
the importance of entering at once upon the pursuit of investigations
calculated to lead to an international agreement. You should in no
way discourage or check any desire which you may find to exist for
scientific research into problems not so immediately pressing, but his
Majesty’s Government place in the forefront of their reasons for taking
part in the forthcoming Committee the desire that no delay should be
incurred in the adoption, by international agreement, of measures for
arresting the diminution of the supply of fish in the North Sea, and
for restoring, as far as possible, that source of supply to its former
abundance.” _Ibid._, p. 278.
[1341] _Memorandum drawn up by the Expert Members of the Ichthyological
Research Committee_, Report of the Committee appointed to Inquire and
Report as to the Best Means by which the State or Local Authorities
can Assist Scientific Research as applied to Problems affecting the
Fisheries of Great Britain and Ireland (_Parl. Papers_, Cd. 1312, p.
xxii, x, 1902). _Evidence of Mr Walter E. Archer, Assistant-Secretary,
Board of Agriculture and Fisheries_, Minutes of Evidence given before
the Committee appointed to inquire into the Scientific and Statistical
Investigations now being carried on in relation to the Fishing Industry
of the United Kingdom, pp. 277, 288, 346, 359 (_Parl. Papers_, Cd.
4304, 1908).
[1342] Reports of the British Delegates, &c., _Parl. Papers_, Cd. 1313,
p. 72, 1903. The countries represented were Great Britain, Germany,
Denmark, Belgium, the Netherlands, Norway, Sweden, and Russia.
[1343] Hansard, vol. 169, pp. 992, 996; vol. 170, p. 786; and 11th Nov.
1908.
[1344] Mr Frank Barrett, of Grimsby, thus referred to the condition
of the North Sea at the conference of the National Sea Fisheries
Protection Association in 1905: “Unless they did something as a
counterpoise to the continual trawling which was going on, they would
find themselves powerless as regarded that splendid fishing-ground, the
North Sea. He did not believe the North Sea, if left to itself, could
last for ever. He was one of those who thought it could not last very
long; and he thought they should apply the lessons of science in order
to rehabilitate the North Sea.” _Fish Trades Gazette_, Oct. 14, 1905.
[1345] Mr G. L. Alward, one of the leading and most experienced
trawl-owners of Grimsby, who was invited to take part in a discussion
on sea fisheries in the Zoological Section of the British Association
in 1906, thus referred to the subject. He said: “There was no doubt
that the North Sea was deteriorated as a fishing-ground, and in order
to maintain an adequate supply they had had to explore fresh fields.
They had shifted the trawling-grounds to the coasts of Faröe, Iceland,
and Norway, while others had had to go out into the Atlantic, to the
Bay of Biscay, and to the coast of Morocco. But if they had exhausted
the 147,000 square miles of the North Sea,--every mile of which had
been fished,--and they fished out the area between Norway and Faröe and
Iceland, not more than forty or fifty thousand square miles, with the
same rapidity, they had to look forward to nothing short of a dearth of
fish and a rise in value to famine prices.” _Aberdeen Free Press_, 9th
August 1906.
[1346] According to an interesting table on a chart appended to the
_Annual Report of the Board of Agriculture and Fisheries_ for 1906 (see
fig. 28), the areas, in square miles, between the three-mile limit
and the 200-metre line, are as follows: North Sea, 152,473; North of
Scotland (Orkney and Shetland), 18,096; West of Scotland, 32,099; West
of Ireland, 9066; Irish Sea, 15,743; Southwards of Ireland, 50,416;
Bristol Channel, 8613; English Channel, 25,238. The area at Iceland is
36,608, and at the Faröes, 4949 square miles.
[1347] Hansard, vol. 169, p. 996; vol. 196, p. 217. I have been
courteously informed by Mr Bjarni Sæmundsson, of Reykjavik, a
well-known authority on the fisheries of Iceland, that no laws
proposing to extend the territorial waters were passed, or proposed, by
the _Althing_.
[1348] Hansard, vol. 170, p. 786.
[1349] On Mem. 1 the words “le dit Roi Dengleterre et” follow
“Procurors.”
[1350] Mem. 1 and 8, “de touz autres de son Roialme.”
[1351] Mems. 1, 14, and 15, “il ny ad.” Mem. 8, “du temps qil ny ad.”
[1352] Mem. 8, “aueroient este.”
[1353] Mem. 1, “oue touz les Isles et les apportenaunces.”
[1354] Mem. 1, the words are “estatuitz et defenses comunes et priuees”
and the rest is omitted to “sur toute manere des gentz taunt,” &c. Mem.
8, “communes et priuees a garder pays et droiture entre tote manere des
gentz tant,” &c. Mem. 15, “estatuitz et defences pur gouerner en toute
manere,” &c.
[1355] Mems. 1, 8, 14, 15, “come de lour propre.”
[1356] Mem. 1, “oue.”
[1357] Mems. 1, 8, and 15, “oue.”
[1358] Mem. 1, instead of gouernement, “a la generalte”; Mem. 8, “a la
garde.”
[1359] Mems. 1, 8, and 15, “le dit Roi.”
[1360] Mem. 1 omits “Dengleterre.”
[1361] Mems. 1 and 8, “Rois Dengleterre deputez eient este.”
[1362] Mem. 8, “de la dite seignurie et garde.”
[1363] Mems. 1, 8, 14, and 15, “forspris.”
[1364] Mems. 1, 8, and 15 insert “et.”
[1365] Mem. 15, “a.”
[1366] Mem. 1, “ou mesfaitz”; Mem. 8, “ou de mesfaitz.”
[1367] The sentence from “Et come” to “Coustumes” is omitted on Mems.
1, 8, and 15.
[1368] Mems. 1 and 8 omit “en vne cedule anexe ayceste,” and Mems. 1,
14, and 15 omit the whole of the next paragraph, recommencing “Monsieur
Reymer Grimbaus.” Mem. 8_d_, paragraph commencing “Primerement.”
[1369] Mem. 8, “et a maintener.”
[1370] Mem. 8, “excepte pur le dit Roy.”
[1371] Mem. 8, “le dit Roy.”
[1372] Mem. 14 omits “et.”
[1373] Mems. 1 and 8 omit “Dengleterre.”
[1374] Mems. 1, 14, and 15, “du dit Roi.”
[1375] Mems. 8 and 15 insert “les.”
[1376] Mems. 1, 8, and 15 insert “et marchandises.”
[1377] Mem. 1 omits “et.”
[1378] Mem. 1 omits “de Fraunce.”
[1379] Mems. 1, 14, and 15 read (here and elsewhere) “ceo.”
[1380] Mem. 8 omits “et la prise,” &c., recommencing, “sur la
forfaiture,” &c.
[1381] Mem. 14, “ou.”
[1382] Mem. 8 inserts “et.”
[1383] Mems. 1, 14, and 15, “sa.”
[1384] Mems. 1 and 8, “de par le dit Roi.”
[1385] Mem. 1, “de la”; Mems. 8, 14, and 15, “de le.”
[1386] Mems. 1, 8, 14, and 15 insert “a vous Seigneurs.”
[1387] Mems. 8 and 14, “qil.”
[1388] Mem. 8 inserts “il.”
[1389] Mems. 1, 14_d_, and 15 complete the passage as follows: “Come
il purra suffire et en sa deffaute son dit seignur le Roi de Fraunce
par qi il estoit deputeez al dit office et qe apres dewe satisfactioun
faite as ditz damagez le dit Monsieur Reiner soit si duement punitz
pur le blemissement de la dite alliance qe la punicioun de lui soit as
autres example [Mem. 8, ‘ensample’] pur temps auenir.” Mem. 15 ends
here. Mem. 8 transposes the next paragraph and the last.
[1390] Mem. 1, “aunciens”; Mem. 14, “auncienes.”
[1391] Mems. 1, 8, and 14, “ne.”
[1392] Mems. 1, 8, and 14 omit “nefs.”
[1393] Mem. 8, “leurs.”
[1394] Mem. 8, “doiuent.”
[1395] Mem. 8. “deuantdiz.”
[1396] Mems. 1 and 8, “les.”
[1397] Mems. 1 and 8, “ses.”
[1398] Mem. 8, “soy.”
[1399] [_Sic_]: not previously mentioned; probably Johan Paderogh.
[1400] _See_ below.
[1401] Side-note says: “The said goods have been delivered to Will.
Bush.”
[1402] _24th Aug. 1303, Saturday._
[1403] _St Lawrence_, _Aug. 10_.
[1404] _29th Sept. 1303, Sunday_.
[1405] Differences found in copy, _State Papers, Dom._, Chas. II., Vol.
339, p. 589, are shown in brackets.
[Transcriber's Note:
Manuscript abbreviations on pages 765-767 have been changed to modern
letters due to the unavailability of suitable characters.
Inconsistent spelling and hyphenation are as in the original.]
End of Project Gutenberg's The Sovereignty of the Sea, by Thomas Wemyss Fulton