SECTION II.

SECTION II.
THE TERRITORIAL WATERS 536 537
CHAPTER I.
THE HISTORICAL EVOLUTION OF THE TERRITORIAL SEA.

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

It is desirable to trace the evolution of this limited sovereignty over what is now known as the territorial waters or territorial sea (also named the neighbouring, proximal, adjacent, or littoral sea—mare proximum, mare vicinum, mer territoriale, n?chstangrenzendes Meer), and to consider in 538 particular the two main aspects it presents,—first, the actual practice of nations on the one hand, and, second, the opinions of the accredited writers on international law.

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

Even during the time when some nations were asserting a wide maritime dominion, and other nations were opposing such pretensions, there was a general recognition that every maritime state was entitled to exercise jurisdiction over some extent of the neighbouring sea. This was admitted by the most thoroughgoing advocates of the mare liberum, as by Grotius himself, and it was acknowledged by the common usage of 539 nations. The rights exercised by the crown of England, for instance, in the so-called King’s Chambers in the seventeenth century were apparently not challenged by foreign Powers. But while the sovereign rights of a state over a part of the adjacent sea were recognised by the usage of nations and the opinions of publicists, there was no agreement as to the extent which might be appropriated, and various limits or boundaries have from time to time been proposed or adopted, by which the sea pertaining to a state might be divided off from that which was open and free to all. From an early date attempts were made by jurists to discover some general principle or to lay down rules which might be applied in all such cases. Some of these rules were of such a nature as to assign to states an extent of sea almost as great as any comprised under the widest claims to maritime sovereignty, and none of them received a general assent. The early English lawyers of the twelfth and thirteenth centuries, Glanville, Bracton, Britton, and “Fleta,” merely followed the Roman law with regard to the sea—that is to say, they held that it is by its nature common, like the air, and they did not suggest any limit within which the prince of the adjoining state had exclusive jurisdiction or dominion (see p. 66).

It is in the writings of the early Italian jurists, who lived after the time when Venice by force of arms had established her sovereignty over the Adriatic, that we first meet with proposals to assign legal limits to the maritime jurisdiction of the neighbouring state. Bartolus of Saxo-Ferrato, a great Perugian jurist who died in 1357, and whose authority in the middle ages was very great, declared the law to be that jurisdiction extended to a distance of one hundred miles from the coast, or less than two days’ journey from it. Within this space the ruler had power to apprehend and punish delinquents just as he had on land.969 Baldus Ubaldus, another eminent Italian jurist, who was a pupil of Bartolus and died in 1400, 540 also allotted a wide limit to the maritime rights of the prince of the adjoining territory; but he reduced the space from one hundred to sixty miles, a distance which was supposed to be equal to one day’s journey from the coast.970 The boundaries assigned by these jurists, or sometimes the equivalent of one or two days’ voyage from the coast, were very generally accepted by civilians later, although frequently with qualification, more particularly as to the nature of the rights to be exercised.971 Bartolus confined the rights of the prince to jurisdiction and the appropriation of islands, and since the distance prescribed included the space within which navigation in those times was almost entirely restricted, it is probable that the primary idea was the maintenance of order and the suppression of piracy. The underlying principle was the range of navigation from the coast or from a port, just as later it was the range of guns.

Baldus seems to have gone a step further than Bartolus by including sovereignty (potestas) as well as jurisdiction (jurisdictio) among the rights of the neighbouring prince, and he declared that the proximal sea pertained to the territory of the adjoining state, which, as in the case of Venice, had power to impose taxes for the use of it.972 Much the same opinion was expressed by Bodin, a French lawyer who wrote about the middle of the sixteenth century. When speaking of the taxes or tolls that might be imposed by a state, he said that though the sea was incapable of appropriation, it was in a measure accepted that for a distance of sixty miles from the shore the prince of the adjoining country could impose law on those who approached the coast, and that it had been so adjudged in the case of the Duke of Savoy.973 Gentilis, writing at the beginning of the next century, stated that it was laid down by the civilians that not only jurisdiction, but dominion, pertained to 541 the neighbouring state as far as one hundred miles from the coast, and even further unless the proximity of another state interfered.974

It is thus clear that long before the beginning of the seventeenth century, the original simplicity of the Roman law regarding the appropriation of the sea had undergone a change at the hands of its commentators, and that the doctrine of sovereignty or dominion over a very considerable maritime zone was widely held by jurists. But there is no evidence that either of the boundaries prescribed by Bartolus or Baldus was sanctioned by the general usage of nations. They do not appear ever to have been adopted by any state of northern or western Europe as the limits of its territorial sea or maritime sovereignty; although they were occasionally used in arguments in State Papers, as when the Earl of Salisbury justified to the Spanish Court King James’s proclamation of 1609 against unlicensed fishing, on the ground that maritime jurisdiction was “generally received to be about one hundred miles at the least into the seas.” The actual application of these large boundaries appears to have been confined to parts of the Mediterranean, where the doctrine took its rise, and where it survived till the eighteenth century.975 A more recent and a curious survival of the old boundary of Bartolus is to be found in the abortive Russian Ukase of 1821, by which foreigners were prohibited from navigating in Behring Sea within one hundred Italian miles of the coast, a claim which was revived by the United States as late as 1891.976

Another general principle for the demarcation of the seas belonging to a state had even wider currency than the above. It consisted in the transference to the sea of the principle of the mid-channel, or thalweg, as applied to rivers in apportioning the waters pertaining to either bank,—a doctrine laid down in Roman law and in vogue among the Anglo-Saxons as 542 early at least as the seventh century.977 The thalweg or mid-channel was not infrequently a boundary between contiguous states, and it was not a great step to transfer its application in theory from wide rivers and estuaries to intervening seas. In this way the mid-line in the sea lying between the coasts of two states was held to be the boundary of their respective maritime jurisdiction or sovereignty. The whole extent of a sea stretching between territories belonging to the same state, however far apart these territories might be, was looked upon as being under the sovereignty of that state. This principle, therefore, covered most extensive claims to maritime dominion, since it left hardly any part of the sea unappropriated. The mid-line as an international boundary was in the case of narrow seas logically derived from the tenets of the Italian lawyers, but there are grounds for believing that it may have been much older. An ancient example of its use in a limited way is to be found in King Cnut’s charter, in 1023, granting the port of Sandwich, in Kent, to the Church at Canterbury, by which certain rights of wreck up to the middle of the sea were conferred on the monks. After mentioning “the great sea without the port,” it provided that half of whatever was found “on this side of the middle of the sea,” and brought to Sandwich, should belong to the monks and half to the finder.978 Cnut’s charter cannot be taken as expressing any direct claim to jurisdiction to the middle line, but as wreck was a prerogative of the crown—and this is the first grant of it—the limit assigned seems to imply a differentiation of authority. More pertinent is the statement in the Mirror of Justice, a law-book written about the end of the thirteenth century, and attributed to Andrew Horn, who was Chamberlain of London in the reign of Edward II., that the king’s sovereign jurisdiction extended as far as the middle line of the sea surrounding the land.979 543 Plowden, the Elizabethan lawyer, believed that this work contained the law as it existed before the Norman Conquest, but it is now declared to contain much that is spurious. Whether that be so or not, there is no doubt that this principle of maritime delimitation was adopted by many of the lawyers and scholars of Elizabeth’s time, as Dee and Plowden.980 Even well on in the next century no less a personage than Lord Chief-Justice Hale, in an early unpublished treatise on the law of the customs and seaports, maintained that the king had “right of jurisdiction or dominion of so much at lest of the sea as adjoines to the British coast nearer then to any forren coast.”981 From internal evidence this tract appears to have been written about 1636, and the influence of Selden’s Mare Clausum, which was published at this time, and in which the mid-line was repudiated as a boundary of the British seas, was shown in Hale’s later treatise. In it the mid-line was abandoned, and the “narrow sea, adjoining to the coast of England,” was declared to be “part of the waste and demesnes and dominions of the King of England,” who had in it the double right of jurisdiction and property or ownership, “Master Selden” being referred to as authority.982

There is no evidence that the principle of the mid-channel as applied to the sea was ever homologated by an English sovereign or Government. Notwithstanding its currency in the reign of Elizabeth, we know that it was explicitly disavowed by the queen herself in diplomatic controversy with the King of Denmark, who, in virtue of it, claimed the whole of the sea between Norway and Iceland. Still earlier the English Parliament vainly petitioned the victorious Henry V., fresh from his conquests in France, to impose tribute on vessels passing through the Channel, on the ground that he possessed both shores, and therefore had a legal title to the intervening sea.983 But although the mid-line appears never to have been clearly adopted, there are two circumstances, both referring like Cnut’s charter to the Channel, which may point to its ancient usage there. One is that an important fishing-bank, the Zowe 544 or Sow, extending about one-third across the Channel between Rye and Dieppe, was recognised by France as within the English jurisdiction, and French fishermen for a very long period were in the habit of procuring licenses from the Warden of the Cinque Ports for permission to fish there (see p. 65). The other is that when the question was raised as to how far the jurisdiction of the Cinque Ports extended into the sea—in connection apparently with complaints against French fishermen towards the end of the reign of Charles II.—the Trinity House, while avowing their own ignorance, stated that the Sergeant of the Admiralty within the Cinque Ports claimed to exercise his authority “half seas over or further.”984

The methods of delimitation hitherto mentioned consisted in drawing imaginary lines in the sea, usually at a considerable distance from the coast. Another principle, which probably originated among seafaring men and was capable of being made use of in a rough-and-ready fashion, depended on the range of vision on a fair day, seawards from the shore, or usually from the sea to the land. The space of sea between the coast and the horizon, or vice versa, was regarded as belonging to the adjoining state. This was the principle adopted in Scotland, but it was not confined to that country. It was employed in olden times in England to determine whether a bay or arm of the sea was within the body of a county, inter fauces terr?, and therefore under common law, or part of the high sea and under the jurisdiction of the Admiral.985 An early instance of its adoption as a boundary of international jurisdiction is to be found in the nautical laws prescribed for the Netherlands in 1563 by Philip II. of Spain, by which it 545 was forbidden, on pain of death, for any violence to be done by reason of war, or for any other cause, to his subjects or allies, or to foreigners, on the sea within sight of the land.986 Grotius also referred to the range of vision as a boundary, when he said that the controversy respecting the freedom of the sea was not about bays or straits, or “so much of the sea as might be seen from the shore.”987 We have already seen that in Scotland the fisheries within sight of the coast, or a “land-kenning,” were claimed as belonging exclusively to the Scottish people. In this case the range of vision was from the sea to the land, and it was to be determined from the main-top of the fishing smack.988 The extent of a land-kenning was stated to be fourteen miles, and this was the distance expressed in the Draft Treaty of union in 1604, and pressed upon the Dutch by King James in 1618; but sometimes twenty-eight miles, or two land-kennings, was claimed; and it is to be noted that in the case of bays and firths the distance was measured from a base-line drawn between headland and headland. The range of vision, or land-kenning, as the boundary of the reserved fishing waters, was embodied in Scottish law as well as claimed against other nations by the Privy Council, the Parliament, and the king.989

It was also conceded to Denmark, for in 1618 the Privy Council prohibited Scottish fishermen from fishing within sight of land at the F?r?e Isles. The King of Denmark, indeed, assigned the same limit in a decree of 1691 with regard to places where he did not possess the opposite coasts.990 546 Although the principle was not formally acknowledged by the Dutch in determining their fishing on the British coasts, they agreed to adhere to it (see p. 193); and there is evidence to show that the British cruisers caused them to respect this limit, at all events in connection with the herring-fishing at Yarmouth.991 A later example of the adoption of this limit is to be found in a treaty concluded in 1740 between the Porte and the King of Naples, by which it was stipulated that neither party would permit vessels to be pursued or molested on their coasts within a distance at which ships could discern the land.992

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

Still less definite was another principle, if such it can be called, which was proposed as a guide in allotting the space of sea within which exclusive rights of fishing should belong to the adjacent state. Welwood, Selden, and many others, held, in opposition to Grotius and his school, that the fisheries along a coast might be exhausted or injured by promiscuous 547 fishing, and that the inhabitants of the coast had a primary right to the fructus of the adjacent sea, as against the intrusion of foreigners—a principle which lay at the root of the Scottish claims to the “reserved waters.” Sarpi, an Italian author of the early part of the seventeenth century, in a work defending the claims of Venice, formulated the opinion that the extent of territorial sea should not be fixed everywhere in an absolute manner, but should be made proportionate to the requirements of the adjoining state, without violating the just rights of other peoples. Thus a country or city which possessed large and fertile territories that provided adequate subsistence for the inhabitants, would have little need of the fisheries in the neighbouring sea, while one with small territories that drew a large part of its subsistence from the sea ought to have a much greater extent of sea for its exclusive use.993 This doctrine, though obviously difficult of application internationally, has much to recommend it on grounds of reason and justice. It is one of the fundamental principles on which Norway claims at the present day an unusually large extent of territorial sea.

With regard to bays, straits, and arms of the sea, the general usage from the earliest times has included them within the jurisdiction of the neighbouring state. They have been always regarded as differing from the sea on an open coast, the only disputes about them referring to the size of such areas that might justly be looked upon as territorial. By the old common law of England, which Hale dates as far back at least as the reign of Edward II. (1307-1327), bays, gulfs, or estuaries, of which one shore could be “reasonably discerned” from the other shore, were regarded as inter fauces terr?, and within the body of the adjacent county or counties, so that offences committed there were triable at common law. But along the coast, on the open sea, the jurisdiction of the common law extended no farther than to low-water mark; beyond that it was high sea, or altum mare, and under the jurisdiction of the Admiral.994 Here we see a sharp distinction 548 drawn between bays and the open coast, the former being included within the realm as part of the territory. It seems reasonable on many grounds that the waters lying in view between two parts of the same continuous territory should have been regarded as pertaining to that territory, and it may be noted that in early times the navigation of a vessel along a coast was conducted from headland to headland, and thus a distinction was likely to arise between the open sea lying outside a line joining the headlands, as a waterway common to all, and the sea inside the headlands as an access to the territory. The distinction was maintained from an early period with regard to international relations. Reference has already been made to the treaty arranged by Cardinal Wolsey in 1521, in which it was stipulated that English harbours, bays, rivers, and roads should be exempt from hostilities between belligerents, and to the proclamations of King James in 1604, and of succeeding sovereigns, defining the extent of the King’s Chambers, or bays, according to ancient custom, for purposes of neutrality.995 It is interesting to note that the rights exercised within the King’s Chambers, or bays, on the coasts of England referred only to neutrality and had nothing to do with fishing, while in Scotland it was exactly the opposite. The large bays and firths on the Scottish coast were reserved for fishing, without any specific reference to the rights or obligations of neutrals. The differentiation of bays and arms of the sea from the territorial belt on open coasts has persisted to the present day, both in the writings of publicists and in the practice of nations, although the introduction 549 of another principle of delimitation has tended to keep the claims to bays within moderate bounds.

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

This principle was of slow growth. It did not even receive definite expression among jurists until the beginning of the eighteenth century; but as previously stated (see p. 156), the Dutch ambassadors who came to London in 1610, to endeavour to induce King James to withdraw his proclamation against unlicensed fishing, made use of it in their conferences with the English Ministers, not improbably at the instigation of Grotius. But whether or not Grotius was the person who enunciated the principle in 1610, it is in his writings that we first meet with it, although in a veiled form. It is not mentioned in Mare Liberum, but in his greater work, the Law of War and Peace, which was published in 1625, he said that a state might acquire sovereignty over parts of the sea, in regard to persons by an armed fleet, and “in regard to territory, as when those who sail on the coasts of a country may be compelled from the land, just as if they were on the land.”996 The principle of compulsion from the land is clearly enough expressed, and though Grotius did not define the nature of the compulsion to be exercised, modern writers have generally held that what he meant was compulsion by artillery. If Grotius was the author of the dictum of 1610, he must have had reasons for expressing it 550 in a less definite form in 1625,—perhaps owing to his employment at that time by the Queen of Sweden, to whom the naked doctrine would have been no more attractive than to James.

For a long time, however, the doctrine was equally neglected by publicists and statesmen. This may have been partly due to the somewhat obscure and incidental way in which it was advanced, but probably mainly to the fact that the time was not ripe for its acceptance. It represented much too stringent a limitation of the territorial sea to receive general assent. Selden does not refer to it, and it was passed over by the authors, such as Pontanus,997 Burgus,998 Shookius,999 Conringius,1000 and Strauchius,1001 who favoured more or less extensive claims to maritime dominion, while even writers who opposed such claims, as Stypmannus1002 and Graswinckel,1003 do not adopt it.

The opinions of Grotius with respect to the appropriation of the sea had, indeed, comparatively little influence among jurists in the seventeenth century. The views which prevailed in the latter part of the period are rather represented in the works of two of the writers whose reputation was greatest, Loccenius and Puffendorf. Loccenius, a Swedish author who wrote about the middle of the century and is still quoted as an authority, declared that while a nation could not acquire a universal dominion over the sea, it might possess sovereignty in a particular sea as far as it was under its power or dominion, subject to the rights of innocent passage and navigation by others; and he cited as examples Sweden and Denmark, which exercised sovereignty in the Baltic.1004 As a general rule, however, Loccenius held that states had jurisdiction only in the waters adjacent to their coasts, for the preservation of peaceful navigation; but no attempt is made by him to lay down any fixed rule or limit as to the extent of such jurisdiction. He merely contrasts the opinions of those, as Baldus and Bodin, who contended for a wide limit of sixty miles, or two days’ 551 journey, with those who argue for a narrow but undefined space in the neighbouring sea.

The celebrated Puffendorf, whose authority later was only second to that of Grotius, dealt with the question in his great work on the Law of Nature and Nations, and with even less precision than Loccenius.1005 On the general question of the appropriation of the sea he discarded the objection that its fluidity rendered it incapable of possession, but held that it would be morally impossible for one nation to possess the ocean. He also set aside the moral objection in the absolute form in which it was put forward by Grotius, that the use of the sea was inexhaustible. On the contrary, he held with Selden and Welwood that fisheries in the sea might be exhausted by promiscuous use. “If all nations,” he said, “should desire such a right and liberty (of fishing) near the coasts of any particular country, that country must be very much prejudiced in this respect; especially since it is very usual that some particular kind of fish, or perhaps some more precious commodity, as pearls, coral, amber, or the like, are to be found only in one part of the sea, and that of no considerable extent. In this case there is no reason why the bordering people should not rather challenge to themselves this happiness of a wealthy shore or sea, than those who are situated at a distance from it.”1006 On this ground, the right of exclusive fishing, and also for the security and defence of the state, a nation was justified in claiming dominion in the neighbouring sea. The extent of this territorial sea, he says, cannot in general be accurately determined; but it is clear that he thought it might be very considerable. We had the power to abridge others of the use of the sea by forts on shore, in narrow creeks and straits, or by armed fleets; but it would, he thought, show unreasonable jealousy to claim “some hundreds of leagues.” The true bounds could only be discovered either from “the right of possession” of a state, or from its treaties with its neighbours. Gulfs, channels, or arms of the sea, on the other hand, were “according to the regular course” supposed to belong to the state which had possession of the shores. If the shores belonged to several peoples, the sovereignty was distributed to the middle line, unless treaties directed otherwise, or one 552 people had obtained the exclusive sovereignty by convention, conquest, or prescription.

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

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

With regard to the extent of neutral waters, it would appear that the boundaries were as a rule vague, and that general considerations determined jurisdiction in particular cases. In connection with the declaration of war by the United Provinces against France in 1689, a placard was issued by the States-General in which both Dutch and foreign vessels were exhorted to keep out on the high seas; and it was declared that any vessels suspected of having contraband goods on board and found “on the coast of France, or of other countries, islands, and places under the dominion of the King of France, and particularly in the bays and gulfs on the coast of the said kingdom,” would be seized and brought to trial.1007 On the English coast the 553 limits of jurisdiction were better defined, but still, in many cases, without precision. Within the King’s Chambers, as specified by James I. in 1604, “or other places of our dominion, or so near to any of our said ports, or havens, as may be reasonably construed to be within that title, limit, or precinct,” the hostile acts of belligerents, captures of the enemy’s vessels, and the hovering of foreign ships of war were forbidden. The injunction with respect to the neutral waters was renewed in 1633, 1668, and 1683, and it was in no case confined strictly to the “chambers.” In the proclamations of 1668 and 1683, which were drawn up by Sir Leoline Jenkins, the definition was merely “within our ports, havens, roads, and creeks, as also in every other place or tract at sea that may be reasonably construed to be within any of these denominations, limits, or precincts.”1008 These limits were upheld by the decisions of the High Court of Admiralty during the greater part of the century. Sir Leoline Jenkins, it may be noted, although in questions of international policy advocating the most extreme pretensions of the English crown to the sovereignty of the seas, was careful in his judicial decisions to restrict jurisdiction within the terms of the royal proclamations. If a capture was made in one of the chambers or beyond them by a foreign privateer which had issued from an English port and had been hovering in the neighbourhood, the vessel was ordered to be restored. So also if the prize was taken, in any case, outside a chamber, but near enough the coast to be “reasonably construed” to be within the king’s jurisdiction. This usually happened on the east coast, where the chambers were small. In one such case the vessel was taken between half a league and one league off Orfordness (the headland of a chamber); in another instance the vessel was seized eight leagues at sea off Harwich, and presumably four leagues from the boundary of the nearest chamber.1009 554

At the end of the seventeenth century, while the old pretensions of various nations to the appropriation of particular seas had not been withdrawn, they had in many cases become by the force of circumstances to a large extent nominal or were in abeyance. There was moreover a tendency, as we have seen (p. 526), to substitute fixed boundaries in place of a wide and vague sovereignty, and to arrange by treaty defined limits for special purposes. In the historical retrospect we can now perceive the main influences which led to the modification of the claims and practice in the century that followed. The juridical controversies on the subject between the writers of various nations were doubtless not without effect. The repeated decisions of the High Court of Admiralty in this country, going counter to the English pretension even in the Channel, and fixing limits for neutrality, must also have had an important influence. But the chief causes were probably twofold. One was the moral and material victory of the Dutch Republic in its long and persistent struggle against the exorbitant claims to maritime dominion, first, of Spain and Portugal, and then of England and Denmark. The other was the great extension of commerce and navigation, in which England secured an ever-increasing share, so that in the next century we find her taking the part of Holland in opposing the Danish claims to mare clausum. As maritime commerce 555 extended and the security of the sea became established, it was felt more and more that claims to a hampering sovereignty and jurisdiction were incompatible with the general welfare of nations; and as the states interested in this commerce had the greatest power, the assertion of a wide dominion was gradually abandoned, surviving only in remote regions or in enclosed seas, like the Baltic.

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

It was, however, with regard to the delimitation of the territorial sea immediately adjacent to the coast that Bynkershoek’s teaching had its chief results. He showed how uncertain 556 and unsatisfactory were the limits previously proposed, and, following Grotius, he laid down the principle that the dominion of a state extended over the neighbouring sea as far, and only as far, as it was able to command and control it from the land. But he went further and showed how the principle was to be carried into practice. The dominion of the territory extended as far as projectiles could be thrown from the shore by artillery, so that exclusive possession might be taken of the part so commanded: “the dominion of the land ends where the power of arms terminates.”1012 Thus Bynkershoek assigned the dominion of the adjacent sea (mare proximum) to the neighbouring state, within the range of a cannon-shot from the shore. Besides the general reasoning on which the limit was based, he cited in support of it an Act of state. He was apparently unaware of the clear declaration made by the Dutch ambassadors a century earlier; but he referred to an edict of the States-General in 1671, which enjoined that the commanders of their ships should give the salute on the coasts of a foreign Power when they were within the range of the guns of a town or fort, in such manner as the Government of the country should require, leaving to its discretion the return of the salute, and adding that every Government was sovereign within its own jurisdiction and every foreigner a subject there.1013

This decree could not, of course, as Bynkershoek admitted, bind other Powers to the same opinion. Nevertheless it may be said that the almost universal practice which had grown up, regulating the salute of a vessel coming within range of a battery on a foreign coast, had prepared the way for the acceptance of the doctrine. It was a recognition that the vessel had passed within the sphere of territorial authority 557 of the particular state. It was the rule, in England at least, that “the sea should salute the land,” and the range of guns determined the limit within which the salute ought to be rendered. Beyond the reach of cannon no salute was expected; within it usage, international courtesy, or the law, required it. No foreign ship with its flag aloft could come within range of an English fort or castle without exposing itself to the risk of a shot. It is indeed a curious circumstance, that it was largely through the action of England with regard to the salute that the acceptance of the cannon-range limit was facilitated. The relation of the ceremony to the sovereignty of a state was forced by her prominently into international politics. Before the time of Selden and Charles I. jurists paid little attention to the matter, but afterwards they dealt with it as a department of international law: Loccenius and Bynkershoek, for example, each devotes a chapter to it. Even when the English were most actively asserting “the honour of the flag,” they recognised the rights of foreign states within the actual range of guns on their shore. In 1636 the Earl of Northumberland was instructed by the Admiralty not to enforce the salute within the command of the guns of forts on foreign coasts,—an order which was repeated by the Parliament in 1647,1014 and became the rule in the service. Molloy, a vehement supporter of the most extreme claims of England to the sovereignty of the seas, stated in 1676 that English men-of-war entering a foreign harbour, or “the road within shot of cannon of some fort or castle,” were to pay such respect as was usually there expected.1015

The gunshot limit had been long established in connection with another international relationship—namely, the right of visitation of neutral vessels in the open sea. Many treaties had been made which stipulated that the visiting ship was not to approach nearer than within cannon-shot, and was then to send one of its boats with a few men to conduct the examination necessary. It is, moreover, extremely probable that with respect to what was in those times the principal attribute of the territorial waters—viz., the rights and obligations of neutrals—the gunshot limit, at the least, was recognised where guns were actually in position. In view of the general 558 practice, as shown for instance in the decisions of the English Admiralty Court, and the usage in connection with the salute, it can scarcely be supposed that a capture made under the guns of a neutral fortress would be held as good prize; at all events, it was not so held in the Admiralty Court in 1760. But the merit of Bynkershoek’s doctrine was, that it transferred in theory to all parts of a coast this decisive property of compulsion and dominion which, strictly speaking, only existed where forts or batteries were placed. The doctrine, justly enough, has been called fictitious, because there are various coasts and districts where it would be impracticable to maintain dominion over the territorial sea by means of artillery on shore; and because in point of fact such dominion, unless in the neighbourhood of forts, is actually maintained by other means, as by coastguards and naval vessels. Nevertheless the principle, though resting largely on hypothesis, had much to recommend it, and it gradually became incorporated into international law as the rule for fixing the boundary of the territorial waters. Apart from its intrinsic merits, its acceptance was perhaps not a little facilitated by the felicity with which it was expressed. Bynkershoek gave it the form almost of an aphorism, and the phrase, terr? dominium finitur ubi finitur armorum vis, has been quoted by almost all later writers.

But although the doctrine of Bynkershoek was attractive, and was eventually accepted almost everywhere, it did not command immediate assent. The publicists who came after Bynkershoek in the eighteenth century, while usually referring to the cannon-range limit, or adopting it with respect to questions of prize, did not as a rule adhere to it as the sole principle for delimiting the territorial belt. The earliest notice of it after the Qu?stiones appeared seems to have been by Casaregi, an Italian writer of authority, who was judge in the Court of the Grand Duke of Tuscany, in a work which appeared in 1740, and referred more especially to the practice in the Mediterranean.1016 Foreign ships, he said, were under the protection of the prince whose seas they sail through, when they are in his ports, or in the sea so near as to be within the 559 range of guns on shore; if seized by the enemy there, they require to be restored.1017 This was the ordinary rule in regard to neutrality; but with regard to the question of sovereignty in the neighbouring sea, Casaregi followed preceding Italian jurists in assigning a space of one hundred miles from the coast for civil and criminal jurisdiction, with the power of levying tolls and dues from passing ships, and even of prohibiting or permitting navigation.

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

Wolff, who wrote on the law of nations about the same time, appears rather to have followed the opinions of Puffendorf. He argued that the use of the sea next the shore, for fishing and the collection of things that grow on it, was not inexhaustible, nor its use for navigation always innocuous; and since it served as a protection for the adjoining state, it was reasonable that it should be under the dominion of that state. The inhabitants of the shores had therefore the right to occupy 560 it “so far as they can maintain their dominion over it”; and the same was true of straits and bays.1021

Some ten years later Vattel, the pupil and follower of Wolff, published a work on the law of nations, which is still of authority, and in which much the same opinions as those of Puffendorf and Wolff are expressed.1022 On the general question of the appropriation of the sea the usual statement was made; but Vattel held that a nation might acquire exclusive rights of navigation and fishery in the open sea by treaties, but not by prescription, unless in virtue of the consent or tacit agreement of other nations. Thus “when a nation that is in possession of the navigation and fishery in certain tracts of the sea claims an exclusive right of them, and forbids all participation on the part of other nations, if the others obey that prohibition with sufficient marks of acquiescence, they tacitly renounce their own right in favour of that nation, and establish for her a new right, which she may afterwards lawfully maintain against them, especially when it is confirmed by long use.” On the other hand, Vattel states that the uses of the sea near the coast render it very susceptible of appropriation: it supplies fish, shells, pearls, and other things, and with respect to all these its use is not inexhaustible. A maritime people may therefore appropriate and convert to their own profit “an advantage which nature has placed within their reach as to enable them conveniently to take possession of it, in the same manner as they possessed themselves of the dominion of the land they inhabit.” Vattel does not state his opinion as to the distance from the coast within which the fisheries may be appropriated, but from the examples he cites it is evident that the space might extend considerably beyond the range of guns. “Who can doubt,” he asks, “that the pearl fisheries of Bahrem and Ceylon may lawfully become property?” And the same principle may be applied to floating fish, which appear less liable to be exhausted. If a people, he says, have on their coast a particular and profitable fishery of which they can become 561 masters, shall they not be permitted to appropriate that bounteous gift of nature as an appendage to the country they possess, and to reserve to themselves the great advantages which their commerce may thence derive, if there is sufficient abundance of fish to furnish neighbouring nations? Thus, Vattel states, the herring fishery on the British coasts might have been appropriated by the English if they had originally taken exclusive possession of it, instead of allowing other nations to take part in it. Another reason for the extension of territorial dominion over the adjoining sea, “as far as a nation is able to protect its right,” is the security and welfare of the state; but the author says it is not easy to fix upon any precise distance. Between nation and nation, “all that can reasonably be said is that, in general, the dominion of the state over the neighbouring sea extends as far as her safety renders it necessary and her power is able to assert it.” At the time he wrote, “the whole extent of the sea which is within cannon-shot of the coast is considered as forming part of the territory; and for that reason a vessel taken under the cannon of a neutral fortress is not a lawful prize.” The principle that applied to the adjacent sea applied with much greater force to roads, bays, and straits, since they were more capable of being possessed, and were of greater importance to the safety of the country. But such areas must be “of small extent,” and not great tracts of sea—as Hudson’s Bay and the Straits of Magellan: a bay “whose entrance can be defended” might clearly be appropriated.

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

In the writings of other international jurists later in the century, the tendency to narrow the extent of the territorial 562 sea in accordance with Bynkershoek’s teaching becomes more manifest, particularly in those which treat specially of the rights of neutrals. Hübner, who was assessor in the Consistorial Court at Copenhagen, treating of this subject, said with reference to Bynkershoek’s doctrine that it was evident the parts of the adjacent sea belonged to the master of the country, as accessory to the land,—first, “because it is in his power to take possession and to maintain it by means of forts and batteries which he is able to erect on the shore”; and, secondly, because the waters serve as a rampart to the land.1023

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

In 1778, Moser, a councillor of state in Denmark, adopted Bynkershoek’s doctrine, declaring that the sea adjacent to the coast of a country was, according to the law of nations, 563 indisputably under the sovereignty of the neighbouring territory, as far as a cannon-ball could reach.1025 On the other hand, Lampredi, Professor of Public Law in the University of Pisa, writing at the same time, while allowing to a state the right of property in the adjacent sea, makes the limit of its dominion depend, not on cannon range, but upon considerations of general convenience.1026 Another contemporary Italian, Galiani, who was Sicilian Secretary of Legation at Paris, and was employed by his master, the King of the Two Sicilies, to write a book in defence of his adhesion to the Russian League of Armed Neutrality, expressed somewhat varying opinions as to the limits of the territorial sea.1027 Admitting as a received doctrine that the belt of sea washing the coasts of a country belonged to it as a part of its territory, he at first seems to extend it, in accordance with the Italian principles, as far as the authorities can cause their jurisdiction to be enforced. Later, he advances the gunshot limit for certain purposes, as the imposition of tolls and the regulation of navigation; and finally, with regard to the observance of neutrality he considers the boundary should be two leagues, or twice the distance of cannon range, and he appears to have been the first to fix upon three miles as equivalent to the range of guns.1028

G. F. von Martens, one of the greatest authorities on international law, writing a little later, more definitely adopted the principle of the range of guns; but he gave the equivalent distance as “three leagues,” and moreover admitted 564 that a nation might acquire maritime dominion beyond that limit.1029 The principle of appropriation, he says, which applies to lakes and rivers also applies to straits, which are in general not wider than great rivers and lakes, so that the middle may be reached by a cannon-ball fired from the shore; and those parts of the sea which border the land may also be regarded as the property and under the dominion of the nation possessing the coast. By a custom generally acknowledged, he continues, the authority of the possessor of the coast extends as far as the range of guns from the shore—that is to say, to a distance of three leagues;1030 and he adds that this distance is the least that a nation ought to claim as the extent of its dominion in the sea. But he also says that a nation may occupy and extend its dominion beyond that distance, and maintain it, if the security of the nation require it, by a fleet of armed vessels; and, further, that its sovereignty may extend as far as it has been acknowledged to reach by the consent of other nations, and beyond the boundary of its property—Von Martens, like many others, drawing a distinction between property in the sea and sovereignty over it. As examples of such cases, he definitely states, as well established at the time he wrote, that St George’s Channel was under the sovereignty of Great Britain and the Gulf of Bothnia under that of Sweden, while the straits between Sweden and Denmark were considered to be the property of Denmark. On the other hand, the Bay of Biscay, the Mediterranean, the Straits of Gibraltar, the White Sea, and the North Sea were acknowledged to be free.

Towards the close of the century, an Italian author, Azuni, 565 who was judge in the commercial court at Nice, published a work on maritime law, in which he dealt with the territorial sea; and adopting the range of guns as the principle of delimitation, he declared that the equivalent distance ought to be fixed at three miles, which, he said, was “without doubt” the farthest a cannon-shot could ever be made to reach.1031 In this Azuni followed Galiani, making the statement more definite, and thus we see the three-mile limit put forward by publicists, as the alternative to the range of guns, before the century closed. In point of fact, however, it had actually been applied in the United States a year or two before Azuni wrote;1032 and it is clear from what he says that no general agreement then existed as to the extent of the territorial sea, for he complained that the limit was still undecided,—a statement repeated in his enlarged work, published in 1805,—and he contended that it ought to be fixed by a solemn treaty between the maritime Powers, as Meadows had suggested a century before.1033 Although Azuni adopted the principle of cannon range, and, like Galiani, declared that three miles was the farthest that a ball or bomb could be thrown,1034 he was of opinion that for purposes of neutrality, as an asylum against hostilities, the territorial waters should be extended to two leagues from either shore in the case of bays and gulfs, which, he says, even when their centre was at a greater distance than three miles from either shore, were admitted to be territorial. He even strongly recommended the adoption of the range of vision as the boundary of neutral waters in time of war.

From the above review of the opinions of publicists in the latter half of the eighteenth century, it is evident that 566 there was a general agreement that the sea, at least as far as the range of guns from the coast, was accessory to the land: no one doubted that this space at all events was included within the territorial sea of the neighbouring country. Almost all the writers went further, and held that the sovereignty of a state was not confined to gunshot range, but could be extended to a greater distance from the coast, either for the security of the state or for jurisdiction, but there was not agreement as to how far this could be carried. We see, moreover, the growing tendency to assign a fixed distance as an alternative to cannon range or as a boundary to neutral waters. Abreu, Valin, and Galiani placed it at two leagues from the coast, and the same distance is given by the writer of the article “Mer” in a great French work published in 17771035—that is, twice the distance of cannon range, which was said to be one marine league, or three miles.

Turning from the opinions of international jurists in the eighteenth century to the practice and usage of nations in the same period, we may note certain features of prominence: (1) the continued decadence of claims to sovereignty over extensive areas; (2) the growing custom of fixing definite boundaries for special purposes by international treaties or by municipal laws; (3) legal decisions by which the limit of cannon range was recognised in certain cases. In the eighteenth century claims to the sovereignty of seas became greatly restricted and lost their previous importance. The feebleness of Venice prevented her from asserting in practice the rights which were hers by law and ancient prescription. Both Vattel and Azuni, while admitting that she possessed a limited sovereignty, questioned whether any other Power would recognise her claim to the whole of the Adriatic. “Such pretensions to empire,” says the former author, “are respected so long as the nation that makes them is able to assert them by force, but they vanish, of course, on the decline of her power.” In 1779, indeed, before Azuni wrote, the Republic issued a decree respecting her neutrality, in which the limit of cannon range was fixed as the boundary of her waters for that purpose.1036 Her ancient dominion over 567 the Adriatic was soon finally extinguished. When Napoleon conquered Venice in 1795 and transferred her like a chattel to Austria, her maritime sovereignty came to an end, and the picturesque and symbolic ceremony of “espousing” the Adriatic, which had been performed by the Doge every year for many centuries, terminated with it.1037

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

While Denmark was unsuccessfully endeavouring to assert exclusive rights to the fisheries within a wide extent of water in the northern seas, she was at the same time claiming a much less extensive space along her coasts for purposes of neutrality. Moreover, it may be added that just as in most European countries the cannon-range limit and then the three-mile belt—which likewise originated in connection with neutral rights—came to be applied as the boundary of the territorial seas for all purposes, so the Danish limit for neutral waters, which was a different one, was also adopted later as the general boundary of the territorial seas by the Scandinavian states. The decree in regard to neutrality was issued in 1745 by the King of Denmark and Norway, and communicated to the foreign consuls, and it forbade all foreign privateers to capture any vessel of the enemy within a distance of one league, of fifteen to a degree of latitude, from the coast or its outlying banks 568 or rocks.1038 This ordinance in regard to neutral waters was renewed in 1756, 1759, and 1779,—that of 1759 expressly declaring that the league was the marine league of fifteen to a degree.1039 It may be added here that early in the next century, in view of the war with Great Britain, decrees were published prohibiting either Danish or Norwegian privateers from capturing the enemy’s vessels within the territorial sea of any foreign state which was friendly or neutral; and such sea, it was said, was usually supposed to extend for one marine league from the coast.1040 The same distance of four geographical miles was assigned by Sweden, in a decree of 12th April 1808, which prohibited the seizure of vessels nearer the coast of neutrals than the limit named.1041

The various ordinances cited referred solely to the limit of the territorial sea in relation to neutrality. But as early as 1747 the same boundary was applied to a limited part of the Norwegian coast in connection with fisheries. In that year a royal decree prohibited Russian fishermen at Finmarken from fishing within one league of the land,—a measure which was not opposed by the Russian Government, and which was renewed by a Norwegian law in 1830.1042 In 1812, as we shall see (p. 653), the territorial waters of Denmark and Norway were declared to extend to four miles from the coast or its outlying isles,—that is to say, the limit which was adopted for neutrality was applied in regard to fisheries and other purposes.

Another example of the decadence of wide claims to maritime 569 sovereignty is to be found in the case of Spain, which, like the Scandinavian countries, adopted a fixed limit in the eighteenth century as the boundary of her territorial waters, and, as with them also, it was placed at a greater distance than the range of guns from the coast. An eminent Spanish publicist, Abreu, as we have seen, declared in 1746 that the boundary of neutral waters should be at least two leagues from the coast, and by a royal decree of 17th December 1760 this distance was assigned, the territorial sea of Spain being declared to extend to six miles from the land. This boundary was again given in 1775 and in 1830, and it is still retained by Spain—and also, until last year, by Portugal—as the maritime frontier for customs, fishery, neutrality, and jurisdiction.1043 At various times Spain has entered into treaties with her neighbours, France and Portugal, concerning the rights of fishery within the six-mile zone, either for reciprocal liberty to fish in the whole extent of the territorial sea, or in the outer belt of three miles. A treaty of this kind was concluded with France in 1768.1044

The uprising in America in 1775, which resulted in the independence of the United States, brought in its train a widespread maritime war, Great Britain having to meet the naval forces of France, Holland, and Spain, and at this time and throughout the remainder of the century we meet with numerous decrees and treaties bearing upon the delimitation of territorial waters, particularly in connection with the rights of neutrals. One of the first of these was a circular which the American Commissioners at the Court of Paris addressed to the commanders of American armed vessels in 1777, instructing them to abstain from capturing the enemy’s vessels, or vessels of neutrals, when they were “under the protection of a port, river, or coast of a neutral country.” To do so, it was said, would be contrary to the usage and customs of nations; and the proclamation issued by the American Government in 570 the following year on the same subject is couched in equally general terms.1045

We find the same want of definition in an edict of the King of the Two Sicilies in the same year, which speaks only of the accustomed rules being observed in his “ports, coasts, and adjacent seas.”1046 But in corresponding proclamations issued at the same time by the Grand Duke of Tuscany, the Republic of Genoa, the Republic of Venice, and the Pope, the range of guns is expressly mentioned as determining the boundary of their territorial waters in respect to neutrality. The Grand Duke prohibited all acts of hostility in the ports or coasts of Leghorn, within certain places specified, and in the seas adjacent to all his other ports, castles, or coasts within gunshot of the shore.1047 With respect to Civita Vecchia, Ancona, and his other territories, the Pope prohibited, “according to the common usage of nations,” all acts of hostility or superiority between belligerents there or in the adjacent seas, “or generally within the range of guns from the shore”;1048 while the Genoese edict forbade all acts of hostility between belligerents “in the ports, gulfs, and coasts, within range of guns,”1049 and contained particular rules for carrying the prohibition into effect. Thus, if such an act of hostility should be committed within range of cannon, a shot was first to be fired into the air, or to a distance from the vessel or vessels violating the neutrality, unless there was risk of damage to other vessels, in which case a blank shot was to be fired. If this did not put a stop to the transgression, the offenders were to be assailed with shot and musketry. In places where cannon were not 571 available, the same course was to be followed with muskets, and, it was said, the rules had to be carried out precisely as they had been ordained in a decree of 1756, when, no doubt, the gunshot limit was equally in force. The Venetian decree is couched in similar terms, and the size of the cannon whose range was to determine the limit is mentioned. All acts of force or authority between belligerents were prohibited “in the ports, roads, and coasts of our dominion, and in all the adjacent sea, at least to the distance within range of a large cannon of battery.”1050 In several of the edicts, as in the two last referred to, the range of vision was also used as a limit within which no belligerent vessel was to be allowed to station itself, or cruise about waiting for the enemy’s vessels: such action was prohibited within view of the ports or roads.

It will be noticed that all these edicts regarding neutral waters in which the limit of cannon range was prescribed, emanated from the small Mediterranean states; but in many of the international treaties which followed the Armed Neutrality of 1780 the gunshot limit for neutral waters was also adopted. This league, which was directed against Great Britain, had its source in a declaration by the Empress Catherine II. of Russia regarding the rights of neutrals; especially that neutral vessels should be free to carry on trade on the coasts of belligerents, and that the property of belligerents in neutral vessels, except arms, equipment, and munitions of war, should be free from capture. The seizure of enemy’s goods in neutral ships by English cruisers bore hardly on the commerce of neutral countries; and for this reason, and, according to English views, because it was perceived by the other Powers that they could not directly contend against the naval force of Great Britain, a new code of international law was introduced which would have the effect of sapping it.1051 In some of the treaties referred to, the limits of neutral waters were defined in vague or general terms, as in that of 1782 between the United 572 States and the United Provinces.1052 The gunshot limit, however, was specified in a treaty between the United States and Morocco in 1785, which stipulated that if a vessel of either state was engaged with that of another Christian Power within the range of guns of a castle of the other state, it was to be protected and defended;1053 in a treaty of navigation and commerce between Great Britain and France in 1786;1054 and in a treaty between France and Russia in 1787. In the latter it was stipulated that in agreement with the principles laid down in the Russian declaration regarding the navigation of neutrals, either Power, if at war, should abstain from attacking the enemy’s vessels within cannon range of the coasts of the other Power, or in the ports, harbours, gulfs, and “other waters comprised under the name of closed waters.”1055 Russian activity in the direction indicated was shown by the conclusion of a similar treaty in the same terms with the Two Sicilies a few days later.1056 A little later, in 1803, the range of guns was adopted by Austria as determining the extent of neutral waters, as in the treaties above referred to.1057

In contrast to the gunshot limit in connection with neutrality, was another which Spain incorporated in a treaty with Tripoli in 1784, by which it was agreed that Tripolitan vessels of war or privateers should not capture ships of their enemy within 573 ten leagues of the coasts of the Spanish dominions1058—that is to say, within the same extent of sea as was expressed in the treaty between France and Algeria a century earlier.1059 A few years later the same limit of ten leagues was agreed to in a treaty between Great Britain and Spain concerning fisheries and navigation in certain parts of the Pacific. Disputes had arisen with Spain concerning proceedings at Nootka Sound, Vancouver; and in a convention between the two Powers, signed in 1790, it was agreed, inter alia, that British subjects should not navigate or carry on their fishery within a distance of ten sea leagues from any part of the coast already occupied by Spain, the object being to prevent illegal trading with the Spanish settlements.1060

We thus perceive that towards the end of the eighteenth century various maritime boundaries were assigned in particular places for particular purposes, and that many states looked upon the limit of gunshot from an open coast as fixing the extent of their neutral waters. But hitherto, with the exception of the league limit prescribed by Denmark and Norway, which had no avowed reference to the range of guns, and was in reality equivalent to much more than three miles, no Power had yet adopted one marine league as the equivalent of gunshot from the shore. It appears that this step was first taken by the United States of America, and it is of interest to note that the three-mile limit was put forward tentatively, and, in a manner, as a temporary expedient. When the war between Great Britain and France broke out in 1793, the United States found it necessary to define the extent of the line of territorial protection which they claimed on their coast, in order to give effect to their neutral rights and duties. Washington, who was then President, instructed the executive officers to consider the line restrained, for the time being, to the distance of one sea league, or three geographical miles, from the shores, a distance which was said to be not more extensive than was claimed by any other Power. This limit was adopted tentatively, since the Government “did not propose, at that time, and without amicable communication with the foreign Powers 574 interested in the navigation of the coast, to fix on the distance to which they might ultimately insist on the right of protection.” It was stated that the greatest distance to which any “respectable assent” among nations had ever been given was the range of vision, which was estimated at upwards of twenty miles, and the smallest distance claimed by any nation was “the utmost range of a cannon-ball, usually stated at one sea league.”1061 Besides the extent of sea referred to, the bays and rivers were held by usage and the law of nations to be territorial, with immunity from belligerent operations. This was well shown in the same year, when the United States claimed that the whole of Delaware Bay and New Jersey, an arm of the sea about fifty English miles in length and a little over eleven miles wide at the entrance, was under their territorial jurisdiction, and ordered the restitution of a British vessel, the Grange, which had been captured there by a French frigate, L’Ambuscade; and this was done notwithstanding the protest of the French Minister that Delaware Bay was open sea and not under the exclusive jurisdiction of the United States. The American Government rested its action on the law of nations, and declared that they were entitled to attach to their coasts an extent of sea beyond the reach of cannon-shot—a claim which showed that the three-mile limit had not been adopted as an inflexible rule.1062

Next year the United States Congress passed a law authorising the district courts to take cognisance of all captures made within one marine league of the American shores;1063 but in the treaty concluded between Great Britain and the United States in the same year, it is interesting to observe that the less precise limit of gunshot was adopted, in the same words as in the treaty of 1786 between Great Britain 575 and France. The twenty-fifth article of this treaty provided that neither Government should permit the ships or goods belonging to the citizens or subjects of the other “to be taken within cannon-shot of the coast, nor in any of the bays, ports, or rivers of their territories, by ships of war, or others, having commissions from any prince, republic, or state whatever.”1064

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