CHAPTER II. GENERAL ADOPTION OF THE THREE-MILE LIMIT.

It is evident from the foregoing that, notwithstanding the variation in the extent of water claimed in certain cases, the principle of determining the general boundary of the territorial sea by the range of guns from the coast had become tolerably firmly established in the practice of nations before the end of the eighteenth century, with reference in particular to the rights of neutrals. Shortly before the century closed, moreover, we have seen that one of the important maritime Powers, the United States of America, had adopted a fixed distance of three miles or one marine league as equivalent to the utmost range of the cannon of those days. The range of guns naturally varied according to their size and power, and though it was specified in some of the Continental ordinances that the distance was to be determined by a large gun of battery, there was no certainty that it would be everywhere the same. It was thus clearly an advantage to have a fixed distance, which could be marked on charts, substituted for the less definite cannon range, so long as it really represented it. By the progress of the military art, however, most notably perhaps after about the middle of last century, the range of guns became enormously increased, so that long ago the three-mile limit ceased to represent it.

The new boundary of one marine league, as equivalent to the range of guns, was soon introduced into English law and practice, in the first place through the decisions of the High Court of Admiralty in questions affecting the extent of neutral waters. It is noteworthy that nothing was heard at this period about the principle of the King’s Chambers 577 in such cases. It is very doubtful whether, as the American Government implied in 1806, the boundaries of the King’s Chambers had retained their validity at the beginning of last century. There seems to be no evidence that they were enforced during the eighteenth century, or even in the closing years of the seventeenth, possibly because occasions to test the point had become rare. But it is perhaps more probable that the claim to the King’s Chambers was allowed gradually to die out, and that the deliberate omission of any reference to them in the later proclamations of Charles II. (see p. 554) foreshadowed this change in practice. It is clear at all events that long before the end of the eighteenth century it was well established that a vessel captured by one belligerent from another belligerent in a port of a neutral state or within the actual reach of cannon was not good prize.1068 The next step was to give effect to the same principle, whether the place was actually within the range of a fort or not.

The decisions which introduced the three-mile limit into English jurisprudence were those of Sir William Scott (afterwards Lord Stowell) at the beginning of last century. In 1800 and 1801 this great authority adopted both the gunshot limit and the distance of three miles as its equivalent for the boundary of neutral waters, in deciding the well-known cases of the Twee Gebroeders. It was these decisions of Lord Stowell’s which introduced the three-mile limit into English jurisprudence. The cases arose from the capture of certain vessels in 1799, by the boats of a British man-of-war, in the Groningen-Watt, between East Friesland and the island of Borkum, in the belief that they were bound from Hamburg to Amsterdam, which was then blockaded by the British; and it was claimed by the King of Prussia that the capture was made within the territory of that state. In deciding the first case,1069 Lord Stowell found that the capturing 578 vessel was “lying within the limits to which neutral immunity is usually conceded. She was lying in the eastern branch of the Eems, within what may, I think, be considered as a distance of three miles, at most, from East Friesland. An 579 exact measurement cannot easily be obtained; but in a case of this nature, in which the Court would not willingly act with an unfavourable minuteness towards a neutral state, it will be disposed to calculate the distance very liberally; and more especially, as the spot in question is a sand covered with water only on the flow of the tide, but immediately connected with the land of East Friesland, and when dry, may be considered as making part of it. I am of opinion, that the ship was lying within those limits in which all direct hostile operations are by the law of nations forbidden to be exercised.”1070 In this decision the three-mile limit is assumed to be, “by the law of nations,” the boundary of the neutral waters. It is also to be observed that the distance was reckoned, not from low-water mark, but apparently from the land; while according to the rule apparently governing such cases now, the sand-bank itself would be a part of the territory, and the distance of three miles would be measured from its outer margin at low water (see fig. 19, p. 635).

Fig. 14.—Facsimile of part of the chart, showing where the “Twee Gebroeders” were taken. From Robinson, Admiralty Reports.

In deciding the second case, in which the circumstances were much the same, Lord Stowell said that “in the sea, out of the reach of cannon shot universal use is presumed”; but he made no reference to three miles as an equivalent distance.1071 A few years later, in 1805, in deciding the case of the Anna, which was captured at the mouth of the Mississippi by a British privateer, and in which the question of the violation of American waters had to be considered, the same judge, quoting Bynkershoek, said: “We all know that the rule of law on this subject is terr? dominium finitur, ubi finitur armorum vis; and since the introduction of fire-arms, that distance has usually been recognised to be about three miles from shore.”1072

It is, as above stated, in these decisions of the High Court of Admiralty that the three-mile limit originated in England. They furnished the legal precedents which regulated subsequent practice. The gunshot limit was a doctrine borrowed from Continental publicists, and three miles as its equivalent from 580 recent American practice. Both were previously unknown to English law.1073

Moreover, although, as we shall see, the writers on international law had in only a few instances accepted the three-mile limit as an alternative to the range of guns from the shore, and scarcely any of the Continental publicists of repute, the actual practice of Great Britain and the United States, together with the legal decisions in the British and American courts, and the dicta of the judges, tended steadily to bring about its adoption. At first the boundary of one marine league as equivalent to the range of cannon had reference solely to questions of neutrality, as the capture of prizes, in the maritime wars that prevailed. But very soon it was applied to 581 other purposes, and first of all by the British Government in connection with the rights of fishery. During the peace negotiations with the United States at Ghent, after the war of 1812-14, the British Government intimated that they did not intend to grant to the United States gratuitously the privileges formerly given by the treaty of 1783 “of fishing within the limits of British territory, or of using the shores of the British territories for purposes connected with the fisheries.” The treaty of Ghent contained no stipulation on the subject, but shortly afterwards the British Government expressed its intention to exclude, and gave instructions to exclude, fishing vessels of the United States from fishing within the harbours, bays, rivers, and creeks, and within one marine league of the shores of the British territories in America, and from drying and curing their fish on shore. Several American vessels were seized for trespassing within British waters, and the prolonged diplomatic discussion which followed resulted in the convention of 1818, by which the fishermen of the United States were allowed the same rights as British fishermen on certain parts of the coast, but at all other parts they were forbidden to fish within a distance of three miles of the “coasts, bays, creeks, or harbours.”1074 This was the first of the treaties in which the three-mile limit was specified, and it naturally formed a precedent for those which followed.

That the principle of adopting the distance in question as the proper boundary of the territorial sea had not yet become firmly incorporated in British policy in all cases was, however, shown a few years later in the negotiations with Russia concerning Behring Sea. In 1821 the Emperor of Russia issued a ukase or decree, in which he declared that the pursuit of commerce, whaling, and fishery, and of all other industry, on all islands, ports, and gulfs, including the whole of the north-west coast of America, beginning from Behring Straits to 582 the 51st of northern latitude, and in other parts specified, had been exclusively granted to Russian subjects; and therefore prohibiting “all foreign vessels not only to land on the coasts and islands belonging to Russia, as stated above, but also to approach them within less than 100 Italian miles,” the penalty for doing so being the confiscation of the transgressing vessel and the cargo.1075 The Russian Government claimed that the extent of sea of which the Russian possessions formed the limits “comprehended all the conditions which are ordinarily attached to closed seas (mers fermées), and it might consequently judge itself authorised to exercise upon this sea the right of sovereignty, and especially that of entirely interdicting the entrance of foreigners; but it preferred only asserting its essential rights without taking any advantage of localities.” This, it will be perceived, was a revival in the nineteenth century of pretensions similar to those which Denmark had advanced in the seventeenth and eighteenth; and the claim was opposed by Great Britain and the United States, whose interests were threatened by it. The British Government declared that it was contrary to the law of nations, and that it could not admit the right of any Power possessing the sovereignty of a country to exclude the vessels of others from the seas on its coasts to a distance of 100 Italian miles. In its justification Russia cited, not the Italian publicists or the earlier practice in the Mediterranean, but an article in the treaty of Utrecht, which assigned thirty leagues as the distance of prohibition (see p. 531),—an argument which was sufficiently answered by the statement that the distance mentioned was a particular stipulation in a treaty to which the other party had given its deliberate consent. At an early period in the discussion the Russian Government suspended the execution of the ukase, and instructed the commanders of their ships of war to confine their surveillance as nearly as possible “to the mainland, i.e., over an extent of sea within the range of cannon-shot from the shore.”

An article in the draft convention subsequently arranged between Great Britain and Russia provided for an exclusive fishery, not within three miles, but within two leagues or six 583 miles, from the coasts of their respective possessions in the regions referred to; but when the British Government discovered that in the corresponding convention concluded a little earlier between Russia and the United States no limit at all had been specified, they withdrew this article. Mr George Canning, in a despatch to Mr Stratford Canning, the British plenipotentiary at St Petersburg, withdrawing the article, said that its omission was, in truth, immaterial, since “the law of nations assigns the exclusive sovereignty of one league to each Power on its own coasts, without any specific stipulation.” The Russian Government raised no objection to the new article, and the distance from the coast at which the fishing was to be exercised in common passed without specification, “and consequently,” added Stratford Canning, “it rests on the law of nations as generally received.” A little later, before the convention was ratified, the British plenipotentiary, thinking it might be desirable to have the law of nations declared therein, jointly with the Court of Russia, in some ostensible shape, broached the subject anew and suggested that notes should be exchanged in London “declaratory of the law as fixing the distance at one marine league from the shore.” The Russian Minister, however, expressed disinclination to do anything that might retard the immediate ratification of the convention; and he assured Canning that the Russian Government would be content in executing the convention to abide by the recognised law of nations, and that if any question should afterwards be raised upon the subject, he would not refuse to join in making the suggested declaration, “on being satisfied that the general rule under the law of nations was such as the English Government supposed.”1076

It is evident from these despatches that the British Government at that time held the opinion that the territorial waters of a state on an open coast extended, “by the law of nations,” for one marine league from the shore. But it would not have been easy for them to adduce convincing testimony in support 584 of that opinion from the accredited writers on the law of nations whose works were then available, or from the general usage of nations apart from Anglo-American practice. The Russian Government were obviously not satisfied on the point, and their instruction to their naval commanders to enforce the limit of cannon range, though that was a less definite boundary, was more in consonance with the law of nations as generally understood. It was natural that the British Government should give weight to the decisions of Lord Stowell in the Admiralty Court.

The Government of the United States, in discussing the Russian pretension, did not apparently lay the same stress on the principle of the three-mile limit as they did on some other occasions. The claim that the Northern Pacific might strictly be regarded as a closed sea was met by the simple statement that the opposite coasts on the parallel of 51 degrees were 4000 miles apart. The right of American subjects to navigate and fish within the prescribed distance of 100 miles from the coast was rested on continuous exercise from the earliest times. Universal usage, it was declared, which had obtained the force of law, had established for all coasts “an accessory limit of a moderate distance” which was sufficient for the security of the country and for the convenience of its inhabitants, but which laid no restraint upon the universal right of nations, nor upon the freedom of commerce and of navigation.1077

In the conventions which followed, it was provided that the subjects of the contracting Powers should not be molested either in navigating or in fishing in any part of the Pacific Ocean, and they were to be at liberty for ten years to frequent without hindrance all the inland seas, gulfs, havens, and creeks, on the coasts mentioned, for the purpose of fishing and of trading with the natives, subject to certain conditions to prevent illicit commerce.1078

It may be here stated that some years later, when American and British whalers had greatly increased in numbers in 585 Behring Sea, the Russian officials on several occasions urged their Government to preserve the sea as a mare clausum,1079 or to prohibit foreign whalers from approaching the coast within a distance of forty Italian miles.1080 The Russian Government pointed out in reply that to fix such a limit would be contrary to the conventions, and might lead to protests from other Powers, “since no clear and uniform agreement has yet been arrived at among nations in regard to the limit of jurisdiction at sea.” In 1847 the Government repeated the objections, and expressed the opinion that “the limit of a cannon-shot, that is, about three Italian miles, would alone give rise to no dispute”; and they further observed that no Power had yet succeeded in limiting the freedom of fishing in open seas, other Powers never recognising such pretensions. Subsequently, in 1853, in consequence of continued complaints as to foreigners fishing in the sea of Okhotsk, the Russian Government were pressed by the influential Russian-American Company either to close that great stretch of waters, as an inland sea, or to prohibit whalers from approaching close to the shores and whaling in the bays and among the islands. Instructions were thereupon issued to the commanders of the Russian cruisers to prevent foreign whalers from entering bays or gulfs, or from coming “within three Italian miles of the shores” of Russian America (north of 54° 41′ lat.), the peninsula of Kamtchatka, Siberia, the Kadjak Archipelago, the Aleutin Islands, the Pribyloff and Commander Islands, and the others in Behring Sea, as well as Sakhalin and others; and at the same time it was declared that while the Sea of Okhotsk, from its geographical position, was a Russian inland sea, foreigners were to be allowed to take whales there.1081 Thus the Russian Government adopted at first the principle of the range of guns, then spoke of this or three Italian miles, and eventually accepted and enforced, on the great extent of coast referred to above, the three-mile limit.

Reference must now be made to some decisions in the courts of law and to certain provisions in particular Acts of Parliament which bear upon the question of the extent of the territorial waters. Owing to the long-continued peace on the sea since the decisions of Lord Stowell at the beginning of last 586 century, few occasions have occurred for the question of the boundary of neutral waters to be raised. In a number of civil cases tried in our courts the three-mile limit has, however, been referred to, either as a ground for the decision, or more usually as a dictum of the judges, as the proper boundary of the territorial sea; but this has been frequently coupled with the qualification that it is the assumed distance of the range of guns, or the smallest extent that has been claimed by publicists or states.1082 Some of these cases dealt with the vexed question of bays.1083 One of the most important was tried in 1859, and it referred to the Bristol Channel. An offence was committed on an American vessel within one mile of the coast in Penarth Roads, but where the width from shore to shore is less than ten miles, and Chief Justice Cockburn, in delivering judgment, said, “We are of opinion that, looking at the local situation of this sea, it must be taken to belong to the counties respectively by the shores of which it is bounded; and the fact of the Holms,1084 between which and the shore of the county of Glamorgan, the 587 place in question, is situated, having always been treated as part of the parish of Cardiff, and as part of the county of Glamorgan, is a strong illustration of the principle on which we proceed, namely, that the whole of this inland sea, between the counties of Somerset and Glamorgan, is to be considered as within the counties by the shores of which its several parts are respectively bounded.” A good deal of discussion has 588 taken place as to the precise meaning of these words. It is to be noted that much farther seawards than the place in question the width of the Channel is less than ten geographical miles. On the usual rule for bays (as laid down in the fishery conventions), the ten-mile base-line would pass between Nash Point in Glamorgan and Hurtstone Point, the headland east of Porlock in Somerset, and the closing line would be three miles west of this, or about twenty geographical miles from Penarth Roads. The six-mile limit, from land to land, is, however, about twenty-seven miles farther east, between the coast near Goldcliff, in Monmouth, and that near Walton Castle, Somerset. But about midway between these two limits (and seawards of Penarth Roads) there is a part where the three-mile zone around the island, Steepholm, joins that of the coast on either side, and though eastwards of this there are small areas beyond the distance of three miles from shore, the fact that the territorial waters are continuous from side to side at this place probably confers territoriality on all the waters inside, though that is a point which has not apparently been decided. A line drawn from the western boundary of Somerset (and in that case not from a headland) to Worms Head, the most western part of Glamorgan, measures about thirty geographical miles, and it is a markedly oblique line. What is true of one county ought to be true of another, and a much more natural line would be one of about twenty-three geographical miles between Morte Point in Devon and Worms Head in Glamorgan; or one still farther seawards between Hartland Point in Devon and St Goven’s Head in Pembroke, which are about thirty-eight geographical miles apart; but under common law the range of vision has to be taken into account. It may be added that the whole of the Bristol Channel within a line from Land’s End to Milford was one of the “King’s Chambers” (see p. 122), the closing line being nearly one hundred miles long; and that Continental publicists have referred to it, probably from this circumstance, as being within British jurisdiction.1085

Fig. 15.—The Bristol Channel.

Another case of the kind decided in a British court concerned Conception Bay in Newfoundland, which is rather more 589 than twenty miles wide between the headlands and from forty to fifty miles in length. It was decided by the Judicial Committee of the Privy Council in 1877 that it was a British bay and part of the territorial waters of Newfoundland. The decision was based partly on the configuration of the bay, but mainly on the evidence that the British Government had for a long time exercised dominion over it, which had been acquiesced in by other nations, and the Legislature had by Acts of Parliament declared it to be British territory.1086 Lord Blackburn, in delivering judgment, said that there was a universal agreement among writers on international jurisprudence that harbours, estuaries, and bays, landlocked, belong to the territory of the nation which possesses the shores round them, but no agreement existed as to what is the rule to determine what is a “bay” for this purpose. “It seems generally agreed,” he continued, “that where the configuration and dimensions of the bay are such as to show that the nation occupying the adjoining coasts also occupies the bay, it is part of the territory,” most of the writers referring to defensibility from the shore as the test of occupation. But the judgment was founded on the principle above stated.

With regard to jurisdiction over foreigners in the waters along our coasts, it is surprising that until quite recently there was no statutory enactment or international agreement defining the extent of that jurisdiction. Even in certain statutes in which the territorial waters are specially mentioned their boundaries are not defined, Thus, the provisions of the Foreign Enlistment Act of 1870,1087 which was passed for purposes of neutrality in the war between France and Germany, were declared by the second section to extend “to all the dominions of Her Majesty, including the adjacent territorial waters”; and the fourteenth section provided that any ship captured during the war between other nations when Great Britain was neutral, “within the territorial jurisdiction of Her Majesty, in violation of the neutrality of this realm,” &c., would be illegal; yet, in the interpretation clause no definition is given of the meaning or extent of “the 590 adjacent territorial waters.” A similar reluctance apparently to fix a definite boundary to the territorial seas for all purposes has been shown by the British Government on several occasions in recent years—as, for example, in the Territorial Waters Jurisdiction Act, and in the negotiations preceding the North Sea fishery convention of 1882.1088

The statute just referred to was the outcome of a very important case which was decided in the English courts in 1876, and raised indirectly the whole question of the extent of the territorial sea (apart from bays) and the nature of the jurisdiction over it. A German ship, the Franconia, bound from Hamburg to the West Indies, ran into a British ship, the Strathclyde, off Dover and within two and a half miles from the English coast, whereby the Strathclyde was sunk and a passenger drowned. The master, a German named Keyn, was convicted of manslaughter in the Central Criminal Court, according to English law, and the case was carried to the Criminal Court of Appeal. The defence was that as the defendant was a foreigner, in a foreign vessel, on a foreign voyage, sailing upon the high seas, he was not subject to the jurisdiction of any court in this country, while it was contended for the crown that inasmuch as at the time of the collision he was within three miles of the English shore, the offence was committed within the realm of England and was triable by the English court.1089 It was held by seven of the thirteen judges that in the absence of statutory enactment the Central Criminal Court had no power to try such an offence, inasmuch as the original jurisdiction of the admiral, which had been transferred to that court, did not enable him to try offences by foreigners on board foreign ships; the other six judges held the opposite, on the ground that the sea within three miles of the coast of England is part of the territory of England; that the English criminal law extends over those limits; and the admiral formerly had, and the Central Criminal Court now has, jurisdiction to try offences there committed although on board foreign ships. In referring to the limits of the territorial waters under the law of nations, the three-mile distance or the range of guns from the shore was very generally 591 quoted, and not infrequently the two were confused and spoken of as if they were one and the same thing. This was particularly the case with Sir Alexander Cockburn, who referred to various treaties and edicts (see p. 570) in which the range of guns alone was mentioned, as having fixed a three-mile limit for purposes of neutrality. He even gives Bynkershoek the credit of having propounded the three-mile theory.1090 His conclusion was cautiously expressed as follows: “Possibly, after these precedents and all that has been written on this subject, it may not be too much to say that, independently of treaties, the three-mile belt of sea might at this day be taken as belonging, for these purposes [in connection with fisheries and neutrality], to the local State.”

It was, as we have said, in sequence to the above case of the Franconia that the important statute, the Territorial Waters Jurisdiction Act, was passed by the British Parliament in 1878.1091 This Act is sometimes loosely referred to as having settled the extent of the territorial waters at three miles from the shore. This is far from being the case. In the preamble it is stated that “whereas the rightful jurisdiction of Her Majesty, her heirs and successors, extends and has always extended over the open seas adjacent to the coasts of the United Kingdom and of all other parts of Her Majesty’s dominions to such a distance as is necessary for the defence and security of such dominions. And whereas it is expedient that all offences committed on the open sea within a certain distance of the coasts of the United Kingdom and of all other parts of Her Majesty’s dominions, by whomsoever committed, should be dealt with according to law,” it was enacted that an offence committed by a person, whether or not a British subject, within the territorial waters of Her Majesty’s dominions was an offence within the jurisdiction of the admiral, although committed on board, or by means of, a 592 foreign ship, and the person who committed the offence might be arrested, tried, and punished accordingly. The legal advisers of the Government were, however, careful to guard against the limitation of the general rights of the crown in the adjacent seas to the distance to which criminal jurisdiction was declared to extend. In the interpretation clause it is stated: “‘The territorial waters of Her Majesty’s dominions,’ in reference to the sea, means such part of the sea adjacent to the coast of the United Kingdom, or the coast of some other part of Her Majesty’s dominions, as is deemed by international law to be within the territorial sovereignty of Her Majesty: and for the purpose of any offence declared by this Act to be within the jurisdiction of the admiral, any part of the open sea within one marine league of the coast measured from low-water mark shall be deemed to be open sea within the territorial waters of Her Majesty’s dominions.” The reservation is made explicit in the fifth section, which says that “nothing in this Act contained shall be construed to be in derogation of any rightful jurisdiction of Her Majesty, her heirs or successors, under the law of nations, or to affect or prejudice any jurisdiction conferred by Act of Parliament or now by law existing in relation to foreign ships or in relation to persons on board such ships.”

In the debate that took place in the House of Lords in 1895 in connection with the Sea Fisheries Regulation (Scotland) Act,1092 by which power was conferred on the Fishery Board for Scotland of regulating trawling, under certain conditions, up to thirteen miles from the coast (see p. 720), it was stated by Lord Halsbury, who had charge of the Territorial Waters Jurisdiction Act in 1878, that “in that Act they took care specially to avoid any measurements. The distance was left at such limit as was necessary for the defence of the Realm; then the exact limit was given for the particular purpose in view.” Equally clear was the statement of the late Lord Salisbury in the same debate, that “Great care had been taken not to name three miles as the territorial limit. The limit depended on the distance to which a cannon-shot could go.”1093 593

It is evident from the foregoing that the territorial sea that may be claimed as belonging to this country is not restricted to a distance of three miles from the shore on an open coast, though a certain jurisdiction and certain rights may be confined to that distance by municipal law or international agreement. The determination of the extent is left to the law of nations, and there is but little doubt that by the law of nations the true principle of delimitation is the actual range of guns from the coast, where the coast is washed by the open sea. It is to be noted that in the Territorial Waters Jurisdiction Act nothing is said about bays: criminal jurisdiction is confined to “the open sea” within one marine league of the coast. Offences such as come under the Act may obviously be committed as well in territorial bays and arms of the sea as within the three-mile limit on the open coast; and the omission to include bays was no doubt deliberate, bays in England being left under the common law on the principle previously explained, the range of vision, and in Scotland presumably under Scots law—i.e., “within land” (see pp. 545, 547).

Other Acts of Parliament which fix limits of jurisdiction beyond three miles from the shore include those relating to smuggling, the public health, and slave-ships. In 1736, and later, statutes were made by Parliament, known as the Hovering Acts, by which vessels with certain cargoes on board, destined for British ports, might be seized within four leagues of the British coast; and foreign vessels so taken have been brought for adjudication before British courts and forfeited for illicit trade.1094 By later Acts concerning the customs, differential limits were fixed with respect to jurisdiction over vessels having dutiable goods on board. Those belonging wholly or in part to British subjects, or having half the persons on board British subjects, found or discovered to have been within four 594 leagues of the coast between the North Foreland and Beachy Head, or within eight leagues of any other part of the coast; or any foreign ship with one or more British subjects on board, found or discovered to have been within three leagues of the coast, or any foreign ship irrespective of British subjects within one league, might under certain specified conditions be forfeited; and power was conferred on the commander of a ship of the royal navy to fire on such vessel if it refused to bring to after a warning gun had been given.1095

Other nations have also assigned boundaries for customs jurisdiction, which in nearly all cases exceed the ordinary limits of territorial waters. The United States in 1799 extended its jurisdiction for such purposes to four leagues from the coast, and in 1807, in an Act against the importation of slaves, the seizure of vessels laden with certain cargoes within that distance was also authorised.1096 In Spain the customs limit is six miles, and therefore corresponds to the territorial zone which is claimed;1097 in Sweden it is also six miles, but measured on the Scandinavian system from the outermost rocks; in Norway it is four miles, measured on the same principle, but a treaty between Norway and Mexico, concluded in 1886, places it as between these countries at three leagues from low-water mark.1098 In Italy the boundary is ten kilometres; in France two myriametres, or about four leagues; in Austria it is also four leagues; while in Canada it is three leagues.1099 Wide limits for jurisdiction have also been fixed by certain quarantine Acts. By the British Act of 1753, all vessels coming from places whence the plague might be brought were required to make signals on meeting other ships within four leagues of the coast, a distance which was reduced to two leagues by a later Act.1100

Such extension of jurisdiction as is indicated for customs or quarantine purposes over foreign ships approaching the 595 ports of a country, has only been sanctioned in a few cases by international treaties. It is now generally held to rest upon another basis than the absolute rights possessed by a state in its territorial waters proper; although it is quite in agreement with the principles laid down by the older publicists, as Puffendorf, Vattel, and Von Martens, and by several recent writers, as Latour,1101 that a nation is justified in exercising jurisdiction in the sea as far as its security or interests render it necessary. The current opinion is that such rights can only be enforced against foreigners under the comity of nations or by their tacit assent, as a matter of mutual convenience, and in practice they are acquiesced in by other Powers.1102 But it is important to observe that, as will be more apparent when we come to deal with the exclusive right of fishing, maritime nations find it necessary for the protection of their just interests to extend their jurisdiction beyond the somewhat narrow boundary at present ordinarily assigned.

The statement made above, that the true principle for determining the extent of the territorial sea on an open coast is the range of guns from the shore, is borne out by an examination of the writings of the accredited authorities on the law of nations. A review of the opinions of the leading publicists of the earlier part of last century shows that while the majority accepted Bynkershoek’s principle of cannon range, comparatively few restricted it to the distance of three miles, and many logically insisted that the extent must necessarily vary with the improvements in artillery. Works of a purely polemical nature may be passed over, such as those of the worthless Barrère1103 and of Champagne.1104 They were inspired by hatred of Great Britain and the desire of flattering Napoleon rather than by love of the truth, and were written in order to show that the British were the tyrants of the sea. Another contemporary French author, of much superior merit, who 596 dealt with the question was Rayneval, although his views were also somewhat coloured by national prejudice. In 1803 he published a treatise on international law,1105 and in 1811 another on the liberty of the sea.1106 The latter for the most part consists, like the work of Champagne, of an examination of the writings of Grotius and Selden regarding the mare liberum and the mare clausum, and also of the trenchant little book of Jenkinson (Lord Liverpool) on the conduct of the British Government in relation to neutrals. But in the earlier treatise, which is still cited as an authority, Rayneval expounded the law of nations respecting the territorial sea with marked impartiality. On the general question of the freedom of the sea and the appropriation of straits and bays the usual opinions were expressed. He held that the sea bathing the coasts of a country makes part of it; that the security and tranquillity of the state require that it should be held as a rampart against hostile surprise or violence and illicit trading; and that the fisheries form a natural appendage to this zone. With regard to the extent of sea that may be appropriated, Rayneval stated that it had not been determined by any uniform rule. Some, he said, carried it to a hundred miles, or to sixty miles, from the coast, others only to three miles, and others placed it at the distance of gunshot from the shore. On the southern coast of France it had been fixed by agreement at ten leagues with respect to the Barbary privateers. Like Meadows and several preceding writers, he held it to be desirable in the interests of the peace of nations that a general rule, or at least particular rules clearly determined, should be adopted on a matter so important and exposed to such uncertainties and disputes. Authors, he said, had usually fixed the distance at the range of cannon, but their opinion was not founded on a general regulation nor on uniform practice; and the most equitable limit according to some was the range of vision from the coast or the apparent horizon. Rayneval was of opinion that within the territorial seas the neighbouring state had the right to forbid navigation, except in cases of stress and necessity—a claim generally discarded, though still made by Norway. Any liberty to foreigners to fish along the coasts or in the bays of a country, he thought, 597 was a matter of tolerance, founded principally on the supposed abundance of fish; and he held the opinion, which is at variance with that of most other writers,—unless when confined to the territorial zone,—that a state does not lose the right to forbid foreigners from fishing in the waters along its coasts because it at one time allowed them to do so.

Much more definite and restricted was the opinion of a contemporary English lawyer, Chitty, who published a work on the law of nations in 1812.1107 Quoting Vattel, that the whole extent of the sea within cannon-shot of the coast is considered as making part of the territory, and that a vessel taken under the guns of a neutral fortress is not lawful prize, he says that the same doctrine is enforced by Von Martens; and he refers to the decisions in the English Court of Admiralty in the cases of the Twee Gebroeders and the Anna, which established the principle in English law. Chitty, however, makes no allusion to the three-mile limit as an alternative to the range of guns.

Bynkershoek’s principle, and also a fixed distance in place of it, were likewise accepted by Schmalz, Professor of Law in the University of Berlin. Writing in 1817,1108 he declared that the adjacent sea pertained to the neighbouring land as far as it could be defended by cannon from the shore; that this principle had been systematically adopted; and that the distance had been fixed arbitrarily at three marine leagues,1109—an erroneous statement, no doubt derived from G. F. von Martens, which has been previously referred to,1110 and was copied from one book into another. Two years later another and a greater German authority, Klüber, also adopted the principle of the range of guns, without, however, proposing an equivalent distance in miles.1111 He allowed to the state the waters susceptible of exclusive possession, over which it had acquired, by occupation or convention, and maintained, 598 its sovereignty. Among the parts so comprised are (1) the sea adjoining the continental territory of a state—at all events, “according to the generally received opinion,” to the extent to which it can be reached by cannon-shot from the shore; (2) parts extending into the land, as bays and gulfs, which can be commanded by guns on shore; (3) straits which are equally commanded by guns; (4) gulfs, straits, and seas adjoining the continental territory of a state, which, though not entirely under the range of guns on shore, are recognised by other Powers as closed seas—that is, under one dominion, and inaccessible to foreign vessels without permission.

Wheaton, an eminent American jurist, whose first work was published about this time, likewise accepted the principle of cannon range, or, as an alternative, a distance of three miles from the shore.1112 The territorial jurisdiction of a neutral Power, he says, “extends to the ports, harbours, bays, and chambers formed by headlands of the neutral Power. The usual addition allowed to this is a distance of three English miles, or a marine league, or as far as a cannon-shot will carry from the coasts or shore.” His statement is based on the decisions in the English Admiralty Court, and on the writings of Vattel, Bynkershoek, Von Martens, and Azuni. In his great treatise on the law of nations, first published in 1836,1113 the same views are expressed, it being stated that the general usage of nations superadds “to bays, ports, &c., a distance of a marine league, or as far as a cannon shot will reach, along all the coasts of the state”; and, incorporating into his text Lord Stowell’s observation, he says, “The rule of law on this subject is terr? dominium finitur, ubi finitur armorum vis, and since the introduction of fire-arms, that distance has usually been recognised to be about three miles from the shore.” Wheaton also states that the exclusive territorial jurisdiction of the British crown over the enclosed parts of the sea along the coasts of Great Britain has immemorially extended to those bays called the “King’s Chambers,”1114 599 and that a similar jurisdiction is also asserted by the United States over Delaware Bay, and other bays and estuaries forming portions of their territory, and that a state had the exclusive right of fishing within its territorial waters.

Chancellor Kent, who was another high American authority, expressed somewhat different opinions from those of Wheaton, in a treatise published in 1826, and seemed inclined to extend territorial jurisdiction much farther into the sea than the latter writer.1115 The extent of such jurisdiction over the neighbouring sea is, he says, often a question of difficulty and of dubious right, but as far as a nation can conveniently occupy, and that occupancy is acquired by prior possession or treaty, the jurisdiction is exclusive. It is difficult, he states elsewhere, to draw any precise conclusion, amidst the variety of opinion, as to the distance to which a state may lawfully extend its exclusive dominion over the sea adjoining its territories, and beyond harbours, gulfs, bays, and estuaries, where its jurisdiction unquestionably extends. “All that can reasonably be asserted is, that the dominion of the sovereign of the shore over the contiguous sea extends as far as is requisite for his safety, and for some lawful end. A more extended dominion must rest entirely upon force and maritime supremacy. According to the current of modern authority,” he continues, “the general territorial jurisdiction extends into the sea as far as cannon-shot will reach, and no farther; and this is generally calculated to be a marine league.” These opinions do not differ materially from those of Puffendorf and Vattel, and the tendency of this writer to allow an extended maritime jurisdiction is shown by his statement regarding bays. He holds that the American Government have the right to claim for fiscal and defensive regulations an extensive jurisdiction, and that it would not be unreasonable to assume, “for domestic purposes connected with our safety and welfare,” the control of the waters within lines stretching from quite distant headlands, as from Cape Ann to Cape Cod, and from Nantucket to Montauk Point, and from that point to the capes of the Delaware, and from the south cape of Florida to the Mississippi; that is to say, within areas in comparison with which the “King’s Chambers” are insignificant, 600 since a straight line from the south cape of Florida to the Mississippi measures about 500 miles, and encloses a tract of sea as much as 180 miles in breath. Kent adds that the Government of the United States would certainly view with uneasiness, in the case of war between other maritime Powers, the use of the waters of the American coast, far beyond the reach of cannon-shot, as cruising ground for belligerent purposes.

Manning, an English publicist, writing a little later,1116 adopts the usual opinion, stating that the distance to which the special right of jurisdiction or the qualified dominion of a state extends on the adjacent sea has been variously measured, the most prevalent distances being those of a cannon-shot or of a marine league from the shore. Heffter, a publicist of high authority, asserting as incontestable the right of all maritime nations, both for defence and for the protection of their commercial and revenue interests, to establish an active surveillance on the neighbouring sea, declares that for these purposes a state has the power of fixing, according to the particular conditions of its coasts and waters, the distance to which its rights shall extend. A common usage, he says, has established the limit at the range of guns, a principle sanctioned by the laws and regulations of many nations. But he maintains with Vattel that the dominion of the state in the adjacent sea extends as far as it is necessary for its security, and it can enforce it,—qualifying this declaration, however, by adopting Rayneval’s suggestion that the horizon should be the extreme boundary of the territorial sea. In his opinion the range of guns, although the principle commonly adopted, affords no invariable basis, and the distance may be fixed, at all events provisionally, by the laws of each state: formerly, he adds, it included two leagues, and now usually three marine miles.1117

A much more restricted view of the extent of the territorial sea was taken by Reddie, an English writer whose work 601 appeared in the same year.1118 He adopted Bynkershoek’s doctrine of the range of guns, but makes no mention of the three-mile limit or any other alternative distance. A certain breadth of the adjacent open sea is, he says, necessary for defence and security, and it is that portion within reach of cannon-shot, capable of being protected and commanded by artillery from the land, and thus susceptible of exclusive and permanent dominion, if not of appropriation. Beyond the range of artillery the sea is common; within that range each nation has the right of sovereignty, legislative, judicial, and executive, and the exclusive fishery. This part of the sea cannot be used by nations generally, without diminishing the use or enjoyment of others, and its produce is by no means inexhaustible.

Ortolan, a French publicist of eminence, writing about the same time, not only adopted the principle of Bynkershoek, but affirmed in a positive manner that the extent of the territorial sea should correspond to the actual range of artillery at the time.1119 Although the gunshot limit was the one recognised, there was nothing, he says, to hinder two or more states from fixing between themselves, by treaty, another limit, but such would be binding only on those who were parties to the agreement. Bays and arms of the sea whose shores belong to the same state are also territorial, provided that their width does not exceed twice the actual range of guns, or that the entrance can be commanded by artillery, or is naturally protected by islands, banks, or rocks. Within the territorial sea as thus defined the state has the power of making laws and regulations for its safety, prosperity, and interests, but it has not the right of property,—Ortolan, like so many other writers, drawing a distinction between property and jurisdiction. The opinion that the real range of guns is the true principle for the determination of the extent of the territorial sea was also affirmed by Hautefeuille, another French writer of authority.1120 According to him, it extends to the distance a ball can be actually thrown from 602 the shore and no farther. Within the space thus commanded the rights of the state are absolute, both in regard to jurisdiction and property, and even to the prohibition of navigation. The right of fishery is exclusive, since the products of the sea are not inexhaustible, and the pursuit of them requires to be kept under proper regulation. On this view, therefore, the fisheries of right belong to the neighbouring state up to the limit of gunshot from the coast.

Other French writers of authority have maintained the same opinion as to the principle for the delimitation of the territorial waters. Thus, Pistoye and Duverdy1121 state that each Power is able, in a given zone, measured by the range of cannon, to impose its laws and enforce obedience to them. It cannot take bodily possession of the waves, but it can maintain over them direct and constant domination. While there has been much discussion, they say, as to the extent of the territorial sea, the principle upon which its appropriation rests serves also to determine its bounds, “and it must be acknowledged that the range of cannon from the shore is the only real and true boundary of the sea in question.”1122 No measure, they add, has been generally agreed upon between different nations as to the distance which the range of guns may be supposed to cover; but they think the eyes of experienced officers on the coast may be trusted to judge how far a given spot is within the distance. Still another French author of repute expressed the same view as to the extent of the territorial sea. Massé, in his elaborate work on commercial law in relation to the law of nations,1123 pointed to the fact that the arbitrary opinions of the older writers had been rejected, and stated that the real basis of delimitation was the range of guns—a distance which he places at “about three miles”; but he says that this rule is not always followed in practice. Bays and gulfs are declared to be undoubtedly part of the territorial sea, even when they are not capable of being defended from the shore. 603 The reasons for this opinion are the same as those advanced by Hubner—namely, that such areas form natural harbours and anchorages, sheltering vessels from tempests: the vessels are thus under the protection of the coasts, and consequently of the sovereign of the coasts. The true boundary in such cases Massé regards as the line joining the headlands, or passing between the islands that may lie off the mouth, even if the distance be greater than the range of guns, or than what has been fixed by convention for an open coast.

It is obvious from the above review of the opinions of publicists in the first half of last century that no complete agreement had been reached in theory or principle respecting the extent of the territorial sea. Many of the writers held to the opinions expressed by Puffendorf, Wolff, and Vattel, which allowed a more or less wide and vague jurisdiction in the neighbouring sea for the security of the state; and most of them refer to the cannon-range limit as the one usually adopted. Few, however, accept the three-mile boundary as an alternative to the range of guns: most of the authors indeed do not even mention it, and those who do, appear to have been guided in the main by Lord Stowell’s decisions. On the other hand, the later of the French writers affirm that the boundary of the territorial waters is determined by the actual range of artillery from the shore at the time, which is a virtual repudiation of the three-mile limitation. Their view is summed up by Pistoye and Duverdy when they say that the principle on which the appropriation of the bordering sea rests serves also to determine its bounds—i.e., control and command from the shore.