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 thre............