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
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 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 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 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 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 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 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]

[Illustration: Fig. 15.--_The Bristol Channel._]

Another case of the kind decided in a British court concerned
Conception Bay in Newfoundland, which is rather more 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 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
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 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]

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 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 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 Barrère[1103] 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 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, 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, 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 _terræ 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] 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,
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 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
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 Duverdy[1121] 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. 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.

CHAPTER III.

THE FISHERY CONVENTIONS.

Compared with the eighteenth century and the earlier part of the
nineteenth, the period which has elapsed since the close of the
Napoleonic wars has been singularly free from occurrences raising
the question of the extent of the territorial sea in connection with
the rights of belligerents and neutrals. There has been no great
maritime war in Europe since the enormous advance in the power of
artillery rendered the three-mile limit untenable for the security
of a neutral state against the operations of belligerents in the sea
off its coasts, though some questions involving the inadequacy of
that limit came to the front during the civil war in America. The
chief questions affecting the boundary of the territorial waters were
concerned with sea fisheries, and several conventions were made between
European nations in which limits were fixed for exclusive fishing.
They originated in the perennial disputes between British and foreign
fishermen.

In previous chapters it has been shown that the intermittent efforts of
the British Government to establish an exclusive right to the fisheries
along the coasts of this country were without definite result, except
that it came to be tacitly understood by the Dutch fishermen that
they should keep out of sight of the shore. At various times during
the eighteenth century complaints were made to the Government of the
encroachments of Dutch, French, and Danish fishermen along our coasts
and in the Channel, and representations were in several instances made
to the foreign Government concerned. An examination of these complaints
shows that in many cases the foreigners were alleged to fish within
the bays and close to the shore, destroying the spawn and brood of
fish. In other cases they were accused of fishing in British waters
when they were between three and four, or even between six and seven,
miles from the coast,--the real ground of complaint being that they
occupied the localities where the fish were most abundant, and where
the native fishermen mostly carried on their industry.[1124] From
causes previously described, the number of Dutch fishermen frequenting
the British coasts diminished very much during the eighteenth century,
while at the same time French fishermen, and on the coast of Scotland
also Danes and Prussians, as well as fishermen from the Austrian
Netherlands, came in increasing numbers. During the war with France
and Holland the fishermen of these nations were unable to pursue their
fishing on the British coasts. But shortly after the restoration of
peace they returned, and complaints of their encroachments, especially
on the coast of Scotland and the south coast of England, soon became
prevalent. In 1819 the Board of British White Herring Fishery
received numerous complaints of foreign, and more particularly Dutch,
herring-busses shooting their nets too near the coasts, and committing
depredations on the lines and nets of the native fishermen. The Board
were urged to prevent foreigners from fishing “within a certain
distance” of the shore; but they considered they had no power to do so,
and forwarded copies of the petitions to the Lords of the Treasury. The
clamour continued, and in 1821, and again in 1822, the Board strongly
recommended the Government to take action. In the latter year the
Government made representations on the subject to the Government of the
Netherlands; and as a result a royal decree was issued in 1824 by the
King of the Netherlands prohibiting Dutch fishermen from fishing on the
main coast of Scotland, or even, in the absence of urgent necessity,
from approaching it within a distance of two leagues, twenty making a
degree, or twice the limit of three miles.[1125] In 1827--and thus
only twelve years before the Anglo-French convention fixed a three-mile
limit--this Dutch ordinance was renewed, and from that time few
complaints were made of the encroachments of Dutch herring-busses on
the Scottish coast. They continued to conduct their herring fishery,
for the most part, at distances ranging from twelve or fourteen to
forty or fifty miles, as they still do at the present day.

As the disputes with the Dutch fishermen were thus amicably arranged
by the recognition of a six-mile zone of reserved water, similar
contentions sprang up, and continued for a long period, with fishermen
from France. In 1824, some years after the peace, they began to
frequent the coast of Scotland, and they came in great numbers in
each succeeding year, fishing at the Shetlands, Orkneys, and along
the north and east coasts from Cape Wrath to Berwick, and down the
English coast as far as Flamborough Head.[1126] Several circumstances
connected with the French fishery tended to provoke disputes. While the
Dutch fished from their busses at a distance from the coast, where the
largest and best herrings were caught, and were forbidden under heavy
penalties from buying or selling herrings while at sea, or even from
entering any foreign port except by reason of urgent necessity, the
French fished, as a rule, near the shore from small boats, which they
even hired for the season, not uncommonly from Scotch fishermen. They
frequented the Scottish ports; they bought herrings in large quantities
surreptitiously from native boats engaged to local fish-curers, for
money, brandy, tobacco, biscuits, and other articles; and they were
allowed to dry their nets, and even sometimes to salt their herrings,
on shore for a small payment.[1127] They were thus intimately
associated with the native fishermen along the coast, and they carried
on their fishery near the shore in the waters which were mostly used by
the natives.

In the English Channel disputes between British and French fishermen
were still more frequent and acrimonious. British naval supremacy
during the long war had given a monopoly of the fisheries to the people
of the English coast, but after peace was concluded French fishermen
swarmed in the Channel, and began to fish along the English shores.
Complaints became rife of the decadence of the English fisheries, owing
to the alleged encroachments of the French and a general diminution
in the abundance of fish. In 1833 a Select Committee of the House of
Commons was appointed to inquire into the state of the British Channel
fisheries and the laws affecting the fishing trade of England, with a
view to their amendment. After taking evidence, the Committee reported
that they found those fisheries, and the interests connected with
them, to be in a very depressed and declining state; that the decline
had begun with the peace in 1815; that the number of fishermen and
boats had diminished; and that the fishermen and their families were
indigent.[1128]

The principal causes of the depression were found to be the extensive
interference and aggressions of the French fishermen on the coasts of
Kent and Sussex, the large quantity of foreign-caught fish illegally
imported, and the great decrease and comparative scarcity of fish
in the Channel. Large fleets of French fishing vessels from Calais,
Boulogne, Dieppe, and other ports were in the habit of fishing along
the English coasts, frequently within half a league of the shore, and
occasionally nearer, as well as in the bays and shallow waters, “in
which,” said the Committee, “it is particularly necessary for the
preservation of the brood of fish, that such as frequent those waters
during the breeding season should not be disturbed, or their young
destroyed before they have attained maturity.” The French fishing
vessels were more numerous and larger than the English boats,--between
two and three hundred coming from Boulogne alone,--and they had caused
great injury to the nets and gear of the English fishermen, especially
in the herring and mackerel seasons. At other times of the year it was
proved that they were in the habit of coming in great numbers every
morning into English bays, and dragging there for bait in the shallow
waters close upon the shore, taking and destroying an immense quantity
of young and unsizeable fish, at periods when they were prevented by
French laws from conducting similar operations in their own bays.[1129]
These laws, the Committee reported, were understood to be enforced also
against English fishermen within three leagues of the coast of France;
on approaching nearer they were warned off by French cruisers, and told
that they would not be allowed to fish within that distance.

The Committee considered it to be proved that the scarcity of fish in
the Channel (with the exception of herrings and mackerel) had been
occasioned by the great destruction of the spawn and brood of fish in
the shallow waters. They recommended as remedies for the evil “that
foreign fishermen should be prevented at all seasons of the year from
fishing within one league, or such other distance of the English coast,
as by the law or usage of nations is considered to belong exclusively
to this country,” and that they should also be required to observe,
during the spawning or breeding season of fish, all such laws or
regulations as might be imposed upon English fishermen for the better
preservation of the spawn and brood of fish in the bays and shallow
waters on the coast.[1130] In order to accomplish these objects, they
recommended that customs and revenue officers and the commanders
of cruisers should be instructed to prevent foreign fishermen from
fishing “within such prohibited distance of the shore,” to enforce the
observance by foreigners as well as by subjects of our fishery laws and
regulations, and to protect the English fishermen from aggression at
sea.

The Committee had considerable difficulty in arriving at their
conclusion respecting the limit which should be fixed for exclusive
fishing on the English coast. They were influenced partly by what they
understood to be the usage, that the sea for one marine league from
the shore was considered to be the territory of the adjoining country,
partly by the practice of the Customs’ authorities in connection with
the prevention of smuggling, and partly by considerations affecting
the preservation of the fry and brood of fish. Under the Customs’
regulations, vessels and boats of certain descriptions, including
fishing-boats, required a license, and the Commissioners of Customs
had discretionary power[1131] to prescribe within what distance of the
English coast they might be employed. In some cases fishing-boats were
restricted to a distance of four leagues, in other instances they were
allowed to fish to within one league of a foreign coast, one league
of sea being regarded by the Customs’ authorities as belonging to the
territory of the adjacent country. With regard to the right of fishing,
however, it was generally understood among the English fishermen that
the limit on the French coast reserved for French fishermen was three
leagues; and they desired that the same limit should be applied on
the English coast. The Committee laid great stress on the fixing of a
limit of exclusive fishing in order to preserve the spawn and brood of
fish. It was universally believed, and stated by all the witnesses,
including Mr James Cornish, an ichthyologist of repute, that the fish
spawned in the shallow water near the shore,--an erroneous opinion
that has prevailed almost to the present day, but which was shown
to be incorrect by the observations made by the Fishery Board for
Scotland[1132] and others.

It was deemed to be of great importance that the breeding fish, and
the eggs which they were supposed to deposit near the shore, should be
protected from alleged injurious modes of fishing; and the Committee
recommended statutory enactments to establish close-times, and to
prohibit the use of trawl or drag nets within a league from the shore
or in water less than ten fathoms in depth. They inquired carefully
as to the limit which would be sufficient for this purpose. Most of
the fishermen were of opinion that the distance of one league would
be sufficient to include the “breeding-grounds,” and bring them under
the protection of the law; but they held that the distance should be
measured not from the shore, following its sinuosities, but from a
straight line drawn from one headland to another,--an opinion with
which the Committee concurred.

No immediate action was taken by the Government to establish a
definite boundary for exclusive fishing, and petitions and memorials
continued to pour in from various parts of the coast complaining of
the depredations of French fishermen. They were accused of interfering
with British fishermen engaged in dredging for oysters fifteen miles
from the shores of France; of fishing for herrings and mackerel within
less than a mile of the British coasts, compelling the native fishermen
to shoot their nets to the seawards of them; of maliciously destroying
fishing gear, and of recklessly extirpating the spawn and brood of fish
in the shallow waters along the English coast. The Government were
urged to give effect to the recommendations of the Committee of 1833,
and they were asked by the Commissioners for the Herring Fishery to
issue instructions to the naval superintendent in Scotland to prevent
the encroachments complained of.[1133]

From a perusal of these petitions it is evident that much doubt
existed at the time, not only in the minds of fishermen but among many
in authority, as to what was the precise limit of exclusive fishery
that might be claimed or enforced. As a general rule, it was believed
to extend much farther than a league from the shore. Many fishermen
maintained that the boundary was three leagues, an opinion strongly
held in Scotland as late as 1862. The fishermen of Eyemouth, probably
influenced by traditions of the extent of the “reserved waters” in
earlier times, asked that foreigners should be “kept without the
limits prescribed by law, and that limits (_sic_) be seven leagues,”
declaring that they went that distance themselves, and were annoyed and
endangered by foreign vessels taking up the ground.

On the part of French fishermen there were also numerous complaints
against the English, the most bitter referring to the dredging for
oysters off the French coast. In 1837 a mixed commission was appointed
by the British and French Governments in connection with these
complaints, and especially to ascertain and define the limits within
which the subjects of the two countries respectively should be at
liberty to fish for oysters between Jersey and the neighbouring coast
of France. The opportunity was taken at the same time “to define and
regulate the limits within which the general right of fishery on all
parts of the coasts of the two countries shall be exclusively reserved
to the subjects of Great Britain and of France respectively,” and a
convention was concluded at Paris in 1839 defining these rights.[1134]
By its articles a very considerable stretch of water containing
oyster-beds, in the Bay of Granville on the French coast, between
Cape Carteret and Point Meinga, south-east of Jersey, and extending
far beyond the three-mile limit, was reserved exclusively for French
fishermen, the boundaries being minutely defined and laid down on a
chart annexed to the convention; and British fishermen were prohibited
from carrying on any kind of fishing, even for floating fish, within
this area. The bay thus appropriated is over seventeen miles in
breadth, and the closing line passes in some places about fourteen
miles from the shore.[1135] This concession to France was a recognition
of the principle that fisheries of this nature--that is, for objects
which are attached to or stationary on the bottom--require special
treatment.

The article defining the general fishery limit on the coasts of the two
countries was as follows:--

“ARTICLE IX. The subjects of Her Britannic Majesty shall enjoy the
exclusive right of fishery within the distance of three miles from
low-water mark, along the whole extent of the coasts of the British
Islands; and the subjects of the King of the French shall enjoy the
exclusive right of fishery within the distance of three miles from
low-water mark, along the whole extent of the coasts of France; it
being understood that upon that part of the coast of France which lies
between Cape Carteret and Point Meinga, French subjects shall enjoy the
exclusive right of all kinds of fishery within the limits assigned in
Article I. of this Convention, for the French oyster fishery.

[Illustration: Fig. 16.--_Showing the Limits reserved for French
Fishermen in Granville Bay._]

It is equally agreed, that the distance of three miles fixed as the
general limit for the exclusive right of fishery upon the coasts of the
two countries shall, with respect to bays, the mouths of which do not
exceed ten miles in width, be measured from a straight line drawn from
headland to headland.”

The next article defined the miles to be geographical miles, of which
sixty make a degree of latitude; and it was also provided that with a
view to prevent the collisions which from time to time took place “on
the seas lying between the coasts of Great Britain and of France,”
between the trawlers and the line and long-net fishermen of the two
countries, a mixed commission should be appointed to prepare a set
of regulations for the guidance of the fishermen in the seas above
mentioned. The code of regulations so arranged was confirmed by the
respective Governments in June 1843, and was in this country embodied
in an Act of Parliament. They embraced a large number of subjects,
many of them beyond what was contemplated in the convention. Besides
what may be termed police regulations, such as the numbering and
lettering of fishing-boats, there were others defining and restricting
the fishing apparatus to be employed;[1136] and all this machinery of
regulation was to be applied to British and French fishermen pursuing
their industry in the extra-territorial waters.

This convention was the first to establish by an international
agreement the three-mile limit as the boundary of exclusive fishing
on the British coasts, so far as French fishermen were concerned.
In view of the numerous conflicts and disputes, it was clearly of
importance that some limit should be precisely fixed, but the
selection of so narrow a strip of the adjacent sea was in some respects
unfortunate, and has probably acted injuriously on the interests of
the sea fisheries. It was imposed, no doubt, partly because it was
the limit already recognised in England and America as bounding the
territorial seas for the purposes of neutrality, and because it was
deemed sufficient to afford protection to the breeding fishes and
fish-spawn, one of the objects the Parliamentary Committee had in view
in recommending it.

The disputes between the fishermen of the two nations were not set at
rest by the convention. Numerous infringements of the new boundary of
exclusive fishing occurred, and the difficulty of causing it to be
respected was for many years considerable.[1137] As many as twenty-one
French vessels were seized and taken into Berwick at one time for
transgressing the limit, and the convention was naturally not looked
upon with favour in certain French seaports.[1138] Nor was it generally
regarded among the fishery classes in this country as a triumph of
diplomacy. In Scotland it was thought that the British Government had
made a very bad bargain in parting with the exclusive right to fish for
herrings beyond a limit of only three miles instead of three leagues,
the boundary maintained to be the “legal” and just distance, for the
sake of obtaining, as it was supposed, some fancied advantage for the
English oyster fishermen.[1139]

The convention, moreover, was binding only on French and British
subjects. It left unsettled the limit in relation to other nations,
and the inconvenience of this was shown by the action of Belgian
fishermen. While the French were excluded from the three-mile zone, the
Belgians not only fished within it, but in many cases they anchored
their vessels in the Scottish harbours and bays and fished in the
neighbouring waters from their small boats. In 1848 the commissioners
for the British fisheries brought the question before the Board of
Trade, and they were advised to enforce the boundary laid down in the
Anglo-French convention with respect to Belgian and all other foreign
boats also.[1140] Against this procedure strong remonstrances were made
by the Belgian fishermen, and these were followed by representations
from the Belgian Government. The Fishery Commissioners, who were
anxious that the law in regard to foreigners fishing on our coasts
should be made clear, continued to press the matter. The Belgian
fishermen then produced to the naval superintendent a copy of the
charter that had been granted by King Charles II., in 1666, to the
citizens of Bruges,[1141] under which they claimed equal privileges
with British subjects. That charter appears to have been generally
regarded as fictitious; but, acting on the advice of the Queen’s
Advocate, the Board of Trade directed that for the ensuing season of
1851 Belgians should be allowed to fish on the same system as before,
but that afterwards this liberty should cease, except in the case of
such as had been able to prove special privileges under the asserted
charter in the English courts of law. The dispute was settled by
a convention between Great Britain and Belgium in 1852, in which,
without mention of any specified limit, it was stipulated that Belgian
fishermen should enjoy the same rights of fishing on the coasts of
the United Kingdom as the most favoured foreign nation, and, in like
manner, that British subjects should enjoy corresponding rights on
the coast of Belgium.[1142] This convention was more beneficial to
Belgium than to us, as the Fishery Commissioners pointed out, owing to
the extent of the respective coasts conceded for fishing, but it was
thought to be satisfactory, inasmuch as defined rights were substituted
for vague and disputed privileges. Nevertheless, as the Belgian
Minister remonstrated that sufficient time had not been afforded for
trying in the British courts the validity of the charter “alleged” to
have been granted to the fishing vessels of Bruges, the vessels of that
port were allowed for one season more (namely, 1852) the privilege of
using the Scottish harbours for their fishing vessels and of fishing
from them with small boats.[1143] When the authorities attempted in
1852 to enforce the convention against Belgian vessels other than those
of Bruges, by excluding them from our harbours, so much dissatisfaction
was caused that the Belgian Minister again appealed to the British
Government, and the restriction was relaxed for another year for all
Belgian boats, so that the enforcement of the three-mile limit against
them did not come into operation till 1853.

The violations of the boundary by French vessels, above referred to,
continued for many years, and the disputes were sometimes so frequent
and serious as to occasion the employment of seven or eight gunboats
on the east coast of Scotland to maintain the law. Yet the three-mile
limit, as the Commissioners declared, was but “a slender privilege”
to retain for the native fishermen. “The extent of it,” they truly
said, “when looked at from the sea appears small indeed, seeming but
a narrow slip lying close under the high cliffs of the land, and when
it is taken into account that the whole sea outside is free to every
comer, whether British or foreign, the slight boundary within shore
ought to be strictly kept.” Sometimes, however, the French were accused
of infringing the limit from a common misconception on the part of our
fishermen that the boundary was the traditional one of three leagues
or nine miles, instead of only three miles. Upon explanation, they
admitted their misapprehension, “but,” said the Commissioners, “with a
significant expression of their wish that it had been leagues instead
of miles.”

The French herring vessels swarmed chiefly about Berwick and the coast
of Northumberland, and in 1853 a question of the limit at the Farne
Isles was raised by the French commodore. He interpreted the words of
the convention (which did not specify islands) as meaning that the
three miles was to be measured from low-water mark on the mainland,
which would have allowed the French to fish close to the islands. The
British naval superintendent, on the other hand, held that the limit
extended to three miles from low-water mark on the islands as well,
but, pending a legal opinion, he released two French vessels he had
seized for fishing within that distance from them. The Queen’s Advocate
decided in favour of the latter interpretation, and the point does
not appear to have been again raised.[1144] The infringement of the
boundary by the French gradually became less frequent, and in 1867 it
was reported that they had begun to fish at a greater distance from the
coast than formerly, and even out of sight of land.

At this time it was found to be desirable to conclude another fishery
convention with France. Nearly all the elaborate regulations under the
convention of 1839 had turned out to be unworkable or were disregarded,
and much difference of opinion existed as to what actually were “the
seas lying between the British Islands and France” to which they
applied.[1145] In this second convention, in 1867, the exclusive
fishery limits of the two countries were defined as in the convention
of 1839, and the boundaries of the large area in the Bay of Granville
or Cancale, reserved for French fishermen, were precisely the same as
before.[1146] The international “extra-territorial” regulations under
this convention were much less detailed than in the previous one.
Fishing beyond the reserved limits was to be entirely free, with the
exception that a close-time for oysters was established for the English
Channel. The police regulations were to apply to “the seas surrounding
and adjoining Great Britain and Ireland,” and adjoining the Atlantic
coast of France, between the frontiers of Belgium and Spain. The
conditions under which the fishing-boats of one nation might enter the
exclusive fishery limits of the other, such as by stress of weather,
were carefully specified; and each boat while there was to hoist a blue
flag, and was again to leave as soon as the exceptional circumstances
had ceased. The convention was to continue in force for ten years, and
afterwards from year to year, terminable on twelve months’ notice. But,
although confirmed by an Act of the British Parliament, in 1868,[1147]
it was not ratified by France, and its provisions never came into
practical operation, except with regard to the close-time for oysters,
owing to certain objections raised by the French Government.[1148]
Certain of its provisions, including, amongst others, the article in
the convention defining the exclusive fishery limits, were repealed by
the Sea Fisheries Act, 1883.[1149]

Both conventions, as we have seen, dealt with oyster fisheries in a
special manner, and on the coast of France a large area, extending
much beyond the three-mile limit, was reserved to French fishermen on
account of the valuable oyster-grounds it contained. An interesting
point was raised by the Irish authorities. It happened that Ireland
also possessed productive and extensive oyster-beds on the coast of
Wexford, stretching for many miles beyond the exclusive fishery limits
laid down in the convention, and the Irish authorities claimed the
right of control over the whole of them. They had enforced regulations
there before the first convention with France, in 1889, had been
entered into, and at that time they protested against its application
to Ireland. Accordingly, in the Act of 1843 giving effect to the
convention, a clause was inserted empowering the Board of Trade, with
the sanction of the Privy Council, to suspend the operation of the
convention in Ireland or any part thereof, so long as the fisheries
there should be carried on exclusively by British subjects, and also to
make bye-laws for enforcing the Act as soon as French boats frequented
Irish waters for the purpose of fishing.[1150] On the day following the
passing of the Act an Order in Council was issued directing “that the
said Act and articles of regulation shall be suspended with respect to
the fisheries of the whole coasts of Ireland, so long as such fisheries
shall be carried on exclusively by the subjects of Her Majesty.”

The matter was again raised in connection with the convention of 1867,
and it was associated with a recent act of jurisdiction by the Irish
authorities beyond the three-mile limit. Some Welsh boats which had
been dredging for oysters on the coast of Wexford, at a distance, it
was said, of four or five miles from the shore, were arrested, taken to
Wexford, the fishermen fined, and the oysters forfeited. The Board of
Trade thereupon asked the Irish Department, with reference to an Act
that had been passed in 1842 to regulate the Irish fisheries,[1151] to
state what were “the limits of the Act to regulate Irish fisheries” in
pursuance of the provisions of which they presumed they had acted, and
“whether the oysters in question were captured within those limits.”
The reply was that the oysters were taken two and a half miles from
the shore, but that the most extensive and valuable oyster-beds on
the east coast of Ireland lay at a distance of from five to ten miles
from and parallel to the shore, and so far as they, or any other beds,
were “within the reach of ordinary shore boats, and were habitually
frequented by and afforded the means of living to a shore population,
the Commissioners conceive they are justly entitled to be considered
Irish beds, and to come within their control.”[1152]

The Irish Members of Parliament strenuously supported this contention,
and they succeeded in getting a clause inserted in the Convention
Act of 1868 enabling the Irish Commissioners, with the approval of
the Queen in Council, to regulate the dredging for oysters on any
oyster-beds situated within the distance of twenty miles seawards from
a straight line between Lambay Island and Carnsore Point--an area
of nearly 1300 square (geographical) miles, outside the three-mile
limit, including the Arklow and Wexford banks, and stretching from
twelve and a half to nineteen miles beyond the ordinary limit. All
such regulations were to “apply equally to all boats and persons on
whom they might be binding,” and they were binding “on all British
sea-fishing boats, and on any other sea-fishing boats in that behalf
specified in the Order, and on the crews of such boats.”[1153] By an
Order in Council, dated 29th April 1869, regulations were made under
this section of the Act appointing a close-time; but no other boats
than British boats were therein specified.[1154]

In the interval between the two conventions with France, referred to
above, there were some other treaties that dealt with territorial
waters to which allusion may be made. The provisions of the treaty
of 1818 with the United States respecting the fishery rights on the
coasts of the British dominions in America (see p. 581) had given rise
to disputes, and in particular the words “within three marine miles of
any of the coasts, bays, creeks, or harbours.” This was interpreted by
the British and Colonial Governments as meaning that the boundary of
three miles was to be drawn, not everywhere along the coast following
all its sinuosities, but, where bays or creeks existed, from a straight
line passing from one headland to another across their mouth or
entrance--that is, according to the principle now known as the headland
doctrine. The United States, on the other hand, generally contended
that the words meant that the three-mile limit was to be measured
everywhere along the coast from the line of the shore, following it in
all its curves and indents, thus eliminating altogether any special
treatment for inlets or bays, and dealing with all parts of the coast
as if it were an open coast. There is little doubt that the British
interpretation was the correct one. This is evident from the previous
usage with regard to bays as shown by the rules relating to the King’s
Chambers and the practice of the Admiralty Court in England, and the
reserved firths in Scotland, and by the claim advanced by the United
States with respect to neutral rights in 1806. It is also evident from
the language of previous treaties. That of 1686 between France and
Great Britain referred to “havens, bays, creeks, roads, shoals, or
places”; in that of 1783 between Great Britain and the United States,
“coasts, bays, and creeks” are spoken of; and in that between the same
Powers in 1794, with respect to neutral rights, it was agreed that
ships should not be taken “within cannon-shot of the coast, nor in
any of the bays, ports, or rivers of their territories.” It is clear
that a distinction was drawn between coasts and bays--a distinction
which is now and always has been recognised in international law,
which is made in the North Sea and other fishery conventions of recent
times, and is claimed by the United States with regard to their own
coasts.[1155] If no such distinction between coast and bays was meant
in the clause of the treaty of 1818, then the words “bays, creeks, and
harbours” are without meaning and superfluous, a construction which
is contrary to the rule which requires that effect be given to every
word in a contract or treaty. That the British construction was correct
was virtually admitted by Mr Webster, the American Secretary of State,
when he said in a State paper, 6th July 1852, that “it was undoubtedly
an oversight in the convention of 1818 to make so large a concession
to England, since the United States had usually considered that those
vast inlets, or recesses of the ocean, ought to be open to American
fishermen as freely as the sea itself, to within three miles of the
shore.” He admitted, moreover, that the word bay applied equally to
small and large tracts of water situated between capes or headlands.

[Illustration: Fig. 17.--_Bay of Fundy._ A, _United States territory_.]

In 1824, and again in 1838 and 1839, British cruisers seized American
vessels for fishing within the Bay of Fundy, the Bay of Chaleurs, and
elsewhere in contravention of the treaty of 1818; and in 1843 the
schooner _Washington_ was arrested for fishing in the Bay of Fundy at a
distance of ten miles from shore, taken to Yarmouth, Nova Scotia, and
sold. In the diplomatic correspondence which followed these seizures,
the two Governments took up the position as to the interpretation of
the treaty which is referred to above; but eventually, in March 1845,
Lord Aberdeen intimated that the British Government, while adhering
to their interpretation, would as a matter of courtesy relax the
rule with regard to the Bay of Fundy, and allow “the United States
fishermen to pursue their avocations in any part of it, provided they
should not approach, except in cases specified in the treaty of 1818,
within three miles of the entrance of any bay on the coast of Nova
Scotia or New Brunswick.” The Bay of Fundy (fig. 17) is a very large
but typically landlocked inlet of the sea, passing between Nova Scotia
and New Brunswick for a distance of about 140 miles from its mouth.
As with many other bays, there is more than one cape or projection of
land that might be taken as its headlands, but one of them is clearly
in the United States; and the distance from it to the opposite coast is
from forty to fifty-five nautical miles, while the bay itself at sixty
or seventy miles from the entrance is over twenty-five miles in width.
Chaleur Bay, between New Brunswick and Quebec, is a little over sixteen
miles in width and over sixty miles long (fig. 18).

The United States declined to receive the above-mentioned privilege
as a favour, and the colonists made a strong representation to London
as to the injurious results that would ensue if the proposed policy
were adopted; and in 1849 the British law officers of the Crown gave
their opinion on the provisions of the treaty, “that the prescribed
distance of three miles is to be measured from the headlands or extreme
points of land next the sea of the coasts, or of the entrance of the
bays, and not from the interior of such bays or inlets of the coast;
and consequently that no right exists on the part of American citizens
to enter the bays of Nova Scotia, there to take fish, although the
fishing, being within the bay, may be at a greater distance than three
miles from the shore of the bay.”

In terms of the convention of February 8, 1853, the case of the
_Washington_, above described, came before referees in London, and
on their disagreement it was decided by the umpire, Mr Joshua Bates,
in favour of the United States. His conclusion was that the Bay of
Fundy was not a British bay, nor a bay within the meaning of the word
as used in the treaties of 1783 and 1818, but belonged rather to the
class which comprised such bays as the Bay of Bengal and the Bay of
Biscay, over which no nation can have the right to assume sovereignty.
He also pointed out that one of its headlands was in the United States;
and he thought that the doctrine of the headlands had “received a
proper limit” in the Anglo-French convention of 1839, where a ten-mile
base-line was adopted.

[Illustration: Fig. 18.--_Bay des Chaleurs._]

A few years before this, negotiations had been opened between the
Governments with the view of establishing reciprocal free-trade between
Canada and the United States, and in June 1854 a treaty was signed at
Washington, commonly known as the Reciprocity Treaty, by which certain
articles of produce of the British colonies and of the United States
were admitted to each country respectively free of duty, and reciprocal
rights of fishery were granted. The subjects of either state were to be
free to fish along the coasts and in the bays, harbours, and creeks
of the other, without any restriction as to distance from the shore,
in Canada, New Brunswick, Nova Scotia, and Prince Edward’s Island, and
on the eastern coast of the United States north of the 36th degree
of north latitude. On each side salmon and shad fisheries, and the
fisheries in rivers and the mouths of rivers, were reserved.[1156]
This treaty was to endure for ten years, and it was terminated by
the United States and came to an end on 17th March 1866, when, in
consequence, the provisions of the treaty of 1818 again came into
force. The British Government, however, being very desirous to prevent,
as far as possible, the loss to the citizens of the United States by a
sudden withdrawal of the privileges which they had enjoyed for twelve
years, decided to allow American fishermen to continue to fish in all
provincial waters upon the payment of a small fee.[1157] From the
neglect of American fishermen to obtain the licenses, the fee for which
had been raised from fifty cents to two dollars per ton, the system
was discontinued in 1870, and orders were given to British cruisers
to exclude American vessels from fishing in territorial waters, and
several of them were seized and forfeited. The Canadian Minister of
Marine and Fisheries issued instructions, in May 1870, for the same
limits as are contained in the Anglo-French convention of 1839 to be
put in force against American fishermen; but, on representations from
London, these were withdrawn and other instructions issued to the
commanders of the cruisers, in which bays of six miles or less in width
at the mouth were alone reserved.[1158]

Further negotiations between the Governments ended in the treaty
of Washington in 1871, in which reciprocal rights of fishing were
re-established in much the same way as in the treaty of 1854, but
the liberty to British subjects to fish on the coast of the United
States was restricted to the part north of the 39th degree of north
latitude.[1159] Under this treaty it was agreed to appoint joint
commissioners to determine the amount of compensation, if any, which
should be paid by the United States for the greater privileges granted
to American citizens by the treaty; and this commission met at Halifax
in 1877, the sum of 5,500,000 dollars being so awarded. The award was
not received with favour in the United States, and notice was given at
the end of the stipulated ten years for the abrogation of the treaty,
and the articles referring to the fisheries were so terminated on July
1, 1885, the provisions of the convention of 1818 again, for the third
time, coming into force. Further troubles and disputes occurred, not so
much in relation to fishing within territorial waters, as to American
vessels frequenting colonial ports for the purchase of bait, salt, &c.,
a liberty which was not granted by the treaty of 1818, and several
of them having been seized, retaliatory measures were threatened by
the United States. After negotiations between the two Governments
another treaty was signed at Washington, on February 15, 1888, the
principal British plenipotentiary being Mr Joseph Chamberlain. This
treaty provided for the appointment of a mixed commission to delimit
“the British waters, bays, creeks, and harbours of the coasts of Canada
and of Newfoundland, as to which the United States, by Article I. of
the Convention of 20th October 1818, between Great Britain and the
United States, renounced for ever any liberty to take, dry, or cure
fish.” The delimitation was to be marked upon charts by a series of
lines regularly numbered and described, the three marine miles being
measured from low-water mark, “but at every bay, creek, or harbour,
not otherwise specially provided for in this treaty, such three marine
miles shall be measured seaward from a straight line drawn across the
bay, creek, or harbour, in the part nearest the entrance at the first
point where the width does not exceed ten marine miles.” A large number
of bays were specially dealt with by lines specified, that of Chaleurs
being closed, or by other special lines from which the three miles
was to be measured; and other articles in the treaty regulated the
entry of American fishing vessels into colonial ports. It was further
provided that whenever the United States removed the duties on fish and
fish-oils from Canada and Newfoundland, United States’ vessels would
be licensed, free of charge, to enter the colonial ports and harbours
to purchase provisions, bait, ice, seines, and all other supplies and
outfits, to tranship their catch, or for the shipping of crews.

But, inasmuch as the above treaty could not possibly be ratified
before the commencement of the next fishing season, the British
plenipotentiaries, in order to avoid a recrudescence of the usual
friction and irritation, and to afford evidence of their anxious desire
to promote good feeling, agreed, in a protocol of the same date, to a
“temporary arrangement for a period not exceeding two years, in order
to afford a _modus vivendi_ pending the ratification of the Treaty.”
This arrangement granted the privilege to American fishing vessels of
entering the bays and harbours, on payment for an annual license of a
fee at the rate of one and a half dollars per ton, in order to purchase
bait, ice, and all other supplies and outfits, to tranship their catch
and ship crews, and gave them some other privileges, declaring also
that forfeiture was to be exacted only for the offence of fishing or
preparing to fish in territorial waters.[1160]

Unfortunately, this treaty failed to pass the Senate of the United
States and was never ratified, and the system temporarily adopted as
a _modus vivendi_ has been regularly renewed since, and is still in
force.[1161]

It is to be noted that the arrangement in the treaty, both as to
drawing lines on charts to separate the common from the exclusive
fishing waters and for the adoption of a ten-mile base-line for bays,
was proposed, not by the British Government, but by that of the United
States. The British Government, indeed, strongly objected to a ten-mile
line as involving “a surrender of fishing rights” and making “common
fishing-grounds of the territorial waters which, by the law of nations,
have been invariably regarded, both in Great Britain and the United
States, as belonging to the adjacent country,” and they cited the Bay
of Chaleurs as an example. They argued that in the convention with
France in 1839, and in other similar conventions, the boundary-lines
selected were due to special configuration of the coast, and could not
be well settled “by reference to the law of nations”; and attention was
called to the claims of the United States to Delaware Bay and other
bays on their coasts. In reply to these observations of the British
Government, the United States said they had proposed the width of ten
miles not only because it had been adopted in fishery conventions,
but also because it was deemed reasonable and just in the case in
question; “while they might have claimed a width of six miles as a
basis of settlement, fishing within bays and harbours only slightly
wider would be confined to areas so narrow as to render it practically
valueless, and almost certainly expose the fishermen to constant danger
of carrying their operations into forbidden waters; a width of more
than ten miles[1162] would give room for safe fishing more than three
miles from either shore, and thus prevent the constant disputes which
this Government’s proposal, following the conventions above noticed,
was designed to avert.”[1163]

Nevertheless, notwithstanding this proposal by the United States’
Government, the limit now enforced for bays on the coasts of British
North America is that of six miles, with the exception of the Bay of
Chaleurs.[1164] It was apparently found that the attitude adopted
by the British Government in 1870, then stated to be temporary and
exceptional, of allowing the United States’ fishermen to fish “except
within three miles of land, or in bays which are less than six miles
broad at the mouth,” ought to be adhered to, during the existence of
the _modus vivendi_ and pending the ratification of the treaty of 1888.
If a recent statement of the Under-Secretary for Foreign Affairs, made
in the House of Lords, represents the policy of the British Government
at the present day, this six-mile limit for bays is to be regarded as
established not alone for British North America, but for every part of
the British dominions unless specially provided for otherwise. (See p.
730.)

From the foregoing summary of the disputes, negotiations, and treaties,
concerning the rights of Americans to fish on the coasts of the British
possessions in North America, it is evident that the British Government
has gradually given way to the pressure exerted by the United States.
In allowing a six-mile line for bays they have, indeed, as just shown,
gone further than was demanded, and have departed from the terms of the
fishery conventions which they have concluded with European Powers.
The basis of the delimitation adopted in the treaty of 1888 was, as Mr
Chamberlain intimated to Lord Salisbury, derived from the North Sea
Convention of 1882, to which important treaty we must now turn our
attention.

It has been already said that the fishery convention with France in
1867 was not ratified by that country, and never came into operation
in the general police regulation of the fisheries in extra-territorial
waters. The desirability of international regulations to preserve
the peace between the fishermen of various countries frequenting
the neighbouring seas, and particularly the North Sea, soon became
apparent. Complaints of malicious interference with one another
increased in number. The Belgians and French were accused of cutting
and stealing the lines of Scottish fishermen, and the Dutch of taking
their derelict nets, and the Fishery Board for Scotland accordingly
pressed upon the Government, as early as 1876, the advantage of
negotiating a fishery convention with Holland.[1165] A little later
the free use by foreign trawlers of a destructive implement known as
“the devil,” or “the Belgian devil,” aroused a strong feeling among
British drift-net fishermen. The instrument consisted of a shank and
sharpened flukes, which was hung overboard and was designed for the
sole purpose of cutting fishing-nets in the sea which might impede
the movement of the boat making use of it. It was a product of the
disputes and difficulties that occurred in carrying on trawling and
drift-net fishing in the same localities at the same time. The British
Government in January 1880 appointed Mr W. H. Higgin, Q.C., to make
an inquiry on the subject. His report[1166] showed that the state of
things with regard to fishing operations in the North Sea by British,
Belgian, French, and Dutch boats was unsatisfactory. He found that
grievous injury and damage had been done to the drift-nets and tackle
of English fishermen in the North Sea by trawlers belonging to France,
Belgium, and Holland;[1167] that there was no international law or
convention between England and France, England and Belgium, or England
and Holland, affecting the fisheries in the North Sea,--the convention
with France in 1867 never having been ratified, while that of 1839
was, he said, confined to the English Channel and referred only to
French fishermen; and he stated that some international law of the
kind was urgently required, as it would be impossible otherwise to put
a stop to the outrages described. In consequence of this report the
Government invited the co-operation of France, Belgium, Holland, Sweden
and Norway, and Denmark in devising a remedy, suggesting that separate
agreements might be made for the purpose. At the instance of Holland,
it was agreed to have one joint convention, and a conference of the
North Sea Powers was convened at The Hague, in 1881, to negotiate it,
Germany, at her own request, being included.[1168]

In the proceedings at the conference the question that caused
the greatest difficulty and discussion was the definition of the
territorial waters or exclusive fishery limits. The British Government,
in curious contrast to their action earlier in the century, desired
to avoid any definition at all. The memorandum prepared by them as
the basis of the deliberations, stipulated that the convention should
“apply to the high seas generally outside the fishery limits of the
countries joining in the convention.” This somewhat vague, not to
say illogical, phraseology did not meet with the approval of the
other Governments. It was objected to by France in particular. That
Power had accepted the invitation to the conference on condition
that the regulation to be agreed upon should be restricted to police
rules intended to prevent conflicts between fishermen of different
nationalities, “and to secure to them the free practice of their
calling in the common waters of the North Sea.” In making a special
convention dealing with the open sea which was common to all, it seemed
to it impossible to do otherwise than begin by defining the limits
within which it was intended to operate.[1169] The French delegates at
the conference therefore proposed that the extent of the territorial
waters should, for fishery purposes, be defined in precise terms,
and they endeavoured further to get the limit made as contracted as
possible. They urged that the boundary should be fixed everywhere at
three geographical miles from low-water mark, whatever might be the
configuration of the coast. As to fixing a larger measurement for bays,
as in the Anglo-French convention of 1867, they argued that the rules
laid down on this subject in the convention in question ought not to
apply to the North Sea; in many instances these rules had reference
only to the interests of oyster fisheries, which, they said, did not
exist in the North Sea. The French contention regarding bays was thus
similar to that of the United States in the negotiations concerning the
treaty of 1818; and it was of course to the interest of France, whose
own coast would be but little affected, and whose fisheries along the
British coast in the North Sea were of great importance, to have the
exclusive fishery limit made as narrow as possible.

The proposal that the territorial waters for fishery purposes ought to
be precisely defined, and that the limit on the open coast should be
fixed at three geographical miles from low-water mark, was generally
accepted, Belgium alone supporting the British view that it was better
not to define them in the convention. But as regards bays, objection
was taken to the French scheme on the part of Germany, with special
reference to the mouth of the Elbe, which was declared to be a part of
the sea belonging exclusively to Germany; and on the part of Norway,
on the ground that that country could not agree to fix the limit at
three miles, particularly with respect to bays. The rights which
particular states might have acquired, it was urged, ought not to be
prejudiced, and “bays should continue to belong to the State to which
they at present belonged.” The French delegates then formulated their
proposition in the following terms: “In the North Sea the limit of
the part known as territorial waters (_mer territoriale_) is fixed,
whatever may be the configuration of the country, at three miles from
low-water mark, along the whole length of the shores of ... It is,
however, understood that this shall not be taken to modify in any way
the rights acquired on certain parts of their coasts by the different
Powers to whom the shore belongs;” or else, “It is, however, understood
that the present convention shall not be taken to modify in any way the
rights which any Government may possess outside the three-mile limit in
bays.”

As the British and French delegates could not agree on this subject,
further discussion was postponed until the former had consulted their
Government. When this was done, they announced that their instructions
did not permit them to adopt the French proposals; and they continued
to press the draft article for acceptance, declaring that the question
of defining the limits of the maritime jurisdiction of the various
countries did not fall within the province of the convention. The
other delegates, however, did not share this view, and when a complete
definition was insisted on, the British representatives ultimately
agreed to accept the terms employed in the first article of the
Anglo-French convention of 1867, and they submitted the following
article: “The fishermen of each country shall enjoy the exclusive right
of fishery within the distance of three miles from low-water mark
along the whole extent of the coasts of their respective countries. As
regards bays, the entrances of which do not exceed ten miles in width,
the distance of three miles shall be measured from a straight line
drawn from headland to headland.” The counter-proposal on the part of
France did not materially differ from this, except by the inclusion of
islands, by the better definition regarding bays, and by the insertion
of a clause providing for the right of free navigation and anchorage
in territorial waters.[1170] The German delegate, anxious about the
waters at the mouths of German rivers, urged that flats or banks
uncovered at low water should also be included, as well as islands.
This proposal had been agreed to by the British Government in 1868,
after correspondence between the Foreign Office and the German Embassy
in London, and though apparently not now desired by Great Britain, it
was formally adopted.[1171]

The article as finally agreed upon was as follows: “The fishermen
of each country shall enjoy the exclusive right of fishery within
the distance of three miles from low-water mark along the whole
extent of the coasts of their respective countries, as well as of the
dependent islands and banks. As regards bays, the distance of three
miles shall be measured from a straight line drawn across the bay,
in the part nearest the entrance, at the first point where the width
does not exceed ten miles. The present Article shall not in any way
prejudice the freedom of navigation and anchorage in territorial waters
accorded to fishing-boats, provided they conform to the special police
regulations enacted by the Powers to whom the shore belongs.”

[Illustration: Fig. 19.--_Showing the Sandbanks at the mouth of the
Ems._]

It is interesting to note that, at the instance of the Dutch president,
the conference agreed that the provisions of the convention would
not be applicable to the Zuiderzee; and that in deliberating on the
boundaries of the North Sea within which they would apply, it was
agreed to exclude the Skagerrack, the fisheries of which, it was
stated by the president, were not international, but were “essentially
within the jurisdiction of the States to which the shores belong.” The
greater part of the Zuiderzee, however, would have been excluded by
the definition of bays in the convention, and the rest of it by the
inclusion of “banks”; but the Skagerrack, on the other hand, is nowhere
less than sixty geographical miles from shore to shore. Neither Norway
nor Denmark has asserted since the convention exclusive jurisdiction in
its moiety of these waters, where, in point of fact, both English and
German vessels now carry on an extensive fishing.[1172]

Some other points of interest were raised during the deliberations of
this important conference. It was asked by the president: What would
be the fate of the convention during war, in which one or two of the
Governments joining in it should be belligerents? Would the fishery
cruisers of the Powers concerned merely retire from the North Sea
and leave fishermen of their nationality without protection or help?
He recommended that the conference should adopt the principle that
fishing-boats, _bonâ fide_ engaged in fishing, should be declared
neutral. This was to revive a subject that had earlier, especially
during the time of Napoleon I., caused much discussion, and which was
remote from the object of the convention; and the proposal, though
sympathetically received by the French delegates, was not supported
by any of the Governments. A proposal of another kind was made by
the German delegate. He thought it was necessary that restrictive
measures should be enforced to prevent the destruction of the fry of
fish and the taking of small fish; for example, by forbidding trawling
within a certain distance of the shore, so as to provide a shelter for
the free development of fish, and by regulating the construction of
trawl-nets. The British and French delegates were opposed to any system
of restriction, relying on the results of the inquiry which had been
then recently made by Messrs Buckland and Walpole,[1173] and on the
part of France the following draft clause was formulated for insertion
in the convention: “In the extra-territorial part of the North Sea,
fishery shall be free at all seasons, and with all kinds of implements,
without any sort of distinction.” The clause was not adopted, and it
was generally agreed that the question was not ripe for decision by
that conference, which was moreover concerned with the police of the
fisheries, and not with the reproduction of fish, in the North Sea.

The North Sea Convention was concluded in 1882, the signatory Powers
being Great Britain, Germany, France, Belgium, Denmark, and the
Netherlands.[1174] Although the delegates of the United Kingdom of
Sweden and Norway signed the protocol and were present at the final
deliberations, those Powers did not join in the convention, objections
being raised as to the definition of the territorial waters and on some
other points.[1175] An additional article was inserted providing that
the King of Sweden and Norway might adhere later, for both or either
country; but this has not been done, though the coast of Norway forms
a not inconsiderable part of the boundary of the North Sea as defined
in the convention. The reasons which induced these countries to abstain
from joining in a friendly agreement with the neighbouring Powers of
western Europe, after having accepted the invitation to the conference
and taken part in its deliberations, must have appeared to them strong;
and from the delay that occurred in coming to a decision it is evident
that the matter received full consideration. They believed, however,
that to agree to so restricted a boundary for their territorial waters
in respect to fishery would be disadvantageous to them: it is probable,
moreover, that the raising of the question was not foreseen, since the
object of the conference was to consider the police of the fisheries in
extra-territorial waters in the North Sea. It is curious, indeed, that
the limits for exclusive fishery, both in the convention with France in
1839 and with the other North Sea Powers in 1882, were fixed as it were
incidentally.

The duration of the convention was to be for five years from the
date at which it came into operation, unless one year’s notice to
terminate it were given by any of the contracting Powers; and it was
to continue in force from year to year subject to similar notice. That
none of the signatory Powers have withdrawn from the convention is the
best proof of its general utility. From the number and influential
position of these states, and from the character of the sea to which
it applies,--one of the most productive in the world,--this convention
is an international document of high importance to the sea fisheries,
and deserves careful consideration. The first article declares that the
provisions shall apply to the subjects of the high-contracting parties,
the object being “to regulate the police of the fisheries in the North
Sea outside territorial waters”; and the limits of the North Sea were
carefully defined.[1176] The provisions of the convention relate to
the registration, lettering, and numbering of boats, the operations
of fishermen pursuing different methods of fishing at the same place
at the same time, the malicious use of instruments for cutting nets,
the salvage of derelict fishing-gear, and the superintendence by
cruisers. It was put in force in this country in 1883 by an Act of
Parliament,[1177] which also extended its application, so far as
British sea-fishing boats were concerned, to the whole of the seas
around the British Islands, whether within or without the exclusive
fishery limits. In this Act the stipulation in the second article
of the convention, as to the freedom of navigation and anchorage in
territorial waters on the part of foreign fishing-boats, received
a limiting definition. The clause in question was inserted in the
convention at the instance of France, and was accepted with some
reluctance by the British delegates, who agreed to it in general terms
only, without the recognition of a right.[1178] By the Act foreign
fishing-boats were prohibited from entering the exclusive fishery
limits of the British Islands except for purposes recognised by
international law, or by any treaty or arrangement in force between
this country and any foreign state, or for any lawful purpose. If a
foreign boat did enter, it was to return outside the limits as soon
as the purpose for which it entered had been answered, and fishing or
attempting to fish within the limits was, of course, forbidden under
penalties.

The definition of the exclusive fishery limits in the North Sea
Convention differed in two respects from that contained in the previous
conventions with France. The rule for the measurement of bays was
modified, and the dependent islands and banks were expressly included
as part of the coast from which the limit should be measured. In the
Anglo-French conventions of 1839 and 1867 bays which did not exceed
ten miles in width at the mouths were comprised in the reserved
waters, and the three-mile limit was measured from the line joining
the “headlands.” Thus some bays whose width at the mouth, or between
their headlands, exceeded ten miles were deprived of the benefit of
the principle applied to bays and came under the three-mile rule,
even although at a small distance within the entrance the width might
not exceed ten miles. Since all bays have not headlands, the French
proposal at The Hague conference to substitute “the two extreme points
of the bay” for that term was an improvement. Still better was the
definition finally adopted, to place the base-line at the first point
nearest the entrance where the width did not exceed ten miles. The
specific inclusion of islands removed such difficulties as were raised
in 1853 by a French commodore at the Farne Islands (see p. 618), though
it had long been established in connection with the rights of neutrals
that islands carried with them, no less than the mainland, the belt
of territorial sea. The inclusion of banks was, however, novel, and
was not received with favour by the British Government. It was feared
that it would lead to difficulties and complications in future if such
banks as the Goodwin Sands, which were situated beyond the three-mile
limit, and the similar banks on the German and Dutch coasts, were
held to be territorial dependencies of the coast; and so strong was
the objection of the British Government to their inclusion, that they
instructed their ambassadors abroad, if an objection was raised by any
Power, to have this definition reconsidered.[1179] The objection is
theoretically well founded. Sand-banks of this character may be not
permanent, and usually vary in extent, configuration, and position
with lapse of time and even after a single tempest; and the extent of
sea appendent will vary likewise. It would thus be difficult to fix a
precise and permanent limit in connection with them. Moreover, since
the banks may be covered by the sea except at low-water without losing
their territorial value, it would sometimes require more than ordinary
care on the part of foreign fishing-boats to avoid infringing the
limit around them. On the other hand, for the purpose of regulations
designed to protect fish life, such as are referred to in the sequel,
banks of this nature are of especial value; and, in point of fact,
few difficulties in practice appear to have arisen on this score in
carrying out the convention.[1180]

On one or two points, however, the definitions in the convention
might have been improved. Nothing is said as to the tides at which
low-water mark is to be taken for measurements, though on certain
coasts the extent of territorial water will vary much according to
whether it is a neap or a high spring tide; and the question whether
certain banks are or are not territorial and entitled to the limit
may vary in the same way. It is to be presumed that the tide is an
ordinary neap tide, as in English law. More important is the fact
that “rocks” are not included along with islands. Quite recently the
omission has given rise to difficulties in regard to three places on
our coast--viz., the Eddystone, the Bell Rock, and the Seven Stones
Rocks, off the Scilly Islands. The Seven Stones Rocks are a reef near
the south-west extremity of Cornwall, about seven miles from Land’s
End, and about a mile in length, and with a lightship at it; but it
does not appear that any portion is above the sea-level at low-water
of neap tides. Complaints were made to the Government by the Cornwall
Sea Fisheries Committee that French fishing-boats fished within three
miles from the rocks, and close to them; but it was stated by the
Admiralty, and also by the Foreign Office, that these rocks could
not be claimed as being within British territorial waters.[1181] In
this case, presumably, the decision might rest on the fact that the
rocks do not appear at low-water of ordinary tides. The Eddystone is
somewhat different. The rock or reef on which the lighthouse is placed
lies about fourteen miles south-west of Plymouth, and while covered
by the sea at high tide, is exposed to the extent of an area of about
500 yards at low-water of neaps. French fishermen also fish around
it and close to it, a practice which caused the Devon Sea Fisheries
Committee to complain. The gunboat _Circe_, in August 1905, seized
and took into Plymouth two French “crabbers” for fishing within three
miles from the Eddystone, but after communicating with the Board of
Trade, instructions were sent to release the boats; and the Board
of Agriculture and Fisheries, while saying that they were not in a
position to express an authoritative opinion on the matter, called
attention to the decision in 1902 regarding the somewhat similar case
at the Seven Stones. Here, no doubt, the decision rested on the absence
of the specific inclusion of “rocks,” as distinguished from islands, in
the conventions, and one can understand the expression of surprise by
the Devon Sea Fisheries Committee that a rock which was recognised as
British, and was inhabited by lighthouse-keepers, was not considered as
within the territorial limit for fishing purposes.

Similar complaints have been made concerning the Bell Rock, which lies
about ten miles east-south-east of Arbroath, Forfarshire, and has a
lighthouse upon it. It is entirely covered at high-water; at the ebb
of spring tides it is uncovered to a depth of four feet, while at
low-water of neap tides the top of the rock is just visible, and would
then probably acquire validity for the measurement of three miles
from it and around it, if rocks had been included in the conventions,
as they are now included in the recent convention between this country
and Denmark concerning Iceland and the Faroës (p. 647). The case
of the Seven Stones and the Eddystone is, however, on a different
footing; for while the limit of exclusive fishery along the coasts of
the North Sea, with the exception of the part formed by Norway, was
settled by the convention of 1882 (so far as concerns the fishermen
of the signatory Powers), there appears to be some obscurity as to
how far the three-mile limit operates on the coasts that lie outwith
the boundaries of the North Sea,--such, for example, as the west
coasts of England and Scotland and the coasts of Ireland. The second
article of the convention declares, without qualification, that the
three-mile limit shall apply “along the _whole extent_ of the coasts”
of the respective countries,--it does not say merely to the North Sea
coasts,--and the view that this stipulation operates on all the coasts
appears to be widely prevalent, and is expressed, for example, in the
Belgian law which put the convention in force in that country.[1182]
It is, however, held by legal authorities that since the special
object of the convention was “for the purpose of regulating the police
of the fisheries in the North Sea outside territorial waters,” and
as the boundaries of the North Sea are defined “for the purpose of
applying the provisions of the present Convention,” the definition of
the exclusive fishery limits applies only within the area specified,
and not to the other coasts of the signatory Powers.[1183] In the
Convention Act, as in the Territorial Waters Jurisdiction Act, we
accordingly find a distinction drawn between the exclusive fishery
limits under international law and those under specific treaties or
conventions. In the definition clause, the expression “British Islands”
is explained to mean the United Kingdom of Great Britain and Ireland,
the Isle of Man, the Channel Islands, and their dependencies, and it is
declared that “the expression ‘exclusive fishery limits of the British
Islands’ means that portion of the seas surrounding the British Islands
within which Her Majesty’s subjects have, by international law, the
exclusive right of fishing, and where such portion is defined by the
terms of any convention, treaty, or arrangement for the time being in
force between Her Majesty and any Foreign State, includes, as regards
the sea-fishing boats and officers and subjects of that State, the
portion so defined.”[1184]

From all this it would appear that, notwithstanding the ambiguity
introduced by the unqualified phrase “the whole extent of the coasts of
their respective countries,” the definition of the exclusive fishery
limits in the convention of 1882 applies only to the coasts of the
North Sea. In the convention of 1839 with France, on the other hand,
there seems no reason to doubt that the three-mile limit was applied
to all parts of the coasts of Great Britain and France respectively.
By Article ix. it was declared that the exclusive right of fishing was
reserved for subjects within that distance “along the whole extent of
the coasts” of each country; and the British Act of Parliament to carry
into effect this convention, and the international regulations agreed
upon under it, so far from expressing any qualification or reservation
as in the Act of 1883, made it clear that the limit applied generally.
In the preamble it is stated that “Whereas a Convention was concluded
between Her Majesty and the King of the French ... defining the limits
of the oyster fishery between the island of Jersey and the neighbouring
coast of France, and also defining the limits of the exclusive right
of fishery on all other parts of the coasts of the British Islands
and France”; and Article 85 of the regulations enacted that the
fishing-boats of the one country, except under certain circumstances,
“shall not approach nearer to any part of the coasts of the other
country than the limit of three miles specified in Article ix. of the
convention.”[1185]

In the convention of 1852 between Great Britain and Belgium, which
was simply entitled “relative to fishery,” without any particular
purpose, seas, or regions being specified, it was stipulated that
“Belgian subjects shall enjoy, in regard to fishery along the coast
of the United Kingdom of Great Britain and Ireland, the treatment of
the most favoured foreign nation.” The most favoured foreign nation at
that time was France, and although no distance was fixed in the Belgian
treaty, there is no doubt the three-mile limit applied, and was indeed,
as stated above, enforced, on the east coast of Scotland against the
Belgians as well as against the French.

In the convention of 1867 the same limit was assigned “along the whole
extent of the coasts” of the two countries; and the provisions of the
convention were expressly stated to apply beyond the exclusive fishery
limits, in the one case “to the seas surrounding and adjoining Great
Britain and Ireland,” and in the case of France to the seas adjoining
the coast of that country between the frontiers of Belgium and Spain;
and the object of the convention was “relative to fisheries in the seas
between Great Britain and France.” As already stated, this treaty, with
an unimportant exception, did not come into effect, and the convention
of 1839 remained in force.[1186]

As no other treaties exist defining the exclusive fishery limits
along our coasts than those referred to, the position in relation
to conventional law appears to be as follows. With respect to France
and Belgium, the three-mile limit, with the ten-mile line for bays,
seems to be in force along the whole extent of the British and Irish
coasts. With respect to the other Powers which were parties to the
North Sea Convention of 1882,--namely, Germany, Denmark, and the
Netherlands,--this limit is in force only on the eastern, or North
Sea, coasts of England and Scotland. On the north and west coasts of
Scotland, the south and west coasts of England, and the whole of the
coast of Ireland, the limits of exclusive fishery as regards these
countries, and as regards all countries except France and Belgium,
fall to be determined by the principles of international law. With
respect to all other nations, as, for example, the Norwegians, Swedes,
and Spaniards, the limits on all parts of our coasts also fall to be
determined under international law. The principles of international
law, as expounded by the accredited writers, do not, as will be shown
later, and as is implied in the quotations from the Acts above cited,
support the view that the right of exclusive fishing, apart from
treaty, must necessarily be restricted to the three-mile limit. The
preponderance of opinion is that the boundary of the territorial sea,
including, therefore, the exclusive right of fishery, coincides with
the range of guns from the shore; and it is evident that as against
such nations as claim for themselves a greater extent than three miles
on their own coasts--viz., Norway, Sweden, and Spain--a larger limit
than that contained in the conventions could be rightfully enforced on
the British coasts.

There are many things to show that the unsatisfactory state of
affairs, not to say confusion, with respect to the limits of exclusive
fishing to which we are entitled on various parts of our coast, has
been brought about partly by a widespread belief that the boundary
under international law is three miles, partly also by what must be
characterised as a want of knowledge and care on the part of those
dealing with the question. Mr T. H. Farrer, the permanent Secretary
of the Board of Trade, told a Committee of the House of Commons in
1876 that the convention and regulations with France were “hastily
and recklessly” made,[1187] and the record of the proceedings at the
conference at The Hague in 1881 shows that it would not have been a
difficult matter to clear up some of the obscurity that exists. One
point of importance is that, notwithstanding the absence of any treaty
or agreement defining the extent of the limits of exclusive fishery
with certain nations, the three-mile limit alone has been enforced
against the vessels of such nations fishing on our coasts. This has
been the case, except for a brief period, with respect to Norwegian and
Swedish trawlers in the Moray Firth in Scotland, which is “closed” to
British trawlers, and the vessels of these two nations are thus put on
the same footing as those of other countries with which a convention
has been made. It is also the case on the west coast of Scotland,
where the limit of three miles is enforced against foreign trawlers,
apparently irrespective of nationality, and certainly against Dutch and
German vessels as well as against Belgians in the Clyde, from which
British trawlers are excluded.[1188] How far this undoubted usage may
modify the position under international law it would be of importance
to determine.

A more recent convention must be referred to, which, however, does
not relate to the coasts of this country, but to those of the Danish
islands, the Faröes, and Iceland, where British trawling vessels carry
on extensive operations. The Icelanders, who depend so much upon their
fisheries, were desirous of having a considerable extent of the waters
around their coasts reserved to themselves, and wished to have a limit
of seven miles to protect the grounds from the action of foreign
fishing-boats.[1189] As a result of negotiations, however, with Great
Britain, Denmark agreed to the usual limit of three miles. The treaty
was signed at London on 24th June 1901, and after ratification was
brought into force on 31st March 1903 by an Order in Council of the
12th of that month. Its main object, apparently, was to regulate the
fisheries of the subjects of the two countries outside territorial
waters in a large part of the ocean surrounding the Faröe Isles and
Iceland, in a small part of which extensive fisheries are now carried
on by foreigners, especially by English and German trawlers; but its
immediate effect was to impose the three-mile limit on the coasts in
question. The article defining the territorial waters is the same as in
the North Sea Convention, except that islets and rocks are included,
which thus gets rid of some possible difficulties in interpretation,
such as have arisen in connection with the Eddystone and Bell
Rock.[1190]

[Illustration: Fig. 20.--_Showing the Limits for the Anglo-Danish
Fishery Convention of 1901._]

CHAPTER IV.

THE MODERN PRACTICE OF STATES AND THE OPINIONS OF RECENT PUBLICISTS.

We may now pass to the consideration of the modern practice of states
with respect to the extent of territorial sea which is claimed or
allowed by them, and of the opinions of the later writers on the
law of nations as to the extent that may be rightfully conceded
or appropriated. It will be found that there is apparently a very
considerable discrepancy between the one and the other. For while
the opinions of publicists have on the whole become more decided
and definite as to Bynkershoek’s principle being the true principle
for the delimitation of territorial waters, and the inadequacy of
the three-mile limit has been formally declared, the general usage
of states is indicated by the common adoption of the latter limit
for several purposes. As elsewhere stated, this general use of the
one marine league is in large measure owing to the example, or the
pressure, of Great Britain and the United States of America, and
perhaps chiefly, if indirectly, to the influence of the latter.
Although the United States more than any other Power has varied her
principles and claims as to the extent of territorial waters, according
to her policy at the time--now claiming the vague and wandering
“boundary” of the Gulf Stream or the whole of Behring Sea, and now the
liberty to fish right up to the shores of the Falkland Islands,--she
has been consistent in this, that she has steadily and constantly
pressed for the narrowest limit she could get in favour of her own
fishermen on the coasts of the British North American Colonies. The
unhappy heritage of the British Foreign Office that came from the
abnegation of territorial dominion over large parts of the waters
in question by Great Britain in former times, has been as fruitful
of trouble as Lear’s renunciation of his sovereignty. The numerous
negotiations as to the rights of fishing on the coasts of British North
America have always resulted in concessions to the United States, and
appear to have been conducted, as they were almost bound to be, rather
in the light of the general political relationship of the two Powers
than on the intrinsic merits of the particular question at issue; and
thus in Canada and Newfoundland British diplomacy on this subject
has often been criticised. Obviously, when British policy takes this
course in regard to North America, one must expect for the sake of
consistency, if on no other ground, that it will tend to take the same
course elsewhere. An example of this was quite recently shown, when
a concession of the kind referred to, as to the rule for bays, which