Chapter I (2)

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

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

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

From the above review of the opinions of publicists in the latter half of the eighteenth century, it is evident that there was a general agreement that the sea, at least as far as the range of guns from the coast, was accessory to the land: no one doubted that this space at all events was included within the territorial sea of the neighbouring country. Almost all the writers went further, and held that the sovereignty of a state was not confined to gunshot range, but could be extended to a greater distance from the coast, either for the security of the state or for jurisdiction, but there was not agreement as to how far this could be carried. We see, moreover, the growing tendency to assign a fixed distance as an alternative to cannon range or as a boundary to neutral waters. Abreu, Valin, and Galiani placed it at two leagues from the coast, and the same distance is given by the writer of the article “Mer” in a great French work published in 1777[1035]--that is, twice the distance of cannon range, which was said to be one marine league, or three miles.

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

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

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

The various ordinances cited referred solely to the limit of the territorial sea in relation to neutrality. But as early as 1747 the same boundary was applied to a limited part of the Norwegian coast in connection with fisheries. In that year a royal decree prohibited Russian fishermen at Finmarken from fishing within one league of the land,--a measure which was not opposed by the Russian Government, and which was renewed by a Norwegian law in 1830.[1042] In 1812, as we shall see (p. 653), the territorial waters of Denmark and Norway were declared to extend to four miles from the coast or its outlying isles,--that is to say, the limit which was adopted for neutrality was applied in regard to fisheries and other purposes.

Another example of the decadence of wide claims to maritime sovereignty is to be found in the case of Spain, which, like the Scandinavian countries, adopted a fixed limit in the eighteenth century as the boundary of her territorial waters, and, as with them also, it was placed at a greater distance than the range of guns from the coast. An eminent Spanish publicist, Abreu, as we have seen, declared in 1746 that the boundary of neutral waters should be at least two leagues from the coast, and by a royal decree of 17th December 1760 this distance was assigned, the territorial sea of Spain being declared to extend to six miles from the land. This boundary was again given in 1775 and in 1830, and it is still retained by Spain--and also, until last year, by Portugal--as the maritime frontier for customs, fishery, neutrality, and jurisdiction.[1043] At various times Spain has entered into treaties with her neighbours, France and Portugal, concerning the rights of fishery within the six-mile zone, either for reciprocal liberty to fish in the whole extent of the territorial sea, or in the outer belt of three miles. A treaty of this kind was concluded with France in 1768.[1044]

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

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

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

In contrast to the gunshot limit in connection with neutrality, was another which Spain incorporated in a treaty with Tripoli in 1784, by which it was agreed that Tripolitan vessels of war or privateers should not capture ships of their enemy within ten leagues of the coasts of the Spanish dominions[1058]--that is to say, within the same extent of sea as was expressed in the treaty between France and Algeria a century earlier.[1059] A few years later the same limit of ten leagues was agreed to in a treaty between Great Britain and Spain concerning fisheries and navigation in certain parts of the Pacific. Disputes had arisen with Spain concerning proceedings at Nootka Sound, Vancouver; and in a convention between the two Powers, signed in 1790, it was agreed, _inter alia_, that British subjects should not navigate or carry on their fishery within a distance of ten sea leagues from any part of the coast already occupied by Spain, the object being to prevent illegal trading with the Spanish settlements.[1060]

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

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

It may be mentioned here that the claims which have been put forward by the United States as to the extent of their territorial or jurisdictional waters have varied greatly on different occasions. The above declaration to M. Genet was, for instance, repudiated by President Jefferson as establishing a fixed limit; and it was claimed that the limit of neutrality should extend “to the Gulf Stream, which was a natural boundary (!), and within which we ought not to suffer any hostility to be committed.”[1065] On another occasion, in a controversy about the right of jurisdiction, they claimed that the extent of neutral immunity off the American coast ought at least to correspond with the claims maintained by Great Britain around her own territory, and that no belligerent rights should be exercised within “the chambers formed by headlands, or anywhere at sea within the distance of four leagues, or from a right line from one headland to another.”[1066] The American Government endeavoured to obtain from England in the same year the recognition of a territorial belt six miles in breadth, and in the draft treaty proposed in 1807 a distance of five miles was in reality specified.[1067]