Chapter LXXI: Appendix: O (8)

[1024] _Nouveau Commentaire sur l’Ordonnance de la Marine du mois d’Août 1681_, Rochelle, 1766, t. ii. Liv. v. tit. i. pp. 687, 688. “Jusqu’à la distance de deux lieues, et avec cette restriction encore, la mer est donc du domaine du souverain de la côte voisine; et cela que l’on puisse y prendre fond avec la sonde, ou non. Il est juste au reste d’user de cette méthode en faveur des États dont les côtes sont si escarpées, que dès le bord on ne peut trouver le fond; mais cela n’empêche pas que le domaine de la mer, quant à la jurisdiction et à la pêche, ne puisse s’étendre au delà; soit en vertu des traités de navigation et de commerce, soit par la règle ci-dessus établie qui continue le domaine jusq’où la sonde peut prendre fond, ou jusqu’à la portée du canon, ce qui est aujourd’hui la règle universellement reconnue.” Lawrence, in his annotated edition of Wheaton’s _Elements of International Law_, Part II. c. iv. s. 6 (1864), makes a curious blunder in regard to the limit proposed by Valin, who, he says, “proposed to fix it according to the _sound of a cannon_, or as far as the ball would reach.” The authority Valin gives for the statement that the rule was universally recognised is _Journal de Commerce_, Mai 1759, p. 40.

[1025] _Versuch des Neuesten Europäischen Völkerrechts in Friedens-und Kriegs-zeiten_, Bd. v. 486, Frankfort, 1778. “Das an die Küsten eines Landes stossende Meer stehet nach dem Völkerrecht unter der Oberherrschaft des angränzenden Landes unstreitig, so weit es mit Canonen von dem festen Land bestrichen werden kan.”

[1026] _Juris Publici Universalis, sive Juris Naturæ et Gentium, Theoremata_, ii. 7, 65. “Nobis visum est singulas gentes eam partem circa littus suum occupare posse, cujus usus necessarius, quamque tuendis littoribus et territorio necessarium arbitrantur.”

[1027] _De’ Doveri de’ principi neutrali verso i principi guerreggianti, e di questi verso i neutrali._ Naples, 1782.

[1028] “Mi parrebbe peraltro ragionevole, che senza attendere a vedere se in atto tenga il Sovrano del territorio construtta taluna torre o batteria, e di qual calibro di cannoni la tenga montata, si determinasse fissamente, e da per tutto la distanza di tre miglia dalla terra, come quella, che sicuramente è la maggiore ove colla forza della polvere finora conosciuta si possa spingere una palla, o una bomba,” p. 432.

[1029] _Précis du Droit des Gens moderne de l’Europe, fondé sur les Traités et l´Usage_, Göttingen, 1789, Liv. iv. c. iv. In an earlier work, _Primæ Lineæ Juris Gentium Europæarum_, published at Göttingen in 1785, the three-league limit is omitted. After speaking of ports, bays, and straits, he says, “Neque minus in genere eæ maris partes, quæ territorio proximæ sunt (mare proximum vocant) et tormentorum in limite terræ constitutorum ictui subsunt, censentur esse in dominio gentis terræ dominæ, et pro parte territorii habentur.”

[1030] “Sur la mer voisine en général jusqu’à la portée du canon placé sur le rivage; c. a. d. jusqu’à trois lieues du rivage,” p. 189. He also speaks elsewhere of the range of guns being equivalent to three leagues; but it would appear that the terms “miles” and “leagues” were sometimes used indifferently and carelessly (see Bluntschli, p. 682), and three leagues was far beyond the range of guns in Von Marten’s time.

[1031] _Sistema universale dei Principj del Diritto marittimo dell’ Europa._ Florence, 1795-96. The work was translated into French in 1801--_Système Universel de Principes du Droit Maritime de l’Europe_--and revised, enlarged, and republished in 1805.

[1032] See p. 574.

[1033] “Giacchè essa sola è, secondo me, il giusto ed unico mezzo, che potrebbe servire di norma per fissare una volta il mare territoriale sempre combattuto, e non ancora deciso, o almeno non stabilito come si dovrebbe in un pubblico Trattato tra le Potenze marittime,” i. 75.

[1034] “La distanza di tre miglia dalla Terra come quella, che senza dubbio è la maggiore, dove colla forza della polvere a fuoco finora cognita si possa spingere una palla o una bomba,” p. 76.

[1035] _Répertoire de Jurisprudence._

[1036] See p. 571.

[1037] Daru, _Histoire de la République de Venise_, i. 445; Smedley, _Sketches of Venetian History_, i. 72. See p. 4. When Venice was conquered, the _Bucentaur_ was stripped of her gilding and finery, and, under the name of _Hydra_, became a prosaic guard-ship, stationed at the mouth of the Lido until 1824, when she was destroyed.

[1038] _Rescripter, Resolutioner og Collegial-Breve for Kongeriget Norge, i Tidsrummet fra 1660-1813_, i. 315, 18th June 1745. “Rescr. (til Stiftsbefalingsmændene i Norge) ang. det ikke skal være nogen fremmed Caper tilladt at opbringe noget Skib een Miil nœr de Norske Kyster og de der udenfor beliggende Grunde og Skjær,” &c. The league in the Scandinavian ordinances measures fifteen to one degree of latitude, or one German mile, equal to about 7420 metres. The marine league, or three-mile limit ordinarily adopted, is of twenty to a degree of latitude, or about 5565 metres, or 3.4517 English statute miles.

[1039] _Ibid._, i. 423, 439, 602.

[1040] 14th Sept. 1807, s. 5; 28th March 1810, s. 7. In the last the privateers were forbidden to capture ships in the Sound within such distance of the Swedish coast as was within the range of guns. Auber, _Ann. de l’Institut de Droit Internat._, xi. 145.

[1041] Kleen, _Neutralitetens Lagar_, ii. 865.

[1042] Boeck, _Oversigt over Litteratur, Love, Forordninger Rescripter, m.m. vedrørende de Norske Fiskerier_, p. 12.

[1043] Real Cédula, 17th December 1760; Real Órden, 1st May 1775; Real Decreto, 3rd May 1830; Real Decreto, 20th June 1852. Riquelme, _Elementos de Derecho Público Internacional, con esplicacion de todas las reglas que, segun los Tratados, &c., constituyen el Derecho Internacional Español_, i. 211, App., 187, 197, 200; Madrid, 1849. Negrín, _Tratado de Derecho internacional maritimo_, Madrid, 1883, p. 66.

[1044] Martens, _Recueil_, i. 479.

[1045] 21st Nov. 1777; 9th May 1778. Martens, _Recueil_, iii. 16, 18. In Kent’s _Commentaries on American Law_, i. 118 (ed. 1884), it is said (apparently on the authority of Sparks’ _Diplomatic Correspondence_, ii. 110) that the Commissioners, in their circular letter of 1777 to the commanders of American armed vessels, “carried very far the extension of neutral protection when they applied it indiscriminately to all captures within sight of a neutral coast.” There is nothing of this in the document given by Martens.

[1046] 19th Sept. 1778. _Op. cit._, i. 47.

[1047] 1st Aug. 1778. “E ne’ mari adjacenti agli altri porti, scali, torri, e spiagge del Gran Ducato non potrà usarsi atto veruno di ostilità nella distanza, che potrebbe circoscriversi da un tiro di cannone.” _Op. cit._, 24.

[1048] 4th March 1779. “Nè generalmente dentro la distanza di un tiro di cannone da terra.” _Op. cit._, i. 52.

[1049] 1st July 1779. “Nei porti, golfi, e spiagge del nostro dominio nella distanza, che potrebbe circonscriversi da un tiro di cannone.” _Op. cit._, 64.

[1050] 9th Sept. 1779, Arts. viii., ix. “Ed in tutti mari ad essi adjacenti, limitati, almeno allo spazio circoscritto dalla portata d’un grosso cannone di batteria.” _Op. cit._, i. 78.

[1051] Jenkinson (Lord Liverpool), _A Discussion on the Conduct of the Government of Great Britain in respect to Neutral Nations_ (1758), ed. 1801, Pref. Phillimore, _Commentaries_, iii. 273. Wheaton’s _Elements_ (ed. 1864), 1024. Martens, _Recueil_, iii. 158, _seq._

[1052] Mutual protection was to be afforded “dans leurs ports ou rades, mers internes, passages, rivières, et aussi loin que leur jurisdiction s’etend en mer.” 8th Oct. 1782, Art. v. Martens, _op. cit._, 433.

[1053] “À la portée du canon des châteaux de l’autre.” _Vide_ Martens and De Cussy, _Rec._, i. 381.

[1054] 26th Sept. 1786, Art. xli. “Leurs dites Majestés ne souffriront point que sur les côtes, à la portée du canon, et dans les ports et rivières de leur obéissance, des navires et des marchandises des sujets de l’autre soient pris par des vaisseaux de guerre, ou par d’autres qui seront pourvus de patentes de quelque prince, république, ou ville quelconque,” &c. Martens, _Rec._, iv. 178.

[1055] 11th Jan. 1787, Art. xxviii. “... Hors de la portée du canon des côtes de son allié ... dans les ports, havres, golfes et autres eaux comprises sous le nom d’eaux closes.” By Article xx. the salute was abolished. _Ibid._, 207, 210. The mention of closed waters no doubt referred to the Baltic, which was declared to be a closed sea (_une mer fermée_), into which the armed vessels of belligerents were to be refused entry, by a decree of the King of Denmark in 1780, and by conventions between Russia and Denmark and Sweden in the same year, and between Russia and the United Provinces and Prussia in the following year. _Ibid._, iii. 175, 195, 219, 250.

[1056] 17th Jan. 1787, Art. xix. _Ibid._, iv. 237.

[1057] 7th August 1803. Martens, _Recueil_, 2. viii. 105.

[1058] Martens, _Recueil_, iii. 763, 10th Sept. 1784, Art. vi.

[1059] See p. 527.

[1060] Oct. 28, 1790, Art. iv. Martens, _ibid._ iv. 489, 497. Wheaton, _Elements_, 307 (ed. 1864).

[1061] Wheaton, _Elements_, 723 ; President’s Proclamation of Neutrality, April 22, 1793; Mr Jefferson, Secretary of State, to M. Genet, 8th Nov. 1793; Wharton’s _Digest of the International Law of the United States_, i. c. 2, s. 32.

[1062] Opinion of Attorney-General, 14th May 1793; Letter of Sec. of State to the French Minister, 15th May 1793; Kent’s _Commentaries_, i. 30. Delaware Bay, it may be said, has always been, and still is, claimed as territorial water by the United States. _Vide_ reply of Government of United States to Observations of British Government on Draft Treaty, 1887. Correspondence relative to the Fisheries Question, 1887-1888. _Parl. Papers (Canada)_, 1888, p. 70.

[1063] Act of Congress, 5th June 1794, c. 50. Kent’s _Commentaries_, 30.

[1064] Wheaton, _Elements_, 724.

[1065] Wharton’s _Digest_, i. c. 2.

[1066] Mr Madison to Messrs Monroe and Pinckney, 17th May 1806. Kent, _Commentaries_, i. 31.

[1067] Hall, _A Treatise on International Law_, Part II. c. ii. s. 2.

[1068] The High Court of Admiralty, for instance, decided in 1760 that a French vessel taken by an English privateer at Hayti was not good prize, as it had been attacked while in a port belonging to the King of Spain, “within reach of his cannon and under his protection” (Marsden, _Report of Cases determined by the High Court of Admiralty_, 175).

[1069] There were two cases of _Twee Gebroeders_--the first (Alberts, master) tried on 29th July 1800; the second (Northolt, master) tried on 27th November 1801.

[1070] Robinson, _Reports of Cases Argued and Determined in the High Court of Admiralty_, iii. 162. London, 1802.

[1071] _Ibid._, 339.

[1072] _Ibid._, v. 373.

[1073] _Vide_ Chief Justice Cockburn, _Law Reports, Excheq. Div._, ii. 178. It is a curious circumstance that many English writers on municipal law, even after this time, adhering to a different line of inquiry, clung tenaciously to the husk of the old claims of England to the sovereignty of the sea. Hale, as we have seen, followed Selden, as did Hargrave and Blackstone, though with apparent diffidence. Chitty, in his _Treatise on the Law of the Prerogative of the Crown_, published in 1820, relying on Selden, Hale, and Molloy, declares that “the king possesses the sovereign dominion in all the narrow seas, that is, the seas which adjoin the coasts of England, and other seas within his dominions” (p. 173); and that he “has an undoubted sovereignty and jurisdiction, which he has immemorially exercised, through the medium of the admiralty courts, over the British seas, that is, the seas which encompass the four sides of the British islands; ... the law of nations and the constitution of the country have clothed the sovereign with this power, that he may defend his people and protect their commercial interests” (p. 142). He also assigns the soil under the sea to the king. Hall, in his _Essay on the Rights of the Crown and the Privileges of the Subject in the Sea Shores of the Realm_, published in 1830, states the doctrine even more nakedly. After defining the British seas according to Selden, he says, “Over the British Seas, the King of England claims an absolute dominion and ownership, as Lord Paramount, against all the world. Whatever opinions foreign nations may entertain in regard to the validity of such claim, yet the subjects of the King of England do, by the common law of the realm, acknowledge and declare it to be his ancient and indisputable right.” Hall also assigns the bottom or _fundum_ of the British seas to the king, the authorities cited being Coke, Callis, Molloy, Hale, and Blackstone. Loveland, the editor of the second edition of Hall’s _Essay_, which was published in 1875, does not attempt to qualify the statements. It was not, indeed, till after the decision in the case of the _Franconia_ in 1876, and the Territorial Waters Jurisdiction Act of 1878, that the doctrine was abandoned in theory by English lawyers. Even Moore, the editor of the third edition of Hall’s _Essay_, which appeared in 1888, while pointing out the alteration of the law by the decision in the _Franconia_ case, and by the Territorial Waters Jurisdiction Act, thought it undesirable to vary Hall’s text, having regard to the diversity of the opinions expressed by the judges in the case referred to. _Vide_ p. 590.

[1074] Convention, 1818, Art. i. “... And the United States hereby renounce for ever any liberty heretofore enjoyed or claimed by the inhabitants thereof to take, dry, or cure fish on or within three marine miles of any of the coasts, bays, creeks, or harbours of his Britannick Majesty’s dominions in America not included within the above-mentioned limits.” Wheaton, _Elements_, 324, 463 (ed. 1864). _Parl. Papers, North America_, No. 1 (1878). Henderson, _American Diplomatic Questions_, 497.

[1075] Martens, _Nouv. Recueil_, V. ii. 358; Behring Sea Arbitration, British Case, _Parl. Papers, United States_, No. 1 (1893), p. 38, App. I. No. 1.

[1076] The Duke of Wellington to Count Nesselrode, 17th Oct. 1822; G. Canning to the Duke of Wellington, 27th Sept. 1822; Count Nesselrode to Count Lieven, 26th June 1823; G. Canning to S. Canning, 8th Dec. 1824; S. Canning to G. Canning, 3rd April 1825. _Parl. Papers_, _ibid._, 41, 42, 44, 46, 56, App. II. pt. i. 14, 15, 29, 52, 57.

[1077] _American State Papers, Foreign Relations_, v. 452; _Parl. Papers_, _ibid._, App. II. pt. ii. No. 5; Wheaton, _Elements_, 308.

[1078] Treaty between Russia and the United States, April 17th, 1824, Art. i. iv.; treaty between Great Britain and Russia, 28th Feb. 1825, Art. i. vii. Martens, _Nouv. Recueil_, vi. 684. _Parl. Papers_, _ibid._, 52, 53.

[1079] In 1842. _Parl. Papers_, _ibid._, 83.

[1080] In 1846. _Ibid._, 84.

[1081] _Ibid._, 87.

[1082] _E.g._, the case of the _Leda_, in which Dr Lushington claimed that the term United Kingdom included the waters to a distance of three miles from the shore (Swa., _Adm._, 40); General Iron Screw Company, in which Lord Hatherly said that it was “beyond question that for certain purposes every country may, by the common law of nations, legitimately exercise jurisdiction over that portion of the high seas which lies within three miles from its shores,”--whether this limit was determined by the range of cannon was not material, since it was clear it extended at any rate to that distance (1 J. and H., 180); Whitstable Fishery Case, in which it was said that the soil of the seashore to the distance of three miles from the beach was vested in the crown, and in which Lord Chelmsford observed that “the three-mile limit depends upon a rule of international law, by which every independent state is considered to have territorial property and jurisdiction in the sea which washes their coast within an assumed distance of a cannon-shot from the shore” (11 C.B. (N.S.), 387; 2 H.L.C., 192); the _Annapolis_, in which Dr Lushington said. “Within British jurisdiction, namely, within British territory, and at sea within three miles from the coast” (1 Lush., _Adm._, 306); Rex _v._ Forty-nine Casks of Brandy, in which Sir John Nicholl said that “as between nation and nation, the territorial right may, by a sort of tacit understanding, be extended to three miles” (3 Haggard, 257); Gammell _v._ Commissioners Woods and Forests and Lord Advocate, in which Lord Wensleydale referred to the distance of three miles as belonging, by the acknowledged law of nations, to the coast of the country, and “under the dominion of the country by being within cannon range, and so capable of being kept in perpetual possession” (3 MacQueen, H.L., 419).

[1083] This subject is treated of by Mr A. H. Charteris, Lecturer in International Law, University of Glasgow, in a paper read before the International Law Association at Berlin in 1906 (_Twenty-third Report_, 103).

[1084] Two small islands in the Channel.

[1085] Bell, _Crown Cases Reserved_, 72. See Hall, _Internat. Law_, 5th edit., p. 156; Westlake, _Internat. Law_, i. 118.

[1086] The Direct United States Cable Company _v._ the Anglo-American Telegraph Company, Privy Council, 1877. _Law Reports_, Appeal Cases, ii. 394.

[1087] 33 & 34 Vict., c. 90.

[1088] See pp. 592, 632.

[1089] Regina _v._ Keyn, _Law Reports, Excheq. Div._, ii., 1876-7, p. 63.

[1090] _E.g._, p. 204: “There are several treaties by which nations have engaged, in the event of either of them being at war with a third, to treat the sea within three miles of each other’s coasts as neutral territory,” the treaties being those referred to on p. 572. “After the three-mile theory had been propounded by Bynkershoek,” p. 177. Mr Justice Amphlett went further, and attributed a similar doctrine to Grotius: “All the earlier writers, including Grotius, the vigorous advocate of the free navigation of the high seas, and many of the later writers, maintained that within the zone of three miles the state had, without qualification,” &c., p. 122.

[1091] 41 & 42 Vict., c. 73.

[1092] 58 & 59 Vict., c. 42.

[1093] _Hansard_, xxxiii. 504. The Lord Chancellor (Lord Herschell), who followed, said : “He was far from saying that three miles was to be the limit of territorial waters for all time. Originally the distance was fixed by gunshot, and it was always said that the distance a gun could fire to was three miles. How far this principle was to be extended, and whether it was to be extended indefinitely, was a question for consideration, and it was a question which would not be without its difficulty.” Lord Salisbury referred to a gun which was fired on Jubilee Day and carried twelve miles, and Lord Herschell to one which had a range of thirteen miles.

[1094] 9 Geo. II., c. 35; 24 Geo. III., c. 47; Twiss, _The Law of Nations in Time of Peace_, 261; Hall, _A Treatise on the Foreign Powers and Jurisdiction of the British Crown_, 244.

[1095] 16 & 17 Vict., c. 107, ss. 212, 218; 39 & 40 Vict., c. 36, s. 179.

[1096] Kent, _Commentaries_, i. 31; Wheaton, _Elements_, 267, 323.

[1097] Riquelme, _op. cit._ See p. 569.

[1098] _Fifteenth Ann. Rep. Assoc. for Reform and Codification of the Law of Nations_,. 18, 22; _Seventeenth_, _ibid._, 302; _Annuaire de l’Institut_, xi. 151.

[1099] _Fifteenth Rep._, _ibid._, 84, 121; _Ann. de l’Institut_ for 1894. Customs Act of Canada, 49 Vict., c. 32, s. 21.

[1100] 26 Geo. II.; 6 Geo. IV., c. 78.

[1101] _Mer Territoriale_, 222; and see pp. 551, 560, 564.

[1102] Twiss, _op. cit._, 261-264; Phillimore, _Commentaries_, i. 236; Kent, _loc. cit._; Wheaton, _loc. cit._; Hall, _loc. cit._ The latter author states that they “repose on an agreement which, though tacit, is universal,” and that “no civilised country encourages offences against the laws of a foreign state when it sees that the laws are just and necessary.”

[1103] _De la Liberté des Mers, ou le Gouvernement Anglois devoilé_, 1798.

[1104] _La Mer Libre, La Mer Fermée_, 1803.

[1105] _Institutions du Droit de la Nature et des Gens._

[1106] _De la Liberté des Mers._

[1107] _A Practical Treatise on the Law of Nations relative to the Legal Effect of War on the Commerce of Belligerents and Neutrals._ London, 1812.

[1108] _Das Europäische Völkerrecht_, Berlin, 1817, p. 141.

[1109] “So weit der Schuss des Geschütses vom Ufer es bestreichen möge; dies selbst nahm man mit noch ungebundenerer Will-Kühr auf 3 Lieues an.”

[1110] P. 564.

[1111] _Europäisches Völkerrecht_, Stuttgart, 1821, p. 204; _Droit des Gens moderne de l’Europe_, 1819, III. ii. 130 (ed. 1831).

[1112] _A Digest of the Law of Maritime Captures or Prizes_, New York, 1815, c. ii. p. 55.

[1113] _Elements of International Law_, c. iv. ss. 6-10. London, 1836.

[1114] The King’s Chambers were, however, confined to the coast of England. See p. 122.

[1115] _Commentaries on American Law_, i. Part I. Lect. iii.

[1116] _Commentaries on the Law of Nations_, p. 119. 1839.

[1117] _Das Europäisches Völkerrecht der Gegenwart_, Berlin, 1844. _Le Droit International de l’Europe_, Paris, 1873, s. 75. “La ligne de la portée du canon elle-même, bien qu’elle soit regardée comme de droit commun, ne présente aucune base invariable et peut-être fixée par les lois de chaque État, du moins d’une manière provisoire.”

[1118] _Researches in Maritime International Law_, i. 16. 1844.

[1119] _Règles Internationales et Diplomatie de la Mer_, i. 177.

[1120] _Histoire des Origines, des Progrès, et des Variations du Droit Maritime International_, ed. 1858, p. 22.

[1121] _Traité des Prises maritimes_, i. 93. Paris, 1855.

[1122] “La portée du canon, placé à terre, est la seule limite réelle et vraie des mers territoriales.”

[1123] _Le Droit commercial, dans ses rapports avec le Droit des Gens et le Droit Civil_, Paris, 1844-47, tom. i. Liv. ii. tit. i. c. i. ss. 103-105.

[1124] _Plans and Proposals transmitted to the Committee on the Fishery_, No. 1, &c.

[1125] _Reports by the Commissioners for the British Herring Fishery_ for 1819, 1821, 1822; _Staatsblad_, No. 28, 4th April 1824, for a copy of which I am indebted to Mr H. van Hall, of the Universiteits-Bibliotheek, Amsterdam. After a reference to the previous decrees prohibiting the taking of herrings “between the banks and rocks of Scotland,” as being injurious to the reputation of Dutch pickled herrings (see p. 201), it is stated that the Board for the Great Fishery is of opinion that, in the interest of this branch of national industry, the fishing should be carried on at a farther distance from the main coast of Scotland (_Schotsche vaste kust_), and it is determined and resolved as follows: “Art. I. Het zal aan geenen Nederlandschen visscher geoorloofd zijn, de groote of pekelharingvisscherij op eenen naderen afstand der vaste kust van Schotland uitteoefenen, dan dien van twee uren hemelsbreedte (20 zoodanige uren eenen graad uitmakende), noch onder eenig voorwendsel hoe ook genaamd (alleen met uitzondering van het geval van dringende noodzakelijkheid bij art. 22 der voormelde wet voorzien), gedurende den tijd dat hij de vangst van pekelharing bedrijft, de vermelde kust op eenen minderen afstand te naderen.” The second article excepted the fishing at Shetland (Hitland) and Fair Isle (Fair-hill), the autumn fishing on the English coast and off Yarmouth, and the fresh-herring fishery; but these exceptions were withdrawn by a royal decree of 5th June 1827 (_Staatscourant_, 1827, No. 278). It may be said that in 1818 the old prohibition of fishing between the sandbanks and rocks of Norway, Shetland, and Scotland had been renewed. _Staatsblad_, No. 15, 12th March 1818.

[1126] _Rapport fait en Exécution des Ordres du Ministre de la Marine_, par M. L. de Montaignac, Capitaine de frégate, Commandant la Station de la Mer du Nord.

[1127] Montaignac, _op. cit._; _Parl. Papers_, Sess. 1837-38; _Rep. Com. Brit. Herring Fishery_, 1834.

[1128] _Report from the Select Committee on British Channel Fisheries, Parl. Papers_, Sess. 1833, No. 676.

[1129] An ordinance of the French Marine Department, of 15th January 1829, prohibited the use of certain nets, as drag and trawl nets, within _three leagues_ of the shore from 15th April to 1st September, and within two leagues from 1st September to 15th April.

[1130] Some of the English fishery Acts then in force, at least nominally, extended jurisdiction beyond the distance of one league with regard to the use of certain nets, &c., and the Committee apparently desired that, besides a zone of exclusive fishery, foreigners should be bound to observe the municipal law for the protection of the spawn and brood of fish that might apply beyond such zone. The Acts referred to were 3 Jac. I., c. 12 (1605), for the better preservation of sea fish, which, _inter alia_, prohibited the use of certain nets within five miles of any harbour, haven, or creek; 14 Chas. II., c. 28 (1662), regulating the pilchard-fishing in Devon and Cornwall, which prohibited the use of any “drift, trammel, or stream net,” between 1st June and 30th November, within one and a half leagues of the coasts of these counties; 1 George I., stat. 2, c. 18 (1714), which prohibited the use “at sea upon the coast of England” of certain nets, and the landing or sale of undersized fish; the Act 33 Geo. III., c. 27 (1759), prohibited the taking or knowingly possessing “any spawn, fry, or brood of fish, or any unsizeable fish, or any fish out of season.”

[1131] Under the Act 6 Geo. IV., c. 108, 1825.

[1132] Mr Cornish, quoting from his MS. treatise on zoology, said: “It is generally supposed that all sea fish, the cetaceous (_sic_) and cartilaginous excepted, deposit their ova in sand-banks, in creeks, bays, and shallow water near the shores, because it is imagined that a certain, though a small, degree of the sun’s action on the water and atmosphere is necessary to bring such ova to maturity. This we know to be the case with the salmon species, which always ascend to the shallow parts of rivers for that purpose, and never lay their eggs in deep water, and therefore we infer that the same influence prevails over the sea fish: this cannot, however, be proved, and rests mainly on opinion and probable conjecture, founded on such facts as we are acquainted with.” It may be said that a Select Committee of the House of Commons, appointed in 1817 to inquire into the condition of the fisheries on the south coast of Devon, strongly recommended Parliamentary action for the protection of the fisheries, founding on the same erroneous assumption that the fishes spawned near the shore. A Bill was accordingly introduced in the session of 1819, and again in 1822, for the appointment of conservators or overseers of the bays, creeks, and arms of the sea, to supervise regulations for the preservation of the fish coming there to spawn, and of their brood and fry, and applying to a distance of one and a half leagues from the shore; but it did not pass the Lords. _Rep. Select Com. on the State and Condition of the Fisheries on the South Coast of Devon_, 1817; _Parl. Bills_, xxii. 587, 601. _Eighth Ann. Rep. Fishery Board for Scotland_, Part III., pp. 13, 258 (1890); _Tenth, ibid._, pp. 19, 235; _Eleventh, ibid._, p. 13.

[1133] Memorials, &c., received by Her Majesty’s Government since 1st January 1832, complaining of the Aggressions of French fishermen on the British Coasts, _Parl. Papers_, Sess. 1837-38; Supplementary Papers relative to the Complaints respecting the Aggressions of French fishermen on the British Coasts, 1838, _ibid._, 1839; _Reports by the Commissioners for the Herring Fishery_, for 1834, 1835, 1839.

[1134] _Convention between Her Majesty and the King of the French, defining and regulating the Limits of the Exclusive Right of the Oyster and other Fishery on the Coasts of Great Britain and of France._ Signed at Paris, August 2, 1839.

[1135] The line of closure, as will be seen from fig. 16, was not a single straight line, as usual, but a series of lines determined by landmarks. The area between this series and the three-mile limit, from which British fishermen were excluded, measures a little over 100 square (geographical) miles. On the other hand, all of the closing line north of 49° 3´ (and thus the greater part of it) is, curiously, _within_ the three-mile zone; the area outside this line to the three-mile line is about 23 square miles.

[1136] 6 & 7 Vict., cap. 79. “An Act to carry into Effect the Convention between Her Majesty and the King of the French concerning the Fisheries in the Seas between the British Islands and France,” 22nd August 1843. The mesh of trawl-nets, the length of the trawl-beam, the weight of the trawl-irons and of the ground-rope, the mesh of herring, mackerel, “bratt,” and trammel nets, were in no case to be over or under a specified standard. A series of detailed regulations for oyster-fishing was also made, including a close-time and a minimum size. This Act was repealed by the Sea Fisheries Act, 1868 (the Convention Act), 31 & 32 Vict., c. 45, but it was revived by Parliament in 1877 (40 & 41 Vict., c. 42), the Convention of 1867 not having been ratified by France.

[1137] _Reports of the Commissioners for the Herring Fishery_, 1839, 1840, 1841.

[1138] It was denounced in the Boulogne Chamber of Commerce as the greatest blunder the French Government had ever made, and many complaints were received from French fishermen of their boats having been captured or pursued by British cruisers. Deseille, _Histoire de la Pêche à Boulogne-sur-Mer_, 229. The French cruisers were no less active in apprehending British transgressors. _Parl. Papers_, Sess. 1854-5, 459.

[1139] Mitchell, _The Herring: Its Natural History and National Importance_, 243.

[1140] The Board pointed out that the fishermen of other foreign countries were not disposed to observe the limits laid down in the Anglo-French convention, specifying Dutch as well as Belgians, and that the naval superintendents were perplexed from the want of fixed instructions on this point. The letter from the Board of Trade was as follows (_Report of the Commissioners for the year ended 5th January 1849_):--

“OFFICE OF COMMITTEE OF PRIVY-COUNCIL FOR TRADE,

“WHITEHALL, _14th September 1848_.

“SIR,--With reference to your letter of 4th ultimo, requesting, on the part of the Commissioners of British Fisheries, to know whether Foreign Fishermen are permitted to fish within three miles of the Shore; I am directed by the Lords of the Committee of Privy-Council for Trade, to inform you, that it is the opinion of this Board, that no such permission is recognised by the British Government, and accordingly, that it is the duty of the Superintendents of British Fisheries, to warn Dutch, Belgian, or any other Foreigners, as well as French Fishermen, to keep outside of the limits above mentioned.--I am, sir, your obedient servant,

(Sd.) DENIS LE MARCHANT.

The Honourable B. F. PRIMROSE, Secretary,
Board of Fisheries, Edinburgh.”

[1141] See p. 461.

[1142] Convention between Her Majesty and the King of the Belgians relative to Fishery. Signed at London, March 22, 1852. “Art. I. 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. In like manner, British subjects shall enjoy, in regard to fishery along the coast of the Kingdom of Belgium, the treatment of the most favoured foreign nation.” The convention was to endure for seven years, and it was to remain in force thereafter until the expiry of twelve months after either party notified to the other its intention of terminating it.

[1143] _Reports by the Commissioners for the British Fisheries_, 1848-51. _Parl. Papers_, Sess. 1856.

[1144] _Reports of the Commissioners for the British Fisheries_, 1852, 1853, 1862.

[1145] _Report of the Commissioners appointed to Enquire into the Sea Fisheries of the United Kingdom_, I. lxix. (1866).

[1146] _Convention between Her Majesty and the Emperor of the French, relative to the Fisheries in the seas between Great Britain and France._ Signed at Paris, 11th November 1867. Art. I. “British fishermen 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 French fishermen shall enjoy the exclusive right of fishery within the distance of three miles from low-water mark along the whole extent of the coast of France, the only exception to this rule being that part of the coast of France which lies between Cape Carteret and Point Meinga. 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 miles mentioned in the present Convention are geographical miles, whereof sixty make a degree of latitude.” In neither of the conventions was it expressly said that the ten-mile closing-line for bays was to be measured from low-water mark of the headlands, but it was so declared in the Act of 1843, 6 & 7 Vict., c. 79.

[1147] 31 & 32 Vict., c. 45.

[1148] _London Gazette_, 9th Feb. 1869. C. E. Fryer, _The Relation of the State with Fishermen and Fisheries. Parl. Papers, Commerc._, 24 (1882), p. 1.

[1149] 46 & 47 Vict., c. 22, sec. 30.

[1150] 6 & 7 Vict., c. 79, s. vi.

[1151] 5 & 6 Vict., c. 106.

[1152] _Parl. Papers_, Sess. 1867-68, Fisheries (Ireland), 135.

[1153] 31 & 32 Vict., c. 45, s. 67.

[1154] _Report from the Select Committee on Oyster Fisheries_, 8, 166 (1876).

[1155] Had the coasts of the United States been visited by British fishermen, it is not unlikely that the Government of that country would have been more willing to admit the ordinary interpretation with regard to bays. British vessels do not, however, fish on the coasts of the United States, and the United States fishermen, having exhausted the once productive waters of their own coasts of the New England States, go to catch a large part of their fish to the waters on the coasts of British North America, and hence it is to their interest that the limit of exclusive fishing on the latter should be as small as they can get it made. The position is very similar to that of the English trawlers who, having impoverished the North Sea, now go to foreign coasts, as Iceland, to keep up the supplies. See p. 707.

[1156] Treaty between Her Majesty and the United States of America, signed at Washington, 1st June 1854, Art. i., ii. I. “It is agreed by the high contracting parties that in addition to the liberty secured to the United States’ fishermen by the above-mentioned convention of October 20, 1818, of taking, curing, and drying fish on certain coasts of the British North American Colonies therein defined, the inhabitants of the United States shall have, in common with the subjects of Her Britannic Majesty, the liberty to take fish of every kind, except shell-fish, on the sea coasts and shores, and in the bays, harbours, and creeks of Canada, New Brunswick, Nova Scotia, Prince Edward’s Island, and of the several islands thereunto adjacent, without being restricted to any distance from the shore, with permission to land upon the coasts and shores of those Colonies and the islands thereof, and also upon the Magdalen Islands, for the purpose of drying their nets and curing their fish; provided that, in so doing, they do not interfere with the rights of private property, or with British fishermen, in the peaceable use of any part of the said coast in their occupancy for the same purpose.” The second article accorded to Canadian fishermen similar privileges in the waters of the United States, north of 36 degrees N. latitude.

[1157] Before this arrangement was made, the British Government, on 12th April 1866, instructed the Admiralty “that American fishermen should not be interfered with, either by notice or otherwise, unless they are found within three miles of a line drawn across the mouth of a bay or creek, which is less than ten geographical miles in width, in conformity with the arrangement made with France in 1839.”

[1158] 27th June 1870. “The limits within which you will, if necessary, exercise the power to exclude United States’ fishermen, or to detain American fishing vessels or boats, are for the present to be exceptional.... Her Majesty’s Government are clearly of opinion that, by the Convention of 1818, the United States have renounced the right of fishing, not only within three miles of the Colonial shores, but within three miles of a line drawn across the mouth of any British bay or creek. It is, however, the wish of Her Majesty’s Government neither to concede, nor for the present to enforce, any rights in this respect which are in their nature open to any serious question. Until further instructed, therefore, you will not interfere with any American fishermen, unless found within three miles of the shore, or within three miles of a line drawn across the mouth of a bay or creek, which, though in parts more than six miles wide, is less than six geographical miles in width at its mouth. In the case of any other bay--as Bay des Chaleurs, for example--you will not interfere with any United States’ fishing vessel or boat, or any American fishermen, unless they are found within three miles of the shore.”

[1159] Treaty between Her Majesty and the United States of America, signed at Washington, 8th May 1871, Art. xviii., xix.

[1160] _Parl. Papers_, No. 1 (1888), (C.--5262).

[1161] The number of American fishing vessels which take the licenses for Canadian waters is usually about 100, the fees aggregating 10,000 or 12,000 dollars per annum. _Ann. Reports, Marine and Fisheries_, Ottawa.

[1162] The three-mile limit is measured from the ten-mile arc.

[1163] Mr Phelps to the Marquis of Salisbury, 3rd August 1887, enclosing ad interim arrangement proposed by the United States’ Government, with “Observations” by the British Government and Reply of the Government of the United States.

[1164] Gordon, _15th Ann. Rep. Assoc. for Reform of Law of Nations_ (8). 1893.

[1165] _Report by the Commissioners for the Herring Fishery_, Scotland, 1869, p. 4; _Report by the Commissioners of the Fishery Board, Scotland_, 1876, p. 7.

[1166] Report of W. H. Higgin, Esq., Q.C., on the Outrages committed by Foreign upon English Fishermen in the North Sea. _Parl. Papers_ (C.--2878), 1881.

[1167] After all, however, the damage from the monetary point of view was not very great, amounting, according to the detailed information collected by Mr Higgin, to £4372, 3s. over the years 1870-1880, or at the rate of about £400 per annum.

[1168] Correspondence respecting the Conference at The Hague and the Convention of the 6th May 1882, relative to the Police of the Fisheries in the North Sea. _Parl. Papers, Commercial_, No. 24, 1882.

[1169] M. Barthélemy St Hilaire to Lord Lyons, 2nd July 1881; M. de Freycinet to M. Challemel-Lacour, 2nd March 1882.

[1170] “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 and of the dependent islands. 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 joining the two extreme points of the bay. The present article shall not in any way prejudice the right of free navigation and anchorage in territorial waters accorded to vessels of all sizes, provided they conform to the special police regulations enacted by the Powers to whom the shore belongs.”

[1171] Messrs Kennedy and Trevor to Mr Farrer, Oct. 31, 1881. In the Anglo-French convention of 1867 the British negotiators unsuccessfully pressed for the insertion of the words, “the islands ... and their dependencies.” M. de Freycinet to M. Challemel-Lacour, 2nd March 1882.

[1172] Vide _Fiskeri-Beretning for Finansaaret_, 1907-1908, p. 178. Kjobenhavn, 1908.

[1173] _Report on the Sea Fisheries of England and Wales_, 1879. The British delegate laid stress on one of the conclusions reached by Mr Buckland, to the effect that “nothing that man has done, and nothing that man can do, can affect the supply of herrings in the seas.” Even if this were proved for the herring in the absolute form in which it is expressed,--and it is clearly illogical and unwarrantable to pledge the future in this loose way,--it obviously might not, and in point of fact does not, apply to the great bulk of the fishes that would have been affected by the German suggestion.

[1174] _International Convention for the Purpose of Regulating the Police of the Fisheries in the North Sea outside Territorial Waters._ Signed at The Hague, 6th May 1882.

[1175] Sir H. Rumbold to Earl Granville, 16th March 1882; H.M. Plenipotentiaries to the same, 8th May 1882.

[1176] The boundaries specified are, on the north, the parallel of the 61st degree of latitude; on the east and south, the coast of Norway between the above parallel and Lindesnæs Lighthouse, a straight line thence across the Skagerrack to Hantsholm Lighthouse in Denmark, the coasts of Denmark, Germany, the Netherlands, Belgium, and France, as far as Cape Gris Nez Lighthouse; on the west, a straight line from Gris Nez Lighthouse to the easternmost lighthouse at the North Foreland in Kent, the eastern coasts of England and Scotland, a line from Duncansby Head in Caithness to the southern point of South Ronaldsha in the Orkneys, the eastern coasts of the Orkney Islands, a straight line from North Ronaldsha Lighthouse to Sumburgh Head Lighthouse in the Shetland Islands, the eastern coasts of these islands, and the meridian of the North Unst Lighthouse as far as the parallel of the 61st degree of latitude. The Dutch proposed the 60th degree of latitude as the northern limit, and the British the 62nd degree.

[1177] 46 & 47 Vict., c. 22. An Act to carry into effect an International Convention concerning the Fisheries in the North Sea, and to amend the laws relating to British Sea Fisheries.

[1178] Messrs Kennedy and Trevor to Mr Farrer, 31st Oct. 1881. _Doc. cit._

[1179] Dispatch to Hon. E. Ashley, 17th Nov. 1881; Earl Granville to Her Majesty’s Representatives at Paris, Brussels, The Hague, Berlin, Copenhagen, and Stockholm, 6th December 1881.

[1180] A case occurred in 1908 in which the master of an English trawler, the _Taurus_, was convicted in a German court for trawling within the three-mile limit on the German coast, and the case was appealed on the ground that the place was outside the territorial waters, and was so shown on the English fishery charts. It was found, however, that the three-mile line on these charts did not take into account the dependent banks, whereas the German charts did take them into account, the limit running in some cases six or seven miles from the coast. It may be mentioned that as considerable parts of the Goodwin Sands are visible at low-water of neap tides, such parts are entitled to a three-mile limit in the same way as the dependent banks on the German coast. Recently, also, it has been found that the three-mile limit in the neighbourhood of the Scaw fluctuates considerably owing to the shifting of the shoals, and the Danish authorities, early in 1907, intimated that any case of alleged infraction of the limit by foreign fishing vessels would be judged of by the actual position of the line at the time, and not by what may be shown on any chart in use. The point in regard to banks was raised a century ago in connection with neutral rights in a case in which a British privateer captured a French corvette, the _Africaine_, on the coast of the United States, six miles from shore. It was argued that the capture was unlawful, because the place was within the neutral waters of the United States, the extent of which had been defined by Congress in 1794 as one marine league from the coast (see p. 574). It was contended that “coasts” included all the shoals or banks which, in Florida, extended to a distance of twenty miles from the land, and were therefore within territorial jurisdiction, and that the distance of protection should be reckoned from the outermost shoal. The American judge overruled the argument, because, although in a maritime sense this interpretation of “coasts” might be correct, it was too vague for juridical purposes, since the shoals vary, and there would be no fixed rule by which the boundary could be ascertained; and that the district courts would have to apply different rules at different places, instead of the one marine league everywhere. A somewhat similar question was argued in 1805 in the English Admiralty Court in the case of an American ship, the _Anna_, captured by a British privateer off the mouth of the Mississippi, at a point claimed to be within the neutral waters of the United States--viz., 1½ mile from an island, and “within view” of a fort, which was, however, five miles distant. A question raised was whether certain small mud-islands, formed of earth and drifted logs, and covered with reeds, where people occasionally went to shoot wild-fowl, was United States territory from which the marine league could be measured. It was argued that the islands had not sufficient consistency to support the purposes of life, and were sometimes scarcely distinguishable, and that since the distance of neutral protection “is reckoned according to the efficacy of protection, that is, within the range of firearms,” the land from which the extension is measured should be a place from which this protection could be in reality afforded. Lord Stowell, in deciding that they were United States territory, stated that the right of dominion did not depend upon the texture of the soil; and he quoted Bynkershoek’s formula as the rule of law, saying that the distance “has usually been recognised to be about three miles from the shore.” It may be said here that in the earlier writings and decisions about the limit of territorial waters, low-water mark is not specified, and in the case of the _Twee Gebroeders_ (see p. 577) it is clear that sand-banks uncovered at low-water were not regarded as entitled to an independent zone, the distance being measured from _terra firma_.

[1181] _Fish Trades Gazette_, May 31st, 1902, p. 8; _ibid._, April 4th, 1903, p. 21.

[1182] “Les articles 2 et 3 de ce contrat stipulent que les pêcheurs nationaux jouiront du droit exclusif de pêche dans le rayon de trois milles géographiques de 60 au degré de latitude, à partir de la laisse de basse mer, le long de toute l’étendue des côtes de leurs pays respectifs, ainsi que des îles et des bancs qui en dépendent.” _Loi relative à la pêche maritime dans les eaux territoriales. Exposé des motifs._ Sess. 1890-91.

[1183] The Marquis of Lothian, Secretary for Scotland, in introducing the Bill which became the Herring Fishery (Scotland) Act, 1889, said: “With regard to the east coast there is no very great difficulty in fixing the limits of territorial waters, because between Her Majesty’s Government and what I may call the riparian powers of the North Sea there is a Fisheries Convention; but on the west coast there is no such convention, and therefore it has been thought desirable to attach a schedule to this Bill in order to show exactly what are the waters closed against trawlers apart altogether from the general international rule as to the three-mile limit.” June 28th, 1889. Hansard, vol. 337, p. 975.

[1184] 46 & 47 Vict., c. 22, s. 28.

[1185] 6 & 7 Vict., c. 79 (1843). The international regulations agreed upon in virtue of the eleventh article of the convention were to apply to “the seas lying between the coasts of Great Britain and of France”; and differences of interpretation arose in this country as to the extent of the seas coming under this denomination--_e.g._, whether those on the west coast of Scotland were included. The power given to the crown to suspend the operation of the Act on the Irish coasts, and the obvious intention of the Act and articles, seemed to the Royal Commissioners of 1863 to warrant the opinion that these extra-territorial regulations applied to all the seas around the British Isles (_Report, Royal Commission on Sea Fisheries_, i. p. lxiii). On the other hand, it was contended that the words quoted must be construed strictly, and included only those seas which were situated geographically between the two countries. This difference of opinion as to the interpretation of the phrase in question does not, however, affect the validity of Article ix. of the convention, one of the principal objects of which was to determine the limits of exclusive fishery.

[1186] _Vide_ 46 & 47 Vict., c. 22, s. 24.

[1187] _Report from the Select Committee on Oyster Fisheries_, p. 1. 1876.

[1188] 19th, 22nd, and 23rd _Reports Fishery Board for Scotland_, Part I. Corresponding particulars are not given in the English or Irish fishery reports.

[1189] The preceding laws, however, left the territorial limits indefinite, under the law of nations, or subject to any special international agreement, as that of 12th February 1872, concerning foreign fishermen at Iceland. (“1. Drive fremmede Nationers Fiskere nogetsomhelst Fiskeri under Islands Kyster indenfor Søterritoriets Grænse, saaledes som denne er bestemt ved den almindelige Folkeret, eller ved særlige internationale Overenskomster for Islands Vedkommende maatte blive fastsat, straffes de med Bøder fra 10 til 200 Rd.” C. F. Drechsel, _Samling af Islandske Love, Forordninger, m.m. gældende for Fiskeriet paa Søterritoriet ved Island_, 1892.) Later laws, both for the Faröes and Iceland, merely referred to the “territorial sea.”

[1190] Convention between His Majesty the King of the United Kingdom of Great Britain and Ireland and His Majesty the King of Denmark for regulating the Fisheries of their respective Subjects outside Territorial Waters in the Ocean surrounding the Faröe Islands and Iceland. Art. ii. “The subjects of His Majesty the King of Denmark 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 said islands, as well as of the dependent islets, rocks, 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 geographical limits for the application of the convention, which embodies practically the same regulations as in the North Sea Convention, are as follows: on the south, by a line commencing from where the meridian of North Unst Lighthouse (Shetland Islands) meets the parallel of 61st degree of north latitude to a point where the 9th meridian of west longitude meets the parallel of 60° north latitude, and from thence westward along that parallel to the meridian of 27° west longitude; on the west, by the meridian of 27° west longitude; on the north, by the parallel of 67° 30´ of north latitude; on the east, by the meridian of the North Unst Lighthouse (which is about 50´ west longitude). The area is thus very large, much larger than the North Sea. The convention continues in force until the expiration of two years from notice by either party for its termination, and a clause is inserted providing for the adhesion of any other Government whose subjects fish in the ocean surrounding the Faröe Islands and Iceland.

[1191] “Das positive deutsche Recht enthält keinerlei ausdrückliche Bestimmung über die Grenze der Küstengewässer landwärts.... Auch für die Grenze seewärts hat das deutsche Recht keine ausdrückliche Bestimmung, und adoptiert in dieser Richtung lediglich die Regeln des Völkerrechts.” Harburger, _Fifteenth Ann. Rep. Internat. Law Assoc._, 73. 1893.

[1192] Herstlet, _Commercial Treaties_, xiv. 1055. Perels, _Das Internationale öffentlichs Seerecht der Gegenwart_, 38.

[1193] _Mittheilungen des deutschen Seefischerei-vereins_, Bd. xiii. 61. 1897.

[1194] “Vi ville have fastsat som Regel i alle de Tilfælde hvor Spørgsmaal er om Bestemmelse af Vor Territorial-Hoiheds Græendse udi Søen, at denne skal regnes indtil den sædvanlige Sø-Miils Afstand fra den yderste øe eller Holme fra Landet, som ikke overskylles af Søen.” _Rescripter Resolutioner_, &c., i. 626, 22 (25), Feb. 1812. A circular of the Royal Danish Chancellory of 18th August 1810 made an exception for the territorial waters near the fortress of Kronberg, on the Sound, and of Glückstadt, on the Elbe, where the distance was to be computed only up to the range of the guns of the fortress. Auber, _Annuaire de l’Institut de Droit International_, xi. 146 (1894).

[1195] _Svensk Fiskeri Tidskrift 9e_ Årg., 78. Stockholm, 1900. “Danmark räknar på grund af konvention samma [with Sweden] fyra mils gräns mot oss, men däremot på grund af Nordsjötraktaten blott tre mil gentemot de i denna deltagande makterna, t. ex. engelsmän och tyskar.” Instruks for det ved Fiskerikontrollen ansatte Personale, Landbrugsministeriet, den 20 Marts 1908, _Fiskeri-Beretning for Aaret_ 1908-9.

[1196] Natzen, _Den Danske Statsforfatningsret_, i. 36. 1888.