At the end of the seventeenth century, while the old pretensions of various nations to the appropriation of particular seas had not been withdrawn, they had in many cases become by the force of circumstances to a large extent nominal or were in abeyance. There was moreover a tendency, as we have seen (p. 526), to substitute fixed boundaries in place of a wide and vague sovereignty, and to arrange by treaty defined limits for special purposes. In the historical retrospect we can now perceive the main influences which led to the modification of the claims and practice in the century that followed. The juridical controversies on the subject between the writers of various nations were doubtless not without effect. The repeated decisions of the High Court of Admiralty in this country, going counter to the English pretension even in the Channel, and fixing limits for neutrality, must also have had an important influence. But the chief causes were probably twofold. One was the moral and material victory of the Dutch Republic in its long and persistent struggle against the exorbitant claims to maritime dominion, first, of Spain and Portugal, and then of England and Denmark. The other was the great extension of commerce and navigation, in which England secured an ever-increasing share, so that in the next century we find her taking the part of Holland in opposing the Danish claims to mare clausum. As maritime commerce extended and the security of the sea became established, it was felt more and more that claims to a hampering sovereignty and jurisdiction were incompatible with the general welfare of nations; and as the states interested in this commerce had the greatest power, the assertion of a wide dominion was gradually abandoned, surviving only in remote regions or in enclosed seas, like the Baltic.
At the beginning of the eighteenth century the question of the appropriation of the sea was placed on another footing. The principle of delimiting the territorial sea which is now generally accepted was first expounded in 1703 by a distinguished publicist, Cornelius van Bynkershoek, who, like Grotius, was a Dutchman, and held the office of Judge in the Supreme Court of Appeal of Holland, Zealand, and West Friesland. In his early work on the dominion of the sea,1010 and in a later treatise published in 1737,1011 he dealt with the subject with much acumen. With respect to the general question as to the capability of appropriation, he agreed with Puffendorf rather than with Grotius. While holding that the open ocean could not be wholly brought under dominion, he admitted, with Selden, not only that large parts of the sea are susceptible of appropriation, but that various nations had at different times enjoyed such dominion: the fluidity of the sea was not a bar to its occupation, and by taking possession of it the same right was acquired as by taking possession of the land. But he declared there was no instance at the time he wrote of any ruler possessing maritime dominion of that kind, unless when the surrounding territory belonged to him, and that the general freedom of the seas for navigation had been established both by usage and by various treaties. He denied that England had the dominion of the so-called British seas, mainly on the ground of the want of uninterrupted possession, pointing out that all the neighbouring nations freely navigated them without paying any tribute or requiring any permission.
It was, however, with regard to the delimitation of the territorial sea immediately adjacent to the coast that Bynkershoek’s teaching had its chief results. He showed how uncertain and unsatisfactory were the limits previously proposed, and, following Grotius, he laid down the principle that the dominion of a state extended over the neighbouring sea as far, and only as far, as it was able to command and control it from the land. But he went further and showed how the principle was to be carried into practice. The dominion of the territory extended as far as projectiles could be thrown from the shore by artillery, so that exclusive possession might be taken of the part so commanded: “the dominion of the land ends where the power of arms terminates.”1012 Thus Bynkershoek assigned the dominion of the adjacent sea (mare proximum) to the neighbouring state, within the range of a cannon-shot from the shore. Besides the general reasoning on which the limit was based, he cited in support of it an Act of state. He was apparently unaware of the clear declaration made by the Dutch ambassadors a century earlier; but he referred to an edict of the States-General in 1671, which enjoined that the commanders of their ships should give the salute on the coasts of a foreign Power when they were within the range of the guns of a town or fort, in such manner as the Government of the country should require, leaving to its discretion the return of the salute, and adding that every Government was sovereign within its own jurisdiction and every foreigner a subject there.1013
This decree could not, of course, as Bynkershoek admitted, bind other Powers to the same opinion. Nevertheless it may be said that the almost universal practice which had grown up, regulating the salute of a vessel coming within range of a battery on a foreign coast, had prepared the way for the acceptance of the doctrine. It was a recognition that the vessel had passed within the sphere of territorial authority of the particular state. It was the rule, in England at least, that “the sea should salute the land,” and the range of guns determined the limit within which the salute ought to be rendered. Beyond the reach of cannon no salute was expected; within it usage, international courtesy, or the law, required it. No foreign ship with its flag aloft could come within range of an English fort or castle without exposing itself to the risk of a shot. It is indeed a curious circumstance, that it was largely through the action of England with regard to the salute that the acceptance of the cannon-range limit was facilitated. The relation of the ceremony to the sovereignty of a state was forced by her prominently into international politics. Before the time of Selden and Charles I. jurists paid little attention to the matter, but afterwards they dealt with it as a department of international law: Loccenius and Bynkershoek, for example, each devotes a chapter to it. Even when the English were most actively asserting “the honour of the flag,” they recognised the rights of foreign states within the actual range of guns on their shore. In 1636 the Earl of Northumberland was instructed by the Admiralty not to enforce the salute within the command of the guns of forts on foreign coasts,—an order which was repeated by the Parliament in 1647,1014 and became the rule in the service. Molloy, a vehement supporter of the most extreme claims of England to the sovereignty of the seas, stated in 1676 that English men-of-war entering a foreign harbour, or “the road within shot of cannon of some fort or castle,” were to pay such respect as was usually there expected.1015
The gunshot limit had been long established in connection with another international relationship—namely, the right of visitation of neutral vessels in the open sea. Many treaties had been made which stipulated that the visiting ship was not to approach nearer than within cannon-shot, and was then to send one of its boats with a few men to conduct the examination necessary. It is, moreover, extremely probable that with respect to what was in those times the principal attribute of the territorial waters—viz., the rights and obligations of neutrals—the gunshot limit, at the least, was recognised where guns were actually in position. In view of the general practice, as shown for instance in the decisions of the English Admiralty Court, and the usage in connection with the salute, it can scarcely be supposed that a capture made under the guns of a neutral fortress would be held as good prize; at all events, it was not so held in the Admiralty Court in 1760. But the merit of Bynkershoek’s doctrine was, that it transferred in theory to all parts of a coast this decisive property of compulsion and dominion which, strictly speaking, only existed where forts or batteries were placed. The doctrine, justly enough, has been called fictitious, because there are various coasts and districts where it would be impracticable to maintain dominion over the territorial sea by means of artillery on shore; and because in point of fact such dominion, unless in the neighbourhood of forts, is actually maintained by other means, as by coastguards and naval vessels. Nevertheless the principle, though resting largely on hypothesis, had much to recommend it, and it gradually became incorporated into international law as the rule for fixing the boundary of the territorial waters. Apart from its intrinsic merits, its acceptance was perhaps not a little facilitated by the felicity with which it was expressed. Bynkershoek gave it the form almost of an aphorism, and the phrase, terræ dominium finitur ubi finitur armorum vis, has been quoted by almost all later writers.
But although the doctrine of Bynkershoek was attractive, and was eventually accepted almost everywhere, it did not command immediate assent. The publicists who came after Bynkershoek in the eighteenth century, while usually referring to the cannon-range limit, or adopting it with respect to questions of prize, did not as a rule adhere to it as the sole principle for delimiting the territorial belt. The earliest notice of it after the Quæstiones appeared seems to have been by Casaregi, an Italian writer of authority, who was judge in the Court of the Grand Duke of Tuscany, in a work which appeared in 1740, and referred more especially to the practice in the Mediterranean.1016 Foreign ships, he said, were under the protection of the prince whose seas they sail through, when they are in his ports, or in the sea so near as to be within the range of guns on shore; if seized by the enemy there, they require to be restored.1017 This was the ordinary rule in regard to neutrality; but with regard to the question of sovereignty in the neighbouring sea, Casaregi followed preceding Italian jurists in assigning a space of one hundred miles from the coast for civil and criminal jurisdiction, with the power of levying tolls and dues from passing ships, and even of prohibiting or permitting navigation.
A little later a Spanish writer, Abreu y Bertodano, in a work on the law of maritime prize,1018 held that it was unlawful for cruisers to attack the enemy’s vessels in the seas adjacent to the coast of a neutral within a distance of two leagues from the shore, or within the reach of a cannon-shot from it. He stated that no European Power had asserted the dominion of the sea with more heat and boldness than Great Britain, and yet by Act of Parliament the visitation of ships by the coastguard was restricted to two leagues from the coast, which was as much as could reasonably be claimed.1019 But this author also followed the Italian rule that jurisdiction, including the levying of tolls, &c., was not limited to the coast waters, but extended for at least a hundred miles from the shore, and said that this was in agreement with the teaching of the lawyers of all nations.1020
Wolff, who wrote on the law of nations about the same time, appears rather to have followed the opinions of Puffendorf. He argued that the use of the sea next the shore, for fishing and the collection of things that grow on it, was not inexhaustible, nor its use for navigation always innocuous; and since it served as a protection for the adjoining state, it was reasonable that it should be under the dominion of that state. The inhabitants of the shores had therefore the right to occupy it “so far as they can maintain their dominion over it”; and the same was true of straits and bays.1021
Some ten years later Vattel, the pupil and follower of Wolff, published a work on the law of nations, which is still of authority, and in which much the same opinions as those of Puffendorf and Wolff are expressed.1022 On the general question of the appropriation of the sea the usual statement was made; but Vattel held that a nation might acquire exclusive rights of navigation and fishery in the open sea by treaties, but not by prescription, unless in virtue of the consent or tacit agreement of other nations. Thus “when a nation that is in possession of the navigation and fishery in certain tracts of the sea claims an exclusive right of them, and forbids all participation on the part of other nations, if the others obey that prohibition with sufficient marks of acquiescence, they tacitly renounce their own right in favour of that nation, and establish for her a new right, which she may afterwards lawfully maintain against them, especially when it is confirmed by long use.” On the other hand, Vattel states that the uses of the sea near the coast render it very susceptible of appropriation: it supplies fish, shells, pearls, and other things, and with respect to all these its use is not inexhaustible. A maritime people may therefore appropriate and convert to their own profit “an advantage which nature has placed within their reach as to enable them conveniently to take possession of it, in the same manner as they possessed themselves of the dominion of the land they inhabit.” Vattel does not state his opinion as to the distance from the coast within which the fisheries may be appropriated, but from the examples he cites it is evident that the space might extend considerably beyond the range of guns. “Who can doubt,” he asks, “that the pearl fisheries of Bahrem and Ceylon may lawfully become property?” And the same principle may be applied to floating fish, which appear less liable to be exhausted. If a people, he says, have on their coast a particular and profitable fishery of which they can become masters, shall they not be permitted to appropriate that bounteous gift of nature as an appendage to the country they possess, and to reserve to themselves the great advantages which their commerce may thence derive, if there is sufficient abundance of fish to furnish neighbouring nations? Thus, Vattel states, the herring fishery on the British coasts might have been appropriated by the English if they had originally taken exclusive possession of it, instead of allowing other nations to take part in it. Another reason for the extension of territorial dominion over the adjoining sea, “as far as a nation is able to protect its right,” is the security and welfare of the state; but the author says it is not easy to fix upon any precise distance. Between nation and nation, “all that can reasonably be said is that, in general, the dominion of the state over the neighbouring sea extends as far as her safety renders it necessary and her power is able to assert it.” At the time he wrote, “the whole extent of the sea which is within cannon-shot of the coast is considered as forming part of the territory; and for that reason a vessel taken under the cannon of a neutral fortress is not a lawful prize.” The principle that applied to the adjacent sea applied with much greater force to roads, bays, and straits, since they were more capable of being possessed, and were of greater importance to the safety of the country. But such areas must be “of small extent,” and not great tracts of sea—as Hudson’s Bay and the Straits of Magellan: a bay “whose entrance can be defended” might clearly be appropriated.
The opinions of Vattel do not, therefore, materially differ from those of Puffendorf in the previous century, though the tendency of the earlier writer to allow a wide dominion is modified. Bynkershoek’s principle of cannon range is adopted in a somewhat cautious manner, and shown to apply especially to captures under the guns of a neutral fortress. But the general argument in regard to fisheries, the security of the state, and the exercise of territorial jurisdiction—as in the King’s Chambers on the English coast, which Vattel cites as an example of the practice—implies that a nation might lawfully extend its sovereignty much beyond the range of guns.
In the writings of other international jurists later in the century, the tendency to narrow the extent of the territorial sea in accordance with Bynkershoek’s teaching becomes more manifest, particularly in those which treat specially of the rights of neutrals. Hübner, who was assessor in the Consistorial Court at Copenhagen, treating of this subject, said with reference to Bynkershoek’s doctrine that it was evident the parts of the adjacent sea belonged to the master of the country, as accessory to the land,—first, “because it is in his power to take possession and to maintain it by means of forts and batteries which he is able to erect on the shore”; and, secondly, because the waters serve as a rampart to the land.1023
Valin, a French writer of authority, introduced another principle in combination with that of the range of guns. In his commentary on the marine ordinance of Louis XIV., first published in 1760, he stated that the rule that the adjacent sea within the reach of guns from the coast is under the dominion of the neighbouring state was universally recognised, the alternative distance which he gave being two leagues—the same as given by Abreu. But he thought that the depth of the water ought also to be taken into account, and that the sea up to the point at which the bottom ceased to be reached by a sounding-line pertained to the adjoining coast—an idea vague and impracticable.1024
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 17771035—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 dominions1058—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
It is evident from the foregoing that, notwithstanding the variation in the extent of water claimed in certain cases, the principle of determining the general boundary of the territorial sea by the range of guns from the coast had become tolerably firmly established in the practice of nations before the end of the eighteenth century, with reference in particular to the rights of neutrals. Shortly before the century closed, moreover, we have seen that one of the important maritime Powers, the United States of America, had adopted a fixed distance of three miles or one marine league as equivalent to the utmost range of the cannon of those days. The range of guns naturally varied according to their size and power, and though it was specified in some of the Continental ordinances that the distance was to be determined by a large gun of battery, there was no certainty that it would be everywhere the same. It was thus clearly an advantage to have a fixed distance, which could be marked on charts, substituted for the less definite cannon range, so long as it really represented it. By the progress of the military art, however, most notably perhaps after about the middle of last century, the range of guns became enormously increased, so that long ago the three-mile limit ceased to represent it.
The new boundary of one marine league, as equivalent to the range of guns, was soon introduced into English law and practice, in the first place through the decisions of the High Court of Admiralty in questions affecting the extent of neutral waters. It is noteworthy that nothing was heard at this period about the principle of the King’s Chambers in such cases. It is very doubtful whether, as the American Government implied in 1806, the boundaries of the King’s Chambers had retained their validity at the beginning of last century. There seems to be no evidence that they were enforced during the eighteenth century, or even in the closing years of the seventeenth, possibly because occasions to test the point had become rare. But it is perhaps more probable that the claim to the King’s Chambers was allowed gradually to die out, and that the deliberate omission of any reference to them in the later proclamations of Charles II. (see p. 554) foreshadowed this change in practice. It is clear at all events that long before the end of the eighteenth century it was well established that a vessel captured by one belligerent from another belligerent in a port of a neutral state or within the actual reach of cannon was not good prize.1068 The next step was to give effect to the same principle, whether the place was actually within the range of a fort or not.
The decisions which introduced the three-mile limit into English jurisprudence were those of Sir William Scott (afterwards Lord Stowell) at the beginning of last century. In 1800 and 1801 this great authority adopted both the gunshot limit and the distance of three miles as its equivalent for the boundary of neutral waters, in deciding the well-known cases of the Twee Gebroeders. It was these decisions of Lord Stowell’s which introduced the three-mile limit into English jurisprudence. The cases arose from the capture of certain vessels in 1799, by the boats of a British man-of-war, in the Groningen-Watt, between East Friesland and the island of Borkum, in the belief that they were bound from Hamburg to Amsterdam, which was then blockaded by the British; and it was claimed by the King of Prussia that the capture was made within the territory of that state. In deciding the first case,1069 Lord Stowell found that the capturing vessel was “lying within the limits to which neutral immunity is usually conceded. She was lying in the eastern branch of the Eems, within what may, I think, be considered as a distance of three miles, at most, from East Friesland. An exact measurement cannot easily be obtained; but in a case of this nature, in which the Court would not willingly act with an unfavourable minuteness towards a neutral state, it will be disposed to calculate the distance very liberally; and more especially, as the spot in question is a sand covered with water only on the flow of the tide, but immediately connected with the land of East Friesland, and when dry, may be considered as making part of it. I am of opinion, that the ship was lying within those limits in which all direct hostile operations are by the law of nations forbidden to be exercised.”1070 In this decision the three-mile limit is assumed to be, “by the law of nations,” the boundary of the neutral waters. It is also to be observed that the distance was reckoned, not from low-water mark, but apparently from the land; while according to the rule apparently governing such cases now, the sand-bank itself would be a part of the territory, and the distance of three miles would be measured from its outer margin at low water (see fig. 19, p. 635).