Thomas Wemyss Fulton

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

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

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

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

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

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

The Committee had considerable difficulty in arriving at their conclusion respecting the limit which should be fixed for exclusive fishing on the English coast. They were influenced partly by what they understood to be the usage, that the sea for one marine league from the shore was considered to be the territory of the adjoining country, partly by the practice of the Customs’ authorities in connection with the prevention of smuggling, and partly by considerations affecting the preservation of the fry and brood of fish. Under the Customs’ regulations, vessels and boats of certain descriptions, including fishing-boats, required a license, and the Commissioners of Customs had discretionary power1131 to prescribe within what distance of the English coast they might be employed. In some cases fishing-boats were restricted to a distance of four leagues, in other instances they were allowed to fish to within one league of a foreign coast, one league of sea being regarded by the Customs’ authorities as belonging to the territory of the adjacent country. With regard to the right of fishing, however, it was generally understood among the English fishermen that the limit on the French coast reserved for French fishermen was three leagues; and they desired that the same limit should be applied on the English coast. The Committee laid great stress on the fixing of a limit of exclusive fishing in order to preserve the spawn and brood of fish. It was universally believed, and stated by all the witnesses, including Mr James Cornish, an ichthyologist of repute, that the fish spawned in the shallow water near the shore,—an erroneous opinion that has prevailed almost to the present day, but which was shown to be incorrect by the observations made by the Fishery Board for Scotland1132 and others.

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

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

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

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

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

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

Fig. 16.—Showing the Limits reserved for French Fishermen in Granville Bay.

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

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

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

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

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

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

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

At this time it was found to be desirable to conclude another fishery convention with France. Nearly all the elaborate regulations under the convention of 1839 had turned out to be unworkable or were disregarded, and much difference of opinion existed as to what actually were “the seas lying between the British Islands and France” to which they applied.1145 In this second convention, in 1867, the exclusive fishery limits of the two countries were defined as in the convention of 1839, and the boundaries of the large area in the Bay of Granville or Cancale, reserved for French fishermen, were precisely the same as before.1146 The international “extra-territorial” regulations under this convention were much less detailed than in the previous one. Fishing beyond the reserved limits was to be entirely free, with the exception that a close-time for oysters was established for the English Channel. The police regulations were to apply to “the seas surrounding and adjoining Great Britain and Ireland,” and adjoining the Atlantic coast of France, between the frontiers of Belgium and Spain. The conditions under which the fishing-boats of one nation might enter the exclusive fishery limits of the other, such as by stress of weather, were carefully specified; and each boat while there was to hoist a blue flag, and was again to leave as soon as the exceptional circumstances had ceased. The convention was to continue in force for ten years, and afterwards from year to year, terminable on twelve months’ notice. But, although confirmed by an Act of the British Parliament, in 1868,1147 it was not ratified by France, and its provisions never came into practical operation, except with regard to the close-time for oysters, owing to certain objections raised by the French Government.1148 Certain of its provisions, including, amongst others, the article in the convention defining the exclusive fishery limits, were repealed by the Sea Fisheries Act, 1883.1149

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

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

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

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

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

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

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

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

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

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

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

It is to be noted that the arrangement in the treaty, both as to drawing lines on charts to separate the common from the exclusive fishing waters and for the adoption of a ten-mile base-line for bays, was proposed, not by the British Government, but by that of the United States. The British Government, indeed, strongly objected to a ten-mile line as involving “a surrender of fishing rights” and making “common fishing-grounds of the territorial waters which, by the law of nations, have been invariably regarded, both in Great Britain and the United States, as belonging to the adjacent country,” and they cited the Bay of Chaleurs as an example. They argued that in the convention with France in 1839, and in other similar conventions, the boundary-lines selected were due to special configuration of the coast, and could not be well settled “by reference to the law of nations”; and attention was called to the claims of the United States to Delaware Bay and other bays on their coasts. In reply to these observations of the British Government, the United States said they had proposed the width of ten miles not only because it had been adopted in fishery conventions, but also because it was deemed reasonable and just in the case in question; “while they might have claimed a width of six miles as a basis of settlement, fishing within bays and harbours only slightly wider would be confined to areas so narrow as to render it practically valueless, and almost certainly expose the fishermen to constant danger of carrying their operations into forbidden waters; a width of more than ten miles1162 would give room for safe fishing more than three miles from either shore, and thus prevent the constant disputes which this Government’s proposal, following the conventions above noticed, was designed to avert.”1163

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

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

It has been already said that the fishery convention with France in 1867 was not ratified by that country, and never came into operation in the general police regulation of the fisheries in extra-territorial waters. The desirability of international regulations to preserve the peace between the fishermen of various countries frequenting the neighbouring seas, and particularly the North Sea, soon became apparent. Complaints of malicious interference with one another increased in number. The Belgians and French were accused of cutting and stealing the lines of Scottish fishermen, and the Dutch of taking their derelict nets, and the Fishery Board for Scotland accordingly pressed upon the Government, as early as 1876, the advantage of negotiating a fishery convention with Holland.1165 A little later the free use by foreign trawlers of a destructive implement known as “the devil,” or “the Belgian devil,” aroused a strong feeling among British drift-net fishermen. The instrument consisted of a shank and sharpened flukes, which was hung overboard and was designed for the sole purpose of cutting fishing-nets in the sea which might impede the movement of the boat making use of it. It was a product of the disputes and difficulties that occurred in carrying on trawling and drift-net fishing in the same localities at the same time. The British Government in January 1880 appointed Mr W. H. Higgin, Q.C., to make an inquiry on the subject. His report1166 showed that the state of things with regard to fishing operations in the North Sea by British, Belgian, French, and Dutch boats was unsatisfactory. He found that grievous injury and damage had been done to the drift-nets and tackle of English fishermen in the North Sea by trawlers belonging to France, Belgium, and Holland;1167 that there was no international law or convention between England and France, England and Belgium, or England and Holland, affecting the fisheries in the North Sea,—the convention with France in 1867 never having been ratified, while that of 1839 was, he said, confined to the English Channel and referred only to French fishermen; and he stated that some international law of the kind was urgently required, as it would be impossible otherwise to put a stop to the outrages described. In consequence of this report the Government invited the co-operation of France, Belgium, Holland, Sweden and Norway, and Denmark in devising a remedy, suggesting that separate agreements might be made for the purpose. At the instance of Holland, it was agreed to have one joint convention, and a conference of the North Sea Powers was convened at The Hague, in 1881, to negotiate it, Germany, at her own request, being included.1168

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Fig. 20.—Showing the Limits for the Anglo-Danish Fishery Convention of 1901.