Other Acts of Parliament which fix limits of jurisdiction beyond three miles from the shore include those relating to smuggling, the public health, and slave-ships. In 1736, and later, statutes were made by Parliament, known as the Hovering Acts, by which vessels with certain cargoes on board, destined for British ports, might be seized within four leagues of the British coast; and foreign vessels so taken have been brought for adjudication before British courts and forfeited for illicit trade.[1094] By later Acts concerning the customs, differential limits were fixed with respect to jurisdiction over vessels having dutiable goods on board. Those belonging wholly or in part to British subjects, or having half the persons on board British subjects, found or discovered to have been within four leagues of the coast between the North Foreland and Beachy Head, or within eight leagues of any other part of the coast; or any foreign ship with one or more British subjects on board, found or discovered to have been within three leagues of the coast, or any foreign ship irrespective of British subjects within one league, might under certain specified conditions be forfeited; and power was conferred on the commander of a ship of the royal navy to fire on such vessel if it refused to bring to after a warning gun had been given.[1095]
Other nations have also assigned boundaries for customs jurisdiction, which in nearly all cases exceed the ordinary limits of territorial waters. The United States in 1799 extended its jurisdiction for such purposes to four leagues from the coast, and in 1807, in an Act against the importation of slaves, the seizure of vessels laden with certain cargoes within that distance was also authorised.[1096] In Spain the customs limit is six miles, and therefore corresponds to the territorial zone which is claimed;[1097] in Sweden it is also six miles, but measured on the Scandinavian system from the outermost rocks; in Norway it is four miles, measured on the same principle, but a treaty between Norway and Mexico, concluded in 1886, places it as between these countries at three leagues from low-water mark.[1098] In Italy the boundary is ten kilometres; in France two myriametres, or about four leagues; in Austria it is also four leagues; while in Canada it is three leagues.[1099] Wide limits for jurisdiction have also been fixed by certain quarantine Acts. By the British Act of 1753, all vessels coming from places whence the plague might be brought were required to make signals on meeting other ships within four leagues of the coast, a distance which was reduced to two leagues by a later Act.[1100]
Such extension of jurisdiction as is indicated for customs or quarantine purposes over foreign ships approaching the ports of a country, has only been sanctioned in a few cases by international treaties. It is now generally held to rest upon another basis than the absolute rights possessed by a state in its territorial waters proper; although it is quite in agreement with the principles laid down by the older publicists, as Puffendorf, Vattel, and Von Martens, and by several recent writers, as Latour,[1101] that a nation is justified in exercising jurisdiction in the sea as far as its security or interests render it necessary. The current opinion is that such rights can only be enforced against foreigners under the comity of nations or by their tacit assent, as a matter of mutual convenience, and in practice they are acquiesced in by other Powers.[1102] But it is important to observe that, as will be more apparent when we come to deal with the exclusive right of fishing, maritime nations find it necessary for the protection of their just interests to extend their jurisdiction beyond the somewhat narrow boundary at present ordinarily assigned.
The statement made above, that the true principle for determining the extent of the territorial sea on an open coast is the range of guns from the shore, is borne out by an examination of the writings of the accredited authorities on the law of nations. A review of the opinions of the leading publicists of the earlier part of last century shows that while the majority accepted Bynkershoek’s principle of cannon range, comparatively few restricted it to the distance of three miles, and many logically insisted that the extent must necessarily vary with the improvements in artillery. Works of a purely polemical nature may be passed over, such as those of the worthless Barrère[1103] and of Champagne.[1104] They were inspired by hatred of Great Britain and the desire of flattering Napoleon rather than by love of the truth, and were written in order to show that the British were the tyrants of the sea. Another contemporary French author, of much superior merit, who dealt with the question was Rayneval, although his views were also somewhat coloured by national prejudice. In 1803 he published a treatise on international law,[1105] and in 1811 another on the liberty of the sea.[1106] The latter for the most part consists, like the work of Champagne, of an examination of the writings of Grotius and Selden regarding the mare liberum and the mare clausum, and also of the trenchant little book of Jenkinson (Lord Liverpool) on the conduct of the British Government in relation to neutrals. But in the earlier treatise, which is still cited as an authority, Rayneval expounded the law of nations respecting the territorial sea with marked impartiality. On the general question of the freedom of the sea and the appropriation of straits and bays the usual opinions were expressed. He held that the sea bathing the coasts of a country makes part of it; that the security and tranquillity of the state require that it should be held as a rampart against hostile surprise or violence and illicit trading; and that the fisheries form a natural appendage to this zone. With regard to the extent of sea that may be appropriated, Rayneval stated that it had not been determined by any uniform rule. Some, he said, carried it to a hundred miles, or to sixty miles, from the coast, others only to three miles, and others placed it at the distance of gunshot from the shore. On the southern coast of France it had been fixed by agreement at ten leagues with respect to the Barbary privateers. Like Meadows and several preceding writers, he held it to be desirable in the interests of the peace of nations that a general rule, or at least particular rules clearly determined, should be adopted on a matter so important and exposed to such uncertainties and disputes. Authors, he said, had usually fixed the distance at the range of cannon, but their opinion was not founded on a general regulation nor on uniform practice; and the most equitable limit according to some was the range of vision from the coast or the apparent horizon. Rayneval was of opinion that within the territorial seas the neighbouring state had the right to forbid navigation, except in cases of stress and necessity—a claim generally discarded, though still made by Norway. Any liberty to foreigners to fish along the coasts or in the bays of a country, he thought, was a matter of tolerance, founded principally on the supposed abundance of fish; and he held the opinion, which is at variance with that of most other writers,—unless when confined to the territorial zone,—that a state does not lose the right to forbid foreigners from fishing in the waters along its coasts because it at one time allowed them to do so.
Much more definite and restricted was the opinion of a contemporary English lawyer, Chitty, who published a work on the law of nations in 1812.[1107] Quoting Vattel, that the whole extent of the sea within cannon-shot of the coast is considered as making part of the territory, and that a vessel taken under the guns of a neutral fortress is not lawful prize, he says that the same doctrine is enforced by Von Martens; and he refers to the decisions in the English Court of Admiralty in the cases of the Twee Gebroeders and the Anna, which established the principle in English law. Chitty, however, makes no allusion to the three-mile limit as an alternative to the range of guns.
Bynkershoek’s principle, and also a fixed distance in place of it, were likewise accepted by Schmalz, Professor of Law in the University of Berlin. Writing in 1817,[1108] he declared that the adjacent sea pertained to the neighbouring land as far as it could be defended by cannon from the shore; that this principle had been systematically adopted; and that the distance had been fixed arbitrarily at three marine leagues,[1109]—an erroneous statement, no doubt derived from G. F. von Martens, which has been previously referred to,[1110] and was copied from one book into another. Two years later another and a greater German authority, Klüber, also adopted the principle of the range of guns, without, however, proposing an equivalent distance in miles.[1111] He allowed to the state the waters susceptible of exclusive possession, over which it had acquired, by occupation or convention, and maintained, its sovereignty. Among the parts so comprised are (1) the sea adjoining the continental territory of a state—at all events, “according to the generally received opinion,” to the extent to which it can be reached by cannon-shot from the shore; (2) parts extending into the land, as bays and gulfs, which can be commanded by guns on shore; (3) straits which are equally commanded by guns; (4) gulfs, straits, and seas adjoining the continental territory of a state, which, though not entirely under the range of guns on shore, are recognised by other Powers as closed seas—that is, under one dominion, and inaccessible to foreign vessels without permission.
Wheaton, an eminent American jurist, whose first work was published about this time, likewise accepted the principle of cannon range, or, as an alternative, a distance of three miles from the shore.[1112] The territorial jurisdiction of a neutral Power, he says, “extends to the ports, harbours, bays, and chambers formed by headlands of the neutral Power. The usual addition allowed to this is a distance of three English miles, or a marine league, or as far as a cannon-shot will carry from the coasts or shore.” His statement is based on the decisions in the English Admiralty Court, and on the writings of Vattel, Bynkershoek, Von Martens, and Azuni. In his great treatise on the law of nations, first published in 1836,[1113] the same views are expressed, it being stated that the general usage of nations superadds “to bays, ports, &c., a distance of a marine league, or as far as a cannon shot will reach, along all the coasts of the state”; and, incorporating into his text Lord Stowell’s observation, he says, “The rule of law on this subject is terræ dominium finitur, ubi finitur armorum vis, and since the introduction of fire-arms, that distance has usually been recognised to be about three miles from the shore.” Wheaton also states that the exclusive territorial jurisdiction of the British crown over the enclosed parts of the sea along the coasts of Great Britain has immemorially extended to those bays called the “King’s Chambers,”[1114] and that a similar jurisdiction is also asserted by the United States over Delaware Bay, and other bays and estuaries forming portions of their territory, and that a state had the exclusive right of fishing within its territorial waters.
Chancellor Kent, who was another high American authority, expressed somewhat different opinions from those of Wheaton, in a treatise published in 1826, and seemed inclined to extend territorial jurisdiction much farther into the sea than the latter writer.[1115] The extent of such jurisdiction over the neighbouring sea is, he says, often a question of difficulty and of dubious right, but as far as a nation can conveniently occupy, and that occupancy is acquired by prior possession or treaty, the jurisdiction is exclusive. It is difficult, he states elsewhere, to draw any precise conclusion, amidst the variety of opinion, as to the distance to which a state may lawfully extend its exclusive dominion over the sea adjoining its territories, and beyond harbours, gulfs, bays, and estuaries, where its jurisdiction unquestionably extends. “All that can reasonably be asserted is, that the dominion of the sovereign of the shore over the contiguous sea extends as far as is requisite for his safety, and for some lawful end. A more extended dominion must rest entirely upon force and maritime supremacy. According to the current of modern authority,” he continues, “the general territorial jurisdiction extends into the sea as far as cannon-shot will reach, and no farther; and this is generally calculated to be a marine league.” These opinions do not differ materially from those of Puffendorf and Vattel, and the tendency of this writer to allow an extended maritime jurisdiction is shown by his statement regarding bays. He holds that the American Government have the right to claim for fiscal and defensive regulations an extensive jurisdiction, and that it would not be unreasonable to assume, “for domestic purposes connected with our safety and welfare,” the control of the waters within lines stretching from quite distant headlands, as from Cape Ann to Cape Cod, and from Nantucket to Montauk Point, and from that point to the capes of the Delaware, and from the south cape of Florida to the Mississippi; that is to say, within areas in comparison with which the “King’s Chambers” are insignificant, since a straight line from the south cape of Florida to the Mississippi measures about 500 miles, and encloses a tract of sea as much as 180 miles in breath. Kent adds that the Government of the United States would certainly view with uneasiness, in the case of war between other maritime Powers, the use of the waters of the American coast, far beyond the reach of cannon-shot, as cruising ground for belligerent purposes.
Manning, an English publicist, writing a little later,[1116] adopts the usual opinion, stating that the distance to which the special right of jurisdiction or the qualified dominion of a state extends on the adjacent sea has been variously measured, the most prevalent distances being those of a cannon-shot or of a marine league from the shore. Heffter, a publicist of high authority, asserting as incontestable the right of all maritime nations, both for defence and for the protection of their commercial and revenue interests, to establish an active surveillance on the neighbouring sea, declares that for these purposes a state has the power of fixing, according to the particular conditions of its coasts and waters, the distance to which its rights shall extend. A common usage, he says, has established the limit at the range of guns, a principle sanctioned by the laws and regulations of many nations. But he maintains with Vattel that the dominion of the state in the adjacent sea extends as far as it is necessary for its security, and it can enforce it,—qualifying this declaration, however, by adopting Rayneval’s suggestion that the horizon should be the extreme boundary of the territorial sea. In his opinion the range of guns, although the principle commonly adopted, affords no invariable basis, and the distance may be fixed, at all events provisionally, by the laws of each state: formerly, he adds, it included two leagues, and now usually three marine miles.[1117]
A much more restricted view of the extent of the territorial sea was taken by Reddie, an English writer whose work appeared in the same year.[1118] He adopted Bynkershoek’s doctrine of the range of guns, but makes no mention of the three-mile limit or any other alternative distance. A certain breadth of the adjacent open sea is, he says, necessary for defence and security, and it is that portion within reach of cannon-shot, capable of being protected and commanded by artillery from the land, and thus susceptible of exclusive and permanent dominion, if not of appropriation. Beyond the range of artillery the sea is common; within that range each nation has the right of sovereignty, legislative, judicial, and executive, and the exclusive fishery. This part of the sea cannot be used by nations generally, without diminishing the use or enjoyment of others, and its produce is by no means inexhaustible.