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turned solely on the question whether, under the law of England as it then stood, English courts had jurisdiction over foreigners in foreign ships on the open sea adjoining the English coasts; it in no way affected the law as to jurisdiction over enclosed waters. The Territorial Waters Jurisdiction Act of 1878, passed in consequence of that decision, deals with offences on the open seas only; and Lord Cairns, the Lord Chancellor, in introducing the Bill in the House of Lords, observed that the jurisdiction to which he desired to call attention was not the jurisdiction in relation to rivers, bays, or harbours (because in respect of them no controversy had arisen), but the jurisdiction over the territorial waters in that belt or zone of the high seas which surrounds the shores of the Empire."
BAYS IN QUESTION.
Turning to the particular shores now in question, it will be found that Great Britain has always claimed and exercised exclusive jurisdiction over the bays on them. The statute 59 Geo. III, cap. 38, passed in 1819 to give effect to the treaty, makes it an offence for foreigners in foreign vessels to fish within 3 marine miles of the bays, creeks, or harbours of the non-treaty shores, and has been enforced in respect of all bays since that time irrespective of their width. The Privy Council in the case to which reference has been made observed on that statute as follows:
But the Act already referred to, 59 Geo. III, cap. 38, though passed chiefly for the purpose of giving effect to the convention of 1818, goes further. It enacts not merely that subjects of the United States shall observe the restrictions agreed on by the convention, but that all persons not being natural born subjects of the King of Great Britain shall observe them under penalties. And, in particular, by section 4 it enacts that if any person' upon being required by the governor or any officer acting under such governor, in the execution of any order or instructions from His Majesty in Council, shall inter alia refuse to depart from such bays, he shall be subject to a penalty of 2007.
No stronger assertion of exclusive dominion over these bays could well be framed. As has been already observed, Conception Bay is in every sense of the words a bay within Newfoundland, though of considerable width, and as there is nothing to justify a construction of the Act limiting it to bays not exceeding any particular width, this is an unequivocal assertion of the British Legislature of exclusive dominion over this bay as part of the British territory. And as this assertion of dominion has not been questioned by any nation from
@ 41 and 42 Vict., c. 73.
Cited Halleck (Ed. Baker, 1908), vol. i, p. 191,
1819 down to 1872, when a fresh convention was made, this would be very strong in the tribunals of any nation to show that this bay is by prescription part of the exclusive territory of Great Britain.
BAY OF CHALEURS.
The Bay of Chaleurs has a headland width of 16 miles. It has been treated as British territory by the Legislatures both of Great Britain and Canada. By the Imperial Statute of 1851, 14 and 15 Vict., c. 63 (App., p. 572), the boundary between the province of Canada and New Brunswick was settled as running down the centre of the Bay of Chaleurs, thus treating the whole bay as territorial waters. Canadian statutes have been passed assuming jurisdiction over the whole bay." (App., pp. 600, 607.)
The Supreme Court of Canada has held that the bay is all within British territory.
Miramichi Bay is situate in New Brunswick, and has a headland width of 144 miles. By a New Brunswick statute of 1799 (App., p. 597), this bay was treated as being within the adjoining county of Northumberland, and subsequent amending acts have confirmed this claim. (App., pp. 603, 607, 609, 612.)
In no single instance has the jurisdiction of Great Britain over these bays been challenged by any other Power than the United States, and the objection of the United States has been limited to the sole question of the extent of the fishing liberties given by the treaty of 1818.
Claims to maritime jurisdiction much more extensive have been made by other nations. They are referred to in Hall on International Law, and in the works of other writers. It is enough to say here, in order to show the extent of the claims that were made at the beginning of the 19th century that the rights of Sweden in the Gulf of Bothnia, of the Turks to the Archipelago, of Holland to the Zuyder Zee, and of Denmark both to the Belts and Sound, were at that time uncontested.
In fixing the limit within which the exclusive right of fishing is reserved to riparian States, it has become not uncommon to enter into
(Imp.) 14 and 15 Vict., c. 63; (Can.) 4 and 5 Vict., c. 36.
47 Geo. III, c. 12, s. 15; 4 Geo. IV, c. 1, s. 25.
Mowat v. McFee (1880), 5 Sup. Ct. R. 66.
439 Geo. III, c. 5.
50 Geo. III, c. 5; 4 Geo. IV, c. 23; 9 and 10 Geo. IV, c. 3; 4 Wm. IV, c. 31. f5th Ed., p. 150.
a special agreement providing for measurement from a line drawn. across the mouth of all bays which do not exceed 10 miles in width.
FRANCE AND GREAT BRITAIN, 1839.
This was the rule adopted in the convention of the 2nd August, 1839, by the United Kingdom and France; and it was confirmed by the subsequent convention of 1867. (App., p. 32, 38.)
GREAT BRITAIN AND GERMANY, 1874.
In December 1874 an agreement was entered into between the United Kingdom and Germany under which
those bays and incurvations of the coast which are 10 sea miles or less in breadth, reckoned from the extremest points of the land, and the flats must be considered as under the territorial sovereignty of the German Empire.
In 1880, the German Government notified German fishermen that the Danish Government considered the Danish waters to include bays the entrances to which did not exceed 10 miles. (App., p. 795.)
NORTH SEA CONVENTION, 1882.
By the North Sea Fishery Convention of the 6th May, 1882, to which the United Kingdom, Germany, Belgium, Denmark, France, and the Netherlands were parties, it was provided that the fishermen of each country should enjoy the exclusive right of fishing within the distance of 3 miles from low-water mark along the whole extent of the coasts of their respective countries, and that, as regards bays, the distance of 3 miles should be measured from a straight line drawn across the bay in the part nearest the entrance at the first point where the width did not exceed 10 miles. (App., p. 41.)
In March 1888, France adopted the same rule in fixing the limits of the waters within which the vessels of other States could not fish.
EFFECT OF THESE CONVENTIONS.
These conventions fix by agreement a particular limit of 10 miles on the coasts to which they refer, but it is important to observe that such special conventions are inconsistent with the contention that any limitation as to the width of bays such as is now contended for, forms part of general international law.
His Majesty's Government submits that these facts establish beyond doubt that States do exercise exclusive jurisdiction over bodies
of water more than 6 marine miles in width, and that the usage of nations is entirely inconsistent with the existence of any general limitation of that kind or, indeed, of any precise limitation at all.
OPINIONS OF JURISTS.
Dealing next with the writings of jurists, it will be seen that the weight of authority negatives the existence of the limit contended. for by the United States, or of any other precise limit.
Turning first to American writers we find that Chancellor Kent, writing in 1832, not long after the treaty had been concluded, states the law as follows":—
It is difficult to draw any precise or determinate conclusion, amidst the variety of opinions, as to the distance to which a State may lawfully extend its exclusive dominion over the sea adjoining its territories and beyond those portions of the sea which are embraced by harbours, gulfs, bays, and estuaries, and over which its jurisdiction unquestionably extends. All that can reasonably be asserted is, that
the dominion of the Sovereign of the shore over the contiguous 116 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, 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; and the Congress of the United States have recognised this limitation, by authorising the district courts to take cognisance of all captures made within a marine league of the American shores. The executive authority (of this country) in 1793 considered the whole of Delaware Bay to be within our territorial jurisdiction; and it rested its claim upon those authorities which admit that gulfs, channels, and arms of the sea belong to the people with whose lands they are encompassed. It was intimated that the law of nations would justify the United States in attaching to their coasts an extent into the sea beyond the reach of cannon-shot.
Considering the great extent of the line of the American coasts, we have a right to claim, for fiscal and defensive regulations, a liberal extension of maritime jurisdiction; and it would not be unreasonable, as I apprehend, to assume for domestic purposes connected with our safety and welfare the control of the waters on our coasts, though included within lines stretching from quite distant headlands, as, for instance, 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. It is certain that our Government would be disposed to view with some uneasiness and sensibility in the case of war between other maritime Powers the use of the waters of our coast, far beyond the reach of cannon
Kent's Commentaries, 9th ed., vol. i, pp. 31-33.
shot, as cruising ground for belligerent purposes. In 1793 our Government thought they were entitled in reason to as broad a margin of protected navigation as any nation whatever, though at that time they did not positively insist beyond the distance of a marine league from the sea-shores; and, in 1806, our Government thought it would not be unreasonable, considering the extent of the United States, the shoalness of their coast, and the natural indication furnished by the well-defined path of the Gulf Stream, to expect an immunity from belligerent warfare for the space between that limit and the American shore. It ought at least to be insisted that the extent of the neutral immunity should correspond with the claims maintained by Great Britain around her own territory, and that no belligerent right should be exercised within "the chambers formed by headlands, or anywhere at sea within the distance of four leagues, or from a right line from one headland to another."
Wheaton, in 1836, treats the matter in the same way:
The maritime territory of every State extends to the ports, harbours, bays, mouths of rivers, and adjacent parts of the sea enclosed by headlands belonging to the same State. The general usage of nations superadds to this extent of territorial jurisdiction a distance of a marine league, or as far as a cannon-shot will reach from the shore, along all the coasts of the State. Within these limits its rights of property and territorial jurisdiction are absolute, and exclude those of every other nation.
Halleck uses almost identical language in affirming a State's right of property to inlets enclosed between headlands.
A recent American writer, Hannis Taylor, sums up the position as follows:
In the absence of any generally acknowledged standard as to their size and conformation, it is difficult to determine in any given case whether or no a bay, gulf, or recess in a coast-line can be justly regarded as territorial water. . . . Germany and France are inclined to limit their claims to such bays, gulfs, and recesses as are not more than 10 miles wide at their entrance, measured in a straight line from headland to headland. The latter claims, however, the whole of the oyster beds in the Bay of Cancale, the entrance to which is 17 miles wide, the cultivation of such beds by local French fishermen making the case exceptional. At an earlier day the United States was inclined to claim dominion over a wide extent of the adjacent ocean. "Considering." says Chancellor Kent, "the great extent of the line of the American coasts, we have a right to claim for fiscal and defensive regulations a liberal extension of maritime jurisdiction; and it would not be unreasonable, as I apprehend, to assume for domestic purposes connected with our safety and welfare the control of waters on our coasts, though included within lines stretching from quite distant headlands-as, for instance, from Cape Ann to Cape Cod, and from Nantucket to Montauk Point, and from that point to the
• Elements of Int. Law (4th ed.), 1904. sec. 177, pp. 275–6.
Ed. Baker, 1908, vol. i., p. 167.
International Public Law, s. 229, p. 278.