HISTORICAL EVOLUTION OF THE TERRITORIAL SEA 545 



was forbidden, on pain of death, for any violence to be done by 

 reason of war, or for any other cause, to his subjects or allies, 

 or to foreigners, on the sea within sight of the land. 1 Grotius 

 also referred to the range of vision as a boundary, when he 

 said that the controversy respecting the freedom of the sea 

 was not about bays or straits, or " so much of the sea as might 

 be seen from the shore." 2 We have already seen that in Scot- 

 land the fisheries within sight of the coast, or a " land-kenning," 

 were claimed as belonging exclusively to the Scottish people. 

 In this case the range of vision was from the sea to the land, 

 and it was to be determined from the main-top of the fishing 

 smack. 3 The extent of a land-kenning was stated to be four- 

 teen miles, and this was the distance expressed in the Draft 

 Treaty of Union in 1604, and pressed upon the Dutch by King 

 James in 1618; but sometimes twenty-eight miles, or two land- 

 kennings, was claimed ; and it is to be noted that in the case 

 of bays and firths the distance was measured from a base-line 

 drawn between headland and headland. The range of vision, 

 or land-kenning, as the boundary of the reserved fishing waters, 

 was embodied in Scottish law as well as claimed against other 

 nations by the Privy Council, the Parliament, and the king. 4 



It was also conceded to Denmark, for in 1618 the Privy 

 Council prohibited Scottish fishermen from fishing within 

 sight of land at the Fseroe Isles. The King of Denmark, 

 indeed, assigned the same limit in a decree of 1691 with 

 regard to places where he did not possess the opposite coasts. 5 



1 31st Oct. 1563, tit. i. par. 27, " Ne qua in inari vis fierit vel suis subditis, vel 

 sociis, vel peregrinis, sive belli, sive alterius rei causa intra conspectum a terra vel 

 portu." Bynkershoek, Quwstioncs Juris Publici, lib. i. cap. viii. De Domini 

 Maris, c. ii. 



- Mare Liberum, c. v. See p. 347. 



3 Foreigners were not to fish " nerer the land nor nor yai mycht see the shoir 

 out of yair main toppis." 



4 Stair, The Institutions of the Law of Scotland, bk. ii. tit. i. 5 (1681). "The 

 vast ocean is common to all mankind as to navigation and fishing, which are the 

 only uses therof, because it is not capable of bounds ; but where the sea is 

 enclosed, in bays, creeks, or otherwise is capable of any bounds or meiths, as 

 within the points of such lands, or within the view of such shores, there it may 

 become proper, but with the reservation of passage for commerce, as in the land. 

 So fishing without these bounds is common to all, and within them also, except 

 as to certain kinds of fish, such as herrings, &c." The qualification and the 

 11 etcetera " are peculiar. 



5 See p. 528. 



2 M 



