THE FISHERY CONVENTIONS 641 



On one or two points, however, the definitions in the con- 

 vention 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 re- 

 gard to three places on our coast viz., the Eddystone, the 

 Bell Rock, and the Seven Stones Rocks, off the Scilly Islands. 



raised a century ago in connection with neutral rights in a case in which a British 

 privateer captured a French corvette, the Africaine, on the coast of the United 

 States, six miles from shore. It was argued that the capture was unlawful, because 

 the place was within the neutral waters of the United States, the extent of which 

 had been defined by Congress in 1794 as one marine league from the coast (see 

 p. 574). It was contended that "coasts" included all the shoals or banks which, 

 in Florida, extended to a distance of twenty miles from the land, and were there- 

 fore within territorial jurisdiction, and that the distance of protection should be 

 reckoned from the outermost shoal. The American judge overruled the argument, 

 because, although in a maritime sense this interpretation of "coasts" might be 

 correct, it was too vague for juridical purposes, since the shoals vary, and there 

 would be no fixed rule by which the boundary could be ascertained ; and that the 

 district courts would have to apply different rules at different plaoes, instead of the 

 one marine league everywhere. A somewhat similar question was argued in 1805 

 in the English Admiralty Court in the case of an American ship, the Anna, 

 captured by a British privateer off the mouth of the Mississippi, at a point 

 claimed to be within the neutral waters of the United States viz., 1 mile 

 from an island, and "within view" of a fort, which was, however, five miles dis- 

 tant. A question raised was whether certain small mud-islands, formed of earth 

 and drifted logs, and covered with reeds, where people occasionally went to shoot 

 wild-fowl, was United States territory from which the marine league could be 

 measured. It was argued that the islands had not sufficient consistency to support 

 the purposes of life, and were sometimes scarcely distinguishable, and that since 

 the distance of neutral protection "is reckoned according to the efficacy of pro- 

 tection, that is, within the range of firearms," the land from which the extension 

 is measured should be a place from which this protection could be in reality afforded. 

 Lord Stowell, in deciding that they were United States territory, stated that the 

 right of dominion did not depend upon the texture of the soil ; and he quoted 

 Bynkershoek's formula as the rule of law, saying that the distance " has usually 

 been recognised to be about three miles from the shore." It may be said here that 

 in the earlier writings and decisions about the limit of territorial waters, low-water 

 mark is not specified, and in the case of the Twee Gebroeders (see p. 577) it is clear 

 that sand-banks uncovered at low-water were not regarded as entitled to an in- 

 dependent zone, the distance being measured from terra firma. 



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