any general rule, inasmuch as it appeared that the British Government had, in point of fact, long exercised dominion over this bay, and that the British claim had been acquiesced in by other nations, so as to show that the bay had for a long time been exclusively occupied by Great Britain. After referring to illustrations of this exercise of dominion and acquiescence, it was held that, in the view of a British tribunal, this was conclusive to show that the bay had become by prescription part of the exclusive territory of Great Britain.

It will be seen that the question whether the whole of Conception Bay was within the territory and jurisdiction of Newfoundland was considered both in the light of English law and of international law. The Privy Council, indeed, refused to make any pronouncement on the general question as to when a gulf or bay is to be considered a part of the territory of the adjacent State; but it did decide that, both under the English law and by international law, the fact of a State having for a long period exercised dominion over such a body of water, and the fact of this claim having been acquiesced in by other nations, would serve to make it part of the national territory. The claim to exercise criminal jurisdiction within waters that lie intra fauces terræ, and the allowance of this in Reg. v. Cunningham, have already been referred to (c). The British official practice appears also to be to claim and exercise an administrative jurisdiction over "the waters of all bays the entrance to which is not more than six miles in width, and of which the entire land boundary lies within British territory"; and this even in relation to the subjects of foreign States. As a result of the conviction of the captain of the Norwegian fishing vessel for fishing in the prohibited area of the Moray Firth, it was provided by the Trawling in Prohibited Areas Protection Act, 1909 (9 Edw. 7, c. 8), that no prosecution should be brought for the exercise of prohibited fishing methods outside the three miles limit. See Mortensen v. Peters (1906) (14 S. L. T. 227; 8 F. 93; 43 S. L. R. 872).

GENERAL NOTES.-Sovereignty and Jurisdiction over Gulfs and Bays.-Gulfs and bays running into the territory of a single State are also commonly regarded as "territorial waters," and hence as subject to the sovereignty and jurisdiction of the territorial Power. It is universally admitted that this is so, if the width of a gulf or bay at its point of actual junction with the open sea does not exceed six miles. Many writers, however, extend this to ten miles; and the practice of some States, such as France and Germany, accords with this view. Other States claim as their "territorial waters bays and gulfs whose entrance largely exceeds this limit. Thus, as we have seen, Conception Bay, with an entrance twenty miles wide, was held to be a part of

(c) Supra, p. 142.

L

British territory, and Hudson Bay, with an entrance of fifty miles, is also claimed as territorial water by Great Britain. So, too, the United States include in their "territorial waters Chesapeake Bay, the entrance to which is twelve miles from headland to headland; Delaware Bay, which is eighteen miles wide; and Cape Cod Bay, which is thirty-two miles wide; as well as other inlets of a similar kind (d). France, for special reasons, claims the Bay of Cancale, the entrance to which is seventeen miles in width (e). Norway claims the Varanger Fiord, with an entrance of thirty-two miles, as territorial waters. Such claims would probably be admitted by other States, subject to the body of water in question exhibiting a well-marked configuration as a gulf or bay; and perhaps subject also to such claims being confirmed by prescription and acquiescence. But it would not extend to a long curvature of the coast with an open face; or to claims such as those formerly made by the Crown in England as regards the "King's Chambers" (f); or to a claim such as that put forward by the United States in the Behring Sea controversy (g). So far as such bodies of water are rightly regarded as territorial, they will be subject alike to the sovereignty and jurisdiction of the territorial Power, to the same extent and for the same purposes as those already indicated in the case of the littoral or marginal sea. But the waters of gulfs or bays do not appear to be subject to a right of innocent passage on the part of foreign vessels; although they may be used by such vessels for the purposes of access to the State itself or for the purposes of refuge (h).

Inland Seas not directly communicating with the Ocean.-When an inland sea or a lake for the name matters little possesses no navigable outlet, other than a river outlet, to the ocean, it will be deemed to form a part of the territory of the State within which it lies, and to be subject to its exclusive sovereignty and jurisdiction. Or, if the sea or lake is bounded by the territory of more than one State, then the line of demarcation will be drawn through the middle; although the whole water, if navigable, will be subject to a common right of navigation on the part of all riparian States (i). But in such cases the respective rights of the riparian States are frequently regulated by convention. Thus, the navigation of the Caspian Sea, which lies within the borders of Russia and Persia, was regulated by treaty under which the merchantmen of each were admitted to cabotage on their respective coasts (k). Again, in the case of Lakes Ontario, Huron, and Erie, which are really inland seas, lying within the borders of Canada and the United States, the maintenance by the riparian Powers of armed vessels within these waters is, by a convention of 1817 (1), restricted to certain small vessels, limited as to size and armament,

(d) See The Alleganean (Scott, 143) and other cases there cited, especially at p. 153 n; and the case of The Grange (1 Op. Att.-Gen. 32).

(e) Hall, 157 n.

(These were portions of the sea comprised within lines drawn between promontories along the coast; see Taylor, 278.

(g) Supra, p. 129.

(h) See Hall, 198 n; and, on the question of prescription, Piggott, Nationality, i. 16 and 18; Oppenheim, i. 346.

(i) For a judicial recognition of these principles, see U.S. v. Rodgers (150 U. S. 249; Scott, p. 132).

(k) See Phill. i. 54; and Oppenheim, i. 324 and 748.

(1) Ratified in 1818.

which are required for police purposes (m). Such bodies of water, although they do not constitute a part of the high seas, in the sense of the open waters of the ocean, are yet considered part of the high seas, in the sense of being unenclosed waters which constitute a free highway for the people residing on their borders; and they have for this reason been held to be subject to the Admiralty jurisdiction (n).

Inland Seas directly communicating with the Ocean.-When a body of inland water, whatever its extent, and whether called a sea or bay or by any other name, communicates directly with the ocean, then the question of whether it falls within the category of "territorial waters would seem to depend primarily on whether it is by its local configuration appurtenant to the land; and possibly also on whether it is bounded by the territory of more than one State. The former is probably the dominant consideration. With respect to the latter one can only say that the territorial claim would be greatly strengthened if the body of water in question were wholly enclosed within the borders of one State. As in the case of gulfs and bays, considerable weight would also probably attach to the question of long user and acquiescence (o).

The Baltic Sea.-But such a claim can never rightly be applied to the case of a sea which is for all practical purposes a continuation of the open sea, even though it may happen to be accessible through a comparatively narrow strait. For this reason the Baltic Sea, notwithstanding some occasional pretensions to that effect on the part of the Northern Powers (p), cannot rightly be considered as a closed or inland sea. And this appears to have been implicitly admitted as between the Powers that were parties to the Treaty of Copenhagen, 1857, and other treaties consequent thereon (q).

The Black Sea.-The Black Sea was formerly wholly enclosed by the territory of Turkey, and was for this reason regarded as subject to the dominion of the Ottoman Empire. Notwithstanding the subsequent acquisition of large portions of its coast by other States, such as Russia, Roumania, and Bulgaria, this sea has so far retained traces of its former character that "the ancient rule of the Ottoman Empire" that both the sea, and the straits giving access to it, should be regarded as closed to vessels of war, although open to merchant vessels since 1874, has been preserved by a variety of treaties made between Turkey and other European Powers (r). The most important of these is the Treaty of Paris, 1856, by which the Black Sea was neutralised, and declared open to the merchant vessels of all States, but interdicted to vessels of war, with the exception of certain light armed vessels required for the purposes of police under a convention between Russia and Turkey; whilst Russia also agreed to maintain no naval arsenals on the coast. By the Treaty of London, 1871, however, Russia was

(m) See Taylor, 443.

(n) See The Genesee Chief v. Fitzhugh (12 How. 443) as to prize jurisdiction; and U.S. v. Rodgers (150 U. S. 249) as to criminal jurisdiction.

(0) Supra, p. 147.

(p) Especially on the occasion of the First Armed Neutrality, 1780; see Westlake, i. 196; Wheaton (Boyd), 280.

(q) Infra, p. 152.

(r) See Westlake, i. 194; Taylor, 120 n; Wheaton (Boyd), 278.

allowed to maintain war vessels on the Black Sea, and to establish naval arsenals on its coasts; although the principle of the closure of the Straits to vessels of war was still preserved, subject to a right on the part of the Sultan to open them in time of peace to the ships of war of friendly or allied Powers, in case this should be necessary in order to secure the observance of the subsisting provisions of the Treaty of Paris (s).

Hudson Bay. The case of Hudson Bay is also peculiar. It is a vast body of water embracing an area of 580,000 square miles; and although the entrance is fifty miles in width, it lies wholly within the territory of Canada, and further exhibits a well-marked configuration as an inland sea or closed sea. The bay was originally discovered by Henry Hudson, in 1610. In 1667 the Hudson Bay Company was formed; and in 1670 this company secured a royal charter granting to it the freehold of the bay and surrounding country, together with exclusive rights of trading; as well as the right of administration and of exercising a civil and criminal jurisdiction within the territory. These rights were temporarily invaded by the French, but were restored in 1713. The treaty of 1818, which conferred on the inhabitants of the United States the liberty, in common with British subjects, to take fish of every kind. . . on the coast of Labrador, to and through the Straits of Belle Isle, and thence northward indefinitely along the coast," was expressly stated to be " without prejudice" to any of the rights of the Hudson Bay Company. In 1870, in consequence of the dissatisfaction provoked by the company's rule amongst the inhabitants of the settled districts, its territory was purchased and taken over by the Canadian Government; the company, however, retaining the privilege of trading, as well as the ownership of certain areas and tracts reserved or granted to it. In this way the sovereignty of the territory, under the Crown, became vested in the Dominion of Canada; and in virtue thereof Canada now claims sovereign rights not only over Hudson Bay, but also over all the waters and lands to the west of the entrance to Hudson Strait. This claim rests on the original discovery of this region by British seamen; its occupation by the Hudson Bay Company; the recognition of the title of that company by France in 1713, and by the United States in 1818; finally, on the acquisition of the company's interest by Canada in 1870. The bay is, however, much frequented by American whalers; and although the issue has not so far been directly raised, the United States Government is indisposed to acquiesce in any claim by Canada to exclusive sovereignty and dominion over the entire bay. This denial appears to rest on the following grounds: (1) that Hudson Bay does not constitute territorial water, and that Canada has therefore no territorial rights outside the three-mile limit; (2) that the treaty of 1818, amongst other things, conferred expressly on United States fishermen a right of fishing in British territorial waters lying north of the Straits of Belle Isle (t), and that it could not have been intended to excise from

(s) Infra, p. 337; Taylor, 124; Phillipson & Buxton, 121-9.

(t) "Along the coast of Labrador and northward indefinitely from the

a

Straits of Belle Isle." For a more detailed account of the provisions of this treaty, see p. 159, infra.

this grant all the waters west of the Hudson Strait; (3) that any special rights recognised by the treaty of 1818 as inherent in the Hudson Bay Company must be deemed to have become extinct on its supersession by Canada in 1870; (4) that even if such rights can be deemed to have devolved on Canada, they would not serve to exclude other States beyond the ordinary three-mile limit; and, finally, (5) that even if Canada should be able to substantiate her claims in all these respects, yet the uninterrupted pursuit of the whale fishery by the American fishermen for a long period affords a substantial moral, even if not a legal, claim for its continuance (u).

(iii) STRAITS AND WATERWAYS, NATURAL AND
ARTIFICIAL.

CONTROVERSY BETWEEN DENMARK AND OTHER POWERS WITH RESPECT TO THE SOUND DUES, 1857. [Wharton, Digest, i. § 29; Phillimore, i. 254; Wheaton, § 183.] Controversy.] FROM very early times Denmark had claimed both dominion and sovereignty over the waters of the Great Belt, the Little Belt, and the Sound, which connect the Kattegat and the Baltic, and divide Denmark from Sweden; the Sound being at one point only three miles wide. Denmark also claimed a right to levy tolls on all vessels passing through these straits, this claim being founded in part on the ground that Denmark had originally owned both sides of the strait, and had, on the subsequent cession of the province of Scandia to Sweden, expressly reserved her rights in the matter; and in part on the ground that Denmark maintained buoys, lights, and other necessary aids to navigation. This claim, which was sanctioned by prescription, and affirmed by numerous treaties made between Denmark and other maritime Powers, was for a long time acquiesced in by the other States; but in course of time both the collection of the dues and the detention and delay of the vessels which this occasioned became a source of complaint on the part of other States. And this discontent appears to have gained in strength with the increasing

(u) For a full narrative, and an examination of the respective contentions, see an article by P. J.

McGrath, Fortnightly Review, January, 1908.