3. REPLi' SUBMITTEII 13Y THE GOVERNMENT OF THE
UNITED KINGDOM OF GREAT BRITAIN AND
XORTHERN IRELAND
TABLE OF CONTENTS
... I'aragrapli
Introduction ........................... I
PART 1.-THE FIRST FREN CH CON CLUSION :THAT
THE MINQUIERS AND THE ECREHOUS ARE NOT
CAPABLE OF APPROPRIATION BY FRANCE OR
THE UNITED KINGDOM ................... 2-100
Contentions of the United Kingdom Government.. .... 2
Section A.-Preliminary Observations on the French
Contention ........................... 3-8
Section B.-United Kingdom Contention 1 : That the
1951 Fishery Agreement and the Compromis are
incompatible with the view that the parties lack
capacity to assert, or are disqualified from asserting,
a claim to exclusive sovereignty' over the groups ;
and that, if there be any inconsistency between the
provisionsof these Agreements and those of the1839
Convention, the recent Agreements must prevail.. . 9-23
Introdiictory licmarks.................... 9-10
Point (1): Sirnultaneous conclusion of the IgjI
Fishery Agreement and the Compromis as part
of a general settlement respecting the 'hlinquiers
and the Ecrélious ..................... II
Point (2): TlieTerrnsof theIgjI +ishery ~&eernent 12-13
Point (3): The Language of the Compromis ...... 14-18
Point (4): A dccision .thaf: neither party had
sovereignty would frustrate the whole purpose
of the general settlement intended by the 1951 .
Fishery Agreement and by the reference to the
Court .............................. 19-20
Section C.-DetaiIed Analysis of the French Contention
as to the effect of the9 Fishery Convention.. .... 24-43
437-49
Introductory Remarks.. ................... 24-2j 437-439
Sub-Section I :Anaiysis of theFrench Contention ...26-34 ~ - -43
Basis (n) : That the 1839 Convention created an
area common to the two parties joiritly("leirr
met. con~nizrne")in which neither could claim
any exclusive sovereignty ......... ..,;...29-32 441-443 REPLY OF THE UNITED KINGDOM (3 XI 52)
416
Paragraph Page
Basis (b): That the existence of common fishery
rights in certain areas of high seas is protected
by the 1839 Convention, and this implies that
the status of those areas will not be altered,
and, consequently, involves an obligation not
to assert or claim any exclusive sovereignty
over territory in them................... 33-34 43
Sub-Section 2 : Consequences and Implications of
the foregoing Analysis.................. 35-43 443-449
Section D.-United Kingdom Contention II :That the
1839 Convention did not have the effect of rendering
the Minquiers and the Ecréhous incapable of appro-
priationby France or the United Kingdom, and of
precluding either countryfrom açserting a claim to
exclusive sovereig'ntyover them............... 44-83 449-482
Sub-Section I : Introductory Remarks and Points to
bemade by the United Kingdom Government.. .... 44-48 449-452
Sub-Section 2 : Nature, Object and Background of the
1839 Convention ..................... 49-52 452-455
Sub-Section 3 : The1867 Convention ............ 53-57 455-461
Sub-Section 4 : Resumption of the Main United
Kingdom Argument ..................... 58-67 461-470
Point (1) in paragraph 48 : Article3 of the 1839
Convention did not apply to the Minquiers
and the Ecréhous.. ................... 59-66 461-468
Point (2)in paragraph 48 : Even if Article 3 of
the 1839 Convention were applicable to the
Minquiers and the Ecréhous, it did not-have
the effect of preventing either party from
claiming or exercising exclusive sovereignty
over the groups ..................... 67 469-470
Sub-Section 5 : Sovereigntand Fishery Rights...... 68-81 470-481
Principal Points to be made by the United
Kingdom Governmeiit .................. 68 470-471 !
Certain Preliminary Observations.. .......... 69-70 471-474
.Development of Points (1)-(4) in paragraph 68... 71-74 474-476
Compatibility of the sovereignty of one country
over territory with the euercise of fishery
rights by another country in the waters of.
tliat territor......................... 75-80 476-480
Conclusion on Sub-Section 5... ............ 81 481
COKCLUSIO ON UNITEDKINGDOM CONTEXTIOIN I... 82-83 481-482
~éction E.-United Kingdom Contention III: That,
even if, contraryto United Kingdom Contention II,
the 1839 Convention did,at the time of its conclusion,
have the effect suggested by the French Counter-
Memorial, the subsequent conduct of the parties was
inconsistent with, or involved a mutual abandonment REPLY OF THE UKITED KINGDOM (3XI 52)
4I7
Paragraph Page
of, that view, and was such as to entitle them (and
entitles them now) to put forward claims to exclusive
sovereignty over the groups................. 83-99 481-491
Sub-Section I : Introductory Remarks and Points to
be made by the United Kingdom Govemment ... 84-85 482-484
Sub-Section 2 : The Post-1839 Conduct of the Parties 86-93 484-490
Point (1) : Probative value of the çubsequent
conduct of parties to a Treaty, as evidence of
its correct interpretatio~i............... 86 484
Point (2): The post-1839 Agreements ......... 87 484
Point (3): ~he post-1839 events and diplornatic
interchanges relative to the Minquiers rind
theEcréhous ........................ 88 484
The general United Kingdom attitude in the
post-1839 period ..................... 89 484-485
TheFrench claims to sovereignty. Admission that :
the esercise of exclusive sovereignty was
compatible with the enjoyment of common
fishery rights....................... 90 485-487
United Kingdom reaction to the French attitude 91 487-489
Further inconsistencies of the French attitude ... 92 489
Ueductions and conclusions to be drawn from
thepost-1839 facts and diplomatic interchanges 93 489-490
Sub-Section 3 : A Claim of Sovereignty precIudes a
simultaneous or subsequent Plea of Incapacity to
Claim .............................. 94-98 490-494
Final Submission on Part 1 of the Present Reply..... IOQ
495
PART ILTHE SECOND FRENCH CONCLUSION :
THAT, IF SOVEREIGNTYOVER THE MINQUIERS
AND THE ECREHOUS HAS TO BE ASSIGNED I
EXCLUSIVELY TO ONE OR OTHER OF THE
PARTIES, THE TITLES AND FACTS IKVOKED
BY FRANCE INVOLVE THE RECOGNITION OF
HER SOVEREIGNTY OVER THESE GROUPS.. . IOI-244 496-560
Contentions of the United Kingdom Governent ...... II 496
SeEcréhousCroups of Islets down to the end of the 18th
Century .............................. 102-189 496-535
Submissions of the Government of the French
Kepublic ...... ...................... 102-103 496-497
Sub-Section I :DipIomatic Acts (1202-1655) relating
to the Channel Islands .................. 104-142 497-514
Submissions of the United Kingdom Governrnent 106 4984~~ REPLY OF THE UNITED KINGDOJI (3 XI 52)
- Paragraph Page
Section A.-costinued
1.: The original titleof thEnglish Crown to the
whole of the Channel Islands can be traced
back to 1066, wlien 119lliam,Duke of Nor-
mandy, became King of England.. ....... '107 498-499
II. : Thc judgement of 1202, by wnrliicli,s the
French Counter-Memonal alleges, King
Jolin was legally condemned to forfcit al1
that he held of the French Ring, is an act
whose Iegality can be challenged, and is,
therefore, not a satisfactory basis for the
Frencli submissions ............... 108-112 499 -02
III.: Tlie situatiori offact after 1204 was that
the King of France held Continental Sor-
mandy, and the King of England held the
Channel Islands .................. 113-116 joz-j04
IV. : The above situation of fact was placed on
a lcgal basis by tlie Treaty of Paris of1259 117-129 504-509
V. :The subsequent Treaties and Truccs in no
way affected, as regards the Channel
Islands, tlie legal settlement niade by the
'rreaty of Paris of1259............... 130-13 609-j13
The 'f'reatyofCalais (orBrétigny) of 1360 130-132 509-511
The Treaty of Troyes of 1420.~. ...... 133-135 511-j12
'l'heTreaty of London of 1471, and the
Treaties of Picquigny-Amiens of 1473
ancl of Etaples of 1492............. 136-137 j12-513
'TheTreaties of 1606 and IG~ 5........ 13s 513
VI. :It is for the Government of tlie French
theublEcréhous were enciuded from thes and
general settlement of 1259, which did not
disturb the King of England in his 'con-
tinuoiis possession of the Chaiinel Islands
as n urliole ..................... 139-142 513-514
~ub-section a : EvidencederivedfromActs Concera-
ing the Ecréhous and the MinquiersGroupsof Islets
from the 13th to18th Centuries............... 143-185 814-534
Summary ofActs Concerning the Ecréhoilsand the
hfinquiers Groups of Islets ............... 143-144 514-515
.....
A : Acts Concerning the Ecréhous Islets. 145-179 51j-530
(i) The Charters of 1200 and 1203 ...... 145-153 515-519
(ii) The Quo 1YarrantoProceedings of 1309 154-159 519-521
(iii) The Letters of Protection of 1337 ... 160-163 522-523
(iv) The Keiital of the 15th Century ...... 164-165 523-524
(17The Paymeiit in the Account of the
Warden of the Channel Islands, Sir
John de Roches, for 1328-9 ......... 166-167 525 REPLY OF THE UNITED KINGDOM (3XI 52) 419
I'aragraph Page
Section A.-conbinued
(vi) The Prior of the Ecréhous and Lepl
Proceedings in Jersey, 1323-31.., ...168 526
(vii) The Confiscation of the 'Alien Priories'69-17 5626-529
(viii)he Drowning of Jerseymen at the
Ecréhous in 1309............... 177 529-530
(ix) Passages fromLe Geyt concerning ITish-
Tithes ..................... 178 530
(x) Acts during the 17th Century ...... 179 530
13:Acts Concerning the Minquiers Islets.. .... 180-188 530-534
(i) The Possession of the Iles Chauseyand
the alleged dependence upon them of
the Minquiers .................. 180-18 530-533
(ii)The Court Rolls of the Seignorÿ of
Xoirmont, 1615-17 ............... 136-187 533
(iii) The Appeal of Deborah Dumaresq
against .the Judgernent of the lioyal
Court of Jersey, 1692 ............ ISS 534
SU~~MAK OF SECTION A... .................. 139 534-535
Section B.-Sovereignty over the Minquiers and
Ecréhous Groups of Islets during the 19th and 20th
Centuries ........................... 190-24 5435-560
Sub-Section I : Introductory ~ernarkS and Points .
made by.the Government of the French Republic.. . rgo-~gz 535-536
Sub-Section 2 : Preliminary Observations on the
French Points ........................ 193-215 336-546
French Point (1): That it is "unnecessary tmake
a detailed examinationof the factiial arguments
brought forward in the British Mernorial" ...193
536
French Point (2): That the facts cited in the
United Kingdom Mernorial "were nearly al1
subsequent to the birth of the dispute".,.... 194-195 936-538
French Point (3): That "The few acts belonging
to the period before the birth of the dispute,
and likewise those subsequent tlieretO, never
failed to encounter protests by the French
Government" ........................ 200 538-539
French Point (4):That "Acts of possession which
are subsequent to the birth of a ,dispute, or
which were contested by tlie State concerned,
are devoid of value as means for the solutio~i
of tfie dispute"..................... 201-207 540-543
Preliminary Observation (a) : It is not acts of
possession which are siibsequerit to tlie birth
of a dis ute which are devoid of value as a
means for the solution of the dispute, but
onIy acts of possessionwhich are subsequerit
to the "critical date" ............... 202-205 $40-542
29420 REPLY OF THE UXITED KIPTCDO31 (3 XI 52) .
Paragraph Page
Preliminary Observation (6) : It is agreed that,
in certain circumstances, acts of possession
wliich were contested by the other State are
devoid of value as a means for the solution
of the dispute ;but these circunistancesdo
not exist when the State whose title is
contested is relying upon an original title
supported by evidence of effective possession 206-20542-543
French Point (5) :That the Jersey authorities
have only exercised jurisdiction ratioiae per-
sotze,and not rationesoli............... 208-213 543-546
Sub-Section3 : United Kingdom Contentions.. .... 214-231 546-554
General Kemarks and Staternent of Contentions 214-220 546-548
United Kingdom Contention 1 : The Court is
entitled to consider evidence of al1 acts of
possession which took place before the "critical
date" ........................... 221 548
United Kingdorn Contention II : The "critical
date" in the present case is the 29th December,
19jo ........................... 222-227 548-j53
United Kingdom Contention III: Of the acts of
possession exercised by the Jersey authorities
before the 29th Decernber, Igjû, the majority
encountered no protest on the part of the
Government of the French Republic ......... 228 553
United Kingdom Contention IV : Siich protests
as the Government of the French Republic did
make were, in any case, incapable ofreventing
tlieacquisition of title to the groups by the
United Kingdom, either by occupation or by
prescription ..................... .-.229-230 553-554
United Kingdom Contention V : That the acts
of possession relied upon by the Uriited King-
dom Government were çuch as may properly
be relied upon for the purpose of acquiring
titie, eitheby occupation or by prescription 231 554
Sub-Section4 : United Kingdom denial of the claim
of the Government of the French Republicthat
French acts of possessionduringthe 19thand 20th
Centuriesoutweigh those of the Kingdom ...... 232-244 554-560
The Uuoys established by the French authorities
inthe channel to the south-wesof the >linquiers 233-236555-556
The Survey ofthe Minquiers by M. Beautemps- .
Beaupré in 1831 ..................... 237
The Survey of the Minquiers by the French 556-557
Hydrographie Mission in 1888.........
238-239 557-559
SUMMAR YF SECTION B... .................. 240-244 559-560
FINAL CONCLUSIONS OFTHE UNITED KINGDOM
GOVERNMENT .................... ...245 . 561 REPLY OF THE UNITED KINGDOJI (3XI 52) 421
INTRODUCTION
I. In the finalconclusions of their Counter-Rlcrnorial, dated June,
1952 l, the Government of the French Republic ask the Court to
find and todecide in respeco tf the Minquiers and the Ecréhous
groups :
"1) That the areas in question are not capable of appropriation by
France or the United Kingdom, seeing that, by the Convention
of August znd, 1839 e,the two nations placed them in their
common sea ;
"2) That if the said régime of 1839has to be discarded, and if
sovereignty has to be assigned exclusively to one or other of
the Parties, the titles and facts invoked by France involve
the recognitioiof her sovereignty over the areas in question"
(P. 403).
The Government of the United Kingdom will contend in the present
Reply, which is submitted to the Court in pursuance of the Orders
made by the Court on the 26th Juiie,1952 (1C ..J. Reports 19.52,
p. 25) and the 27th August, 1952 (1.C. J. RePo~ts 19.52,p. 173) that
both these conclusions are incorrect. The first will lie considered in
Part 1 of this Reply ; the second in Part II. Parts 1 and II of this
Reply are containecl in Volume 1 3.In Volume II4 will befound Part
III of this Reply, which consists' of certain documents filed as
Annexes and nurnbered in continuation ofithc system adopted in
the Mernorial.
PART -1
THE FIRST FRENCHCONCLUSION : THAT THE MINQUIERSAND
THE ECREHOUS ARE NOT CAPABLEOF APPROPRIATIONBi'
FRANCE OR THE UNITED KINGDOM
Contentions of the United Kingdom Government
z. The United Kingdom Government will put forward the follow-
ing main Contentions regarding thispart of the French casc, which,
according to the first French conclusion, is based on the alleged
effect of the Anglo-French Fishery Convention of 1839 (hereinafter
called the "1839 Convention") :
1. That the French contention is inconsistent with two recent
Agreements between the parties having equal authority with
Ail citationfrom the French Counter-hIemoriaare given in the English
translatioprepared by the Registry of the Court. In a fewinstances, however. the
French text itself has beend for special reasons. The pagishewn is that
of The full text of this Convenwill befound as hnneA 27 in Vol. II of the
United Kingdom Mernorial. Its main provisions are quoted in pnragraph 25. below.
aSee pp. 421-561.
, ,, 562-818.422 REPLY OF THE USITED KISGDOJI (3 XI 52)
the 1839 Convention, namely, the Fishery Agreement of the
goth January, 1951 (hereinafter called the ''1951 Fishery
Agreement "),and the Special Agreement of the 29th Decem-
ber, 1950 (hereinafter called the "Cornpromis"), by which
the present case was subrnitted to the Court ; and that, if
tlierc be any inconsistency between the provisions of these
Agreements and those of thc 1839 Convention, the recent
Agreements must prevail a.
II. That the 1839 Convention did not, in ariy case, have the effect
of rendering the ilfinquiers and the Ecréhous incapable of
appropriation by France or the United Kingdom, or of
precluding the two countries from asserting a claim to exclusive
sovereignty over them.
III. That evcn if,contrary to Contention II, the r839 Coriventioii
did, at the time of its conclusioii, have the effect suggested
by the 1;rench Counter-Nemorial, the subscquent conduct of
tiie parties Ras inconsistent with, or involvecl a mutual
abandonment of, that view, and was such as to entitle them
(and entitles them now) to put foward claims to exclusive
sovcreignty over the groups. It will also be argued as part
of this Contention (although, as a matter of strict logic,
falling iinder Contention 11) that ttic conduct of the parties
subsequcnt ta 1839 has been inconsistent with the view of
thc effect of the 1839 Convention now contended for by the
French Counter-Mernorial, and is evidence that this view is
incorrect.
Before the arguments in support of these Contentions are formu-
lated, it ~villbe desirable to make certain preliminary observations
in regard to those aspects of the French contention w-hichhave a
direct bearing on United Kingdom Contentio~i 1. This wili be done
in Section A, immediately following. United Kingdom Contention 1
wili then bc developcd in Section B. This will bc followed in
Section Cby an analysis of the aspects of the French contention to
which United Kingdom Contentions II and III relate.Pinally, these
two United Kingdom Contentions will be dcveloped in Sections D
and E, respectively.
SECTION A
Preliminary Observations on the French Contention
3. The United Kingdom Government did not discuss the present
French contention in their original Mernorial, because it had never
occurred t- them that either party could put it forward at this
1 As statcd on page 49, parapraph 69, of the United Kingdom hIemorial,
it was sgrecd betwecn the parties that neither of thein would rely upo1951e
Fishery Agreement to substantiate claiinto sovcreignty overthe Minquiers or
the EcrBhous. The Unitcd Kingdom Govcrnrnent are not. however, bere citing the
Agreement in support of their claim to sovereignty, biit for the purposc of disproving
the French contentionthat both the parties are disqualijed from asserting any
claimat all. REPLY OF THE UNITED KINGDOM (3 XI 52)
423
stage of the dispute, having regard.to the terms of the 1951 Fishi:ry
Agreement and of the Compromis, and also to the past conduct of
both the parties in claiming sovereignty over the groups-which
cannot be reconciled with the view that they are 1r:gallyincapable
of, or disqualified from, doing so. A detailed analysis of the Frerich
contention is given in Section C belou. ; but there is one aspect of
this contention which requires to be considered at once, for the
following reason. Al1three United Kingdam Contentions, including
Contention 1 to be dealt with in Section B below, :issume that the
French thesis is based exclusively on the alleged effect of the 1839
Convention, as would indeed appear from the first conclusion on
page 403 of the Counter-Memorial quoted above. From certain other
passages in the Counter-Mernorial, however (see paragraph 4;below),
the French contention appears also to be based in part upon the
view that the groups are incapable, by nature, of appropriation,
because lacking in the necessary physical characte-ristics. Thisargu-
ment is necessarily inconsistent with the contention that the 1839
Convention precludes the partics from appropriating the groups, for ,
this latter contention must imply that the groups are at least
physically capable of appropriation ; but the United Kingdom
Government willsubmit that, in any case, the suggestion of physical
inappropriability is untenable.
4. This suggestion seerns to be based on the theky that the
Minquiers and the Ecréhous have to bc treated, not as land but as
a maritime area, identified with the waters surrounding them, and
partaking automatically of the status of those waters. This view
the United Kingdom Government u~ould have thought to be the
exact reverse of the truth ; for it is territory that gives status to
waters, not viceversa. However, the French Counter-Mernorial argiles
in places that the Minquiers and the Ecréhous are not physically
territory at all, but are simply part of a sea area strewn with reefs
and rocks. The argument appears in the following passages on
pages 355, 356 and 371 of the Counter-Mernorial:
"....it cannot be inferred from the geographical characteristics
of these rocky plateaux that they al1 possess the same status,
as the United Kingdom Mernorial seemsto assunic from the tict
that they are al1grouped under a simple cartograpiiical appellation.
The legal status of rocky plateaux extending over so wide a
maritime area is derived from contractual instruments, not frcim
a geographical appellation, ...."(p. 4 l);
"....in fact, these islets are not physically capable of effective
appropriation ; ..." (p. 5 l);
"Their [i.e.the 1839 negotiators] object, in fact, was to ivork,
out a realistic settlernent of a dispute concerning the exercise of
fishery rights in the confined area between Jersey and the neigh-
bourir& coast of France. They regarded the waters in thiç inter-
vening space merely as an arm of the sea,sown with reefs".[Italics
added] (p. 20 l).
lEnglish textnot reproduced in this volume. 4*4 REPLY OF THE USITED KIBGDOhI (3 XI 52)
It is upon this basis that the Counter-Rlemorial argues and concludes
that :
"It will be shown ...that the areas now in dispute were placed
in the 'common sea' by the Convention of 1839, with al1 the
consequences which ensue, in law, from that fact, namely :
"1. That the preseilt status of the disputed areas is derived
from a new title, which originated in the agrcernent of the Parties
in 1839 and not from any title anterior to 1839 ;
"2. That, consequently, the present.status could not be modified
Save by a fresh agreement between the Parties" (p. 20 l).
\Srhile, as will be sien later, the United Kirigdom Government
entirely accept the view suggested in the third of the above-cited
passages, namely, that what the.negotiators were doing in 1839 was
to "work out a realistic settlement of a dispztle co?ïcerning the
exercise O/ fishery rigMs" [italics added, since the words italicized
represent prccisely the United Kingdom view of the purpose of
these negotiations], they cannot accept the implications of the
. remaining-parts of these passages, which are based upon a physical
and gcographical misdescription of the areas concerned ("an am
of the sea, sowii with reefs"), and alsoupon a juridical misconception
of the physical characteristics requisite to rcnder land approp"ab1e
in sovcreignty.
5. So far as the juridical aspects go, it is now an established
principle of international law, which was accepted in the recent
Angdo-Nonvegia tz Fislzeries case (1 C..J. Reporls 1951, p. 116)by
both the parties in those proceedings, and also by implication
adopted by the Court in its judgement (ai. p. 128) ,hat al1land
permancntly above water is capable of appropriation, and that even
rocks which only appear above the surface st low tideare so-capable,
if situated within the belt of territorial waters appertaining to land
itself capable of appropriation and actually appropriated. The
United Kingclom Government do not think it necessary here to
adduce aiithority in support of this principle, but will be prepared
to do so should its validity be questioned by the Governmeiit of the
French Kepublic 2.
*'rhere iasuggestion on page355of the FrenchCounter-hlemoriathat habitability
might be the test of appropriabilitin law(e.g. "Thrce above-water rocks in the
Ecréhous group and one islet in the Minquiers group arc inhabited during the sum-
mer months, though they contain no Springs"). It is not, of course, the case that,
juridicallyappropriabilitydepends upon habitability. However, even if it did.
parts of the groupwould satisfy this teFor iristancc, as paragrap150 in Vol. I
.ofthe United Kingdom AIemorial states, Philippe Pinel, a Jersey fisherman, resided
continuously summer and \\inter on Maître Ile * of the Ecrdhous for nearly40
years bctween 1850and 1895, during30of rvhich hiwife waswith hirn.Inaddition,
the general cvidencegiven in the31emorial and the drawings and photographs in
the Annexes (sec A 138 in Vol. II,and Xrol. IV, passim) clearly establish the
habitabilityof both groups.
This statcment is inaccuratein that Philippe Pinel's liouse wasinfact, on
Blanc [le (sec United Kingdom Memonal, Vol. IV, Annex C r 1). REPLY OF THE UNITED KINGDOM (3 XI 52) 425
6. As to the physical aspects, it is a matter of geographical fact
that the principal parts of each of the Minquiers and the Ecréhous
groups, as well as a large number of smaller Islets and Rocks, are
permanently above water. This is clearly established by Sectiori A
(Topography) of Part 1 of the United Kingdom Mcmorial (Vol. 1,
paragraphs 5-11 l),by the drawing and photographsin the Annexes
(çeeA 138Vn Vol. II a,and the photographs in Vol. IV 3),and bythe
whole historiqzbeof the facts and events relating to the groups (see,
in particular, paragraphs 119-179 of the Mernorial). There can be
no question as to the natural capacitp for appropriation of the
groups as groups, or, on an individual basis, of such Islets as Mai-
tresse Ile in the Minquiers group, and Maître Ile, Marmotière and
Blanc Ile iri the Ecréhous group, as well as many of the Rocks.
7. hloreovcr, as will be seen preçently, the suggestion of phpsical
inappropriability is impossible to reconcile with the terms of the
Compromis and of the 1951 Fishery Agreement (thc latter of which
actually contemplates, and depends in grcat part upon, a finding
by the Court that one or other of the parties has sovereigiity over
various narned IsIets and Rocks of the groups). The same sugges-
tion is àlso irreconcilable with France's own claims to the groups
put forward in the past (see Section E, below), and repeated in
Fart III of the Counter-Mernorial on a basis and in the light of
facts, assuming and presupposing the physical appropriability of
the groups.
8. In view of the known position, the Agreements just referred
to, France's own claims, and the facts and argumcnts upon which
these are, and have been, based, the United Kingdom Government
submit that the Government of the French Republic cannot now
be heard to say that the groups are incapable of appropriation by
nature, or that the area in which they are situated is simply "an
am of the sea, sown with reefs". Accordingly, the United Kingdom
Government will not consider this aspect of the French contention
any further for the purposes of the present Keply.
SECTION H
United Kingdom ,Contention 1 :That the 1951 Fishery Agreement and
the Compromis are incompatible with the view that the parties lack
capacityto assert,oraredisqualifiedfrom asserting,aclaimto exclusive
sovereignty over the groups ; and that, if there beany inconsistency
between the provisions of these Agreements and those'of the 1839
Convention,the recent Agreements mustprevail
g. The United Kingdorn Government subrnit that evcn if (which
they deny) the French contention be correct upon the basis of the
' Seepp. 21-26.
,, p. 346.
,, PP. 351-352.4~~ REPLY OF THE UNITED KISGDOJI (3XI 52)
1839 Convention, it is irreconcilable with the recent 1951 Fishery
Agreement and the Compromis ; and, therefore, since these Agree-
ments (being later in datc) must prevail, any restrictions on the
right to daim sovereignty which might have been cntailcd by the
1839 Convention are now abrogated or supersedcd. Itmay be men-
tioned, in passing, that the whole of the conduct of the parties
since 1839 has been, or caine to be, inconsistent with the view of the
effect of the 1839 Convention no\i7put fonvard on the French side ;
and, in this respect, the rggr Fishery Agreement and Compromis
are but the culmination of a process that has been goiiig on for
more than a centurp. Hotvever, since these Agreements are recent
and directly connectedwith the present proceediilgs, it is convenient,
to deal with them separately. The rest of the post-1839 conduct of
the parties will be considerein SectionE, in connexion with United
Kingdom Contention III.
IO. In developing the present Contention, the following points
will be made :
(1)The 1951 Fishery Agreement and the Compromis were nego-
tiated contemporaneously as part of a general scttlement
intended to put an end to al1 outstanding issues hetween
the parties in respect of the Minquiers and the Ecr&hous.
(2)The 1951 Fishery Agreement contemplated in terms a finding
by the Court tliat one or other of the parties had exclusive
sovereignty over the groups, and, in particular, over certain
named Islets and Rocks.
(3) The Compromis submitted the rnatter to the Court on the
basis that the Court u7asto decide towhich of the parties
this sovereignt belonged.
(4) A decision that sovereignty belonged to neither party, based
on the ground that the parties were, during the currency
of the 1839 Convention, permanently disqualified from
asserting or claiming it, would frustrate the whole purpose
of the general settlement intended to be effected by the
1951 Fishery Agreement and the Compromis.
Point.(I) : SimuEtaneous concla~sionof the 1951 Fishery Agreement
and the Compromis as part of a general seltlement resflectithe
Minquiers and the Ecréhous
II.The two Agreements werc negotiated, drawn up and ratified
togethcr, and were intended to form the different aspects of a com-
plete settlement in respect of both groups. The essence of the scheme
was that there wouId be a decision by the Court as to which party
had sovereignty, but that the provisionsabout fishing would remain
the same, tvhichever may that decision went. On the other hand,
the carrying out of some of the provisions of the 1951 Fishery
Agreement depended on obtaining the decision of the Court alio-
cating exclusive sovereignty to one or other party. Of the two
Agreements, the 1951 Fishery Agreement-although, for extra- REFLY OF THE UNITED KINGDO31 (3XI 52)
q2?
neous reasons, signed a month later-was, in fact, drafted first.
The Compromis was drafted to fiton to it. It mas the Govemment
of the French Republic who requested that a fishery agreement
should be concluded in advancc of a decision by the Court on
sovereignty, because they were unwilling that the issue of sover-
eignty should be settled until the fishery question had been dis-
posed of.TheUnited Kingdom Government agreed to this, aIthough,
for their part, they would have been quite ready to have the sover-
cignty issue determined first, and then to coiisider the fishery
position in the light of it.It was, however, an essential element of
the United Kingdom Government's understanding of the position
that the conclusion of the 1951 Fishery Agreement in advance of
the decision of the Court on sovereignty, in the ferms which the
Agreement actualIy employed, irnplicd and açsumed a findi~ig of
the Court which would finally determinc al1questioris of sovereignty
in favour of one'or other party, not one which would leave the
matter on the basis that neither side was entitled to assert a claim
to sovereign ty.
Point (2) : The Terms of the 195i Fishery Agreement
12. The full text of this Agreement will be found as Annex A 23
in'volume II of the United KingdomXlemorial l.The following are
the principal relevant passages (with the parts upon which the
United Kingdom Government rely italicized) :
"London, 30th Janzcary, 1g51*
"The Government of the United Kingdom of Great Britain and
Northern Ireland and the Government of the French Kepublic ;
"Considering that they hace decided to request the International.
Court of Justice at The Hague to determine to which of thewf
sovereignty over the islets within the Ecrehos and Minquiers
groups shozrld be attribute;
"Desiring,without prejudice to the determination of the question
of sovereignty, to settle certain differences which have arisen
between them with reference to fishing rights in the areas of the
Ecrehos and Minquiers ;
"Have agreed as follows :-
"Subjectto the provisionsof Articles II, IIImd 1V of the yresent
Agreement, the 1839 Convention shall, .... be interpreted as
conferring on British nationals and French nationals equal. rights
of fishery in the.whole area between [here follows the description]
See p. 173.
* Italicinthe original. REPLY OF THE UNITED KINGDOh1 (3 XI 52)
"(a) The Cofltracting Party, which isheld to have soveveignty
over the Maîtresse Ile in the Ecrehos group, shall have the right
to grant fishing concessions within a zone ....having a radius of
one-third of a mile and centred on the beacon situated in the
middle of that island, ...............
"ARTICLE III
"(a} The Contracting Party, which is held to have sooereigizty
over the Maîtresse Ile inthe Minquiers group, shall have the right
to grant fishing concessions within a zone ....having a radius of
one half mile and centred on the point where the flagstaff situated
on the northern part of the island stocidon 24th July, 1950 ,..
"ARTICLEIV
"(a) If it islaeldthai Ge United Iiingdom has sovereigntyover
the Pipette rocks, the Government of the United Kingdom shall
have the right to grant fishing concessions within a zone ....
having a radius of one halfmile and centred on the Pipette Beacon
"(b) If itisheldthot Francehas socereig?ityover the rocks known
as the braisons, the Government of the French Republic shall
have the right to grant fishing concessions within a zone ....
having a radius of one half mile and centred onthe MaisonsBeacon
13. The United Kingdom Governrnerit submit that the above-
cited provisions conclusively negative the contention that there was
or, at any rate, that there remained, for the parties, any disqualifi-
cation from asserting a claim to sovereignty ; and that, on the
contrary, these provisions make it clear that it was precisely in
order to render possible adjudication on such claims in favour of
one or the other party that the matter Ras now to be submittcd
to the Court. In so far as any previous agreement hetween the
parties created or implied any such disqualification, it was clearly
superseded and put an end to, pro tanto, by the 1951 Fishery Agree-
ment. The principal points are as follows :
(a) The Yreamble, which affords the clearest evidence of what
the parties believed they tvere subrnitting to the Court, is in itself
conclusive in the above sense, and is not reasonably open to the
interpretation that the Court was being açked, as one of the main
issues in the case,to consider the possibility that sovereignty should
not be attributed exclusively to cither party.
(6) However, if there could be any doubt on the point, it would
be set at rest by the operative part of the Agreement. This contains
only six main Articles, apart from formal provisions and defini-
tions, and amongst them three which cannot take effcct unless, and
Usually knownasMa?tre Iland sorefcrretoin thc United KingdomJlemorial. REPLY OF THE UNITED KINGDON (3 XI 52)
429
until, the Court has decided that eitherFrance or the United King-
dom has sovereignty over the Islets and Rocks named in the
Articles referred to. Thus, Article II (a) provides that :
"The Contracting Party, whick is held to hacc soz*ereigntyover
the Maitresse Ile lin the Ecrehos group, shall liave the right to II
grant fishing concessions within a zone . . . . , . . . .
Similar provisions appear in Articles III and IV (see paragrapli 12,
above). These three Articles are only consistent with the view that
both the parties considered that one of them had sovereignty over
the Islets and Rocks mentioned, and would eventuaily exercise the
right of granting fishing concessions in the zones surrounding them.
These Articles, in fact, clearly anticipate a decision of the Court on
the cluestion of sovereignty, in order to give thcm effect.
(c) Article 1 of the Agreement is also relevant and important,
because it contains an express stipulation that the 1951 Fishery
Agreement is to prevail, pro fanto, over the 1839 Convention. It
says in terms that the interpretation of that Convention, as con-
ferring common fishery rights in s certain area on the nationals of
the two parties, is to be read "subject to the provisions of Articles
II, III and IV" of the Agreement-i.e., subject to provisions which
contemplate, and require, a dccision by the Court attributing sover-
eignty over the main parts of each group to one or other party.
Point (3) : The Laquage of the Coinpromis
14. The Compromis, which was drafted immediately after the
1951 Fishery Agreement and as part of the sarne general settlemcnt,
demonstrates equally that there was, or remained, no disability or
disqualification for either party as regards claiming sovcreignty ;
and that it was, indeed, on the basis of the actual existence of such
claims that the matter was subn~itted to the Court, expressly for
the purpose of obtaining from .the Court a decision as to which clziim
was the bctter. The relevant parts of the Compromis (with theparts
on which the United Kingdom Government rely italicized) read as
follows :
"The Government of the United Kingdom of Great Britain and
Korthern Ireland and the Government of the French Republic ;
"Considering that diffcrenceç have arisen between them as tr
result of claims by each of them tu sorereignty over the islets and
rocks in the Minquiers and Ecrehos groups ;
"Desiring tliat these diferences should be setlledby a decision
of the International Court of Justice determirzing their respective .
rights as regards sovereignty over thoçe islets and rocks ;
"Desiring to define the issues tu be submittedto the International
Court of Justice ; '
'"Have agreed asfollows :-
Mernorial.y known as Maftre Ile and so referred to intlieUnited Kingilom REPLY OF THIEUNITED KINGDOM (3XI 52)
"The Court iç requested to determittewhetherthe sovereignty
over the isletsand rocks (in so far as they are capable of appro-
priation) of the Minquiers and Ecrehos groups resfiecticelybelongs
do the United Kingdom or the French Republic."
If, when the Compromis was being drawn up in these terms, it had
ever been envisaged hy those responsiblc for negotiating it, that
the Government of the French Republic wished to make it their
principal contention before the Court that the parties were under
a pre-existing obligation not to claim any exclusive sovereignty
over the groups, which, accordingly, had some other status-for
instance, were res nullius or under some sort of condominiztm,and,
for that reason, were not uncler French or British exclusive sover-
eignty-then it is quite obvious that Article I of the Compromis
would never have been drafted as it wss. The Court would have
been asked to Say whether the Islets were French or British, or
belonged to both countries or to neither, and would never have
simpIy been asked, as ArticIe 1 al present asks the Court, to say
whether the sovereignty was French or British. The position may
be contrasted with the terms of reference of the Arbitrator in the
Agreemetttbetweenthe Governmentsof France, the United Kilzgdom
and the United States of Anaericafor the Stlbmission to Arbitration
of certain Claims to Gold Lootedby the Germansfrom Romein .Tg@,
concluded at Washington oi~the 25th April, 1951 l,to which France
was a party as well as the United Kingdom, where the Arbitrator
was asked to Say whethcr the gold should be attributed to Albania
or to Italy, or to neither of them 2.It is impossible to imagine that
draftsmen of the experience of those rcpresenting the two signato-
ries of this Compromis would have drafted Article 1 as it is drafted,
if it had not becn understood that both Governments agreed that
the groups helonged to one or the other exclusively. If it had been
stated on the French side that the Government of the French
Republic wished to include the disqualification issue in the sense
of the first conclusion on page 403 of the French Counter-Nlemorial,
this would, inevitably, have called forth from the United Kingdom
side the observation that this contention was entirely inconsistent
with the 1951 Fishery Agreement that had just been drafted.
1 The relevant provision reads as follon-s:
"The arbitrato...is requested to advise the three Governments ivhether.
(iwhichnwerealooted by Germany from Romein1943,belongcdto Albania,old.
or
(ii) ltaly hasestablished that 2,338,7565 kilograins of monetary gold. which
were looted by Germany from Rome in 1943, belonged to Italy, or
(iiineither Albania nor Italy hasestablished that 2.338.756k5iloofams
monetary gold, which were looted by Germanyfrom Rome in 1943.
bclonged to either of them." REPLY OF THE UXITED KIKGDOAI (2 XI 52)
43I
15. Certain particular points on the language of the Compromis
may be noticed :
(a) The second paragraph of the Preamble recites that differences
had arisen between the parties "as a result of claims by ench offhem
tosovereignty over the islets and rocks....". These words constitiite,
in the submission of the United Kingdom Government, a clear and
unequivocaI indication that the matter was submitted to the Court
on the basis that claims to the groups were, in fact, advanced and
rnrtintained o.rbolh sides,and that the Court \vas being asked to
detcrminc which side had the better title. The present French con-
tention would bc quite consistent with a position in which the
Government of the French Republic simply clenied the United
Kingdom claim without maintaining one of their own. But the
moment the matter is referred to the Court on thc basis of mutual
claims ("c1aims by each of them") to sovereignty, the inference is
that each side is denying the validity of the other's claim by alleging
a superior clairnO/ its owîz,and the Court is, therefore, being asked
by each party to decide, not merely that the other's clairn is bad,
but that its own is good-a basis that neceçsarily excludes the
contention that neither side is entitled to put forward a claim.
(b) The next relevant provision of the Prearnble reads :
"Desiring that these digevences should be seltlel by a decision
....determining their respective rightsas regards soz~ereigntoyver
those islets and rocks". [ItaIics added.]
Here, the phrase "these differences" can (in the context) only
denote the differences that had "arisen between the parties as a
result of clairns by each O/ them to sovereignty over the islets and
rocks in the Minquiers and Ecrehos groups". Again, the phrase
"respective rights as regards sovereignty over tliose islets and
rocks" suggests that the parties (or one of thcm) had sonze rights
as regards the exclusive sovereigntyover the Islets and Rocks, not,
as the French Countcr-Mernorial now contenas, that they both had
none. The term "respectiveJJ is significant. It must be borne in
mind that, so far as the Compromis was concerned, it kvas not
ruled out that both.parties had exclusive sovereign rights, one over
the Minquiers and the other over the Ecréhoiis. The phrase "their
respective rights as regards sovereignty over thosc islets and rocks"
would clearly cover this possibility. It would also cover, without
undue difficulty, a position in which one country had sovereignty
ovcr hoth groups and the other zone-i.e., that one or other had
sovereignty. What it will not, according to any reasonable inter-
prctation, cover-and is, indecd, quite inconsistent with-is the
proposition that neither party has exclusive sovereignty, and more-
' The tcrm "slioulbe settled"has its importance, fa clccisiothat neither
party had, or could assert, sovereiwould be but a paper scttlcmen;and, as
the ~vholehistoof thedispute shewswould,in reality, settlenottiing, Sec paragraph
20,below. 432 REPLY OF THE UNITED KISGDO;\I (3 XI 52)
over, that neither party can even seek ta assert it. Such a phrase
as "determining their respectiverights as regards sovereignty" is riot
normally ernployed with reference to a position in which the parties
have no rights to determine, and are precluded a priori from assert-
ing any ; for that would merely deprive the whole phrase of any
significance or content l. Finally, if therc were any doubt about
the meaning and intention of the phrase "a decision ...determining
their respective rights as regards sovereignty over those islets and
rocks", it ~vouldsureiy be bisposed of by the words in ArticIe 1 of
the Compromis : "Thc Court is requested to dctcrmine whether the
sovereignty over the islets and rocks ....respeclivelybelongs to the
United Kingdom or the French Reyublic". Thc repetition of "respec-
tive" and "respective1y" is significant. .
(c) A further point is that Article II of thc Compromis starts
with the words "Without prejudice to any question as to the burden
of proof ...." ("Sans préjuger en rien de la charge de la preuve ...").
The reference would çeem, in the general context of the Compromis,
clearly to be to the proof by each party of its claim to title ; and
this supports the view that it \vas on the merits of these claims
that the Court was asked to adjudicate.
The ParentheticaEphrase in Article I of tlte Compromis
16. The entire French contention, so far as the language of the
Compromis goes, is based upon the words of the parenthetical
phrase in Article 1 "(in so far as they [thc islcts and rocks] are
capable of appropriation)". But these urords, considered according
to their natural and ordiiiary meaning in the context 2,simply have
in view the fact that certain islets or rocks in or round the groups
may, by reason of their physical nature and position, be incapable
of appropriation by any State at al1: that is (see paragraph 5,
above), there might be rocks or banks which are only uncovered
at low water, and are situated outside the territorial waters of any
other appropriable land. The Government of the French Republic,
however, interpret these words as if they rcad "in so far as France
and the United Kingdom are not precluded from appro~iriating
l It will be recollected that in the course of intcrprethe Special Agreement
between the United Kingdoxi and Albania in the Curlu Chan~relcase (Merifs)
(I.C.j. Reports 1949, p. 4), the Court cite(at p.24) with approval, a dictum of
the Permanent Court of internationalJustice in the case of the Free Zones of
Upper Savoy undthe District of Gex (SeriA, So. -2.at p. 13) to the effect th:t
"in case of doubt, the clausesof a special agreement by which a dispute iç
referred to the Court must, il it does not involvc doing violence to their terms.
be construed in a manner enabling the clauses themsclves to have appropriate
effects".
, The United Kingdom Government submit that the French contention tvould not
only deprive the clauses of the Compro@s of their intendedefiect, but would alsr,
involve doing violence to their clear terrns.
ing the Cornpetenceof the GeneralAssembly for lheAdmission afStateto the Unitedrn-
Nations (I.C. J. Reports 1950p. 4,at p. 8). REPLY OF THE UNITED KINGDOhl (3 XI 52)
433
them, because France and the United Kingdom have agreed by
treaty that they shall not be appropriated". This is quite a different
thing. What the parenthetical phrase really relates to, put in the
simplest terms, is whether appropriation be possible, nat whether
the parties have a right to appropriate. The language of the phrase
is neither natural, nor apt to convey the latter meaning ; and, if
the parties had intended such a meaning to be covered, they woilld
certainly have used different and more explicit terms. They could
not have been satisfied to do it in this indirect and clliptical manner,
and by the usc of a phrase obviously directed prirnarily to some-
thing else, espcciaIly when this would involve givirig thc phrase a
meaning inconsistent with al1the remaining .portions of the instru-
ment that was being drafted.
Reasons why the parenthetical phrase was itzserted
17. A consideration of the real reasons for the insertion of the
parenthetical phrase shews that the object was quite a different one
from that involved in the French contention ;that it had nothing
to do with any clisability attaching to the parties by reasi:)nof an
agreement between them precluding claims in these areas ; and
that it had refcrence solely to the peculiar physical characteristics
of the territory,i.e.,the Islets and Rocks, which formed the subject-
matter of the dispute. The following points are relevant :
(a) Where a claim is made to an ordinary piece of territory,
such as part of a mainland, or a large içland, or a city, no cluestion
arises, or can arise, as to the inherent capability of the territory tu ,
be appropriated in sovereignty. In such a case, if either party
wanted to contend that both parties were.precludcd by a previous
agreement from açserting any claim to sovereignty, this would have
to be stated in terms, because a phrase such as "in so far as capable
of appropriation" would have no natural or obvious meaning in
connexion with such a piece of territory.
(b) The use of the parenthetical phrase in the present case is
duc to, and draws its entire significance from, the fact that the
subject-matte: of the dispute is not ordinary territory, but smaii
Islets and Rocks, many of the Rocks being isolated aiid scattered,
and lying far out from the main part of the group coiicerned. It is
significant that the phrase does not relate to the groups as a whole,
as groups, but to the Islets and Rocks of the groupç, shewing that
what is involved, is not the status of the groups as groups, but the
position of the individual Islets and Rocks-i.e., a matter of yhysical
configuration.(The French contention, it will be noticed, necessarily
* . relates to the entire groups as such, and, therefore, raises quite a
different issue). Some of the Rocks, as will be seen from Section A
(Topography) of Part 1of the United Kingdom Mernorial (secVol. 1,
paragraphs 5- 1'1,are so srnall that there isadisagreementbetween '
l See pp. 21-26. REPLY OF THE UNITED KINGDOM (3 XI 52)
434
the British and French charts as to whether they are permanently
above water ; and there might, consequently, be doubt as to their
capacity for appropriation. On the other hand, the main Islets in
both groups are certainly capable of appropriation.
(c)In these circumstances, the ohject and effect oftheparenthet-
ical phrase in Article 1, according to the submission ofthe Unitcd
Kingdom Government, is to relieve the parties to the dispute from
having to argue, and the Court from having to decide, whether any
particular Islet or Rock be capable of appropriatioii in sovereignty,
or, indeed, whether each and everJrRock be so capable. The purpose
was to delimit the subject-matter of the disputc as being al1 those
Islcts and Rocks which mere, in fact, capable by nature of appro-
priation ; or, in othcr words, to secure tliat the process of atljudica-
tion should not be confused by any issue aç to the physical capacitÿ
or incapacity of some of the Rocks to separate appropriation. Iii
short, the parties intended the groups as a whole to be adjudicated
upon ; and the matter was put iri this way so that, for the practical
purposes of the argument and the decision, the susceptihiIity of
individus1 Islets or Rocks to appropriation could be igriored-or
coiild be assumed, especially as al1 those specifically mentioned in
the 1951 Fishery Agreement were unquestionahly capable of it.
(d) Even if, however, the effect of the parenthetical phrase wcrc
to render it necessary for the Court to go into the question of the
physical nature and configuration of, for instance, isolated outlyiiig
liocks, it would still he the natiiral character of thc Islets or Kocks
in rem that would hc piit in issue by this phrase, not the quite
separate question of the capacity in ;bersonam of the parties to
appropriate them. \lrhen two Governments mean to refer to the
possibility of their olvn personal incapacity or disability (incapacity
or disability of the parties) they do iiotrmally do this by referring
to the incapacity of the subjcct-matter.
18. It thus appears that what the French Counter-Mernorial
really does, as regards the parenthetical phrase, is to utilize an
expression introduced solely on nccoiint of the peculiar physical
configuration of the subject-matter, and only having a natural
meaning with reference to such a configuration, in order to bring
in by a side wind another, and distinct, juridical issue, not covered
hy the ordinary language of the Compromis. The contention that
France and the United Kingdom have agreed not to appropriate
these groups is one that might be put fonvard about aily territory,
the sovereignty over which was in dispute, hoivever obviously
capable of appropriation. It is a contention which has nothing to
do with the capacity for appropriation of the subject-matter as
such. REPLY OF THE UNITED KINGDOJI (3 XI 52) 435
Point (4) :A decisionthatneitherparly had sovereigntywoztddfvustrate
the whole purpose of the general settlement intelzdetby the 1951
Fishery Agreement and by the refererzlo the Court
19. As slready statcd, the object of the reference to the Court
(as of the paralle1951 Fishery Agreement) was to settle finaily the
long-standing clifferencesbetween the two countries concerning the
Minquiers and the Ecréhous ; and, so far as the territorial issue was
concerned, to do so on the basis of a finding that the sovereignty
bclonged to one or the other of them. This is plain from the language
of the 1951 Fishery Agreement and the Compromis already con-
sidered.The following particular points may be noticed :
(a) A decision that neither party could claim sovercignty woiild
not constitute a settlernent of the issue on the lines clcarly contem-
plated by the parties, and would iiipractice merely perpetuatc,
instead of terminating, the present uncertainties. Locally, in parti-
cular, it would tend to prescrve, and even to intensify, the possi-
bility of incidents and other difficulties.
(b) The reference to the Court, as already shewn, wns part of' $1
general negotiation, the other aspects of which wert:dealt with by
the 1951 Fishery Agreement. A positive finding or1 the issue of
sovereignty is necessary to the carrying out of this Agreement (ree
paragraph 13,above), and, if there should be sny doubt as to
whether thc purpose of the Compromis was to obtain an adjudica-
tion of the issue of sovereignty in favour of one or other of the
parties, this cloubt would be resolved by the terms of the IgjI
Fishery Agreement ;and the Compromis ought to bc interpreted
accordingly, so as to cnable thc1g5r Fishery Agrecment to he given
its plainly inteiided effect.
(c) One of the further objects of th19j1 Fishery Agreement was
to effect a settlement of the fishery issue in a manner that would
be satisfactory to the parties,whicheverof tltem wns adjzdged sover-
eigrzoverthe grottps. A finding that neither could claim sovereignty
would net, therefore, in any way facilitate the scttlement of arly
fishery issue between the two countries ;and, so far as the Fishery
Agreement itself is concerned, woulclactually frustrata full settle-
ment.
.zo. TOsum up, it was unquestioiiably the intention of the parties
that, by means of the 1951 Fishery Agreement and the Compromis,
and the consequent decision of the Court, al1 disputes between
France and the Uriitcd Kingdom affecting the Islcts and Rocks of
the Minquiers and the Ecréhous groups should bc settled. The
parties wcrc concliiding a fishery agreement, the termç of lvhich
were carefully drafted so as to express clearly whrit the position
would bc about fishing, both in casc sovereignty were attributed to
France and in case it werc attributecl to the Unitecl Kingdom. The
attribution of sovercignty to one or the other would also automati-
cally settle al1 other possible siibjccts of dispute-e.g.,what law
30436 REPLY OF THE UNITED KINGDOM (3 XI 52)
applied in the groups as regards land tenure, crimes, customs, Rrc.
But the 1951 Fishery Agreement and the Compromis could only
thus settle al1possible subjects of dispute,ifit were adjuclgcclthat
the groups certainly belonged either to France exclusively or to the
United Icingdom exclusi\~ely:A decision in the sense of the first
concIusion of the French Counter-Memorial would not merely
render most of the 1951Fishery Agreement inapplicable, but would
leave absolutely unsettled every other subject of dispute. Some of
the Islets are rcgularly inhabited for a portion of each year, and
have i~ithe past been inhabited al1the year round and may be so
again. Others are visited regularly, and could be used much more
than they are now uçed. What laiv is toapply ta golrern property
rights on the Islets ? What law is to apply to crimes committed
on them? Al1these and other matters are, and havefor a long time
past been, actual issues, which cannot bc lcft unsettIed.
21. The United Kingdom Government submit that, for the
reasnns given above, the French contention that the parties are,
by reason of the 1839 Convention, precludcci from clairning sover-
eignly over the hlinquiers and the Ecréhous is quite irreconcilable
with the 1951 Fishery Agreement and the Compromis into which
the Government of the French Republic have thernselves entered,
and with the whole basis of the general settlement which these
Agreements were intended to bring about, which it \vould entirely
frustrate, Whatever rnight be the merit; of this contention, there-
fore,ifthe issue rested simply on the 1839 Convention, the position
is that it does not now rest upon that Convention alone ;for it is
clear that, by the recent Agreements, the parties have tacitly
abrogated, or mutually treated as being iio longer binding upon
them, any restrictions oti claiming sovereignty which the 1839 Con-
vention rnight have involved.
22. The United Kingdom Government do not propose to take any
formal objection tothe competence of the Court to go into the issue
raised by the French contention, although they have little doubt
that this particular issue is notvered by the language of the Com-
promis, and iç not, therefore, strictly one of those submitted to the
Court by the parties. The United Kingdom Government \vil1not
take this point because, if the Government of the French Republic,
in the course of the negotiations for drawing up the Comproniis,
had, iiifact, asked that this issue be iiicluded in terms, the Uilited
Kingdorn Government would not have refused. Thcy woiild only
have pointed out (seeparagraph 14,above) that this issue was quite
inconsistcnt with the rggr Fishery Agreement which had just been
drawn up, ancl made nonsense of three or four of its main Articles.
The signature and ratificationofthe 1951 Fishery Agreement would, REPLY OF THE UNITED KINGDOM (3XI 52) 437
acco;dingly, have had to be poçtponed until the issue of sovereignty
(including the question of disqualification now raisedthe Govern-
ment of the French Republic) had been decided by the Court ; or
else this Agreement would have had to have been redrafted in com-
pletely different terms. However, siilce the Government of the
French Republic did not raise this question at the time, and con-
cIuded the 1951 Fishery Agreement and the Compromis upon a
basis that clearIyenvisaged and assumed the capacity ofthe parties
to claim sovereignty, they cannot now allege that thc parties lack
this capacity.
23. In case, however, the Court should consider that the issue
of capacity is not conclusively settled by the terms of the 1951
Fishery Agreement and of the Compromis, in the sense above
contended for, the United Kingdom Government will, in Section 1)
below, give their reasons for the view that, even upon the basis of
the 1839 Convention, standing alone, the parties are under no dis-
qualification from claiming exclusive sovcreigiity over the Min-
quiers and the Ecréhous. Subsequently, in SectionE, they will give
their reasons for tlie view that if, contrary to this Contention, the
1839 Convention did involve such a disqualification, and this'dis-
qualification had notbeen removed by the 1951 Fishcry Agreement
and Compromis, it \voiiId already have bcen removcd by the con-
duct of both parties in the post-1839 period, betwcc1839 and 1938.
These Contentions will be preceded in Section C hy an analysis of
what the Frcnch thesis, as to the effect of the 1839 Convention,
really involves.
SECTION C
DeConventionlysis of the FrenchContentionas to the effecofthe 1839
24. In Section B abovc, it has been argued, aiid it is hoped
demonstrated, that the first of the concIusions advanced onpage403
of the French Counter-Mernorial is necessariIy wrong because, u~hat-
ever disabilities as regards the assertion of claims to exclusive
çovereignty may havc been entailed by the former 1839 Conven-
tion, these wcre removed by the 1951 Fishery Agreement, and lrly
the Compromis itself under which the present dispute was braught
before the Court. Beforegoing on to argue thnt this conclusion is in
any event incorrect, cven on the basis of the 1839 Convention, and
equally in the light of the1839-1938 conduct of the parties, the
United Kingdom Government consider it desirable to attemyt some
analysis of what appears really to be involved by the French con-
tention concerning the cffect of the 1839 Convention, since this wdl
facilitate undcrstanding .ofthe United Kingdom cou~iter-argument.438 HEPLY OP THE UNITED KINGDOM (3 XI 52)
This willbe done in Sub-Section 1. In Sub-Section 2 certain con-
çequences of this analysis will beshewn.
25. For convenience of reference, the main provisions of the
1839 Convention are cited hereunder (for the full text, sceAnnex
A 27 in Vol. II of the United Kingdom Mernoriai l):
"Wliereas His Majesty the King of the French and His late
hlajesty the King of the United Kingdom of Great Britain and
Ireland, appointed in the year 1837, a mixed Commission for the
puryose of ascertaining and defining the limits within which the
subjects of the two countries respectively should be at liberty
to fish for oysters between the Islarid of Jersey and thc neigh-
bouring coast of France.
"And whereas the Commissioners so appointed liave agreed
upon certain lines, as marked in a Chart hereinafter referred to,
as the limits above mentioned, and have also agreed upon certain
arrangements, wliich they conceive to be calculated to prevent
the recurrence of disputes which have, at various tirnes, arisen
between the fishermen of the two countries ;
"And whereas the High Contracting Parties have also considerecl
it desirable to define and regulate the limits within which the
general right of fishery on al1 parts of the coasts of the two
countries shall be exclusively reserved to the subjects of France
and Great Britain respectively, ...........
"Art : 1'1
"lt is agreed that the lines drawn between the points clesignated
by the letters A B C D E F G H 1 K, on tlie Chart annexed to
the present Convention, .,..shall be acknowledged by the High
Contracting Parties as defining the limits between which and the
French shore the oyster fisheryshall be reserved esclusi~~cly to
french[sic] subjects: ................
"Art : 2.
"The oyster fishcry within three miles of the Island of Jersey,
calculated from low water mark, shall be rescrved excliisively
to british[sic] subjects.
"Art : 3.
"Thc oystcr fishery outside of tlre limits within which that
fishery is exclusively reserved to french and british subjects
respectively, as stipulated in the preceding articles, shnll Ile com-
mon to the subj,ects of both countries.
"Art : g.
"Thc subjects of His Rlajesty the King of the French sliall enjoy
the exclusive right of fiçhery within the distance of three miles
Sec pp.179-186. REPLY OF THE UNITED KINGDOM (3XI 52)
439
from low water mark, along the whole extent of the coastç of
France, and the subjects of Her Rritannick Majesty shall enjoy
the exclusive right of fishery within the distance of three miles
from low water mark, along the who1e extent of the coaçts of
the British Islands. .
"It being understood that uyon that part of the coast of France
lvhich lies between Cape Carteret and Point Meinga l,French
subjects shall enjoy the exclusive right of al1 kinds of fishery
within the Iimits assigned in first article of this Convention for
the french oyster fishery.
.......................
"Art : IX.
"With a view to prevent the collisions which now, from time
to time, takc place on the seas lying between the coasts of France
and of Great Britain between the traders and the line and long
net fishers of the two coiintries, the High Contracting Parties
agree to appoint, ....a Commission ....who shall prepare a set
of regulations for the guidance of the fisherrnen of the two
countries, in the seas above-mentioned.
"The regulations so drawn up, shall be submitted ....to the
two Governments ....for approval and confirmation ; and the
High Contracting Parties engage to propose to the Legislatures
of their respective countries such measures, asmay be necessary
for the purpose of carrying into effect the regulations which may
be thus approved and confirmed".
.......................
Of the above provisions, Article 3 is the one on which the French
contention mainly turns. It will be seen presently that the United
Ringdom Government not only dispute that Article 3 had the effect
~vhichthe French contention assigns to it, but also deny that the
hlinquiers ancl the Ecréhous came under Article 3 at aii. However,
it will be convenient, for the purpose of the ensuing analysis of the
French contention as to the effect of Article 3, to ignore the latter
point, and proceed independently of whether the groups came with-
in the Article or not. That issue will be dealt with later. For the
moment the question will be : what effect, according to the French
contention, did Article 3 have as respects any territory or waters
to which it did in fact apply, and.assuming the groups came within
it 7
Sub-Section I :Analysis of the French Contention
26. The French contention concerning the effect of the 1839 Con-
vention appears to be stated, or to be capable of statement, in two
different ways. The first is that the Minquiers ancl Ecréhous a.re
l Cap Carteret and Menga are underlined in the French ver:iCape Carteret
and Point Meingaare underlined in the English.
' This term isevidentty used in the sense of conflicts or clashes, rather than
ofcollisions of bats. REPLY OF THE UNITED KINCDOM (3 XI 52)
44O
part of an arca which, by reason of the Convention (and, in partic-
ular, of its Article 3), is, so to speak, impressed or invested witli a
status or régime common to France and the United Kingdom, and
involving non-appropriability in the sense that neither country can
assert any exclusive sovereignty there. (This is.the "leur mer com-
mune" argument.) The othei way in which the contention can be
stated is that thc establishment of joint or common fishery rights
in the area of the groups (if this was the effect of the Convention)
implied that neither party ~ould assert or claim exclusive sover-
eignty over them (presumably because this would be inconsistent
with the common fishery rights).
27, This second method of argument is also based upon the
doctrine of "mer commune", but in a different way. In their forma1
conclusion on page 403 of the Counter-Mernorial, the Government of
the French Republic spcak of "leur mer commune", biit elsewhere
in the Counter-hlcmorial, for instance in the conclusion as stated
on page 371 (see the citation in paragraph 4,above), the theme is
stated in the form that the areas concerned, "ont étéplacés dans
la 'mer commune' par la convention de 1839". Equally, and even
more significantly, it is statedon page 357 that :
"...la France et leRoyaume-Uni ont convenu en 1839 de mettre
-0t4 de laisser-dans la mer commune les ilots, rochers ou espaces
litigieux". [Italics addedl.
The same form is employed in ünother passage at the top ofpage 374 I
of the Counter-hlemorial. This reads :
"Or, l'interprétationmêmelittérale du texte conduit inélucta-
blement A la conclusion que les Ecréhouset les hlinrluiers ont été
laisséesou si l'on veut, placéesdéhnitivement dans la mer com-
mune". [Italics added]a.
Attention is drawn to these passages for good reason. Whatever may
be the significance of the term "leur iner commune" used in the
forma1conclusion on page 403 of the Counter-Mernorial (and this will
hc considered presently), the term "la mer commune" seems to
dcnote, or to be an alternative fbr, "high seas" (haztlemer) (see
p. 373 of the Counter-Memorial, line 12 from the foot of the page).
Ifthat be the sense in which "la mer commune" be iiitended to be
understood in the Counter-Mernorial, it suggests, in combination
with the use of the term "lsisser"i.e., the çtatement that the
parties "leftJJ the groups in the high seas-that what the French
case (as put or sumrned up on these pagcis 357,371 and 374)cornesto
is thïs : that the parties, by the 1839 Convention, agreed in effect
leave-therdisputed islands, rocksand areas in the common sea". [Itrlics added].
"But evena iiteral interpretation of the text leads inevitably to the conctusion
that the Ecréhousand the Minquiers were Icft-or, if it is preferred. placed-defini-
tively ithe common area[sic]". [Italics added]. REPLY OF THE UNITED KINGDOM (3 XI 52)
441
that an area, tirhich then consisted of high seas, should, so far as
they. werc concerned, nlways rernain high seas,and that neither
would scek to establish any exclusive sovereignty in or over the
area. It is not indicated why this should result from, or be the effect
of,a clause (Article 3) relative ta cornmon oyster fishery (or even,
indeed, if it werc a common general fishery clause) ;but such, at
allevents, appears to be the argument iiione of its aspects.
28. However, it is also necessary to consider the French conten-
tion upon its other basis, that the 1839 Convention impressed or
invested the area with a special status or régimepecuIiar, and so to
speak exclusive, to the two parties jointly-"le.nr mer communeJJ.
This will be calied Basis (a) and will be considered first. Thcreafter
Basis (b)will be considered, namely, that there was (i.e., that the
1839 Convention conçtitrited) an agreement that certain areas
should remain high seas and res nulliusso far as the two parties were
concerned.
Basis (a): That the 1839 Conventiotzcreated an aren common to the
two parfies jointly ("leur mer commune") in whichneither cozdd
claim attyexclztsietesovereignly
29. This argument is based on the view frequenfly put forward
by France in the diplornatic correspondence of the period 1876-1906,
and as constantly denied by the United Kingdom (see Section E
of Part 1,below), thatthe x839 Convention established three distinct
zones : an exclusive French fishery zone, an exc1usiveBritish fishery
zone, and a "common" or "neiitral" zone ; and that the common
zone was or became a "mer commune" to the two parties, in which
no exclusivc rights O/ any kind could he claimecl or asserted by
either party. This doctrine does not explain why the establishment
of common fislzeryrights in a certain area (if such were the effect
of the 1839 Convention as regards the waters surrounding the Min-
quiers and the Ecréhous)should have the consequence of precluding
al1exclusive clairns of any kind, nor in what manner (juridicdy
syeaking) a provision relative to such rjghts creates per se for the
area a general status or régimecommon and exclusive to the two
parties. However, the United Kingdorn Government are not con-
cerned at the moment to discuss the correctness of this particular
French view of thc-effect of the 1839 Convention, which will be
considered later. 1t is necessary to inquire first what it implies, and,
in particular, what the theory of the "mer commune" involves.
The doctrine of the mer commune :does it imply nlt area which is
ztndera condominium or an area whichis res nullius ?
30. The doctrine of the "mer commune" is evidently an essential
part of the French tliesis, but its exact meaning and bearing is not
clear. As çtated above, it is employed in two distinct senses. The
term "mer commune" normally seems to denote the "high seas" REPLY OF THE UNITED KINGDOM (3 XI 52)
M2
(hautemer), but, on page 403 of the Frcnch Counter-Mernorial, in
the final conclusion, it appears to mean more than this, and the
reference is to "leztr mer commune" in the sense, apparently, of a
sea common to the two parties, in which they assert, jointly, rights
superior to those possessed in those waters by other countries.
Since, however, it is clear that the parties could not legally assert
exclusive rights of this kind over waters which consisted of high
seas, it seems to follow that the French contention (uponthis basis)
involves that the waters concerned are not, in fact, high seas. But,
if the waters be not high seas, thisinturn involves, as a necessary
consequence, that they bc territorial waters. But, again, if they be
territorial waters, there mustbe territory to which they areattached
and this territory must be under the sovereignty of some country,
or the waters would not bc tcrritorial cxcept in the descriptive or
contiguous sense. Yet, it is tlie whole cssence of the French case
that the Minquiers and the Ecréhous are not under the exclusive
sovereignty of either France or the United Kingdom, and that
neither country has the right to claim sovereignty. Thcrefore, it
must follow that, according to the French contention, they are
under joint Franco-British sovereignt y-i.e., a condominittnc.
31.Thus,if the doctrine of "leur mer commune" is not to involve
an inadmissible claim to exclusive joint rights over parts of the
high seas, and is not dso to involve a contradiction in terms by
admitting that theyare under the sovereignty of one of the parties,
when France daims that they are not, and cannot be, it must
necessarily lead to the conclusion that, in the French view, the
waters are under the common sovereignty of both parties, by way
of a condominiztm; and (since there is no basis for sovereignty over
waters except sovereignty over the adjacent territory) that the
parties have such a condominiumover the Minquiers and the Ecré-
hous. But, is this really what the Government of the French Repu-
blic mean by their theory of "leur mer commune", upon which the
first French conclusion on page 403 of the Countcr-Mernorial is
based ? And, if they should mean this, is it a sustainable proposi-
tion ?The United Kingdom Government will, in due course, submit
that it is not, because(a)there is, in fact, absolutely no evidence of
the existence of any condominiumin the sense of a common Franco-
British administration of the groups ;and (b) it would be reading
into a provision about common (oystcr) fishery rights in certairi
waters far more than the language could possibly justify, if it were
regarded as establishing a co~zdomiîziztm of the parties over the
waters concerned and over the adjacent territory.
32. If, however, there be no condominium, and if exclusive joint
rights over the high seas cannot be asserted,there is clearly nothing
left of the doctrine of "leur mer commune" as an area peczdiar 20
France and the Unifed Kingdom. This leads to a consideration of
the French contention on the basis that the "mer commune" REPLY OF THE UNITED KINGDOM (3XI 52) 443
referred to is "la mer commune" in the sense of the "high seas".
Basis (b): That the existence of colnmon fishery rzghts iltcertain
areas of kigIz sens isfirotected by the 1839 Coltvention, and this
impEzesfhat theslatzbsot thoseareas wiJJnoj be nliered,and, cowse-
quently, involves an obligationnot to assert or clnim any exclusive
sovereignty overterritory in tkem
33. This way of putting the French contention involves two
simple (though, in the opinion of the United Kingdom Government,
quite erroneous) propositions, namely, (i) that the waters of the
Minquiers and the Ecréhous are, and were in 1839, high seas aiicl
res nullizcsin which both parties had, and have, the right to fish ;
and (ii)that this right was, in effect, protected by the 1839 Convcn-
tion, and that such protection involves, and implies, that neither
party will seek to assert any exclusive sovereignty over the groups.
The argument has to be put in this way, because, in waters which
(onthis hypothesis) were, and are, high seas, the parties would both
have had a right of fishery in any case, under general principles of
international law. No Convention would be necessary for that
purpose, nor couId any Convention actually create such a right,
however much it might purport to do so. But, theoretically, a Con-
vention could, as between the parties, preserve and protcct the
cornmon or non-exclusive statzis quo in regard to fisheries, by creat-
ing for the parties an obligation to rmalahztn this non-excllisive
position, and do nothing to prejudice or terminate it.
34. It is clearly implicit in this argument, when applied to the
present issue, that a claim of exclusive sovercignty over the groilps
must, in fact, prejudice or bring to an end the common or non-
exclusive fishery position. This assumption (iiever proved and
scarcely even discussed, but simply taken for granted) undcrlies
the whole French contention.
Sub-Section 2 : Consequencesand Implicationsof the foregoingAndysis
35. The United Kingdom Government desire to draw particular
attention to certain consequences and implications that result from
the foregoing analysis :
(a) It is inescapable that, if the French contention be correct, the
groups are either under a Franco-British cot~dofitinizwn or are res
nzkZlius .hey obviousIy cannot be both, but they must be one or
the other, because, if not, then they must be under the exclusive
sovereignty of one of the parties only, ~vhichis exactly what the
French contention asserts that they are not (though, of course, ir
içthe United Kingdom view that they are-that is to Say, that the?
are under British sovereignty).
(b) Ofthe actual existence of a condominiu~n there is no evidence ;
nor have the parties ever, at any time before or since 1839, COII-
ductcd themselves in the Ieast as if a condominiz~?n existed. It is444 REPLY OF THE UNITED KINGDOM (3 XI 52)
also not possible to see how a mere fishery agreement such as the
1839 Convention and a provision such as Article 3 of that Conven-
tion, conceming the oyster fishery in certain waters, could have
produced such an effect as the establishment of a condonziniztn, ith
al1the apparatus of joint sovereignty. On these grounds alone, this
aspect of the French contention could perliapç be ruIed out at once,
as involving something manifestly contrary to fact and reason.
However, since it is one of the theoretically possible consequences
of the French contention, it will be further considered in duc course.
(c)Nor, however, is the other (and the only other) alternative
basis of the French contcntion free from a prior diifficulties. It
involves that the waters and the groups arc res îzullius; but,ifso,
they are open to appropriation insovereignty by any other country
(except France and the United Kingdom) which cares to take the
necessary steps to establish sovereignty. This ivould seem to be a
difficult position for France and the United ICingdom to admit ;
but the only escape from it which the French thesis perinitç of is
the condominium.
(d) A similar problem arises over fishery rights. Since (unless
there be a condominium) the French contention involves that the
waters are high seas, it follows that all countries have fishery rights
there-not mercly France and the United ICingdorn. The only dif-
ference betweeii the position of the latter two countries and that
of other countries is that (according to tIie French contention)
France and the United Kingdom are under a mutual obligation to
abide by a sort of restrictive covenant not to alter thc statzcquo
by claiming or asserting sovereign rights. But no other country is
under any similar restriction (for the 1,33 C9onvention is a purely
Franco-British affair). Thus, not only could other countries claim
an exclusive sovereignty, which neither France nor the United
Kingdom can clairn, but any country which did so could, as sover-
eign (and not being bound hy any agreement to the coritrary), put
an end to al1 other fishery rights in tlie territorial waters of the
groups. Itis impossible, however, to see why two countries such
as France and the United Kingdom, which obviously have the main
interest, geographically, economically and in every other way, in
these groups, should have placed themselvcs in this extraordinary
situation, in which their own positions and rights are, so to speak,
circumscribed, reçtricted and precarious, while those of al1 other
countnes remain free and unaffected. It \vil1be appreciatcd, though
it is perhaps unnecessary to point it out, that international law
does not admit of anything in the way of what might be called
suspensive or putative sovcreignty, which the country conccrned
does not choose to assert itself, but \j~l~can yct operate as nbar
to claims by other countries. Except in the case of an inclioate aiid
purely temyorary title to territory, arising frorn discovery, which
is not here ili question, it is not open to countries, withoiit thern-
selves asserting or clairning sovereignty, to deny the rigIit of otlier REPLY OF THE UNITED KINGDOM (3 XI 52) 445
countries to do so. France and the United Kingdom could not,
therefore, while not asserting their own sovereigiity, yet seck to
maintain that they had rights which prevented ttiird States from
asserting a claim l.
(e) If, in order to avoid these consequences, the Government of
the French Republic prefer to say that their conlention does not
involve a position of high seas and res ntcllius, and that tIiere is
sovereignty, but it is a joint sovcreignty of co~rdomi~riztm a, cl
neither party can claim exclusiveIy; then, once tnore, it must 11e
asked : where are the manifestations of this joirit sovereignty
and where is the treaty provision establishing it ? Just as no
country can claim a sovereignty which is doet not manifest by
appropriate acts of sovereignty, so a joint sovereignty or co?zdonli-
niz~ntmust be, and is, manifested by, or proved by reference to,
appropriate joint acts of sovereignty and appropriate arrangements
for the exercise of such sovereignty-e.g., as to joint administra-
tion, 3s to the Iaw which is to apply, &c. But, in fact, there are no
such arrangements. There are, and have been, manifestations of
British sovereignty, and there may have been manifestatio~is of
purported French sovereignty. Never, at any time in the whole
history of the case, have there been any acts of joint sovereignty,
or overt manifestations of a condo.ininium,or any arrangements
about it hetween the parties. The necessary joint administration,
in fact, doesnot exist.
36. The foregoing points have purposely been gone into at some
length, because they shew that, whichever way the French conten-
tion be looked at, and allowing, or even seeking for, every reason-
ably plausible way in which it can be put, it is open to serious and
almost conclusive objections on a priori grounds, even bejore the
inlerpretadionof the 1839 ConventioftIzasbeen enteredzcpo~z at all.
It would not be unreasonable to ask the Court to reject the French
contention on these a priori grounds alone, as leaditig to results too
improbable and unrealistic to be seriously entertained. However,
there are other more positive, though no less cogent, reasons for
rejecting this contention ; and attention will now be drawn to
certain further consequences and implications of the French con-
tention, which have a direct bearing on the United Kingdom's own'
case, as will be stated in Section D of Part 1,below.
37. Whichever way the French contention be looked st, and
whether it be regarded as leading to s condominium,or tothe groups
being res ~ztZZiz~cosupled with an obligation on the parties not to
alter this position by claiming any csclusive sovereignty, it js a
necessary consequence of the contention that the groups were res
nullius in1839. For if they were not, that is, if tliey were under the
sovereignty in these localities.f internatiagreement:precluding clairnsto REPLY OF THE UNITED KINGDOM (3 XI 52)
446
exclusive sovereignty of one or other of the parties at that date,
it wouId have to be supposed that this party, retztrnfor no quid
pro quo whatever, either admitted the other to share its hitherto
exclusive rights (curzdominiz ormr)linqiiished them altogether (res
nzrllizt Ssi)ilarly, asregards fishery rights, it would have to be
supposed that, again for no return 1, the party already having
exclusive fishery rights by virtue of its sovereignty, suddenly .
became willing to share these with the other (condomi9tizc orlz),
with al1the world (resnzcllitE &se)n.if it were siiggested that there
mas, in fact, a qztidpro qtm, because one of the parties was sovereign
over the Minquiers and the other over the Ecréhous, and both
groups were, so to speak, pIaced in the pool (which, however,
neither party does suggest), the interna1 evidence of the 1839Con-
vention itself, which will be considered presently, points over-
whelmingly to the conclusion that only territory which was res
rzzcdiuscould have been included i~i the common fishery clause
(Article 3) =.The French Counter-hlemonal itself aclopts this view,
which is, indeed, the only one consistent with realitics. On page 3.73,
after observing that "en 1824 et 1825, le Royaume-Uni considérait
que léseaux où se trouveiit situésles rochers des Ecréhous et des
Minquiers appartenaient B la haute mer" 3,it goes on :
"Le projet de convention de 1824 suppose que les négociateurs
des deux nations considéraientque les espaces aujourd'hui litigieux
appartenaient à la haute mer ou &.la mer commune, mais non en
propre à l'un d'entre eux. Or, cela demeure vrai de la conveation
de 1839". [Italics added] '.
With regard to the reference to "la mer commuiie" in this
passage, in so far as it might denote anything different from the
high seas (see paragraph 27, above), which could only mean a
If any territory belonging exclusively to one of the parties was $aced or came
within thesocaiied common (Article 3) area. this would have bcen quite gratuitous
unless territorbelonging exclusivelto the other partywas similarly placed or
came within the area. Since there is absolutely no evidence that either party intended
to dcaI in this way with temtorunder its actual sovereigntand the evidence
israther to the contrary, it mube assumed that Article 3 related ehtirelto
areas which were 78s nullilius.
It is. of course, preciselthis reason 'that, on the United Kingdom side. it
has always.been argued that the groups, being Britiin 1839, could not have
come under Article 3 of the 1839 Convent:owhereas, on the Frenside,starting
first. that they camender Article 3, and then, that because they came undergued,
Article 3, they could nbe,or have been. British. Shus, the parties have always
been at cross-purposeswhile the French argument has involved a double petitio
prilzcipii.
"'....in 1824 and 1825 the United Kingdom regarded the area in which the
rocks of the Ecréhous and the Minquiers are situatedforming part of the Iiigh
seas".
"The draft Convention of1824 asçumed that the negotiatorof both nations
considered that theareas now in dispute were part of the high seas, or to [sic]
the cornrnon sea, but not as belonging to either of the two naA~zdthe saws
holdsgoodi?rregardioth Convcniim of 1839" [Italics adde.] REPLY OF THE UNITED KINGDOM (2 XI 52) 447
condominizi(m see paragraphs 30 and 31, above), there waç,of
course, whatever else there rnay have been, no more a condomi7zs'um
at that tjme than there js now, Thiis, the high seas or res nulLius
rernains as the only practicable alternative. This also results from
the fact that joint fishery rights would already have cxisted in
waters ïvhich were under the joint sovereignty of the parties ;
and it would have been quite supedluous and absurd to have a
special treaty clause by which thc parties purported to confer
these rights upan themselves l.
38. From the fact that only territory ~vhich was then res nulJius
could have come under Article 3 of the Convention, two important
conseqiiences floïv: (a) the Minquiers and the Ecréhous could riot
have corne under Article 3 if they ivcre at the time undcr either
British or F~enclz sovereignty ; (b) çince the waters covcred by
Article 3 were high seas, the parties already both had a right to
fish there, and, howsver Artzcle 3 was drajled, and however much
it may have piirported tn crcatc sucli a right, it cannot in f:~ct
have done so. The implications of these two points will now be
hriefly considered.
Point (a)
39. On the Unitecl Kingdom sicle, il has a1w:lys becn (luite
consistcntly maintaincd that the Minquiers and the Ecréhous
could not have come under Article 3 of the 1839 Convention
because they ivere under British sovereignty at the time. On the
French side there has been less logic ;for, while maintaining that
France has, and always has had, an historic title to the groul~s,
the French authoritics have simultaneously soiight to maintain
that they fecl under Article 3 of tlie 1839 Converition. This proccss
is repeated in the Counter-Rlemorial, Part III of which claims that
the groups have alwayç been French. But, Parts I and II virtually
admit that the "common" (Article 3) area related to regions whicli
were high seas and res ~ztdzrllia;nd it is, indeed, precisely upon the
baçiç that the Minquiers and the Ecdhous were not under either
French or British sovereignty that France has claimed that they
came under Article 3.
40. The United Kingdom Government submit that this process
is not really a legitimate one, and that the Governrnent of the
French liepublic must choose either to maintain that the groups
were French in 1839 or not. If (as in Part 111 of the Cou~iter-
Memorisl) the Governmcnt of the French Republic maintain that
Strictly,wasequally superfluous if the waters were high scas, for the parties
already had a general internatlawaright to fish there. It nas preciseiy for tliis
reason that, relying upon their ordinarylawmrights, the partiessubsequently
the later 1867 FisheryConvention. onlydid not come into force for extraneous
reasons irrelevant to the present issue (seD of Part 1, below).they n-ere French in 1839, then this means that France was
apparcntly wiiling, for no rettirn ofany kind, (a) to give up the
exclusive fishery rights she would have been enjoyiiig iii these
waters ; and (b)-according to the French contention-to relinquish
lier entire sovereignty, or ültcrnatively to share it with the United
Kingdom (if it were a condominium th:~t the Governmeiit of the
French Rcpublic Say Article 3 established). If, on the other hand,
itbe obvious that no French Government would have becn willing
to act in this way if France had had sovereignty over the groups
in 1839, the11the daim that sovereignty existed must be renounced,
if it is to be maintained that the groups came under Article 3.
Point (b)
41. If it has been correctly concluded abovc that the Article 3
areas were intended to be high seas, it will also follow that the
parties already had a common law right of fishery there, aiid Arti-
cle3 was not Iiecessary to establish this. It will be shewri later (see
also ilote 20, above) that Article 3 was, in fact, unnecessary and
could have becn omitted. Al1it really meant was that the area it
coirered ivasopen sea ivhcre therights of al1collntries rvere equal,
including those of France and the United Kingdom. However,
assuming that thc Article waç not, so to speak, purely declaratory,
then, since it did not, in fact, create any rights, its action must
(according to the French thesis, and as suggested in paragraph 33,
abovel have been conservatorv in character : it did not create
rights, but itperated as a prohibition on their subsequent removal
or impairmciit. Granted, for the sake of argument, that this n7as
so, the nest and final question in the analysis of the French
contention and its implications is : what was the charactcr of the
rights which it was intendcd tlius to.preserve and what did their
preservation involve 3
42. Even if every possible concession be made to the French
thesis, the rights preserved and, so to speak, protected by Article 3,
were, evidentiy, no more than cornmon or joint fishery rights in
certain waters. Why, and in what ivay, this should entai1 a prohibi-
tion on the assertion ofany daim to exclusivc sovereignty is some-
thing which tlie French Counter-hlemorial nowhere explains. The
United Kingdom Government will submit, and will hope to shew
in due course, that the enjoyrnenl of coinmon fishery rights by
two countries in certain waters is perfectly compatible with the
exercise of exclusive sovereignty by one of the two countries
in al1 remaining ways. Tlie right of the other country to continue
to fish must, of course, be respected, either as a servitude to which
the area concerned is subject, oras a persona1obligation biiiding on
the local sovereign, ivhichever of the two that sovereign may be.
The position is one ivhich is perfectly familiar in international law
and practice. The French Counter-filernorial assumes that, oncecomrnon fishery rights are by agreement èstablished or protected
in a certain area l, it follows, automatically, that none of the
parties to the agreement can assert any exclusive sovereignty
thcre. The United Kingdom Governme~it submit that, on the
contrary, al1 that the parties must not assert is nny exclusive
jishevy riglit. There is, consecliiently, s vitaI step missing in the
French argument, which fails to explain how or why an agreement
establishing non-exclusivity of fishery rights in an area implies
non-exclusivity for al1 purposes, or invests the area with such a
status. This is the more striking in that (aswill be seeri in Section
E of Part 1, below) previous French administrations during the
period 1876-190 h6ad no difficulty in recognizing, as from the
moment rethe)~Fraltce herself fiut jorwnrd clainzs of sovereigr~ty
tu the groups, that commoii fishery rights could be enjoyed irre-
spective of the question of sovereignty, and whicliever country Iiacl
sovereignty. This is, moreover, quite clearly the iinderlying basis
of the 1951 Fishery Agreement (see paragraphs 19 aiid 20,abovc).
43. &sing thernselveç on the above snalysis of thc French
contention, the United Kingdom Government will iiow develop
their reasons for the view that the 1839 Convention did not
preclude, and could not have precluded, the parties from assertiiig
claims to esclusivesovereignty over the Minquiers and the Ecréhous,
or have involved any disqualification or disability in the matter.
SECTION 11
United Kingdom ContentionII : That the 1839 Conventiondid nothave
the effect of renderingthe Minquiersand the Ecréhousincapableof
appropriation by France or the United Kingdom, and of precludirig
either country from assertina claimto exclusive sovereignty overthem
Sub-Section I : IntroductoryRemarks and Points to be made by the
United Kingdom Covemrnent
44. The analysis of the French contention respecting the effect
of the 1839 Convention given in the preceding Section indicates
that there are two principal points ~vhich the Government of the
French liepublic must cstablish in order to prove their thesis,
iiamely, (1)that the Ilinquiers and the Ecréhous came within the
scope of Article 3 of the Convention (for it is on the implications
to be drawn from this Article thatthe whole French tlresisdepends);
and (2) that the effect of that Article was to preclude either party
from asserting or sceking to assert any claim to exciiisivc sover-
eignty over the groups. Tlie analysis also shewed it to be a conse-
quence of the French thesis that, sincc the groups arc (according
l Itwillbe borne inmind that. according to thc United Kingdoviem,the
Minquiers and the Ecréhousare noinfact. includin any sucharea. But this is
another, and a distinct, issue.49 REPLY OF THE UNITED KINGDOM (3XI 52)
to that thcsis) not uiider the exclusive sovereignty of either France
or the United Kingdom, they must at this moment be either
under a Franco-British condomi~rizrm,or else res nuilizls. It was
sheva, Iiocrlerrer,that both these suppositionsgavc rise to theoretical
and practical difficulties of so serious a character as virtually to
justify their rejection on a priori grounds, leaving the United
Kingdom Contention as the sole tenable hypothesis, namely, that
the groups are under the exclusive sovereignty of one or other
of the two countries, and that the issue before the Court is to
determine which.
45. The analysis also indicated that the areas to which Article 3
of the 1839 Convention were intended to relate must have been
areas which, in 1839, were under the exclusive sovereignty of
neither party, and which, therefore (since therc is no evidcnce of
the existence pf any co~zdoma'nizc by the parties over any locnlities
that could have becii concerned), were resnullizts i1839 t followed
from this that the Minquiers arid the Ecréhous could not corne
under Article 3 if they were under either French or British sover-
eignty in 1839, and, therefore, that the Freiich contention that
they were covered by that provision was quitc inconsistent with
the parallel French clai~n that, on historic grounds, the groups
were French in 1839. It was suggested that the Government of the
French Kepublic could not validly maintain, both that the groups
wcre French in 1839, and that they feil under Article 3 at that
date, because they could only have fallen under Article 3 if they
urere not at that date French (or British).
46. On the othcr hand, it had consistently becn 'maintaineci on
the United Kingdom side that the groups were, aiid always had
been (and were in 1839). British, and that, for thnt reason, they
could not have come under Article 3. It is, therefore, a principal
factor in the Unitcd Kingdom case tn demonstrate that, if the
Unitcd Kingdom Goveriiment are right in their conte~ition that
the groups were British in 1839,they did not come under Article 3,
whatever effect that provision may have had in. regard to the
areas it did cover.
47. The detailed analysis of the French contention also shewed
that, if it were correct to say that Article 3 only applied to areas
over which neither party had sovcreigntp in 1839, then it followed
that, since the waters concerned were high sc:is, Article 3 cannot
have created the common right of both countries to fish in them.
At the most, it might have had the effect of preventing either
party froin thereafter seeking to alter the stalus quo in such a
rnanner as to prejudice this common fishery right l. But it was
suggested that, in fact, a claim to exclusive sovereigilty would not
1As will be seen. the United Kingdom Government do not admit thwasthis
in fact the effect of Areveneas regardsshery rights. REPLY OF THE UNITED KINGDOhl (3 XI 52) 4s 1
have this result, for full effect could still be given to aiiy existing
fishery rights, either asa servitude attaching to the area, or as an
obligation personally incumbeiit on whichever country claimed
sovereignty, i.e.t,o continue to respect the fishery rights of the
other country while exercising exclusive sovereignty in al1 other +
respects. It was suggested that this position was familiar to iiiter-
national law and gnvc rise to' no difficultics eithcr of theory or
practicc. Consequcntly, it was not legitimate to read into Article 3
far-reaching implications about sovereignty, since no such impIi-
cations were required in order to give full effect to the only matter
that the Article specifically dealt with, namely, certain fishery
rights.
48. Basing themselves on these foundations, the United King-
dom Government will advance the following principal arguments
in siipport of their preçent conteiition, namely, that the 1833
Convention did not have the effect of rendering the Minquiers
and the Ecréhous incapable of appropriation by France and the
United Kingdom :
Poin t I): Article 3 of the 1839 Convention clid not apply
to the Minquiers and the Ecréhous for the following reasons :
(a) The groiips were dependericies of Jersey niid, tlierefore,
came uiicler Article z of the Convention. as areas
in which fishery was reserved exclusively to British
subjects.
{b) The groups, rvhether or not dependencies of jersey,
were British possessions iri1839 and, therefore, carne
under Article g of the Conventioii as "British Is-
lands", in respect of which al1 fishcries wcre reserved
exclusivcly to British subjects.
(c) Article 3 of the 1839 Convention did not, inany event,
apply to areas under the sovereignty of one of the
parties. but only to areas which were res 9ttdlius or
which consisted of high seas.
Point (2) : Even if, contrary to the foregoing arguments,
Article 3 of the 1839 Convention were applicabIe to the
Minquiers and the Ecréhous, it did not have the effect of
preventing either party from claimiiig or exercising exclusive
sovereignty over the groups, since :
(a) it did not eçtabiish any Franco-British cottdorninium
over the groups ;
(6) al1 that it cstablished was that the areas covered by it
consisted of open sea in which the rights of al1States
were equal, including those of France arid ttie United
Kingdom : it did not imply that this position must
continue indefinitely, or that no step could be taken
by either party to put aii end to it;
31452 REPLY OF THE UNITEI) KINGDOM (3 XI 52)
(c) even if such an implication did result from Article 3,
this was only in respect of the rights actually specified
in the Article,~iamely,fishery rights l,and constituted
no bar to a daim of cxclusivc sovereignty, tliere being
no incompatibility between such a claim and the con-
tinued enjoyment of comnion fishery rights by both
parties.
Before the reasons in support of these arguments are developed, it
will he necessary, in order to facilitate understanding of thc position
as a whole, to give some account ofthe background and history of
the 1839 Coiivcrition, and of the light thrown on its real purpose
and effect by the later Convention of 1867. This will be done in
Sub-Sections 2 and 3 below, the main argument being resumed in
Sub-Sections 4 and 5.
Sub-Section 2: Nature, Object and Background of the 1839 Convention
49. The French Counter-Mernorialdiscusses in considerable detail
the negotiations 1eacIingup to the 1839 Corivcntion. In the opinion
of the United Kingdom Government, almost al1 this argument is
completely irrelevant to the establishmcnt of the French thesis,
because it fails to shew what necessary connesion there is between
an agreement for regulating certain fishery matters and establish- .
ing certain fishery lirnits, on the one hand, and the issue of sover-
eignty, on the other hand. Ccrtaiilly the negotiations that Icd up to
the Convention do not establish any siich connexion. These nego-
tiations, which lasted for a period of twenty years (1819-3g),were
vcry protractecl and difficiilt ; but it is clcar that the difficulties arosc
cntirely frorn diffcrences ofa fishery character, and not because of
aiiy issue about sovereignty or claims to territory, which indeed
were never meiltioned. Moreover, these differcnces relatcd cntirelp
to the oyster banks and beds off the French coast ancl iiot round
Jcrsey or the Minquiers or the Ecréhous. The difficulties involved
apyear quite clearly from the interchange of correspondencc between
thc Prince de Polignac and Mr. Canning givcn as Annexes I and III
to thc Frencli Counter-Mernorial ;and also from 'a siihscqiient
Lctter, datcd the 24th December, 1825 , liich the Unitcd Kingdom
Governrncnt attach to the prcsent Reply as Annex h 141, written
by Mr. (later Sir) Robert Peel (\vho, as Home Secretary, \vas the
Minister then responsible for tlie fishing incluslry and the Channel
Islands) to hlr. Canning, ttie Foreign Secretsry. A study of these
docurncnts makes it clear that there urere three main difflculties,
arising from the peculiar charncter of the oyster fishing iriclustry.
These werc :
' Or, more corrcctloysletfishery rights. But,faras the United Iïingdom
involved (see paragraph 68, below).attewhat particular fishcry riweres REPLY OF THE UNITI7D 1EINGDO;L I3 XI 52) 4.53
(a) The French fishermen regarded themselvcs as entitled to an
exclusive right to fish certain oyster banks off the French
coaçt outside the normal limits of French territorial waters.
They corisidcred that they had (as the French Cor1nti:r-
Rlemorial saps, pp. 360-363) aquasi-proprictary right in thcse
banks, or rather in thc oyster beds on thcm, by rcason of
having cultivnted them. No solution was acceptable to the
French aritliorities which did not reserve to French fishermen
the excl~isiveright to fish these particular ban ks, although
the French authorities urere apparently not univilling, as
regards certain other banks, to allow British fishermen to
fish even within the limits of French territorial waters.
(b) The United Kingdom authorities, ~vhilenot unsympathetic
to certain of the French claims in çubstailcc, believed that, iri
principlc, exclusive rights to fisheries could not be claiinecl
outside the lirnits of territorial waters, and fcared that this
principle would be prejudiced by the admission of special
exceptions. They also pointed out that no agreement between
France and thc United Kingdom inter se coulclcreate a really
exclusive right of fishery outside territorial waters, for it
could not bind third States : thus, British fishermcn might
merely fincl thernselves excluded from hanks which would
still remain open to fishing by the fishermcri of other.coun-
tries.
(c) Supposing, however, that the United ICingdom authorities
had heen willing to admit certain special exceptions in favour
of French fishermen, a further (and inclceclthe major) diffi-
culty was the absence of any quid pro qtaoin favour of British
fishermen which would have enabled the United Kingdom
authorities,vis-2-v iarliament, to justify asking for tlic
special lcgislation necessary in order to restrairi British fisher-
men from cxyloitiiig the oyster beds off the Frcnch coast,
but outside French territorial \vaters, that wcre to be reservecl
cxclusively forFrench fisliing. 'Thisdifficulty of findinquid
pro qzio arosc becailse, on the United Kingdom side (i.e.,
along al1 British coasts), the oyster beds Iay wel withiri the
limits of territorial waters. There were no oiitlying hanks,
where there could be an exclusive British right to fish, which
would balance the exclusive right which, it was suggested,
the French should have to fish certain outlyiilg banks on the
French sicle. For these ressons, as is wcll esplained in thc
French Couriter-Mernorial, the negotiations that took placc
in the period up to 1Sz4 came to nothing, and the Conventioti
drafted in that year was never signed.
50. The foregoing facts have an important bearing on the correct
iriterj-~retationof thc evcntual 1839 Convention, for it was in tliis
Convention that the bargain on fisheries was finally arrived at, anclthe quid pro qzro,missing in 1S24,was found. It seems to havc been
decided in the iiltervening period that the intercsts of the British
(including cspecially Jersey) fishcrinen could be met, even if an
exclusive right were reserved to French fishermen to fish for oystcrs
in certain areas outside French territorial waters off Granville and
in tlic Baie de Cancale, proïridcd that British fishermen were
allowed to fish in certain other areas withi.tzFrench territorialwaters,
i.e., certain arcas north of the Ilcs Chausey which, being nearer to
Jersey, were more easy of access to the Jersey fishermen, and the
oyster banks of which the latter had discovered, as is statcd on
page 364 ofthe French Couriter-Mernorial. It was on the basisof this
quiLi pro quothat the bargain was struck, and it was giveii effect to
by drawing an ad hocline on the cliart annexecl to the Coizvention-
a line partly i~zsideand partly ozllside tlzlimits O/ territorial waters,
within which Frcnch subjects were given exclusive rights. (Adetailcd
aiialysis of this line, shewing its distance at various representative
points from the French coast, is givcn in Annes A 142 to the prcsent
Keply). This result rneant, in effect, that, in some places, the French
liad exclusive rights outside their territorial waters, but in other
places they gave up exclusivc rights even within their own terri-
torial waters and admitted British fisherinen to a common right in
waters that would otherivise have bcen open only to French fisliing.
The position is accurately explniried on page 374 of the French
Couiitcr-Memorial, as follows :
"The (18391Conveiition, as it emerged from the hands of the
experts,offered Eiigland a quid;fivoqgo,which the Convention of I824
failed to provide. To the north of the Chaussey[sic] tbc line of
demarcation off Lingreville still lav inshorc of the three mile
limit, so that the British fislic~men ol~tained access hencefortli
to some of the ~nost fertile oyster-banks. That concesaion offset
the advantages gained by France hctrveen the point off Lingreville
and the Chaussey[sic] isIands, and in thc 13ay of Cancale. 'This
time the cotnpensation was forthcoming on the spot. As regards
Jersey, the limit of oyster fishing was brought down to thrce
rniles .
51. This shcws that it was the ad hoc line describcd in Article I
of the 1839 Convention, and traced on the chart annexcd to it
(aiid not any other provision such as Article 3), which was the
csscncc of the solution reached, and the essence of the Convention
itçclf. Al1other considerations were secondary tu it ;for the mhole
dispute had arisen with reference to the oyster banks lying off
the Frenchwzairrland,and the teticlency of the British fishermen to
fis11beds which the French fishcrmcn regardcd as their exclusive
lx-eserve, even though outside territorial water limits l.The question
and evidence to thcsameleffect is to be found the Dispatch ofnthe12th June,,
1820, from the French Ambassador in London to the Foreign Ofhce. given at
tlnnex A 24 in Vol. II otheUnited Kingdom Mernorial, and in the Letter of the of the limit round Jersey, on thc other hand, had given rise to no
dispute. So, wherc Jersey was conccrned, the parties conte~ided
themselves with a reference to the gcneral three-mile li~nit, just
as they did under Article 9 with reference to al1the rest of the coasts
of the "British Islands" and al1 the rest of the French coasts '.
52. hloreover this samc Articlc 9 (which related to al1fisheries)
she~vsclcarly that Article 3 of this Convention wr~snot jnterlded
to apply to any areas then under French or British sovereignty,
or there would have been a maiiifest contradiction betwecn the
two provisions ; for, under one of them (Article 3), the oyster
fishery in such areas was to be common to the subjects or citizens
of both parties, wherens, under thc other (Article g),it %vas rescrved
(as part of the right of fishery in general) exclusively to the subjects
and citizens of the party posscssing sovercigiity-with the sole
exception of that part of the area off the French coast eçtablished
by Article r ~rhichIay within Frcrich territorial waters, but outside
the ad IEQ lCne. (The significance of this last point and of the matter
generally will be discussed in its appropriate place : sec paragraph
62 (a), below) .
Sub-Section3 : The 1867 Convention
53. The foregoing account (ifthe steps leadiilg up to the 1839
Convention shews, not only that Article I of that Convention was
by far its most important provision and real raisott d'tire, but, in
addition, that two of the Articles-namely, Articles z and 3-
were, strictly, superfluous. The position as regards Article 2 is
sufficiently explaineclat the end ofparagraph gr, above, and in noter
hereunder. As regards Article 3, if it be the case (seeparagraphs 37
14th September, 1819,from the French Minister of Marine to the French Minister
for Foreign Affairs, given at Annex 25 in Vol. II of the Memorial.
l It may be asked why, in these circumstances, Jersey was mentioned at all.
Since Jersey was ta have the samc three-mile limit awas providod by Article g
for au "British Islands", it was, strictly speaking, not necessary ta inclu2. Article
for Jersey would have been covered by Article 9.The explanation seems to be that
the terms of reference of theixed Commission appointed in 1837 were, as stated
in the PreambIe of the 1839 Convention. to ascertain and define "the limits wivithin
which the subjects of the two countries rcspectively should be at liberty to fish for
oysters between thc Island of Jersey and the neighbouring coast of FrHaving,
therefore, byArticle1, and by the line drawn on the chart, defined the exclusive
thelCornmissioners includedaisecond Articlc defining exclusive fishelimits on
the other side(i.e.off Jersey) even though in that case this may not have been
strictly necessary, since it was merely a question of applying the normal three-mile
limit rule. Artic2was essentially a balancing provision, and this is proved by the
fact that it was omitted in the later 1867 Convention (see paragraphs 56 and 57 (a),
belom). The attempt of the 1886 French Cornmittee of Experts (Vol. IIof the
United Kingdom hIernorial. Annex A 42,p. 238) to argue that the Channel Islands
(Jersey, Cuernsey,Alderney, &c.), dinot corne within the term "British Islands"
\vas conclusively answered in the ensuing opinion of the Jersey Law Oficers (ébid.,
Annex A 47,pp. 255-~57)and nced not be discussed hcre.493 REPLY OF THE UNITED KINGDOJI (3XI 52)
and 52,above, and, further, in paragraphs 56 and 57(c),below)that
this provision did not apply to areas under .sovereignty of either
party, then (as stated in paragraph 41, above, and in note 1, page
447). it {vassuperfluous, because a general international law right of
fishery already existed inreas which mcre high seas or which were
res nedlietIt is, therefore, of the utmost significance, as bearing
out these views, that the later (1867) Convention, which (as will
be shewn) waç intcnded to clarify, without affecting the substaiice
of, the earlier (1839) Convention, in fact omitted both these provi-
sions (Articles. and 3 of the 1839 Convention), precisely on the
ground that they'were unnecessary. The 1867 text, indeed, throws
a considerablelight on the various obscurities of the 1839 Conven-
tion, and must be considered in some detail.
54. The full test of the1867 Convention is given in Annex A 28
in Volume II of the United Kingdom Mernorial ; and, despite the
suggestio~ito thecontrary made on page 376 of the Frcnch Counter-
.Mernorial, the Uiiited Kingdom Government contcnd that it is
legitimatc to cite this Convention for illustrative and interpretive
purposes. The reasons why it was not brought into operation had
nothing to do with its substance ; and these, if anything, tend to
confirm that the parties were satisfied with it. It appears that the
French authorities were dissatisfied, nnt with the Convention, but
with certain provisions of the United Kingdom Sea Fisheries Act
of 1868, xvhich was passed mainly in order to give effcct to the
1867 Convention, but mhich also contained a number of other pro-
visions. Being so dissatisfied with these othcr provisions-andthis
implies satisfaction with the Convention itself-theFrench author-
ities were unwilling to join in fixing the date on which, under
Article39 of the Convention, it was to corne into force, folIowing
on the passing of the United Kingdom Act of Parliament. The
source of the French dissatisfaction was that, in some cases, heavier
penalties were imposed in the United Kingdom than were imposed
for corresponding offences in France. Accordingly, in 1870, the
French Ambassador was instructed to urge that these penalties
should be placed upon a uniform basis (see Annex A 143 to the
present Keply). The United Kingdom Govcrnment, in reply, express-
ed their readiness to consider the question (see Annex A 144 to
the present Reply) ;but it appears that no agreement was reached,
and, therefore, the 1867 Convention never came into force. The
failure to bring the1867 Convention i~itoforce does not, however,
impair its value as evidence of the purpose of the 1839 Convention,
which both parties intended it to replace. Although the French
Counter-Mernorial now seems to deny this (p. 376). it has been
adrnitted in the past by previous French administrations, which
have themselves used the 1867 text for evidential purnncrs (sec,
for instance, Annexes A 38 and A 42 in Vol. II of the United King-
dom Rlemorial and, in particulsr, the passages on pp. SZ~-SZ~
and 238 of those Annexes). REPJ-Y OF THE UNII'III) KISGDOM (3XI 52)
457
55, The 1839 Convention contained many obscurities and Ras
badly drafted, a point insisted on hy the French Countcr-Mernoriai
itself (sepp. 373-3741.The 1867'Convention was intended to replace
that of 1839, and its Article 4r (see p. 78 l of Val. II of the United
Kingdom Memorial) provided that, upon tlie corning into force of
the new Convention :
"The Conventioii concltided ....on thc 2nd of August 1839,
and tlie Regulations aof the 23rd of June 1843, slial....altogether
cease atid determine".
But the 1867 Convention waç not intendecl to briiig about aiiy
substantive change iri the position. Its Prcamble read as follo~vs :
"His Majesty the Emperor of the French niid Rer Majesty the
Queen of the United Kingdom of Great Britain and Ireland,
having charged a Jlixed Conirnission with preparitig a revisioii
of the Convention ofthe 2nd of August, 1839,and of the Regulatioii
of June 23, rS43, relative to the fisheries in the seas situated
betwecn Great Britain and France ; and the SIembers of that
' Commission having agreed illion certaiii arrangements 7vhick
exfierience has shown wozddbe ziseful, and which appear to theni
such as wilf ude~ula6ageozcsnkydify and complets th8 former amn-
gemeiits in the common interest of the fishermen of the two
countries ;Their said Majesties have judged it expedient that the
arra?zgernentsflrofiosedby the said Commissio~z shozsld be sanctioned
by u new Conuention, and have for that purpose named as their II
Plenipotentiaries, that is to say : . . . . . . . . . . .
[Italics added].
It is clear from this, especially from the passages italicized, that the
parties did not conceive thernselves, by means of the 1867 Conven-
tion, to be hringing about any fundamental alteration of their
positions or rights as these hacl sfood under the 1839 Convention,
but to be effecting modifications of detail, and, iiiparticular, to be
completing and bringing up to date, in the light of the experiellce
gained since 1839, the arrangements for the general administration
and regulation of fishcries. This is also the conc~usion to be drawn
from the diplornatic correspondencc which took place during the
period 1883-1887 (sce Annexes A 38-A 45 in -Vol. II of the United
Icingdom Memorial, pp. 223-246) It.is shewn by M. Tissot's Note
to Earl Granville, dated the 25th April, 1883 (Annex A 381, and
still more clearly by thc latter's reply, dated the 24th October,
1883 (Ariiiex A 40), in which it was stated (United Kingdom
Memorial, Vol. II, p. IOI~), that :
"....it would be impossible, in the discussion of this question, to
leave out of consideration the terms of the Convention of 1867,
which did not purport to make any change irithe fishery limits,
l Seep. 203.
the 1839 Convention. See the citation in parag25above, andsee,also AnnexAf
145 to the present Reply.
See 1'. 230. REPLY OF THE UNITED KINGDOJI (3 XI 52)
45s
and must be considered, therefore, as containing a more precise
exposition of the meaning of the Convention of 1839 . . . . . . .
Further evidence to the same effect will be found in Annexes A 40
and A 69 in Volume II of the United Kingdom Memorial, at the
foot of page IOI l and at the top ofpage 102 ',and in thefourthpara-
graph on page 150~. In these circumstances, thc United Kingdom
.Governmei-it are unable to agree with the assertion, made on
page 376 of the Frcnch Counter-Mernorial, that the 1867 Con-
vention, had it corne into force,
"would have involved rcnunciation by the French Govcrnment
of the provisions of the Convention of 1839, . . . .. . . . . . ."
for al1 the evidencc goes to shew that the fundamental French
rights would have rcmained tlie sarne. It is the Frcnch view of what
were France's rights under the 1839 Convention that is mistaken.
56. If there were any room for doubt that the object and effect
of'the 1867 Convention were clarificatory of the parties' positions
and rights, and not in substantive alteration of them, this would
be removcd by the records of the negotiations, which took place
in Paris in 1866-7 These also shew very exactly what changes
ivere made, and for what reasons. The minutes of the meeting of
the 28th Ilecember, 1866,state that Mr. Cave, a member of the
British ciclegation, handed in a hlemorandum "which the Eiiglish
Commissioiiers suggested should forrn the basis of the discussion
as constituting the principal points for consideration", The 3Iemo-
randum was referred to a sub-committee. Point 3 of the filemoran-
dum was "the more precisc definition of the Gcographical limits
over which the regulations shall extend". The minutes of the meet-
ing of the 4th january, 1867, continue as follo~~:s
"Taking as a basis the hfemorandum above referred to the
Sub-Committec proposed a new Article No r. founded on Articles
N? g and ro of the Convention of 1839subject to certain
amendments.
"hl:Cave suggested that a Clause should be inserted to include
the Channel Islands in the terms 'Iles Britanniquesr-
"hlfde Champeaux IlTrance]resumed the reading of the proposed
Articles--Jo 2of the new set to be identical with Articlc r. of the
Convention settling the fishing limits in the Bay of Granville-
"The original Chari signed in 1839 was produced and the Corn-
missioners decided that it was not exyedient to make any alter-
ation in the boundaries-
"Article2 of the Convention [i.e.of 18391 is no longer required
being embodied in the New Article No I.
1 Seep. 230.
a Foreign OfficePaper971447.These Minutes are containeina bulkybound
volume, but the relevant passages could beproduced by photostat for the .use of
the Court, if necessary.
"This was done. SeeArticle 38 of the Convention. REPLY OF THE UNITED KINGDOM (3 XI 52) 359
"Article 3 [i.e.,of the 1839 Convention] for the same reason
may be su~iyrcssed beirig treated of more fully in Article 16of
the regulations- l
"Articles 9 and IO [i.e., othe 1839 Convention] have already
been embodied in the ncw Article 1".
In addition to theçe simplications and clarificatioiis, an Article was
introduced to define the term "British Islands", which figured in
Article I of thc new tcxt, as it hsd done in Article 9 of the old.
This provision-Article 38 of the new Conventioii-reads as follows :
"The terms 'UritislIslands' and 'United ICingdom', employed
in thisConvcntion,.shall include the Islands of Jersey, Guernsey,
Alderney, Sark, and Man, with thei~dependemia". [Italics added].
The limits off the French coaçt between Cape Carteretand Point
Meitlga were left exactly as they had been established by the ad
hoc line referred to in Article I of the 1839 Convention, though
re-defined with greater precision ; but the line on the char t rinnexed
to the 1867 Convention (sec Annex B8 in Vol. III of the United
Kingdom Rlemorial) remained identical with that on the chart
annexed to the 1839 Conveiitio~i (see Annex B 7 in Vol. III of the
United Kingdom Rlemorial).
Conclusioltsto be Drawn #rom ther867 Proceedimgsand Text
57. It is submitted thatthe following concIusions can legitimatcly
be drawn from the proceedings of 1867 and from the text then
drawn up :
(a) From the fact that Articles 2 and 9 of the 1339 Convention
were conçidered as being replaced-though withoiit any alteration
in the general substantive effect-by th'at part of Article I of the
1867 Convention, which read : "British fishermen shall enjoy the
exclusive right of fishery within the distance of three miles of Iow-
water mark, along the whole extent of the coasts of the British
Islands ; ....",it cari be inferred (as was, indeecl, stated in the
minutes :çee paragraph 56, above) that Articlc 2 of the 1839 Cun-
vention was çuperfluouç for the reasons given iii paragraph 51
above, namely, that Jersey, in any case, came rinder Articlc 9 as
a "British Island".
(6) From the fact that therc was no opposition on the part of the
French negotiators to the "Brilish Islands" being defined (ArticIe 38
of the 1867 .Convention) as includiiig "the Islands of Jersey, Guern-
sey, Alderney, Sark, and Man, with their dependencies", it can be
lThese were the Regulations of 1843seeAnnex A 145to the present IZepIy.
Article XVI of these Regulations reads "Trawl Fishing may he carried on during
forthe Two Countries".ying between theFishery Limits which have ketïxed4& REPLY OF THE UNITED KINGDOhI (3 XI 32)
inferred, firsf, that the Minquiers and the Ecréhous, as dependen-
cies of Jersey, were included in Article 2 of the 1839 Conventiori
(see paragraph 60, below) ; and, secondly, that, in any case, they
were "British Islands" (sec paragrnph 61, below), and were included
in Article9 of that Convention. On hoth courits, they did not corne
under Article 3.
(c) From the fact that Article 3 of the1839 Convention was itself
suppressed in the 1867 Convention as unnecessary (sec the extrscts
from the minutes given in paragraph 56, above), it wss evidentIy
considered to follow ipsofacto that, in any areas in which the
Convention did not reserve exclusive fishery rights to one or other
of the parties, and in which neither of them had exclusive rights
by virtue of its sovereignty, they must both, aritomatically, enjoy
fishery rights. This s?~ppressionof Article .3arust, tlzerejore,have
inzpEiedthe view tlzatthe areastowhiclrit relatecwere regioszsoj open
sen or res nullius, for ortut1fllni bnsis nei3su?z)tecessarylospecify
/bat bofpharties landfishery rights.
(d) Eq~ialiy, it cannot have been the view of eitlier the French
or the United Kingdom authorities in 1867 that Articlc 3 of the
1839 Convention involved an obligation to take no step to ]>litan
end to the common fishery position-still less that it involved, and
was intended to involve, ü bar on any claim to sovereignty ; for,
ifthc parties hacl regarded Article 3 as having these implications,
they could not possibly have beeri preparcd to omit it from the
reviscd text they ïvere drawing up. AIternatively, if they did regard
it as having these effects, biit were, neverthelcss, ready to suppress
it (as they clearly were), this neceçsarily constituted an abandon-
ment of the view that Article 3 involved a bar on any claim to
sovereignty, and a tacit acceptance of the view that Article 3
involved iiopositive obligations at all, but simply recordeda situa-
tion of fact-namely, that, in certain parts of thc gcneral area
concerned, both parties had fishery rights.
(e) The reason given for the suppression of Article 3 is significant,
and bears out this view. It waç (sec the extract from the minutes
in paragraph 56, above) that the rnatter was alreacly sufficieiitly
dealt with by Article XVI of the liegulations of 1843 (see note T,
page 459). made under Article II of the Convention. MTh:ltit dealt
with, and mhat, indeed, the whole Kegulatio~is dealt with, was not
fishery rights as such, but the methods and modes of carrying oii
the fishing industry. The emphasis in Article XVI is on the right
to engage in trawl fishing within certain limits "dttrii~gcil1Seasons",
in contrast to certain other provisions (see, for instance, Article
XLV) cstahlishiiig a close season for certain tyycs of fishcry. Clearly,
what interested the parties, as regards the so-called comrnoii or
non-exclusive areas, was, not the right to fis11there (uhich \vas
assumed, because it was Iiigh seas), but the regulation of thc fishery
there. SIic fact that Article XVI of thc Regulntions deals with trawl
fishing, whereas Article 3 of the Convention deals with oyçter fish- REPLY OF THE UNITED KINGDOM (3XI 52)
461
ing, is curious, but tends to support the view that the parties did
not regard Article 3 as containing anything they wishcd to preserve.
Sub-Section 4 : Resumptionof the Main United Kingdom Argument
58. In the light of the foregoing analysis of the 1839 and 1867
texts, and of the conclusions to be drawn from it, the arguments
setout in paragraph 48 abovc will now be developed.
Point (I) i7tparngraph 48 :Article 3 of the1839 Coivention did
not apPEyfo the Minquiers and the Ecréhozcs
j9. This contention is advanced on three grounds : (a) that the
groups, being deperidencies of Jersey, came under Artidc z ofthe
Coilvention ;(b)that, even if not ranking as'dependencies of Jersey,
they were under British sovereignty in 1839 and wcre thcreby ,
rernoved from the scope of Article 3, by virtue of being "British
Islands" within the meaning of Article g of the Convention ; and
(c)that, inany case, they couId not as British (or evcn if they were
French) possessions, in 1839, have corne under Article 3, which
applied only to arcss which were high seas or res nullizbs.
60. Poi?tt (r)(a) i7~fiarigraph 48: The Afinquzcrs and the Ecrk-
hotis came within Article z of the 1839 Convenbio~a~ s being depetid-
encies of Jersey.-The grounds in support of this contention are
as follows :
(a) The Minqziiers and the Ecréhouswere,i?zjact, de$e.ndencies O/
Jersey.-For this purpose, it is not necessary to do more than to
refer to the summary of the evidence to that effect contained in
paragraph 199 of the Unitcd Kingdom Mernorial, set out in greater
detail in paragraphs zoo-206, and with still greater particularity iri
parngraphs 125-179. This evidence is not seriously controverted in
the French Counter-hlemorial, and is shewn in Part 11 bf the pre-
sent RepIy to be valid and correct, despite the arguments to the
contrary advanced by the Counter-Mernorial.
(b)Hktorical andtraditional practice ofregardiftgtheferm "jerseyt'
as inclusive ofits depelzdencies.-The United Kingdom Governinent
here refer to paragraph 118 in Part II of the present Reply, in which
details are given of the historical and traditional practice whereby,
in the case of the Channel Islands and their dependencies, references
to one Island of the group were treated as including the whole
group, or the dependencies ofthe Island.
(c) The eviclenceofthe United Kingdom Sen FisheviesAct, 1843.-
Evidence that, on the United Kingdom side, the 1839 Convention
was regarded as applying to dependencies of Jersey, where it appIied
to Jersey, is afforded by the Sea Fisheries Act, 1543 (see A11ne.u
A 145 to the present Reply}, which was passed in order to give
cffcct tothe Regulations agreed upon l>yvirtue of Article II of the REPLY OF THE UNITED KINGDOM (3XI 52)
462
Convention (see note 1, page 457) l.Section XVIII of this Act.
runs as follows :
"Andbe itenacted, That in this Act the words "British Vessel"
shall be construed to mean every British or Irish Fishing Vessel
or Fishing Boat, and also every Fishing Vessel or Fishing Boat
belonging to any of the Islands of G~ernsey,Jersey, Sark, Alderxey,
orMm, or any Island thereunto belonging,and the Words "British
Port" shall be construed to mean any Port of Great Britain or
Ireland, or of any of the said Islands". [Italics in the original].
(d) The evidence of the 1867 Convention.-Reference is here made
to paragraphs 56 and 57 (b)ahove. i4rticle 38 of the Convention
contained a clear definitioii of thc term "British Islands" as inclucl-
ing "Jersey, Guernscy, Alderney, Sark, and Man. zuitlztheir depend- .
enczes". This was agreed to bp both sides as the definition of tIic
term "British Islands" for the purposes of Article I of the 1867
text, which replaced Articles 2 and g of the'r839 Convention, but
reproduced textually the relevant parts of Article g, Article 2being
suppressed.
61. Point (1 b) in parngraph 48.-Even if tlzeilfi~zquiersand the
Ecréhousdid nof conte under Article z of the 1839 Convention as
dependencies of Jersey, they were "Britislt Islands", and as sz~ch
came underArticle g of the Cottve?tlion.-If, as the Unitcd Kingdom
Government contend, the Minquiers and the Ecréhous were under
British so\rereignty in 1839, then they ivould have comc within the
terms of Article g of the 1839 Convention 2, which reserved to
British subjects a gcneral exclusive right of al1 fishery (including,
therefore, oyster fishery) within a distance of three miles round the
coasts of "the British Islands". Article 3, however, recognized the
existence of common oyster fishery rights anywhere oiitçide the
excIusive limits laid down by Articles I and 2 (i.e., as regards
British possessions),outside three miles round Jersey. The apparent
conflictthus created between Articles 3 and g is, of course, avoided,
so far as the Minquiers and the Ecréhous are concerned, if these
groups be regarded (ivhich the United Kingdom Government con-
tend iç right) as heiiig, and having, at al1 material times, beeii,
dependencics of Jersey, and as such within the terms of Article 2
of the Convention. Even if, however, the groups be not regarded as
coming urider the term "the Island of :Jersey" in Article 2, the
United Kingdom Governmcnt maintain that they arc, and wcrc,
"British Islands", and, therefore, came under Article g. The argu-
ments in support of this view are as follows :
(a) The Miiqzriers and the Ecréhoz~w s ere recog?zisedas beijlgainder
Britis shvereignty i7zilze period 1819-39.-The United Kingdom
Government rely upon the arguments and facts, historical ancl
l This is clear from the full title and ofthe Act and its Schedule.
And equallyof course, if they wFrench. REPLY OF THE UNITED KINGDO31 (3 XI 52) 463
other, set out in their original Mernorial, and upon Part II of the
present Reply, as establishing that the Minquiers and the Ecrbhous
were under British sovereignty in 1839. Clear evidence of French
recogiiition of this fsct, at lesst as regards the Minquiers, is afforded
by the antepenultirnate paragraph of the Letter, dated the 14th Sep-
tember, 1819, from the French hlinister of Marine to the French
Foreign Minister (Annex A 25 in Vol. II of the United Kingdom
blemorial), and also by the charts (Annexes B 4 and B 5 in Vol. Ill)
attached to the fishery proposa15 made by the French Government
in 1820 (Annex A 24 in Vol. II), the significance of which is dis-
cussed i11paragraphs 210-213 of the Mernorial. The phrase in the
3Zinistcr of Marine's Letter, datecl the 14th September, 1319
(Annes A 25), upon which the official proposals to the United King-
dom Goveriimcnt wcre based, is as follo\trs :
"V.E. trouvera ci-joint des copies de ces tracés,la couleur blciie
indique l'étendue de la mer Territoriale pour la Fraiice et 1;i
Couleur rougc l'étenduede cette hler pour lesIles d'Aurigny, cle
CcrsCSark],de Jersey et des Minquiers possédées par IJAqlgleterre".
[Italicsaddcd].
An intercsting conternporary piece of evidence of a similar British
viciv, as regards both the Ni~iquiers and the Ecrékous, is afforrled
by the Letter of instructions, dated the 12th January, 1824, frorn
hfr. Canning to Messrs. Hobhouse and Planta, the British negoti-
ators in the cliscussions of that year, which is reproduced as Annex
A 146 to the present Reply. A study of this Letter shews clearly
that the instructions in question are only intelligible upon the
assumption that the two groups hlerc regarded risBritish l.
(b) The evidence of the 1867 Co?~uelztion.-The analysis of thc
2867 Convention given in Sub-Sectioii 3 above, wliere it was con-
The argument is as follow:
The instructionsto Messrs. 1-Iobhouse antl Planta were to press for a three-
mile limit offthe French mainland. and the Jles Chausey. This three-mileliinit,
case "from the considerationthat if a greater distance were fixed upon nat only
rvouId the French Fishermen remain inpossession of the most valuable part of the
Fishery, but the two lines of demarcationwould interfere with each other"-the
distance invariablysuggested at this period as an alternatito three mileswas
six miles. 13ut. was clear from the proposals made in 1819 (see United Kingdom
Mernorial, paragraphs210-15, Annexes A 24 and A 25 in Vol. II, and Cliar.lJ 4
and l35 in Vol. III), a six-mile limit measurfrom the Iles Chausey necessarily
overlapped with a six-mile limit measurcd from the Minquiers. but with threc-
mile limits there would be no overlap, since the intervening disiseight miles.
Sirnilarly, in the case of the Ecréhous. if these Islets were British and six-mile
limitswerc drawa, an overlap \vasinevitable. since the Ecrdhous are at one point
only 6.6 mites from the mainland. With three-mile limits, ho-rvever. there would
be no ovwlap even if the Islets were British. Alternativeif theEcréhous werc
not British but wercresnullius.there would be no overlap-evenif six-mile limils
were drawn both from Jersey and from the French mainland. Consequcntly,
Mr. Canning's Letter insistingthat a three-mile limitwas desirable, in order to
avoid overtapping, is only intelligiblthenbasis that both the Minquiers and the
Ecréhous were British.464 REPLY OF THE UNITED KINGDON (3.~1 52)
teiided that this tcxl can legitimately be used for the purpose of
interpreting the 1839 Convention, establishes the following points :
(i) The term "British Islands" in Article g of the 1839 Conven-
tion is to be understood asincluding dependencies of any
of thc Channel Islands and, thereforc, as including the Min-
quiers and the Ecréhous.
(ii) The samc aiialysis fias also shewn lhat Articles 2 and 3 of
the 1S3g Convention were superfluous, and were suppresscd
on that gro~ind itithe 1867 Convention. In cffect, there-
fore, the 1839 Convention can-and, indeed, should-be
read as if thesc two Articles were amitted from it, in the
same way that they were omitted as unnecessary (because
covered hy the rernaining Articles) inthe 1867 Convention.
It thus bccomcs clcar that the IiPinqiiiersand the Ecréhous,
as "British Islands", were areas where the fishing was
reserved cxclusively to British subjects (Article I of the
1867 Convcntion, and 9 of the 1839 Convention), and hence
that they werc not areas where the fishing was comrnon
and, therefore, did not come under Article 3 of the 1839
Convention.
62. Point (1) (c) in 9aragraph 48 :Article 3ofthe1839 Convention
did fzotin any event aPPEy to areas z~nderthe sovereignkyofoîzeof the
$arties bf~tonly to areas wlzichzetereres ~lulliusor consisted ohigh
seas.-Since, ther~fore, both parties maintain that the groups were
under thcir respective exclusive sovereignties in 1839, it follows
from that fact aloile that Article 3 can have had no application to
them. This point was, it is submitted, aclequately established on a
priori grounds in the course of the analysis of the whole Frciich
contention containecl in Section C above (see, in particular, para-
graphs 37-41 ahove). Itaiso folloirfedfrom the analysisof the 1567
Convention (see paragrapli 57 (c) and 57(d), above). There is, how-
ever, further eviderice to the same effect :
(a) The evidence ofArticleg of dhe1839 Conve?ation
(i) The second pnrngraph of Article g nssimilated the general
fishery limits for the area Cape Curterct to Poimt Meinga
to those spccified for the oyster fisheryby Article I of the
Convention. Why-\vas this not also done in respect of the
area round Jersey (Article 2),and the so-called common
area (Article 3) ? In the case of Jersey, there n.a,learly,
no need to make ihe assimilation, because, in any case,
the oyster fishery limit andthe general fishery limit coin-
cided since Article 2laid dom lhree miles for oysters, and
the first paragraph of Article 9 laid down three miles for
fisheries in general. The need for an assimilatory provision
only arose where there was a lack of such coincidence, as
was the case for part of the Article I area off the French REPI,Y OF THE UNITED KINGDORI. (3 XI 52) 4%
coast where, it will he recollected (see paragraph 50,
above), the line ran, in places inside, and in places out-
side, the three-mile limit. The effect of the second para-
graph of Article g,therefore, was that where French fisher-
men had exclrisive oyster rights oz~tsideFrench territorial
waters, they also had exclusive rights for al1fisheries;but,
where the lirnit of their exclusive oystcr rights fell short
of the three-mile limit, this also constituted the bounclsry
of their excluçivc rights for other fisheries. In other words, ,
there was an arcn between the oyster line, where it ran
within the three-mile limit, and that limit itself, inwhich,
because the oyster fishery ïvas common, ço also ïvere al1
,fisheries to l-ie. Why, then, was the same principle not
qplied to the Article 3 common area ?(This principle was,
evidently, that, where the oyster right was exclusive, al1
fisheries shoulcl be exclusive ; but, where it was çharcd,
al1shouId be shared. In short,a lack of coincidence betwecn
the two sets of rights was to he avoided).
(ii) Kou., if Article 3 hacl included any lerritorial waters (i.e., the
!vaters attached to ariy territory uiider the sovereigiity of
one of the parties), such a lack of coincidence would have
arisen ; for, oyster fishing wouId, by reason of Article 3,
have heen common to both partics in those waters, but
general fishiiig would, under the first paragraph of Arti-
cle g, have been exclusive to onc of thcm. Consei:luently,
the second paragraph of Article g should (if the cominon
area had included any territorial waters) have becn made
applicable, not only to the Article I areas off the French
coast, but also to. the Article 3 areas. Tlze coîzclztsionis .
irtescapable.TIzeremas no need lo ~tzaktheseco?zdparagrapla
of Article 9 applicable to the Article 3 nreas, becazisethese
areas did ploti~zjnct inclzide,and werenotintelzdedtoinclztde,
any localities under the sovereigntyofezther Party-or, what
arnounts to the same thing, any localities in respect of
which the gencral right of fishery was reserved to one of !
the parties by virtue of the first yaragraph of Article 9.
Thus, if the Rlinc]uiersand the EcrBhouswere under British
sovereignty in 1839, and "British Islands" for the pur-
poses of the first paragraph of Article 9 (as the Uiiitod
Kingdom Governmcnt maintain, and hope to have estab-
lished), thcsc groups cannot have corne ililder Article 3 nt
all, for otherwise the second paragraph of Article g woulcl
Iiave been made applicable to the Article 3 areas, tliere
being no Iogicd rcason for any differentiation. If an assini-
ilation of gcneral fishery rights to oyster fishery rightç
was required in the nreas off the French coast, it wns
eclually r-iecessaryin the case of aiiy otlier areas in wliich
the tïvo lirnits would otherwise have diverged. It \srasncit466 REPLY OF THE UNITED KINGDOM (3 XI 52)
Iiccessary in the caseof the areas round Jersey (Article 2),
as here the two limits were the same.
(iii) III this co~inexion,it is ~iotpossible to accept the siiggestion
made in the French Counier-Rlemorial (p. 375) that the
existence of a common generalfishcry right is to bc inferred
or assumcd, whcrevcr a corilinon oyster fishery right
exists, on the ground that it is iiot practicable to conduct
the two scparately. Not only is this incorrect factually (see
paragraph OS and 69, below, and Annex A 147 to the
prcsent Rep1y)-there is no difficulty in conducting a
common oyster fishery in an area where other fisheries are
rescrved-but it is, in any case, negativcd by thc existence
of the second paragraph of Articlc g ; for, if the French
vieiir be correct, there was no need for this parsgraph. If,
ho\vc\~cr, the paragraph ii-ere requisite becausc (as the
United Kingdom Goverriment contcnd) there is no neces-
sary or inevitable assimilation of general fishery rights to
oystcr fishery rights, thcrr it was riccessary, not merelyin
respect of the ArticleI areas off the French coast, but also
in respect of the Article 3 areas,i/fhose ureas2-lzcEz6daedy
localitiezitzderthesovereiglztyO/one of theparties.
(iv) If, on the otlier hand (as the United Kingdom Govcrnment
contend), the Articlc 3 areas did ?1otinclude any localities
under the çovercignty of one of the parties, but only sreas
which were high scüs or res .nztllizu, then there was, of
course, no need for any provision assirnilating common
general and comrnon oyster fishery rights ; forit followed,
automatically, by operation of law that, in waters which
were high seas, or in areas ivhich wcreres ntrllius, comrnon
general, as weli asoyster, fishery rights existed. In fact, as
lias bcen seen, thcre was really no iieed atal1for Article 3
(since the cornrnoii oyster fishery right in surh waters
and arcas existed by operatioii of law), and Article 3 "as
omitted from the suhsequent 1867 Convention as siiper-
Auous.
(6) The Evide~zce O/ Pniba6iEity.-Qiiite npart from the gcneral
unlikelihood (to which attention has been drawn in parxgraph 37,
above) that, ifone of the parties hadposscsscd exclusive sovereignty,
and, therefore, exclusive fishery rights, in1839i ,t uould have been
willing to share these \vit11the other part}?,it is, in any case, exceed-
irigly improbable that the hlinqiiicrs and the Ecréhous, had they
been under the sovcreignty of either party nt the time, woiild have
been left to corne within the ambit of Articlc 3 ;for such a trans-
action would have involvecl a complete lack of anjr compense tion
or quid pro grto. It has been seen that Article I of thc Coiiveiition
gave British fishermen a right in certain placestofish ivithiiFrench
territorial waters. For this, thc compensation givcn to the French REPLY OF THE UNITED KINGDOM (3XI 52) 467
fisherrnen was aright in certain other places to the t:xclusive fishery
outside their own territonai waters. But no compensation \trould
have existed in the case of the Minquiers alid the Ecréhous. Assum-
ing that they were (as the United Kingdom Government conterid)
under British sovereignty, the effect of Article 3 would have been
to admit French fisherrnen to British territorial waters without any
corresponding right for British fishcrmen to fish in Frciich waters,
other than those in which they already had the right to fishby
virtue of Article I,particularly as the Iles Chausey fell wholly on
the French side of the Article I line. This point \vas made, with
great force, in the Memorandum of the Jersey Law Officers(Annex
A 47 in Vol. IIof the United Kingdom Memorial) which was com-
municated to the French Governmerit under cover of the Marquess
of Salisbury's Uispatch dated the 27th October, 1887(Annex A 43).
In this Memorandum, it \vas stated (United Ki~igdom Mernorial,
Vol. II, p. 122 l)that :
"While admitting that the text of the Convention of 1839,
literally interpreted, may, to some extent, seem to favour the
claim of the French fishermen to participate in the oyster fishery
within 3 miles of the Ecréhos aslying in the intermediate waters,
yet this claim does not appear consistent with the spirit of the
Convention, especinlly when inter~ireted in the light of Article
XXXVIII of the Convention of 1867 2.
"No reason is anywhere adduced to explain why such an .
exceptional and onc-sided concessian should have beeii made to
the French asis implied in the privilege claimed by them of fishing
for oysters within British territorial waters attlie Ecréhos ; nor
isit explained why a privilege should have been granted to the
French with regard to the oyster fishery off the Ecréhos, which
was denied to tlicm, by Article IV [recte1x1 of the Convention,
with regard to the geiieral fishery in the same locality, and for
which no reciprocal advaritage was ariywhere graiited to the
British fishermen".
It \vil1be çeen from thisstatement that the authorities on the United
Kingdom side were as firrnly convinced in 1887, as they are now,
that the Minquiers and Ecréhouç groups were British in 1839, and
for that reason could not have corne undcr Article 3 of the Conven-
tion. The Governrneiit of the French RepubIic, of course, deny that
the groups were British ; but the United Kingdom Govcrnrnent .
desire to recall at this point their observations in paragraph 38
above, where attention mas draurn tothe fact that it iscqually neces-
sary to the French thesis tltaflregroarfisshozllnot have been French
in 1839. Paragraphs 39 and 40 above, consequently, drew attention
to the complete incornpatibility between this thesis and the parallel
Frcnch contention that the groups were, and always have been,
French ;and it was suggcsted that thc process whercby the French
Countcr-Mernorial piits forward the French claim to sovereignty as
l See p.256.
* See paragraph56,abow.
32468 REPLY OF TI~E UNITED KINGDOM (3 XI52)
an alternative to the French contention regarding the 1839 Con-
vention is not, in the circumstances, really an admissible one. If,
on the other hand, the French claim that France enjoyed sover-
eignty over the groups in 1839 be serious, then, it folloli~sthat, since
both partics are agreed that the groups were under the sovereignty
of one of them in 1839, they must have fallen iinder Article 9of the
Conventioii, and not uiider Article 3.
63. The. Unitcd Kingdom Governmerit submit, therefore, that
the question whether Article 3 ever applied to the Minquiers and
the Ecréhous at al], is whoIly bound up with the sfatzlof the groups
in 1839. If the? were res nttllizts in 1839, Article 3 would have
applied to them ;although, of course, the United Kingdom Govern-
ment deny that this Article had the eflectwhich the French Counter-
Mernorial suggests (see paragraphs 67-81, below). If, however, the
groups were not res qzzlllizlsin 1839, but under the sovereignty of
one of the parties, it is submitted that, for the reasons given above,
Article 3 can have had no application to them.
64. Thus, it' will be secn that the whole French contention iç
based on a fietitio principii. Iis the status of the groups which
govems the question whether Article 3 applics to them. The status
of the groups in 1839 must first be determined before it can be
decided which provision of the 1839 Convention they came under,
or whether Article 3 applied to them at all.
Conclusio?to?tPoint (11
65, The United Kingdorn Government claim to have demon-
strated in the preceding paragraphs that, if the Court agree with
the United Kingdom Contcntion that the Minquiers and the Ecré-
hous were undcr British sovereignty in 1839,it follows automatically
that, whether they fell under Article 2 as dependencies of Jersey,
or under Article g as "British IslandsJJ, or whether, as British pos-
sessions, they did not fa11under Article 3, because that provision
only relatcdto regions ivliich ivere renuIliffis,thconclusion jsthe
same : Article 3 did not apply to the hlinquicrs and the Ecréhous.
The same conclusioi~woiild, of course, follow if the Court should
hold that the groups wcrc French in 1S39.
66. It remains to consicler the matter upon the basis that Article
3 did apply to the groups, either because they were, in fact, res
nzrllitts i1839, and not either French or (as the United Kingdom
Governmcnt contend) British ; or because tlie Court may hold that
the United Kingdom Governmeiit are wrong in maintaining that
Article 3 could not have appIied to thc groups unless they were
res qrullius. Upon the basis that the Articlc did, in fact, apyly to
the groups, the remainini question is :what was its effect, and, in
particuIar, did it (and, if so, in what way) precIude the siibsequent
assertion by either party of any claim to exclusive sovereignty ?
This will now be diçcussed as Point (2). REPLY OF THE UNITED KINGDOM (3 XI 52) 469
Point (2) inparagraph 48 : Even ifArticle 3of the1839 Convention
were applicable to the Minqz~iersand the Ecrélzous,it did not have
the eoect o/ preventing either Party from claiming or exercisktg
exclr~sivesovereigntyoverthe groztps
67. The main grounds for this vie\\., which were briefiy stated in
paragraph 48 abovc, are as follo\vs:
(a) Article 3 did not estnblisl~nny Franco-British condominium
over the groups SZIC~as would precLztdeeilhev pnrty fronz nsserting
exclf$sivesovereig.nty.-The United Kingdom Governrnerit siibmit
that this is apparent in the face of the Article itself, and of the
facts and circurnstances relating to the groups both iii 1839 and
at dl times subsec~ucntly ;and they refer to paragraphs 31 and
35 (b) aiid35 (e) in SectionC above, in supliort of this view. It iras
suggested, howevcr, in the andysis of the French contention given
in that Section (see paragraph 41, above) that Article 3, ivhilc not
creating joint fishcry rights,inight, in theory at Ieast, have regiç
tered their existence in such a way as to imply that the parties
would take no step to disturb this position or to prejiidice the joint
rights of both. TIie next question, thereforc, is whether this was so.
The United Kingdom Governmcnt's view is given in (b) hclow.
(b) Article 3 did not impEy for the parlies an obligntitortake no
step to prejudice or impair the joiîtt fishery positioizthe analysis
of thc 1839 and 1867 Conventions given in Sub-Sections 2 and 3
above, strong reasons have been given for the view that Article 3
hacl iio positive cffect at ail, The parties were ready to omit it
from the 1867 text revising the 1839 Convention, and Iiad actually
drawn up and signed a text containing no provision which corre-
sponded to Article 3-a text which did not corne into force for
reasons of an extraneous character that had nothing to do with
this point (see paragraph 54, above). It kvas shewn (pnragraph
57 (d), above) that it was incoriceivable that the parties would ha.ve
becil willing to inake this omission if they had supposed that
Article 3 involvecl some definite obligation. The grounds of the
omission (see the citations froin the minutes of the negotiations in
paragraph 56, above) riegative such a possibility ;for the Article
could never have been classified as superfiuous if its object and
effect had been to impose an obligation on the parties to refrain
from any action which could alter the fishery statlts quoTtis clearly
to be inferred, therefore, that this \vas not its object. IVhile, hom-
ever, for these reasons, the United Kingdom Governnient consider
that Article 3 cannot properly be regarded as having had nlorc than
a species of declaratory effect, the manifest obscurity wliich siir-
rounds the subject makes it nccessary to consider it also upon the
basis that this view is wrong, and iipon the basis that Article 3 had
some positive effect. The remaining question is, therefore, assuming
that Article 3 did have some positive effect, what {vasthat effect ?The United Kingdom Government's view on this question is given
in (c) below.
(c) If Article3 applied 'dothe Minquiers lad the Ecréhozts with
positive e8ect, that eflect was,aithe most, fo iîlz$Eyan obligatio?~/or
the fiarlies not to assert exclz~sivefishery rightsin the waters of the
groz~ps.-Upon this basis, the Article could not possibly imply an
obligation not to clairn sovereignty over the groups, unless it could
be shewn that duc cffect could not otherwise be given to the joint
fishery rights of the parties. But this is ~iotthe case ; and it can be
shewn that the cxercise of exclusive sovereignty by one of the
parties is perfectly compatible with the continued exercisc of joint
fishery rights by both. This point is of sach fundsmental importance
to the whole issue that it rnust be dealt with in a separate Sub-
Section.
Sub-Section 5 :Sovereigntyand Fishery Rights
Principal Poi?zts to be nzade by the Uuited Kifzgdont Governme)tt
68. In developing the view statcd in paragraph 67 (c)immediately
above, the United Kingdorn Government will make the following
principal points :
Point (1): that, according to its natural and ordinary rnean-
ing (seenote.2, above, p. 432)) Article 3 of the 1839 Convention
is a simple fishery provision indicating an nrea in ivhich the
parties recognize theinselves to have a common right to fish a
certain fishery (the oyster fishery), and that it has no wider
itnplications ;
Point (2): that siich a major step as the reliiiquishment of
sovereignty over territory or of the future right to assert it
would normally be effected in express terms, and would not
be left to be deduced by way of an implication ;
Point (3): that such .an inference can only legitirnateiy be
drawn if it be not merely a possibleconscquencc of the Ianguage
used, but a necessary one-in the sense that the Convention
could not otherwisc operate, and adequate effect could not
othenvise bc given to its terms ;
Point (4): that, in the present case, such an inference
would not be legitimate, because ~io such necessity arises,
there being nothing in a common oyster fishery right (or for
that matter in comnion general fishery rights) shared by two
parties in certain waters, which ~vouldbe incompatible with
the possession bjrone of them of srivcreignty over the territory
to which thoçe waters are attaclied, nor anything in such
sovereignty to prevent due and full operation and effect
being given to any common fishery rights and provisions. REPLY OF THE UNITED KINGDOM (3 XI 52)
47'
It will be convenient to Saya word here about theargumerit, upon
which great stress is laid in the French Counter-Mernorial, that
common oyster fishery rights must be regarded as carrying ~ith
thcm a common right of fishery for al1 purposes. Upon the b;isis
upon which the United Kingcloin Government place their case,
it is irrelevant whether or not this argument be correct. The four
points made above are equally valid and applicable, whcther the
fishery rights concemed are confined to oysters or estend to al1
types of fish. The only real relcvance of this particiilar issue is thst
it is, obviously, even more difficult to draw far-reaching implications
about sovereignty from a provision confined to oyster fishing, than
it is from a provision carryinga cornmon general fishery right, which
is, no doubt,'why the French Counter-Memorial attaches ro miich
importance to this particuIar contention. The United Kingdom
Government submit, however, that, if slightly less difficult, such an
inference is no more legitimate in the latter case than in the former.
For these reasons, and becausc the United Kingdom arguments are
equally applicable whether the fishery rights involved are general
or confined to oyster fishing, the point will not be further discussed
here ; but in Annex A 147 to the present Reply, certain facts a.nd
observations are set out shewing that it is actuülly quite incorrect
to say that common oyster fishery rights cannot be c'rercisedexci:pt
as part of a common general right of fishery.
Certain Prelzminnry Observations
69. Before the points set out in the preceding paragrriph are
developed, certairi essential preliminary observations must bemade :
(a) The onzls O/ proof in regard to the French contention abozrtthe
effectof the1839 Coitvelztionon the qzsestionof sovereig~ttyrests zbpon
the pûrty advancing fhat contention-i.e., trpon the Governme~z tfthe
French Repzcb1ic.-Reference is here made to paragraph 42 above.
There is irnplicit in the French Counter-Mernorial the assuinption
that, the moment two countries agree to share the fishenes of a
certain area, thcy thereby, automatically, cease to be able to assert
or claim any sovereignty over temtory in that area. It is nowhere
clearly euplained in the Counter-RTemorial by what process of
reasoning this conclusion is reached :it is put forward as something
apparcntly so self-evident that it is only necessary to shew the
existence of the comnion fishery agreement for the conclusion about
sovereignty to follow. The Uiiited Kingdom Government submit
that this attitude is wholly misconceived, and that the coriclusion
in question, so far from being in-any way obvious or necessary, is
a very unusual and improbable one, and does not, in the least,
follow from the premises. The United Kingdom Government, thei-e-
fore, maintain that the onus of establishing this co~lclusion rests
upon the Government of the French Republic, and that up to the
present moment they have not discharged it, since the Coiinter- REPLY OF THE UNITED KINGDOM (3XI 52)
472
Blemorial does not advance one single convincing reason why what.
appears to be a simple fishery provisiori must or should have the
far-reaching implications about sovereignty that are said to follow.
(b) How is the Frerach caseactually Pzct?-An attemptto analpze
the implications of the French contention about the effectof Article 3
of the 1839 Convention was made in Section C above. But it was
repeatedly pointed out (see, for instance, paragraphs 27, 29 and
34 and, in particular, 42, above) that a vital step in the French
argument waç missing or assumed, namely, why, and in what way,
common fishery rights in certain waters (assuming such rights to
exist l)must operate as a bar to the exercise of any exclusive sover-
eignty by one of the parties concerned. On this essential question
the Counter-hlemorial is, for al1practical purposes, silent ;and the
only specific arguments employed seem to be as follows :
(i) It is arguecl that one of the main objects of the 1839 Conven-
tion was to create a régimefounded upon the principle of a
single limit cornmon to al1fisheries ; that, in practice (and
despite the fact that Articles I,2 and 3 of the Conveiition
were in terms lirnited to the oyster fishery), a limit for
oyster fishing alonc is not practical : it must involve a cor-
responding limit for al1fisheries. Thereforc (so it is said),
it was inherent in the 1839 Coilvention that a comrnon
right of oyster fishery necessarily involved a common right
of fishery of al1kinds. Consequently, a term is to be implied
in the 1539 Convention, to the effect that, in the areas
referred to in Article 3 of the Convention, not merely the
oyster fishery, but also all fisheriesshall be common tothe
subjects of both countries. In paragraph 62 {n)(iii),above,
and in Aiiiiex A 147 to the present Reply, it is shewn that
this argument is, in fact, inco~~ect.But, as statecl at the
end of paragraph 67 above, it b in any case irrelevant ;
for, even ifit were conceded thüt a common oyster fishery
right implies a common general fishery right, it wot~lclstill
have to he demonstrated how, and why, such a geiicral
corninoii right involves a bar to the assertion of a claim of
sovereignty. This, the Counter-Mernorial does not do.
(ii) Insfead, thc Counter-Mernorial simply argues (or so it would
seem) that, if there be a situation in which two countries
have agreed that there shall be 110exclusive fishery rights
within certain waters, a further term is to be implied, to
the effect that neither country will assert any exclusive
sovereign ty over those ~vaters-or rat her-over territory
i~ithem. At the same time, it is not stated why, or how,
l The United Kingdom Government, of coursed,eny that such rightdo exist
in thewatersofthe hfinquiers and the Ecréhous. because they do not consider that
Articte3 applies to those groupail. REPLY OF THE UNITED KINGDOM (3 XI 52) 473
this term is to be irnplied, or in what way it follows from,
or is inany way necessitated by, the common fisheryrights.
(c) A,notFcewr uy offiz~itz'nthe French case.-II would seem that
the simylest, and most effective, ivay in ivhich the French case could
be put would be as follows. The Government of the French Republic
might point out that the possessioi~of sovereigiity over terri1:ory
normally carries with it jurisdiction over its territorial waters, and
an exclusive right of fishery there. Consequently, if two countries
have agreed to share in common the fisheries in certain waters that
are adjacent to certain territory, it might be said to be inconsistent
with this
agreement for one of'thcm to assert or claim excllisive
sovereignty over this territory ;for such sovereignty wouId involve
an exclusive right of fishery, and to exercise this would be contrary
to the agreement. Therefore, sovereignty cannot be asserted or
claimed.
(d) DificztltiesO/ this argzkrnent.-(i)The argument involves one
obvious fallacy. It is,-no doubt, true that, in the ordinary way,
sovereignty over temtory carries ivivithit the right of exclusive
frshery in the adjacent territorial waters. But the sovereign Po~ver
is not obliged to exercise al1 its rights, and clearly must not exercise
any rights that would bring it into coriflict with the provisions of
an already binding agreement. The effcct of an agreement for the
enjoyment ofcommon fishery rights is iiot to prevcnt the existence
or exercise of sovereignty as szcch,but to compel that sovereignty
to be exercised in a certain way-i.e., subject to, or in accordance
with, the agrecment-or, perhaps, to attach a servit~de to the
territory or waters conccrned, subject to, and in conformity with
which, the sovereignty rnuch be exercised. The obligation invoIved
is not to refrain from claiming sovereignty, but to honour the
agreement, notwithstanding the sovereignty-assuming that there
is, in fact, such an agreement.
(ii) The point isstili more clearly scen if the French contention
be considered in connexion with territory already iinder the sover-
eignty of one of the parties to an agreement about common fishery
rights. Evidently, this contention could riot bc vaiitl in such a case ;
for, othenvise (to take a possible modern example) it wouJd foIlow
that, if France to-day granted to Italy the right to participate in
the fishcries of Corsica, France would therehy be held to have
renounced her sovereignty over Corsica, as being iiiconsistent with
Ital y's common fishery rights. This conclusion has only tobe stated
for its absurdity immediately to be manifest l.
Letitbenotcd, in parenthesis, that, if aùofCorsica to-day, thc argunient
would equally havc ken absurd of the Minquiers and the Ecréhous in1830,if
those gvoups were, as the United Gngdoin Govern?nenlmaintain, undellrilish
ment of the French Republic, in another part of theircase, maintain). This, therefore,
is an additional reason for the view constantly suggested in the present Reply. (iii) But, if it be correct that a cominon right of fishery with
another country in certain waters is not in any may inconsistent
.
with the conlinued exercise of an already existing exclusive sover-
eignty over the area by one of the two countrics, it is prima facie
not at al1clear why common fishery rights should be impossible to
reconcile with an after-acqzhed sovereigilty, or should constitute a
bar to its assertion.
70. The foregoing preliminary observations now enable the exact
point at issue clearIy to be staterl, bringing the matter back to the
formulation of the French contention given in paragraphs 33 and
34 of Section C above. That contentio~i must be taken to amount
to this: that the parties to the 1839 Convention, in effect, agreed
that, in a certain area, and so long as the agreement was iri force,
meither of them would assert exclusive fishery rights against the
other. From this, it is to be inferred(sothe argument must proceed)
that neither party would take any step which might involve the
assertion of such an exclusive right. A claim to exclusive sovereignty
would be such a stey. Therefore, such a daim is prohibited, and the
parties are clebarred frorn making one. Ultimately, therefore, the
precise question involved is the followling :would, or would not, a
clairn to exclusive sovereignty over certain territory be incoiisistent v
with the co~itinuedexistence of common Fisheryrights in its waters ?
And, if not, is there anything to prevent the assertion of such a
claim 7Put in another form, the question is :does a claim to exclu-
sive sovereignty over certain territory necessarily involve the repu-
diation of an agreement for common fishery rights in its waters, or
a situation in which it is no longer possible to give effect tcisuch an
agreement ? It will now be shevm why, in the United Kingdom
.view, these questions must al1be answered in the negative.
Dwelopment of Points (1)-(4 zn $aragraph68
71. Yoi?zt (1): ArticEe3 of the 1839 Conventiofiwas a simple firovz-
sionaboejtfishery rights and had no otAerimpEications.--4pplying
the pnnciples of interpretation which the Court ha laid down in
other casesl, Article 3 of the 1839Conveiition should be read accord-
ing to its natural and ordinary meaning in the context in which it
occurs. This leads to the following results :
(a) It has already been shewn, in some detail (see Sub-Section 2.
paragraphs 49-52> above), that this context was an, agreement
intended to settle a dispute that had notliing to do with sovereignty,
or with any.specifically territorial issue, but which related entirely
to fisheries, mainly to oyçter fisheries and to the right to coriduct
them.
that Article 3 of 1839Convention could only have applied to areas wliicli were
ronulliusand not under the sovereignty ofone of the in1839, and, therefore,
did not apply to the Minquiand the Ecréhous at al1becausethese grouwere
already British possessiins1839.
See note2,above. p.432. REPLY OF THE UNITED KINGDO31 (3XI 52) 475
(b) 1t has also been shewn (see paragraphs 50 ancl51, above) that
this dispute related mainly, if not wholly, to the oyster banks and
beds in the regions off the French mainland coast between Cape
Carteret and Point Meinga, not to those off Jersey or the Minquiers
or the Ecréhous ;and that the essence of the settlernent reached
was the ad hoc line establishcd by Article r which, while giving
French fishermen exclusive rights outside territorial waters in
certain places, in othcr places coiifined their cxclusivc rights within
a limit falling short of the full extent of territorial waters. Apart
from form or appearance, -4rticles 2 and 3 had so littlc significance
in substance that, when the parties'came to revise or clarify the
text in 1867, they were prepared to omit, and did omit, these pro-
trisions from the reviscd text as being -nnecessary.
(c) The conclusion to be dramn from these corisiderations is that,
according to its natural and ordinary meaning in the context iii
which it occurs, Article 3 of the 1839 Convention, so far from having
the far-reaching implications about sovereignty tvhich the French
contention attributes to it, was a siery restricted provisiori indeed,
with a strictly lirnited scope and effect. This is, clearly, not the type
of provision which can reasonably or legitimately be intcrpreted as
constituting a quasi-permanent bar to the aSserti0 of1any daim
to sovereignty over territory in the area to which it is supposed to
relate.
72. Point (2) : Necessity for partiesto zcseexfiress terms or,nt uny
rnfe, clear and definite langzlagewkn renoîlncing sovereignty or the
right foclainz it.-This point does not require to be elaborated. It is
obvious that, when two countries really intend to renounce sover-
eignty over certain territory or in a certain region, or to bind them-
selves not to daim it hey wdl normally do so in express terms, and
will not leave the renunciation to be deduced by way of inference
from a clause, the exact effect of which is at best uncertain, and
which can only be made to yield this inference by means of a com-
plex and controversial process of reasoning. Where an agreement,
which is alleged to have these effects, does not employ express terms
for the purpose, it is incumbent upon the party alleging them, to
establish affirmatively that such is the necessary result of the
language used. Sovereignty, and the right to claim it, where grounds
of title exist, are not rights witli which States lightly or unwittingly
part ; and the intention to do so cannot be ascribed to them unless
it be clearly expressed, or as clearly implied.
73.Point (3): A renunciation of soveveigtrty,or of the right tdaim
if;can only Legitinzatelybe imPEied if the inzplfcaiionbe a necessavy,
and not merely a possible, olze.-The Court has already, inmore than
l -4sregards the possibility renunciation osovcreignty, iha5been sheivn
(seepa~agraph 69(d)(ii), above) that the idea that Article 3 in t839have
implied or involved a renunciatofnexisting sovereignty over the XIinquiers and
the Ecréliousis completely unrealistic. REPLY OF THE UNITED KINGDOM (3 XI 52)
476
one case l,applied the principle that binding obligations must in
general be expressed, and that, where they rest upon implication,
the implication must be a necessary one. It is not sufficient that
the implicationbe a possibleone, in the sense that it is not absolutely
excluded by, or inconsistent with, the language used :it must follow
from that language, in the sense that a failure to give effect to the
-implication would lead to inconsistency and contradiction. This
would, of course, be particularly tme of such an important issue
as sovereignty, or any matter affecting it, or the right to claim it.
Applied to the present case, this principle involves shewing that the
interpretation of Article 3 of the 1839 Convention, advanced by the
French Counter-Mernorial, is an interpretation which the language
demands, in the sense that due effect could not be given to Article 3
except by means of this interpretation. The final question is, there-
fore, whether this interpretation be in any way necessary or inevi-
table, in order that duc effect should be given to Article 3.
74. Puijtt (q) : 'Theintürprelalionor imfilicatiolz invuloed by the
Frenchcolttetttionis in no way 9zecessaryor iltevitableijz orderto give
due e#ectto Article 3.-The specific question involved is this :is it a
necessary consequence of entering into an agreement not to assert
exclusive fishery rights in certain waters that no claiin to sover-
eignty shall be made or asscrted to any tcrritory located in those
waters ?Or, to put the matter in another way : is there any neces-
sary inconsistency in the exercise of sovereignty over certain terri-
tory, or the claim to exercise it, with an obligation not to assert
exclusive fishery rights in the waters of that territory ? Or again :
is thereanything in the exercise of sovereignty over territory, orthe
assertion of a claim to exercisc it, which would make it impossible-
or even especially difficult-to give due effect to the fishery rights
of another country in the waters of that territory ? The United
Kingdom Government answer no to al1these questions, and believe
that this ançwer is really inherent in the questions themselves, and
that no other answer is reasonably possible. They will, nevertheless,
give positive reasons why this muçt be the ans~~er.
Compatibility of fhesovereigntyof one cottntry over territory zuiththe
exercise O# fisheryrights by anothercowntryinthewaterso/thatterritory .
75. Thc United Kingdom Government submit that complete
effect can be given to an agreement for the exercise of common
Sec, for instance, the case concerning the Internalional Slalus of South-West
Africa (I.C. J. Reports 1950, p. 128)where the Court said (140) :
"Had the parties to the Charter intcnded to create an obligation of this kind
in positive terms".te, such intention would necessarily have been expressed
See also the case concerning theInterpretatimof PeeacTreaties with Bulgaria,
Hrrngary andRornania (Second I'hase)I.C.J. Iieports 1950p.221, at pp. 227-9;
Morocco (I. CJ.nReports 1952, p. 176, at pp. 196-9).ted Slutes oAmevica iîi REPLY OF THE UNITED KINGDORT (3 XI 52) 477
fishery rights in certain waters, notwithstanding the assertion and
exercise by one of the parties of exclusive sovereign rights over
the territory to which those waters are adjacent ; and tliat,
even if Article 3 of the 1839 Convention had thc effect of lire-
venting either country from asserting exclusive fishery (strictly,
oysfer fishery) rights against the other, it meant no more than
that, and could.not have becn a bar to a claim of sovereignty,
because complete effect could be given to this agreement by the
country claiming and exercising the sovereignty. There is, in fiict,
nothing unusual in a situation in which a claim to sovereignty, or
. the exercise of sovereignty itself, can only be maintained, subject
to giving effect to certain prior or existing rights. Sovereignty over
territory is constantly exercisedsubject to limitations arising from
agreement with other countrics, or to the operation of servitudes in
those cases where the obligations concerned are to be regarded as
inherent in, or attaching to, and passing with, the temtory con-
cerned, or its waters. Such a position, so far from being novel or
unknown to international law, is, and has been, common. The
entire larv relating to international servitudes proveç jt. Even if
every reasonable concession be made to the French point of view-
evcn if it be admitted that Article 3 of th1839 Convention creatcd
a status or réginieof permanent communality of fishery rights in
the waters concerned, and impressed those waters with a servitilde
to that effect-this would not mean that no country could be, or
coiild become, sovereign over temtory in those waters :it would
merely mean that whatever country was, or becarne, sovereign,
could only be, or become so, upon the basisof the status or régime,
or subject to thc servitude, concerned. To read more into a provi-
sion of this nature ~vouldnot only bc to put into it far more thari it
coiitains, or than its language naturally warrants, but also to
ascribc to it a meariing in noway required in order to give the pro-
vision full and adequate effect and operation-an interpretation
which would not, therefore, be legitimate.
76. History furnishes examples, both old and reccnt, of fishery
rights accorded to one country in the waters of another, shewing
that no necessary incompatibility existsbetween the concession and
enjoyment of such rights and 'the excrcise of sovereignty over the
adjacent territory, and over the waters generally. Two well-known
historical examples are those of the cession of Newfoundland and
Nova Scotia by France to Great Britain under tlie Treaty of
Utrecht of 1713, when certain rights were reserved to French fisher-
men in the waters of the ceded territories (see Annex A 148 to the
present Reply). Again, by the Treaty of Paris of 1733, between the
United States of America and Great Bntian, United States fisher-
men were granted fishing rights in Canadian waters (çee Annex A
149 to the present Reply). A very recent example is afforded by an
Agreement dated the 20th December, 1950, between Norway and 47S REPLY OF THE UNITED KIKGDOM (3 XI 52)
Sweden, by which the fishermen of each country were accorded
certain fishery rights in the territorial wntcrs of the other (see
Annex -4 150 to the present Reply). Clbviously, it could not be
argued that, by entering into such an agreement, Norway and
Sweden had renounced or forfeited their sovcreignty over the areas
concemed.
77. If, however, the Nonvegiari-Swctiish Agrcemcilt jiist men-
tioncd shew that the existence of common fishery rights is no bar
to the exercise of sovereignty by one of the parties concerned (any
more than it would be as regards France and Italy, for instance,
if they mutually accorded each other fishing rights in thc waters of
Corsica and Sardinia)-if tkis Agreement shew, in other words, that
sovereignty isquite capable of being exerciscd \vithout any prejuclice
to mutual fishery rights-it must foiiow automatically that the
existence of these rjghts can constitute no bar to the acqztisitionof
sovereignty, since this sovereignty, whe~iacquired, will itself not
prevent full effect bcing given to the common fishery rights. An
agreement instituting such rights could only act as a bar to the
acquisition of sovereignty by one of the parties if its exercise were,
in the particular circumstances, incompatible with the enjoyment
of the fishery rights by the other party. No doubt, it is inherent in
an agrccment for common fishery rights that nothing shall be donc
by either party which would render the execution of the agreement
impossible or unduly difficult ;but there is nothing in the exercise
of ordinary sovereign rights which need have aiiy such cffect.
78. It is, in fact, easy to shew that there is no incompatibility
between the exercise of the two sets of rights. For, after all, what
does the carrying oi~of common fisheries involve, or rather what is
'involved when one country has the right to fish in the waters of
another ? The fishing vessels must be alloived to enter the waters
concerned, and to takc fish there ;and certain ancillary rights may
also be involved-for instance, a right to land at certain places and
. to set up establishments on shore. There may be further rights,
depending upon circumstanceç, such as transit and transport facili-
ties, and exemptions from certain classes of dues. But, al1these are
things which it is perfectly easy for the sovercign Powcr to grant,
and to wliich effcct can be given, without any disturbance of the
normal exercise of sovereignty in the territory or area. They involve
little or nothing more than what occurs al1over the world-where-
ever, for instance, there exists a Free Port. In'aIl other matters,
such as the enforcement of customs regulations, the punishrnent of
crime, the preservation of law and order, and administration
generally, the exclusive right would remain with the sovereign
Power ;and its exercise would not interfere in the least with, or
impede, the conduct of the common fisheries.
79. The failure of the French Counter-Memorial eveil to discuss
what is obviously the one really essential question involved in the French contention-namely, whether there does, in fact, exist any
incompatibility between the exercise of sovereigntp by one country
(and, therefore, the assertion of a clairn to it), and the enjoyment of
common fishery rigiits by another l-is the more striking, because
previous French Governments have repeatcdly recagnized and
admitted the principle which the United ICiiigdom Government
maintain to be corrcct. A studp of the diplomatic correspondence
from 1876 to 1938 (given asAnnexes .A 31-A 78 in Vol. II of the
United Kingdom Mernorial) shews this quite clearly. Thus, in the
Report of the French Cornmittee of Experts, dated November,
1886 (hnnex A 42)) enclosed iri M. Waddington's Note, dated the
15th Decernber, 1886, to the Earl of Iddesleigh (Anncx A 4r), after
a statement that the negotiators of the 1839 Convention intcnded
al1fisheries round the Minquiers and the Ecréhous to be common,
the folIowing remarks appear (Annex A 42, p. 240) :
.
"...Peu importe donc, en ce qui concerne lesdroits des pêcheurs
Anglais ou Français, que la France établisse sa souveraineté sur
le plateau des Ecrehous, ou que l'Angleterre y maintienne ses
prtttentions. Quand mêmeles Ecrehous seraient terre Française,
la France ne pourrait pas placer le point de départ des trois milles
[i.e., reserve tlie lisherythedEcréhouswaters for herself]. Quand
mêmeles revendications cle l'Angleterre sur cette ancienne île
seraient fondées,eue ne pourrait compter sa zône[sic]réservéedes
Ecrehous, au lieu de la compter de Jersey".
In M. \Vaddington's above-mentioned Note, enclosing this Report
of the French Experts, there was an even more explicit recognition
of the principle involved. After putting forward a formal claim to
French sovereignty over the Ecréhous, the Note continues as fol-
lows (Annex A 41, p. 232) :
"Il en serait de même au sujetdu droit de pêche.Le libre exercice
cause êtrecontesté, en prése~icede l'interprétation que le Gouver-
nement français croit devoir donner aux conventions existantes
sur la pêchedans ces parages, et particulièrement h la convention
de 1839".
In an earlier Note from Earl Granville to M.Waddington, dated the
24th October, 1883 (Annex A 40,p. 2281, a similar attitude had
becn taken up on the United Kingdom side :
"Her Majesty's Government, therefore, do not consider it
iiecessary to discussthe sovereignty of Great Britain over those
islet; and tlie only questioi-iwhich arises is whether, the Ecréhos
heing British territory, French fishemen are entitled, urider the
l The Counter-Mernorial apparently assumesthat the incompatibility isself-
evident and needs no demonstrating.4% REPLY OF THE UNITED KINGDOSI (3 XI 52)
terms of the Convention of 1839, to participate either in the oyster
fishery or in tfie general fishery within 3 miles of those islets" '.
An equally explicit recognition of the same principle was given in
If. IVaddington's later Note, dated the 26th January, 1888, to the
Ifarquess of Salisbury (Annex A 48, p. 261) :
"Pour me résumer, mon Gouvernement croit devoir maintenir
ses précédentesconclusions en ce qui concerne l'objet principal
des présents pourparlers c'est-à-dire la nationalité des Ecrehous ;
il considèreces îlots comme une dépendance du territoire français.
Quant à la pêchegénérale,il nous semble que, même en considérant
les Ecrelzoz~s comme afi#artenant Li la Cozcro?tned'Angleterre,nos
pêcheursd'apriis lesconsidérations qui précédent, tiréesdes dispo-
sitions de la convention de 1839, ont le droit de s'y livrer conciir-
remment avec les pêcheursanglais". [Italics added].
80. These passages constitutc the clearest possible admission
(indeed, it was the contention forrnally aclvariced in behalf of France)
that the fishcry rights involved by the 1839 Convention did not
preclude claims to exclusive sovereignty, and that the exercise of
the latter was compatible with the former. These passages, and the
correspontlence as a whole, make it very clear what the positions of
the parties were.,Each side claimed sovereignty ;but each rccognized
that such sovereignty must bc exercised subject to the right of the
other country to fish the waters. I\loreover, the French Government
evidently recognized that there was no impossibility or impracti-
cabiiity about that. The difference between the views of the two
countries lay sirnpIy in this :that the United Kingdom Government
did not consider that any common fishery rights cxisted at sll,
because they did not regard the Minquiers and the Ecréhous as
coming, or as ever having corne, within Article 3 of the 1839 Con-
vention 2. That is still the position of the United Kingdorn Govern-
ment ;but, they contcnd that, even if it were not so, and evcri if
common fishery rights in these waters existed to which effect must
be given, this would not be any bar to thc assertion of a claim to
exclusive sovereignty over them, and they contend that this stands
admitted by France upon the baçis of the previous dipIornatic
correspondence.
l The Sote \vent on, as might be expected, to argue that Arti3 had no appli-
andiothe Ecrdhous came within the latter provision as "British Islands"See thers
argument in paragraph Gr,above.
It should, therefore. be naticed that, if during the pcriforggr9jwhcn the
1951 Fishery Agreement was entered into:see Section 8, above), thc United King-
dom Govcrnment denied that France had any fishcry rights in the watersoftlie
groups, thiswas not bccause the excrcisof such rights would havc been regarded
as incoipatible with the existence of exclusive British sovereignty-. but because,
for thc rcasons givenin Sub-Section 4 of this Section (sec paragraphjg et seq.,
above), Article 3 was ncvcr regarded as applicabtothe waters of the groups, and
no common fishery rights nere considercd to exist tli.re. REPLY OF THE UNITED KINGDOM (3 XI 52) 481
Conclusion on 'szcb-~e cti0i.t
81. The United Kingdom Governinent hopc to bave established
bythe above argument :first, that Article 3 of t1839 Conveiition
had no direct relevance to any question of sovereignty ; and,
secondly, that if a provision of this kind could, by iniplication,
prevent the establishment of sovereignty over any area, this could
only be if the implication were an absolutely necessary one to be
drawn in the circunista~iccs-i.e., if due effect to the provision could
not be given otherwise. The United Kingdom Governmerit claim,
fiirther, to have shewn that there is nothing in the esercise of sover-
eignty over an area whicli would be inconsistent with the cnjoyment
of fishery rights by another country in that area, and nothing in
the establishment or assertion of a claimto sovereignty which would
in any way prevent the continued enjoymeiit of any such fishery
rights already in existence, or ivhich mould make it impossible or
unduly difficult to give due effect tol agreement forthe enjoyment
of such rights. This being so, the United Kingdorn Government
submit that the French contention that Article 3 of the 1839 Con-
vention precludes either party from asserting a claim to çovereignty
over the Minquiers and the Ecréhousrnust fail, even if those groups
can properly be regarded as coming within the scope of that Articlc.
. 82. The United Kingdom Governrnent submit that, for the rea-
sons given above, Article 3 of the 1839 Convention did not apply
to the Minquiers and the Ecréhoiis, or, if it did so apply, it did not
have the cffect suggestcd .by the French Coiinter-Mernorial ; and
that, in consequence, the Convention did not render the groups
incapable of appropriation either by France or by the United King-
dom.
83. The United Kingdom Government will now (in Section .E,
beIo~v)develop their third main Co~ltention(seeyaragraph 2,above),
that, everi if United Kingdom Contention II conclusion be wrong,
and the 1839 Convention have the effect sttributed to it by the
French Counter-hlemorial, the parties çubsequently conducted
themselves in a rnanner which was wholly inconsistent with that
view ; and, in sofar as they once held it,they niust lie held to have
abandoned it, and now to be free to assert a claim to sovereignty,
The United Kingdom Government \vouId here recall nrhat was said
in paragraph g above (under Section B dealing with United King-
dom Contention 1), that the 1951 Fishery Agreement, and the
Compromis of the 29th December, 1950 itself, were part of this
process of conduct-a process irreconcilable with the view that
France and the United Kingdorn are precluded from asserting a
claim to exclusive sovereigntyover the Minquiers and the Ecréhous.
These Agreements were, indeed, the cuIminating point of tliis pro-4s2 REPLY OF THE UNITED KINGDOM (3XI 52)
cess. They are, however, dealt with separately in Section B above,
for the reaçons given in paragraph g above.
United Kingdom Contention III: That, even if, contrary to United
Kingdom Contention II, the 1839 Convention did, at the time of its
conclusion,have the effect suggeçtedby the FrenchCounter-Mernorial,
the subsequent conductof the partiewas inconsistentwith, or involved
a mutual abandonment of, that view, and was such as to entitle them
(andentitles themnow) to putforwardclaims to exclusive sovereignty
over the groups
Sub-Section I: Introductory Remarks and Points to be made by the
United Kingdom Government
34. United Kingdom Contention III (see paragraph 2, above) .
depends upon certain issues which are logically and formally distinct,
but, ncvertheless, so closely connected in substance that they can-
not be considered npart. These issues involve the following proposi-
tions :
(a) The attitude and conduct of the parties subsequent to 1S39
was so inconsistent with the vie~vof the effect of the 1839
Convention suggested in the French Counter-Memorial as
to indicate that the Convention, iiifact, ncver had any such
effect.
This argument, which is really directed tothe question of the correct
interpretation of the 1839 Conveiition, should logically figure as
part of the United Kingdom's Contention II, developed in Section
D above. Howevcr, it will bc convenient to deal with it here, since
it relates ~holly to the period 1839-195 1nd is based upon the
same facts as those which are material to the next point involved,
narne1y :
(b) Even if the view of the 1839 Convention suggested in the
French Counter-hlcmorial represent ~vhat was originally
the correct interpretation of the Convention, the parties,
by their subsequeiit conduct, abandoned lhat view ofthe
effect of the Convention, as from a certain date, and cven-
tually reçurned, or regained, thcir freedom to assert clnims
to sovereignty over the Minquiers and the Ecréhous.
This proposition could be put in another way :
(c) Even if Article 3 of the r839 Convention involvcd an agree-
ment not to clsim sovereignty over the groups, the parties,
by their conduct subsequently, tacitly abrogated this agree-
ment, and are now free to assert claims. .REPLY OF THE UNITED KINGDOM (3 XI52) 483
It is not of particular moment which way the matter is put, since
the underlying issue is in each case the same ;and the United King-
dom Government propose, therefore, to deal with the whole topic
as constituting one hasic Contention.
85. The principal points which will be made in connexion ~vith
this Contention are the following :
(1)It is an acceptcd principle of legal interpretation tliat the way
in lvhich parties to an agreement interpret it in practiw is
legitimate, though not necessarily conclusive, evidence of
what the correct interpretation realiy is.
(2) So far as the joint actions of the parties are concerned, as
exemplified in the agreements on the subject drawn up by
them since r8qg-namely, the 1867 Convention, the 1951
Fishery Agreement and the Compromis of tlie 29th Decem-
ber, 1950-thesc were al1 based upon a view of the 1839
Convention diametrically opposcd to that now put fonvard
by the E'rencliCounter-filernorial, either presupposing the
right of the parties to claim exclusive sovereignty,or regard-
ing Article 3 as superiluous and lacking in positive, or
obligatory, force.
(3) So far as tlieir separate or ii~dividual actions and attitudes
were conccrned :
(a) One of the parties (the United Kingdom) cannot be
said ever to have accepted, or acted upon, the inter-
pretation of the 1839 Convention put forward in the
French Counter-Nemorial ; and the other (France)
only for a time, and then not consistently.
(b) France, while onginally maintaining that the 1839
Convention precluded any claim to exclusive sover-
eignty, subsequently recognized that such a claim
would not, in fact, prevent due effect being given to
any fishery rights possessed in cornmon by the parties,
This was, in substance, an admission that the 1839
Convention did not preclude the assertion of exclusive
sovereig~ity.
(c) The United Kingdom, Iiaving, at al1 msterial times,
maintained its claim to sovereignty over the groups,
France, as from a certain date, also put forwa1.dclaims
to sovereignty. These claims were clearly inconsistent
with the view that the parties were disqualified, by
reason of a prior agreement, from asserting such
claims. Alternatively, they involved ailabandonment
of this view.
(4) France, having put forward claims to exclusive sovereignty
over the groups, and rnaintained them for many years-
a course of conduct which presupposecl that France
33484 REPI,Y OF THE UNITED KINGDOM (3XI 52).
regarded herself as haviiig capacity to make such a clairn
--cannot now assert that such capacity does not, and did
not, esist.
l'oints (1)-(3)above will be discusscd in Sub-Section 2 below.
Point (4) (which raises the question of the compatibility of the
Frcnch claim to sovereignty with the contention that the 1839
Convention precludes such aclairn, and, inconsequence, the question
of the legitimacy and adrnissibility of this latter contention in
the face of past and present French claims to exclusive sovereignty)
will be discussed in Sub-Sectiori 3 below.
Sub-Section 2 : The Post-1839 Conductof the Parties
Point (11 P:robative value O/ the sztbsequentconduct of parties to
a Treaty, as evidenceO/ its correct interpretation
86. It will be sufficient on this point to recdl the weight which
the Court has attsched, in several cases, to the probative value
of the subsequent practice or concluct cithe parties in relationto
a Treaty, as affording evidence of its correct interpretation, and
of what the parties themselves intended by it. Some extracts
from the cases are given in Annex A 151 to the present Reply.
Point (2) : The posl-1839 Agreements
87.The conduct of the parties as evidenced by these Agreements, .
and the view taken by them of the position crcated by the 1839
Convention, as it is to be deduced from these later Agreements,
has been fully dealt with in Section B above, in respect of the1951
Fishery Agreement and the Compronlis, and in Sub-Section 3
of Section D above, in respect of the 1867 Convention.
Point (3) : .The post-1839 eventsand di~lomatic interchanges relative
to the Minquiers and the Ecréhous
88. It will be convenient to consider the three divisions of Point
(3) "çone issue, for the relevant events and diplomatic interchanges
affect al1three. These events and interchanges are fully set out in
the original United Kingdom Memonal, and it would be super-
fluous to recapitulatc them herc. But attention will bedrawn to
certain salient points directiy affecting the present issue.
The genera2 United Kingdonz atlidtidein the post-1839 period
89. As to this, the United Kingdom Government refer to Part II
of Volume I of their Rlemorial-and, in particular, to paragraphs
125-179-aç shewing that, from long before 1839 and, thereafter,
uninterruptedly down to the present day, the United Kingdom, by
occupation, user, administration, and acts of legislation, exercised,
in respect ofthe groups, al1the usual manifestations of sovereignty.
Pàragraphs 138 (c), 141, 149-150, 167 and 173-175 of the United REPLY OF THE UNITED KINGDOM (3 XI 52) 485
Kingdom Memorial shew that a nurnber of these manifestations
occurred during the penod 1839-1870-i.e., immcdiately subsequent
to the conclusion of the 1839 Converition. Since it is reasonable to
credit the United Kingdom with not intending dcliberately to
infring an international agreement imrnediately following its cori-
ciusion, these occurrences are only explicable upon the assumption
thatthe United Kingdom Government, at that time, riever imagiried
that the 1839 Convention had, or could have, the effect of prevent-
ing the assertion, or exercise, of exclusive sovercignty over the
groups. Indeed, as the groups were clearly regarcled, on the United
Kingdom side, as being British (this is evideiit from the whole
character of the United Kingdom attitude), they could nevcr be,
and, evidently, were never, regarded as coming under the common
fishery provision of the 1839 Convention at ail.
The French attitude in the post-1839 fieriod : French claims tosover-
eignty. Admission thul the exercise O/ exclusive soveveignty was com-
patible with the enjoyment oj comm0.n fishery rights
go. {a) The Ecréhous.-There is no evidence of any protest from
the French authorities at the above-mentionect maiiifestations of
British sovereignty until 1876, as regards the Ecréhous (see Annex
A 31 in Vol. II of the United Kingdom Memorial), and- 1888, :is
regards the Minquiers (çee Anri& A 53). The protests concerniiig
the Ecréhous were, at first, based upon the 1839 Convention. But,
in 1886(see Annex A 41). a claim was made that the Ecréhouswcre
under French sovereignty ;and, it has already been shewn (seepara-
graph 79, above) that the Report of the French Committee of Ex-
perts (upon which this claim was based) admittetl, and, indeed,
proceeded upon the footing, that sovereignty was exercisable con-
sistently with the fishery provisions of the 1839 Convention-in ,
short, that the latter were not a bar to a claim of sovereignty. This
claim of French sovereignty over the Ecréhous was repeated in 1888
in a Note (seeAnnex A 4s) which, while citing the 1839 Convention,
did so upon exactly the same footing. The relevant passage has'
already been quoted (see paragraph 79, above), shewi~lgthe French
authorities as taking the view that the fishery provisioiis of the 1839
Convention were in the nature of a servitude or charge on sover-
eignty, and not a bar to it l.After the Note of 1885, no further corn-
*
Therc was, indeed, a noticeable change on the French side in the tone of the
correspondencc from M. Waddington's Note, dated the 15th December. 1886
(Annex A 41),onwards. Up to that point. the French authorhad been dispose<i
(althoug then, as now, giving no reasons why this shouid ïollow from a provision
fora common fishery ;but. after that point, they put fonvard claims to sovereignty
themselves. and adrnitted that due cffcct cgiventoArticle 3 (notwithstanding
such claims), by arguing that, whatever the position or outcome about sovcreignty,
effect must, and could, begiven to the fishery provisions of 3.In addition
to the passages already refcrrcd to and citcd earlier (see .par79.aabove),
the following extract from a Letter from thc French JIinistry of Foreign Affairs tci486 REPLY OF THIS UNITED KINGDOM (3 XI 52)
munication of any kind wils ever received from the French Govern-
ment on the subject of the Ecréhous, although the British acts of
sovereigiity over this group continued uiiabaied to the present dsy.
(b) The Minquiers.-The protest against the manifestations of
British sovcreigntp over tlie Minquiers, na defor the first tirne in
1888 (see under (a), above), was not haçed upon-iior did it so much
as rnention-the 1839 Convention, but put forward a claim to
exclusive French sovereignty over this group ; and, what is even
more striking, a claim snid tu be n Eoizgstanding one. II. 1fTadding-
ton's Note (sec Anncx A 53), for instance, spoke of "les droits immé-
moriaux et fréquemment exercés de ln France sur ces.ilôts[sic]".
More important still, as regards its bearing on the Frerich conten-
tion about the 1839 Convention, this Note referrcd to French acts
of sovereignty occurring in the immediate pst. Thus, it said that
"le Gouvernement de la Reine ne peut certainement pas ignorer
les travaux exécutéspar nous de$?ris trenteFns surcesrécifs".[Italics
adedd]. The French authurities, thercfore, claimed to have been
actively mailifesting, since 1858 at least, sovereignty over Islets
which they iiow say the parties were, by the 1839 Convention, pre-
cluded from claiming in sovereignty. 31.IVaddington's Note pro-
ceeded :
"Ainsi, l'hydrographie de l'arcliipela étéexécutéepar l'ingénieur
français Beautenips Beaupré et le balisage et l'éclairage de ces
îlesest égalementnotre muvre. Le Gouvernement français a placé
dès rS61 rin feu flottant prhs de la pointe sud-ouest du plateau
et depuis lors, nous avons pourvu à l'entretien, au personnel et
au matériel de ce batcnu feu. Plus récemment, en 1883. nous
avons inouilléau côté Est une bouée qui a toujours appartenu,
comme le feu, au Ministère français des Travaux publics. J'ai à
peine besoin d'ajouter que ces actes (lesouverainetén'ont provoqué
et Iie pouvaient proïToquer aucune observation de la part du
Gouvernement de la Reine ; ...."[Italics added).
These observations shew clearly thjt, at a time when France
was supposed to be maintaining the view that the 1839 Convention
precluded the assertion or claim of sovereignty ovcr the Minquicrs,
she was iiot only claimiiig it, but was actively endeavooring to
manifest it by various concrete acts, which were quite openly
declarcd to be "actes de souveraineté". IVhether or not, in fact,
the French hIinistry of Marine, dated the 26th March,1884 (United Kingdam
Memorial Vol. II, Annex A 46. p246),makes vïry clear the fact that the French
authorities did not regard claim ofsovereignty as being inconsisten~ith the
exerciseof common hshery rights:
"Mon département, étudie en ce moment Iüquestion internationalsoulevée
par l'intervention de l'Angleterre aux Ecrehous...;maisil est certain, dans
tous les cas. que la prise de possession effectufe par les autoritCs (britanniques,
laisse subsister la convention août 1839,d'aprèslaquelle la pêcheaux huitres
est commune aux sujets des deux pays dans les paroiise trouvent les rochers
et Carteret,'y rendent pour s'ylivrer exclusivemànce genre de pêche".ort-Bail REPLY OF THE UNITED KINGDOhI (3 XI 52) 47
these acts açsist the French claim, is another matter, which is
discussed elsewhere : the immediate point is that they are qrrite
inconsistent with the view which tlie Government of the French
liepublic now seek to maintain regarding the effect of the 1839
Convention. They shew that, not long after the conclusion of the
Convention, France was doing the very thing \ilhich she nom says
the Convention forbade. Thisconduct was not, therefore, compatible
with the view of the Convention now put forward by the Govern-
ment of the French Republic. Indecd, al1 that M. Waddington's
Note said on the fishery question was this:
"...Sans doute nous avons laissaux pêcheurs de toutes natio-
nalitéçpleinelibertépour y exercer leurindustrie, mais nous n'y
avons pas moins fait en tout temps acte de souveraineté dansla
limiteque comporte la situationcie ces rochersstériles".
This \vas, again, a clear admission that any fishery rights involved
were a charge, burden or servitude on sovereignty, but not a liar
to its exercise. Later French communications-in 1902, 1903, and
in 1904 (see Annexes A 55, A 61, A 64 and A 68 in Vol. II of the
United Kingdom Mernorial)-also strongly affirmed the French
claim, and equally referred to acts in assertion of sovereignty
camed out by France in respect of the Minquiers. However, after
1906, no further communication was received from the Govern-
ment of the French Republic for thirty-one years, when M.Corbin's
Note, dated the 5th October, ~937(see Annex A 76), proteçt.ed
against British manifestations of sovereignty, reaffirmed French
sovcreignty, but principally insisted once more on the existence
of common fishery rights as something independent of the question
of sovereignty.
United Kingdom reaction to the French attitude
91. (a) I'he $arlies were nt cross-pz~r~oses.-Throughou t tlie
correspondence, the parties were evidently at cross-purposes,
because, on the United Kingdom side, the Frcnch representations
about the effect of the 1839 Convention (see Annexes A 40, A 43,
A 47, A 54 and A 69 in Vol. II of the United Kingdom Memorial)
were consistently met with the contention that the Minquiers and
Ecréhous did not corne under Article 3 of the Convention, but
came under Articles 2 or g, as being, and always having been,
under British sovereignty. Conseqiiently, the Frcnch argument
(so far as seriously.advanced) that Article 3, not only created
common fishery rights, but ako constituted a bar to the assertion
of a claim to sovereignty, was seldom directlon the United King-
dom side, because, according to the United Kingdorn view, the
point could not arise; sjnce, even for fishery purposes, Article 3 dicl
not apply to the~groups, these being British according to that view.
On the other hand, the United Kingdom authorities invariably
denied the French claim (see the French Notes in, for instance,488 REPLY OF THE UNITED KINGDOM (2 XI 52)
Annexes A 38, A 41 and A 48) that the 1839 Convention had created '
three distinct zones-aii exclusive French zone, an exclusive
British zone, and a common zone-and that these were marked
on the chart attached to the Convention. This claim, however.
was controverted on the United Kingdom side (see Annexes A 40,
A 43, A47, A 54 and A 69); and, it was pointed out, i.ttte+dia, ' .
that the chart marked one line or zone only, namely, the Article I
line and zone off the French coast :
"....Neither the British zone nor the intemediate zone are
delineatedon the Chart, and therefore the question whether the
Ecréhosare in the 'mer commune', or within the exclusive British
fishery limits, cannot be solved by reference to the Chart, but
depends entirely on the construction of the Convention" (Annex
A 40, United Kingdom Rlemorial, Vol. II, p. ror').
"No line was draw~i on the map attached to the Convention
defining the limits othe British Islands,and there is nothing to
show that the Minquiers were iiot included in those limits....."
(Annex A 69, p. 283).
The United Kingdom Government maintained, in fact (çee
paragraphs 58-64, above), that the question, whether tlie waters
of any particulsr Island or Islet were waters in which common
fishery rights existed, was one which depended upon its territorial
status. Once more, the parties were at cross-purposes, for the
French authorities maintained (in so far as they seriously urged
that the 1839 Conven tiori precluded claims to sovereignty), that
the status of territory in the area was determined by Article 3
of the Convention ;whereas, on the United Kingdom side, it was
maintained that thestatus of the territory must first be dctermined
before it could be decidcd which Article of the Converition was
applicable. The French authorities, therefore, based tliemselves
upon the same pelitio pri?zcipiiwhich was iioticed in paragraph
64 above, in connexion with the preçent French Counter-hlemorial.
On the United Kingdom side, it was consisteiitly maintained (it
would be tedious to cite al1 the passages ; but see Annexes A 40,
A 43, A 47, A 54 and A 69) that the groups were British, and
dependencies of Jersey, and, therefore, fell under Articles 2 and g
of the 1839 Convention, and not under Article 3 ; and that, if any
doubts could arise -from the text of the 1839 Convention, they
were set at rest by thnt of the 1867 Coilvention.
(b) United Kingdoln att.itudeolz sovereignty and fishery rights.- .
Taking their stand on the view that the groups were British, and .
did not fa11under Article 3 at al], the United Kingdom authorities, .
as has been seen, were not concerned to argue that Article 3 did
not preclude a claim to exclusive sovereignty. But the view that
there was no incompatibility between the sovereignty of one
country over an area, and the enjoyment of common fishery rights
there by another, was certainly implicit in the United Kingdom
Scep. 230. REPLY OF THE UNITED KINGDOM (3 XI 52)
489
attitude (see, for instance, the passage from Earl Granville's Xote,
dated the 24th October, 1883 (see Annex A 40). cited in paragraph
79, above). It was also implicit in a forma1 offer, made in 1905 (sec
Annex A 69), to accordcertain fisliery rightç to France in the waters
of the Minquiers, upon the basis of a recognition that this group
was .British territory-an offer to which no reply, beyond a forma1
acknowledgement (sce Annex A 70) was ever received. The United
Kingdom authorities, in short, de~iied that the 1839 Convention
had anything to do with the question of sovereignty, For instance,
in the United Kingdom Note to the French Ambassador in London,
dated the 17th August, 1905 (see Annex A 69, p. zBz},the following
passage occurs :
"It is stated in M. Cambon's Memorandurn of the 18th January,
1904[see Annex A 671, tliatthe British clairn to sovereignty over
the Minquiersis formally controverted by the text of the Convention
of 1839. His Majesty's Government are unable to acquiesce in
this contention. The object of this Convention \vas to define and
regdate the .limits of the exclusive rights of oyster and other
fishery on the coasts of Great Britain and France".
Further inco~zsisfenciesof the French nttitzrde
92. Not only did the attitude of the French authorities exhibit
the inconsistencies already noticed, but thcy proceeded to, an
extreme of inconsistency ; for, they eventually argued that the
1839 Convention precluded a United Kingdom claim to sovereigrity,
yet, at the same time, a claini to exclusive French sovereig~ity
was being made. For instance, the Memorandum of M. Cambon
referred to in the passage just quoted above (see Annex A 67 in
Vol. II of the United Kingdom hlemorial), after protesting against,
"l'affirmation de la souveraineté britannique ...qui estformellement
contredite par le texte de la convention de xS39", werit on to
refer to the "droits de la France sur ces rochers", and continued
as follows :
"L'ambassadeur de France ne peut, dans ces conditions, que
rappeler ses Notes précédentes par lesquelles ia ailimé les droits
de la France sur les Minquiers . . . . . . , . a. . . . "
Yet, if the 1839 Coiivention precluded a British claim to sover-
eignty, why did it not also precludc a French clainl ? This point is
further discussed in Sub-Section 3 below.
DedttCfionsand cottlztsionsto be drawn /rom the post-1839 jllcts arzd
difilornatic interchanges
93. The United Kingdom Government submit thüt the foregoi~lg
analysis justifies the following conclusions :
(a)The attitude and conduct of the parties was not consistent
with the view of the effect of the 1839 Convention now
put fonvard by the Government of the French Republic,4g0 REPLY OF THE UNITED KINGDOM (3 XI 52)
and (in so far as thcy held that view) amounted to, and
involvcd, a mutual ahandonmerit of it.
(b) The attitucle and conduct of the parties in the post-1839
period is evidence that the interpretation of the 1839
Convention now advanced by the Government of the
French liepublic is an incorrect interpretation, never
admitted or acted upon by one of the parties, and aban-
doned either expressly, or by conduct, by the other party.
(G)The condrict of the parties in the post-1S3g period amounted
to, and involved :
(i) a mutual release froin anyrestiictions upon the assertion
of ciaims to sovereignty over the Minquiers and the
Ecréhous which the 1839 Convention may have
irnplied, and a recognition of the right to advance
siich claims;
(ii) a tacit agreement to treat any such restrictions as
being abrogated or terminated, and to resume full
freedom of action.
. ilswas stated at the beginning of this Section (see paragraph
84, above), these conclusions amount to different ways of putting
the same basic point that has already been fully argued. Itis only
necessary to add that, since the United Kingdom authorities never
at any time suggested, or attempted to contend, that the 1839
Convention implied, or involved, any restrictions upon the assertion
of claims to sovereignty, the conduct referred to, and relied upon,
is mainly that of the French authorities, and is constituted by the
two principal facts: (1) that French claims to sovereignty were
advanced in the most unequivocal terms (see, fo~instance, Annexes
A 41,A 48,A 53, A 55, A 61, A 64 and A 67 in Vol. II of the United
Kingdom hlemorial) ; and (2)that the pretension that the exercise
of sovereignty was incompatible with giving due effect to common
,fishery rights was, in so far as origindly maintaiiied, subsequently
abandoned by France-both expressly, and also tacitly-as an
inevitable consequence of the very fact that France claimed
sovereignty,yet urged the coiitinuance ofa common fishery position.
This kads to the next, and iast, issue on this part of the case-
namely, how far it is admissible, and open, to the Government of
the French Republic, having made these unequivocal claims to
sovereignty, now to revert once more (as their Counter-Mernorial
does) to the contention thst both parties are disqualified from claim-
ing exclusive sovereignty.
Sub-Section 3: A Claim of Sovereignty precludes a simultaneous or
subsequent Plea of Incapacity to Claim
94, In this Suh-Section, the United Kingdom Government will
maintain that, when a country formally clairns sovereignty over REPLY OF THE UNITED KINGDOM (3 XI 52)
491
territory (as France claimed it over the Minquiers and the Ecréhous
during the period 1886-1906 and later), it thereby necessarily
affirms its capacity to make such a claim, and cannot subse-
quently employ arguments involving the plea that there was a
general clisqualification from making al1 such claims, because of
a Treaty binding the parties not to do so. Consequeritl~7,the Govern-
ment ofthe French Republic cannot now revive the disqualification
issue.
gj. On this matter, the French Counter-Mernorial (i) plexds,
in the alternative, that the parties are disqualifietl from açserting
oi claiming sovereignty, but that, if they be not, then, of the two
claims, that of France is the better ; and (ii)contends that the
action of the Government of the French Republic from 1886 and
later, in claiming sovereignty over the groups, does not preclude
that Government from now asserting that the parties are disquali-
fied from making any claim. This laçt contention is formulated as
follows (Counter-Memorial, pp. 357- 38) :
"The Government of thc French Republic has not, since tlien,
changed its attitude, even tliough the United Kingdom Govern-
ment, oblivious of the true irnport of the Convention of 1839 l,
has claimed rights of exclusive sovereignty over the areas ~io~v
in dispute.
"Tliough, in the course of years, the French Governrnent has
been obliged to follow the British Government on to the ground
of reciprocal clairnsforsovereignty, put fonvard in conversations
that were frequently interrupted for long periods, it has done sa ,
most unwillingly, and only irozrderto protecifsrights.This explains
why the Government of the French Republic, unlike Her Majesty's
Government, has presented its subrnissions in regard to exclusive
sovereignty as alternative submissions. Once agnin, it maintains
that the territorial status of the areas now in dispute was settled
in 1839, and that conclusion rules out any exclusive appropri ation
in the sense of the Britisli submissions". [ItaIics addecl].
It may be remarked, at once, that the phrase italicized in this
passage exhibits in itself the inherent contradiction involved in the
French position. The Government of the French Repuhlic, it. is
said, were forced to advance a claim to sovereignty in order to
conserve their rights. But what rights ? Presumably, their rights
of, or clairnsto, sovereignty. But, simultaneously, the Goi~ernment
of the French Republic were saying, and are now saying, in effect,
that they have, and had, no rights and couId make no clai~ns,
because there was, and is, an agreement precluding the parties
from asserting rights of sovercignty. The two pleas are irreconcil-
able. II will be seen from the analysis of the diplornatic correspoiid-
.'This is not, of course. in any case, an accurate dofnthe attitude of the
United Kingdom authorities, who clearly could not be said to have "lost sight of"
a view which, as the factsand correspondence analyzed above shew, they never
at anytime entertained. 492 REPLY OF THE UNITED KINGDOX (3 XI 52)
ence given above (and certain further arguments to the saine effect
will be adduccd presently) that, at a certain stage of the inter-
changes between the parties, the French authorities, in fact, elected
to claim sovereignty in circumstances where they were not obliged
to do so. Having done so, and having maintained that position for
many years (in the case of the Minquiers up to 1938), they are not
now entitled either to Say or to plead, that the parties (iiicluding,
therefore, the Government of the French Republic themselves) are,
and always have been, since 1839, disqzlalified from claiming :for
why, then, did France claim ?Because the United Kingdom claimed,
is the answer given. But it will be shewn presently that France
.
was not obliged to claim because the United Kingdom did so; or,
alternatively, that, if France elected to claim, she followed the
United Kingdom onto the ground taken up by the latter, fhat
therewas, in fact, no bartoa claim by reason of the1839 Co~tvention.
96. It follows from the above that the admissibility of the
present French plea of disclualification coUpled with an alternative
claim of sovereignty cannot, in the proceedings before the Court,
be considered in isolation,and without reference to previous events.
An assertion of exclusive sovereignty, siich as France nladc during
the period 1886-1906 and later, involves an affirmation of capacity
to claim it. A claim to sovereignty necessarily recluires,and, indeed,
presupposes, that the party making it at least believesthat it is
entitled to make the claini, and that it is not suffering under any
disability in the matter-at any rate, if it be acting in good faith,
as, of course, France \vas. Consequently, the French authorities
must necessarily have considered that they were entitled to make
their claim; and they could not have thought this, if they had
supposed that they were labouring under a disahility arising from
an international agrcemeilt. For this purpose, it is inimaterial
whetlier they had reached that position, either hecause they never
really held the view of the 1839 Convention which the Govern-
ment of the French Republic now put fnnvard, or bccause they had
ceascd to hold it, or, again, because (as is quite probable) they
had corne to the conclusiori that no usefiil purpose would be served
by continuing to maintaiii it. Whatever the reason, the decision
to claim sovereignty involved an abandonment of the position
that there was np capacity to claim-a plea which cannot now
legitimately be revived.
97. The explanation of al1 this giveii in the Counter-3lemorial
is that the refusai of the United Kingdom Governrnent to accept
the view of the 1839 Corlvention advanced by the Government
of the French Kepublic compelled the latter to claim sovereignty
themselves. The United Kingdom Government submit that this
explanation can~iot be accepted in justification of the present
revival of the disqualification issue. It is wrong to Say that the
attitude of the United Kingdom Governrnent compelled the Govern- REPLY OF THE UNITED KINGDOM (3 XI 52) 493
ment of the French Republic todaim sovereignty,What this attitude
did compel the French authorities to do was to makea choice,which
is altogether a different matter. Faced with the fact that the
United Kingdom authorities took a different and-at the least-
a perfectly aiguable, and possible, view of the effect of the 1839
Convention, and of the position of the Minquiers and the Ecréhous
uncier it, the French authorities ha3 two courses open to them.
They could continue to maintain their view of the 1839 Convention,
and contest the United Kingdom claim on that ground-proposing,
if necessary, that the question of the effect of the Convention be
referred to international arbitration-or they could put forward
a claim to sovereignty themselves. But the latter course necessarily
involved following the United Kingdom ont0 the ground that the
1839Convention was no bar to çuch a claim. The French authorities
electedto take this latter course. This, they were perfectly entitled
to do. IVhat they iverenot, and arenot, entitled to do (\hile taking
this second course and making a claim) was to maintain that,
strictly, thc parties still remained, and would continue to remain,
under a legal disability to make any claim; for, in niaking the
claim, as a cZaznr of legal right, the French authorities necessarily,
and by that very act, affimed their capacity and denied the exist-
ence of any legal disability l.
98. It thus apyears that the United Kingdorn attitude did riot,
as the French Counter-Mernorial contends, compel the French
authorities to claim sovereignty. It merely placed them in a position
where they had to decide whether or not to do so. It is really implicit
in the French contention on this asuect of the subiect that. if the
attitude of one country face anotheAith the neces& of making :L
choice, aiid that necessity be an unwelcome one, the latter country
is entitled subsequently to go back upon its choice and to deny its
implicatioiis. The United Kingdom Government know ofno warrant
for such a propositiori, and numerous examples in diçproof of it
could be given. If,having to choose, the French authorities thouglit
that France's interests would best be served by ceasing to contend
that the 1839 Convention precluded claims to sovereignty, and by
advancing such a clairn themselves, that was both their affair and
their right. But, they cannot now argue that they are entitled to
revert to their former contention regarding the effect of the 1839
Convention, upon the ground that it was only the United Kingdom
attitude which caused them to depart from it. Underlying this
argument there is an obvious petitio principii. The United Kingdom
.
l Still more indefenswaseit (çee paragra92,above), while asserting Franco's
title. to deny the United Kingdom titlc by refercnce to a Convention which, if it
hlemorandumalofthe 18th January,i1904:AnnexboAh67 in Vol. Il of the Uniteds
Kingdom ~~ernonal). In short, the French authorities. at that stage, soughtto
maintain the 1839 Convention only as a barto United hrngdom, not to French,
claims.494 REPLY OF THE UNITED KINGDOM (3XI 52)
attitude was wrong and indefensible-so it is said : therefore, the
Government of the French Republic were forced to shift their
ground, and are now entitled to shift it lmck again. But,-it has yet
to be established that the United Kingdom attitude was wrong anci
indefensible. Even if it had been lc-rongin law, as regards the correct
interpretation of the 1839 Convention, it was certainly not indefen-
sible, nor had anything of the kind been established at the period
in question ;and the Government of the French Repuhlic had taken
none of the steps-such as a proposal for arbitration-which might
have established that it \vas a wrong and indefensible attitude. The
choice was, therefore, that of the Governmcnt of the French Repu-
blic, and it was freely made ;but, since it nccessarily involved an
assertion of capacity, and a tacit denial of nny legal disability, and
since this attitude of being an active, rightful-and qualified-
claimant was maintained over many years, the Government of the
French Rcpublic cannot now say that tlie 1839 Convention has dl
along rendered, and still renders, any clairn of exclusive sovereignty
illegitimatc. Such a contention is now in;idmissible ; and, neither of
the parties, in view of their respective clsims to sovereignty, iç
entitled to put it foward. The fact that the language of the recent
Agreements between the parties, the Compromis and the 1951
Fishery Agreement, is so totally inconsistent with thc idea that any
disqualification exists, is a further confirmation of the view con-
tended for in the present Sub-Section.
99. The United Kingdom Government submit that the post-1839
evidence justifies the following conclusions :
(a) that the attitude, practice and coilduct of the parties during
this period was inconsistent with the interpretation of the
1839 Convention now put fonvard by the Government of
the French Republic, and is evidence that that interpreta-
tion is wrong ;
-
(b) that even if, at its inception, the 1839 Convention involved
restrictions upon the right to claim sovereignty over the
Minquiers and the Ecréhous, the parties, by their subse-
quent conduct, mutually released each othcr from these
restrictions, and tacitly abrogated or treated them as at an
en3 ;
(c) that both the parties, having put forward (and, over consider-
able, if varying, periods maintained) claims to sovereignty,
are now precluded and estopped from denjring their own
capacity to put forward claims to sovereignty, or from
alleging each other's incapacity to do so. REPLY OF THE UNITED KIKGDOM (3XI 52) 495
Final Submissionon Part 1 of the Present Reply
IOO. The United Kingdom Government submit that, on the
grounds given in this Part of the present Reply, they have estab-
lished the three main Conteritions set out in paragraph z, which .
may be briefly restated as follows:
1. The French contention as to the effect of the 1839 Caiiven-
tion is inconsistent with the Compromis and the 1951
Fishery Agreement, and the later Agreements must prevail.
II. The 1839 Convention did not have the effcct of rendering the
Minquiers and the Ecréhousincapable of appropriation by
France or the United Kingdom, and of precluding the two
countries from asserting a claim to exclusive sovereignty
over thern.
III. (a) Even if, at its inception, the 1839 Convention had this
effect, it no longer hasitnow, and the parties are, accord-
ingly, free to put forward claims ;(b)the plea of preclusioii
or disqualification has been rendered illegitimate and inad-
missible by-because irreconcilable with-the past con-
duct of the parties in asserting claims to sovereignty over
the groups.
These submissioiis arc in ansver to the first French conclusion 011
page 403 of the Counter-hlemorial. If they be correct, it follo~trsthat
each of the parties is entitled to put fonvard ils claim to exclusive
sovereignty over the Minquiers and the Ecréhous ;and that the
real issue in the present case, which the Court has to decide, is which
claim is the better. The grounds irrsupport of the Uiiited Kingdom
clairn were set out in detail in the United Kingdom Ne~~rorial. It
now remains to aIisiver the second conclusio~ion page 403 of tlie
French Ccunter-Mernorial-namely, that the facts and consider-
ations advanced in Part III of the Counter-Mernorial shew tliat
France has the better right to sovereignty over the groups. This ivill
be donc in Part 11 of .the present Reply.4g6 REPLY OF THE UNITED KINGDOal (3 XI 52)
PART II
THE SECONDFRENCH CONCLUSION : THAT, IF SOVEREIGNTY .
OVERTIFEMINQUIERSANDTHEECREHOUSHASTOBE ASSIGNED
EXCLUSIVELY TOONEOROTHEROFTHE PARTIES,THE TITLES
AND FACTS INVOKED BY FRANCEINVOLVETHE RECOGNITION
OF HER SOVEREIGNTY OVERTHESE GROUPS
Contentionsof the United Kingdom Government
101. The United ~ingdom Government will put forward the
following main Contentions regarding this part of the case :
1. That theLoriginal title of the E~lglish Crown to the whoie
of the Channel Islands can be traced back to 1066 ;that,
from 1204 onwards, although Continental Normandy was
held by the French Kings, the Channel Islands, as an
entity, were held by the English Kings ;that this.de jacto
situation waç placed on a legal basiç by the Treaty of
Paris of 1259 ; that this situation waç unaffccted by any
subçecluent Treaties or Truces ; that these conclusions
can be substantiated with particular. reference to the
Minquiers and the Ecréhous groups of Içlets ; and that
thesc groups (as well as the Channel Islands, as a whole)
remaineci in the possession of the English Kings from the
13th to the 18th centuries.
II. That the evidence of acts of sovereignty exercised by the
Government of the United Kingdom over the Minquiers
and Ecréhous groups of Islets d~ring the 19th and 20th
centuries is sufficient to maintain the United Kingdom's
original title to sovereigntyover the groups (ifh original
title existed) or (if such original title did not esist) is
sufficient in itself to establish the United Kingdom's
title to sovereignty over the groups.
Contentions 1 and II will be developed in Sections A and B below,
respectively.
SECTION A
Sovereigntyoverthe Minquiersandthe EcréhousGroupsof Isletsdownto
the end of the 18th Century
Sttbmissio?tsof the Goverizment of the French Refiriblic
102. In this Section of the Reply, the Governmeiit of the United
Kingdom will deal with the submissions in the French Couiiter-
Memorial (Part 111,pp. 401- OZ),to the effect that French sover-
eignty cxisted over the Minquiers and the Ecréhousgroups of Içlets
from 1204 to the end of the 18th century. These çubmissions are : REPLY OF THE UKITED KINGDOM (3 XI 52) 497
(a) "That the French Republic iç entitled to daim as ils own
al1 the islands which are dependencies of the former
Duchy of Normandy, escepting those which rernained in
possession of the King of England, as was declared in
Article 4 of the Treaty of Paris of Izjg, and in Article
6 of the Treaty of Calais of 1360".
(b) "lt ison the Government of the United Kingdom that the
burden rests to furnish proof of itç possession. .5sit has
not furnished that proof in the case of the Ecréhous and
the Minquiers, those islantls must be assigned to France".
(c) "It is .moreover established that, since 1204, the island of
Ecréhou has been under French sovereignty, through
the intermediary of the abbey of Val Richer, to which
it had been given in free alms".
(d) "That the facts aUeged by the' British Governmcnt in its
&.lemorid in no way prove that it had performed any
acts involving territorial sovereignty on the Ecréhous
or the Minquiers before the end of the eighteenth century".
103. The evidence which the French Counter-hlemorial brings
fonvard to support these submissions is based on :
(a) Diplomatic Acts (1202-1655) relating to the Channel Islands
(PP. 377-3831 ;
(b) Acts relating to the Ecréhous Islets (pp. 384-396) ;
(c) Acts relating to the hlinquiers Islets (pp. 397-3991.
The United ~inidorn Governrnent will seekto çhew that the conclu-
sions drawn from the above Acts neither rebut the United Kirig-
dom's title to sovereignty nor establish any French title to sover-
eignty. .Diplomatic Acts (rzoz-1655) relating to the Channel
Islands will be dealt with in Sub-Section I, and Acts relating to
the Minquiers and the Ecréhoiis, in particular, from the 13th to
the 18th centuries, be dealt with in Sub-Section 2.
Sub-Section I :Diplomatic Acts (1202-165r 5elatingto the Channel
Islands
104. The first Diplomatic Act on which the French Counter-
Memorial relies is a judgement of the Court of King Philip II
(Philip Augustus) of France in 1202. This jiidgement, it is alleged:
(a) "in accordance with feudal.lawU,deprived King ~olinof England
of "al1 the lands which he held from the Kina of France"
..,
(b) "authorised theKing [ofFrance] to take possession otheChannel
Islands which were dependencies of Normandy" (p. 378).
105. The jndgement is, therefore, claimed in the FrenchCounter-
Memorial to establish a satisfactory "juridical starting point"
(p. 383) in the case. On this basis, the French Counter-Jlemonal498 REP1.Y OF THE UNITED KINGDOAI (3XI 52)
procceds to argue that, since the legal effect of the judgcment
was to give sovereignty over the Channel Islands to the King of
France as a part of the Duchy ofNormandy, the onus ofproving
that the Rlinquiers and the Ecréhous (like the rest of the Channel
Islands) escaped the legal consequenccs of the judgement rests
upon the United Kingdom Government. The subsequent Diplo-
matic Acts do not, according to the French Counter-Rlemorial,
provide proof that the Minquiers and the Ecréhous esca~iedthese
consequences.
Sab?nissio~tsO/ fh U.nited Kingdom Government
106. The United Kingdom Government, on the contrary, will
submit that :
1. The original title of the English Crown to the wholc of the
Channel Islands can be traced I~ackt1064, when William,
Uuke of Normandy, became King of England.
II. The judgement of 1202 by which, as the French Counter-
filernorial alleges, King John was legally condemned to
forfeit al1 that he held of the French King, is an Act
whosc legality can be challenged, and is, thercfore, not
a satisfactory basis for the French submissions.
III. The situation of fact after04 was that the King of Y rance
held Continental Norrnancly, and the King of 1Sngland
held the Channel Islands '.
IV. The above situation of fact was placed on'a legal basis by
the Treaty of Paris of 1259.
V. The subsequent Treaties and Truces in no way affected, as
regards the Channel Islands, the legal settlemerît made
by the Treaty of Paris of 1259.
VI. Xt is for thc Government of the French Republic to shew
that the Minquiers and the Ecréhous were excluded from
the gencral settlement of 1259, which did not disturb
'the King of England in his continuous possession of the
Charme1 Islands as a whole.
1. Themiginai titleofthe English Crown to thewhole oftheChalzneE
Islands can be traced back to 1066, whenWilliam, Duke of
Normnndy, became King of England
107. The origin of the United Kingdom's title ta the whole of
the Channel Islaiids goes back to 1066. In that year, the Battle
of Senlac Hill, at whicli William, Diike of Normandy, defeated
the English King, Harold II, resultecl in the union of the Duchy
1 TheUnited Kingdom Government do not consider that the temporary occupa-
tion. of the Islands by thc French during certain shortthe 14tand
subsequent centuries affse general validity of this submission. REPLY OF THE UNITED KINGDOM (3 XI 52) 499
of Normandy with the Kingdom of England l. Between 1087, tlie
date of William 1's death, and 1154 ,he date of the accession of
Henry II, there wcre two occasions when the uiiiori of England
and Normandy was temporarily weakened, altliough never brokcn.
The first occasion >vasthe partition of William's dominions under
his will, by which he gave England to his second son, WiIliamII,
and Normandy to his elclest son, Robert. In 1100, however, wlien
\jrilliam II died without issue, Henry, the youngest son of William
1 (aftenvards Henry 1), çeized the throne of England and, in 1106,
also ousted his brother, Robert, from the Duchy. The second
occasion arose from tlie dispute over succession to the Crorvn
between Maud, Heiiry 1's daughter, and Stephen, his nephtw,
who, immediately after his u~icle's death in 1135, had himseIf
crowned King of England. Takiiig advantage of civil war in Eiig-
Iand between Stephcn and hIaud, Geoffrey, Coiint of Anjou, the
latter's husband, occupied the whole of the Duchy which, in IrjO,
he forrnally made over to their son, Henry. 11111j3,Stephcii,
whose own son had just died, agreed to acknowledge Henry as
liis heir. Thus, when Henry (already in possessioii of the Duchy)
succeeded Stephcn as Henry II of England in 1154, Kingdom and
lluchy were once more united under onc ruler. Henceforth, the
lluchy rcmained firmly in Ei~glish hancls until the continental
portion was lost by King John to King Pliilip 1I of France in 1204.
But, as the United I<ingclom Government will shew, the iiisiilar
portion [i.e., the Chaiinel Islands) was retainctl.
II. Tlze jzldgemetlt of 1202, by which, as fhe Fre?ich Cozrnfe~-
Mejnorial alleges, King Jolzi~ was legally co~td~nt?zedIio
lorleit nlE that he held of the Frerzcli King, is altAct ruhase
legalitycala be clzctllenged,and is, Ilzere/ore,lzon salis/actory
basis fou tlzeFreficlz szibmissions
108. In considering the validity of the judgenient of 1202, it is
ncccsçary to apyreciate the inotive behind the ?;tepswhich Philip I[
took to deprive King John of his French possessions, and of the
Ducliy of Normandy in particular. French 1Cingshad long beeii
rtlarmed by the threat of a powerful Normandy in the possessioii
of an independent sovercign, and Philip was secking a legal pretext
to rid himself of such a danger. In the words of the cminent Frencli
historian, C. Pefit-Dutaillis :
"Les raisons de la brouilleentre Jeüri et lesPoitevins ne nous
importent pas ...Philippe Auguste eut la volonté d'agrandir le
1 Tlic Channel Islands thernselves had becn incorporated by the Dukes of
Normandy within their possessionsearly in the 10th ceritury, when they began
to extend their canquests towards \+'est.
At least since the middlc the IIth century, successive FrenchKings had
shewn the greatest concern at the expansionistlicy pursued by the Dukesof
Normandy.
J It ivas a dispute between KinJohn of England and his tenant, the Count
de la Marche, both vassals of the King of France. which gave Philip II theoppor-
tunityofintervening ivitheintention of furtherhi$ owncnds.
34j00 REPLY OF THE UNITED KINGDOM (3 XI 52)
débat ct prit ses mesures pour faire tomber en commise tous les
fiejsfrançais des rois d'Angleterre, y compris la.Normandie. La
Normandie était l'objet dc sa convoitise...." [Italics in the
original]l.
It is widely accepted that Philip \vas prepared to cinploy any
means to oust John froin his French possessions, and from the
Duchy of Xormandy, in particiilar. There are, thereforc, strong
grounds for suspecting that Philip \vouid not be o\~erscrupulous
in the rncthods which hc \vas prepared to employ to drive John
frorn his possessions.
109. III the second place, no official record of thc text of the
judgemcnt of 1202 is knowii to exist. Al1 that has corne down
to us is a report of the proceedings in Ralph of Coggeshall's
ChrorzicorAr îrglicawum 2.According to Petit-Dutaillis, tlie sentence
\iras passecl probably by the acclamation of thc asscmblcd Peers
of France, aiid was never "rédigée" (z.B. , ngroçsed as an officia1
document). This absence of aiiy official record could, however,
well Icad to errors in Coggeshall's account 3.
rlo. Iii addition to the foregoing considerations, the legality
of thc scntcncc as reportcd by Coggeshall has becn challenged by
modern scholars and by contemporary chroniclcrs (amongst them
Coggcshall himself). Cor-isitlerable doubts are expressecl whether
the jiidgement included John's Duchy of Normandy at all. Coggcs-
hall himself merely states that John as surnmoncd "qttasi Cowes
ilquit~nim et A*zdegaviŒ" ("as thorrgh Count of Aquitaine and
Anjou"), Sir Maurice Potvicke, the clistiiiguished 15nglishmedieval
historinn, obst:rveç :
"lt should be rememhered that the learnetl [l?rench] jurist
M. C;uilliiermoz doiibts whetlier tiie sentence passed on John by
tlic French court in 1202 could be applied to Norrnandy. The
point içnot whether tliis vicw is correct, but that tliere \vas room
for doubt" 5.
Petit-l3utaillis repeats thc above doubts
"Il [I'hilipII] engagea donc avec Jean une longue discussion,
qui lui permit de faire ses prcparatifs et d'attendredes circonstances
politi(lues favorables ; puis, alors qu'il avait cité d'abord son
adversaire comme comte dilqzcitnine d norG #as coolnmedtrc de Nor-
~varztliajitalics added], il fit volte-face, avec le sans-gênequi lui
1 C, Petit-DutailliLe Déshériteintntde Jean Sans Terre et leMstrrlre d'Arthur
de Bretagne(Paris,1925). p. 6.
' Radulphi de Coggeshall, Chronicon Anglicanum (Ed. J. Stevenson, Kolls
'=ries), pp. r35-6.
There even exists some doubt ivhcther a trial \vacver held. Such a doubt.
forexample. is(according to Petit-Dutaillexpresscd ùy the distinguisheFrench
medieval historianCharles Béniont.
' F. hl.hfJowicke.iThe.Loss of Normandy (1189-1204) (Mancliester, 19i3),
P. 397. n.5. REPLY OF THE UNITED KINGDOAI (3 XI 52) 501
était habituel, et obtint de sa cour une sentence génerale,qtii
privait Jean de lotisses fiefs,ira~rçais; sentence fondée,non point
siirdes faits particuliersau Poitou, ?nais ~211les refus d'obéissance
erassaliquesde Jea?~et de ses aizcêtres" [Italics i~i the originall.
III. Hven assumiiig thüt John was stimmoned as Duke of '
Normandy, Coggeshall reports that Philip's action in orderiiig
him to corne to Pans was considered illegal, becnuse, according
to an ancient privilege, the Duke of Normandy could not be sum-
moned to appear for any of his French possessions oiitside hiç
Duchy 2.
112. Other significa~it facts which render susl~cct the legality
of the judgement arc as follo~vs :
(a) In 1217 the Trcaty of Lambeth between Hcnry III. and
Loiiis, Philip's eldest son, was signed 3. Then, Louis,
according to Roger of IVendovcr and. an anonymous
London chronicler, promised the returii of Henry's lost
yosscssions (i.e., those on the Continent), whcn Loiiis
should siicceed his father ; "and this promise, whatever
its origin and cliaracter may have been, was the basis'of
Henry's later contention that in spite of the coriquests of
Philip and thc judgmcnts of his court, tlic succession
to Norinandy and the other continental lands stiI1 lay
in Iiiinself" 4.
(b) Doubts were subseclucntly expresscd also ori the question
of the legality of disinheritiiig John's heir, Henry III,
who, since he u7asnot born in 1202 (he was, in fact, born
in 1207), could not be said to have hecn involved in his
father's forfeitiire.
(c) In addition, certain Frcnch chroniclers suggest thiit King
Louis IX (Saint Louis) himself doubtetl its legality.
Thus, the anonymous Minstrel of Rheims says :
"But some peol)le Say. 'Whcrcfore, if lie [King John]
liad failed to appenr at the Court of his Lorcl, he had iio
land to forfeit, for lie had committed no crimirial act .
against the King [Philip II]'. Some Say that the King of
Frniice could with justice seize the land bccause of 1Ci1ig
John's defaiilt, and collect the revenues ;but if King Johii
or his heirs wislicd to corne to the King, and asked him
for the possession of their land to establish their rights,
and if they wished to make ümends for the default by tlie
judgement'of their peers, hc [Louis 1x1 oright ta return
il to them. And because of this doubt and of othcrs as
1Petit-Dutaillisop.cit..p. 6.
Coggeshall,op. cil.p. 136.
Powicke.Œop.Mt., pp.394-5.d Bd.), vol.i. pt. ip. 148. 502 REPLY OF THE UNITED KlNGDOhl (3 XI 52)
well, he [Louis IX] rnadc yeace with the King of England.
xnd re-cstablished friendly relations" l.
Louis IX was, it should be iiotcd, evideritly prepared for various
reasons to negotiate with Henry III to bring about a ccssntion of
the hostilities which had arisen out of the partial çeizure by Philip
II of the English King's possessions in France a. Thus, the judge-
ment of 1202 cannot he accepted as a satisfactory basis for the
French suhmissions, becauçe (i) doubts exist co~icerningthe actual
sentence it contained ; (ii) the validity of any sentence has heen
challengcd ;(iii) it was regarded as an unsatiçfactory instrument by
the French Crown itself ; and (iv) it was never completely carried
out, and resulted in a long and inconclusive struggle with England.
III. The silzcation of fact aftev1204 was fhntthe King of Franceheld
Co?itinenfal Novma,tdy, and the King of England heldflzC t:annel
Isla~zds
113. Philip II began his seizure of Normandy in 1202, using the
judgement of that ycar as his legal pretext. By 1204 he had com-
pletely conquered Continental Normandy. But the Channel Islands,
thoilgh some of thcm changed hands during the ensuing thirtcen
years, were firmly in English hands by the erid of 1217. There were
two main reasons for this fact. First, the English, realizing that the
Islands were a convenient base for future operations against their
lost possessions on the mainland, strengthened the defences of the
Islands, and held on to them with determination. Sccondly, the
majority of the population in the Islands was in favour of John's
rule. As R. Besnier, the French historisn, summarizes the situation :
1 Rkcits d'un ménestrelde Reiins au Treizième Siècle (Bd. Natalis de Wailly,
Paris. 1876),p. 235. The French textisas follows:
"Mais aucunes genz dient. 'Pour ce s'il [King John] defaillià la court lc roi
son seigneur, n'avoit il pas terre forfaite i perd;car il n'avoit fait envers
le roiniil fait crimineil'. Si dient que lideoFrance pot par raison saisir Ia
tcrre par1s deffautc dou roi Jelian, et pcnre les iss;emais se lirois Jehans
ou si air vousissent venir au roi. et li requcissent saisine de leur terre parmi
ladeust ravoir.t ainendeir les deffautes plejugement des pers, il [Louis 1x1
"Et pour ceste dou te et pour autrnil [Loui1x1 fait pais au roi d1Eng1etene
et bon acort".
M. Gavrilovitch, Elude sur le TrailA deIJavis de13.59(Paris,~Bgc)),])p. 43-4,
states:
"11 n'estpas étonnant alors que Guillaume de Nangis, le hI6nestrel dc Reims,
et teaucoup d'autres admettent,cominc Mathieu de Paris, que ce soit seulement
la piétd, la générositéet lscrupulesdc conscience qui ont poussé saint Louis
[Louis IX] L faire cette paix avec le roi d'Angleterre [Henry III], et cela pour
satisfaire uniquement sa consciencc timorée à l'égard de la Iégitirnitde la
confiscationprononc6c contre Jean Sans-Terre". ,4nd, again (Pliid.p. 44) :
"C'est d'abord le fait que saintLouis avait obtenu du pape [Alexander IV]
la perniission de transformer en aumônc (ob conscientia scrupuluevitaiidum)
cc qu'il croyait posséder injustement et dont il ne savaitaire la rcstitution.
Cc cas de conscience le prkoccupait vivement". REPLY OF THE UNITED KINGDOM (3 XI 52)
50.3
"Malgré tout [i.e.the support which King Philip rcceivcd in
the Tslands], leroi de France échoue [i.e., in his attempt to take
them] ; la majorité de la population luiesthostile,car levainqueur
ne peut accorder ce que le roi d'Angleterre, duc de Normandie,
promet pour ne pas tout perdre. Les Français occiipent en vain
les îles de 1204 à 120j....l.
114. Evidence that the English did drive the French out of any
of the Channel Islands which they might have occupied for a time
is shewn by a Plea beforc the English King's Justices in 1309. In
this, it was put to the Norman Abbot of Blanchelande, who was
defending his right to the advowson of St. Martin's Church, Guern-
sey,that :
"....he [the Abbot] cannot deny but that a ccrtain King of France
disinlieritethe lord .John formerly Kiiig of England of tlie Duchy
of Norniandy & then the said King of France on tu70 occasions
llad ejected the said lord John tlio King &c. froni these islailds
and occupied them as annexed to the said Ducliy. And the said
lord J. the King with armed force on two occasions reconquered
these islands from tlie said King of France. And from that his
said second conquest he & liisposterity Kings of Englanrl have
held these islands up to the present time" 2.
1x5. Again, by the Treaty of Larnbcth of 1217 (see paragraph
IIZ (a),above), it was agreed that any of the Islands held at tEiat
time by the followers of Eustace the lilonk, a ternporary adherent
of Louis, wha had forsaken the English cause, were to be returned
to the English King.
"Item, de i~istilissicfie; dmninzbs Lodovicu msittelitterasaras
patente /falribus Eustachii Afonachp raci+ierzsquodillas reddaîit
do~ni~ Htonric Roegi Anglia ...."("Also, let the islandsbe dealt
witli thus ; let tlie lLouis send his letters patent to the brethren
of Eustace the Monk, notably that they [the Islands] rnay be
returned to the lord Henry King of England ....)
116. After 1217, Henry III heldthe Channel Islands de Judo.
i\loreover, he continued to urge his claim to Continental Normandy,
but made no attempt to wrest the Duchy from the French. He did,
however, make half-hearted expeditions to Poitou (which tie had
lost in 1224) in 1230, and to Gascony in 1244I .n 1229, he had been
willing to accept the loss of Continental Normandy, provided that
the other lost territories on the mainland were rcstored to him ;and,
according to the celebrated chronicler, Matthew Paris, Louis IX
would not onIy have been prepared to accept a compromise, but
also even to reçtoreNormandy i tself4. In the end, however, Henry,
R.Besnier. La Coutumsde Nov>nandie,Histoire Extern(Pans,1935)p~. 7.54.
RollsoftheAssizss he~ Ethe Ch~mneEIsland..A.D. 1309 (SociktJersiaise,
18th Pubn.), pp11-12.
' Rymer, lac. cit.
' Powicke,op.cit.. 396. REP1,Y OF THE UNITED KINCDOM (3 XI 52)
504
after protracted negotiations, was obliged to accept from Louis a
far Iess ridvantngeous arrangement regarding his lost possessions- .
namely, the Treaty of Paris of October, 1259. .
IV. The above sitz~ationof jact was @aced on a legal basis by the .
Trenty of Paris O/1259
117. By 1259 (the year of the Treaty of Paris) the situation of
fact was, therefore, as follows. The French Kings, Philip II, Louis
VI11 and Louis IX, had consolidated their hold on Continental
Normandy, but the Channel Islands remained in the hands of the
English King. In other words, the judgement of 1202, even if it
had legitimately (which is doubtful) included the Duchy of Nor-
mandy within its çcope, had been limited in its practical application
to Continental Normandy. The Treaty of Pans of 1259 (see Annex
A I, United Kingdom Mernorial, Vol. II) gave legal effect to the
conquests of Philip II and Louis VIII, which hitherto had been
contested, and ço put an end to the dispute for which the judgement
of 1202 had been responsible. The feudal position, as it existed
before 1202, was reçtored l, except that the English Kings now
recognized in name the loss of Continental Normandy, Anjou,
Maine, Tourainé, and Poitou (i.e.those territories which had been
indisputably conquered by Philip II and Louis VIII). Nowhere in
the Treaty are the Channel IsIsnds expressly mentioned by name a,
for they were then firmly in English hands. Thus, when Henry III
granted the Islands in fee to the Lord Edward, his son (aftenvards
Edward 1) in 1254, they were granted on condition that they
" 'should never be separated from the English Crown, and that no
one, by reason of the grarit, might at any time claim any right
therein, but that they remain wholIy to the Kings of England for
ever' "
118. The fact that the Channel Islands were (as they still are)
considered an entity, physically distinct fromContinental Nomandy
in the Middle Ages, cannot be stressed too strongly. Indeed, French
historians and geographers themselves refer to themas "uii archipel" .
or "les Iles Anglo-Normandes". Thus, it is incorrect to Say, as is
frequently alleged by the French Counter-hlernorial, that a failure
to enumerate by name any particular Island in any relevant docu-
ment, implies that any Island lay outside this entity. When it was
desired in those days to refer to them as a group, phraes such as
"Les Isles", "Les illes deGuernese", ''Imsul~ de Gerneseye,Jerseye,
Serk et Aztrneye" (the most usual form), " Gerrteria et Gereseyet
l As Besnier rightly remar(op citp. 255)"...les relations franco-anglaises
nationale des îles dans le traitéde:...,"ent officiellement la situation inter-
The significance of Ar6iof this Treaisdiscussed in paragraph 126.beIow.
a J. H. Le Patourel, The Medieval Adtni?iistratio~lofthe Channel Islands 1199-
1399 (London1,937). p. 38. REPLY OF THE UNITED KINGDOM (3 XI 52) 5O5
cetera inszila maris", "InsztErede Geresey ef de Gerneseye", etc.,
etc., rvereused. So far as the Channel Tslandçare concerned, abun-
dant esamples of the failure to enurnerate individually the sevr:ral
Islands which the English indispiitably possessed may be fourid on
the English Chancery Ralls and iti various diplornatic documents.
An example, indeed, is ta be found in the Truce of London of 1471
(see Annex A 152 to the present Reply), between Henry VI :tnct
Louis XI, cited by the French Counter-Mernorial itself (p. 382).
Because only Guernsey, Jersey and AIderney are tnentioned in the
Truce, the French Counter-Mernorial argues that the Minquiers and
the Ecréhous were not in the possession of the English King. But it
will be noted also that neither Sark, nor Herm, nor Jethou (Islands
indisputably in Eiiglish hands) is mentioned. Thus, any attempt to
see a "caractère limitatif" (French Counter-Memorial, p. 382), in
the wording of the Truce itself, and elsewhere, is withoiit foiindation.
119. The fact that the Channel Islands xvercconsidered to be an
entity is also shewn by numerous Administrative Acts which deal
exclusively with them. Already, before the end of the 12th ce~itury,
they were administered locally ', and there is ample evidence that
they continued to be so administered during the 13th century, and
subsequently. Thus, to find anything "restrictive" in a failure to
give a cletailed enumeration of every small Islarld of the group (as
the French Counter-Mernorial (p. 382) would try to do) is to rcad
into the texts of medieval documents a significance which they are
incapable of bearing.
120. The above contentions, nameIy, that the Channel Isla~ids
are to be regarded as an entity distinct from Continental Nonnanily,
and, further, that, as an entity (thoughwith an autonomous admin-
istration), they remained in English hands, are supported even by
the opinions of several well-kno~vn French historians. A brief selec-
tion may be cited. For instance, J. Havet remarks :
"L'archipel qui est situé dans la Manche, à l'ouest de la pses-
qu'île de Cotentin, fit jusqu'air XIIIe siéclepartie du duché de
Normandie ; 5 ce titre, il était compris dans les domaines du roi
d'Angleterre,, qui tenait le duché en fief du roi de France. Au
co~nmencement du XIIIe siècle,le roi de France, Philippe-Auguste,
ayant prononcé la confiscation du fief, conquit toute la partie
continentale du duché et la réunit à son domaine direct ; il ne
put prendre les îles du Cotentin, qui resthrent au roi d'Angleterre,
Jean, et furent ainsi de fait séparées dela Normandie. En droit,
cette séparation fut consacréepar le traité de 1259, entre les rois
dc France et d'Angleterre, qui attribua définitivement au premier
beforeIe177...;they are grouped together under the heading 'Insule' in the [h'or-
man Exchequer] roll of 118...;the Islands were held as one unit by Count John
[afterwards King John]c. 1198...;they wcre granted by him to Peter de Pré;iux
in Iaoo ....and they were certainly so aclministered in the thirteenth century"
(Le Patourel, opcd.,p. 27, note 5).506 REPLY OF THE UNITED KINGDOM (3 XI 52)
la Normandie coiitinentale en toute souveraineté, au second les
îles h tenir par foi et hommage du roi de France" l.
121. R. Besnier stresses the "ailtonornie des iles" a in mentioning
that Henry III proclaimed their autonomous stateon the 20th May,
1226, when he ordered Richard de Grey, Warden of the Islands, to
"traiter les hommes loyaux de Jersey, Guernesey et autres îles
confiées Q sa garde cl'aprèsles rnêmeslibertés et mêmescoutumes
qu'ils 6taient traités du temps du roi Henry notre grand-pére, du
roi Richard notre oncle, et du roi Jean notre père".
Later, Besnier, in explaining the large degree of administrative auto-
nomy which the Islands gained during the 13th century, observes :
"La cripitulatiori(leJean concrétisele succésdes îles normandes
sur le roi [i.e.,Joliii]; pour les insiilaires, le souverain anglais
ne sera jamais que le duc de Normandie. D'autre part, les relations
franco-anglaises provisoirement régléesen 1214, 1217, 1220, fixent
officiellement la situation des îles dans le traité de 12jg ; le roi
de France, outre les autres possessions des Plantagenets, acquiert
définitivement la souveraineté de la Normandie continentale, mais
le roi d'Angleterre continue A tenir les îles par foi et hommage
du roi de France" a.
Such examples senre to illustrate the viewsheld by French historians
about the ChannelIslands. They distinguishbetween "la Normandie
continentale" (which was acquired, as they point out, by the French
King), and "l'archipel" or "les îies normandes" (which they admit
remained in the possession of the English Kings).
122. With specific reiereiice to the Treaty of Paris, the Channel
Islands, as the French Counter-Mernorial itseIf mentions (p. 3791,
are only referred to in-vague tems. In Article 4 it is stated :
"...And for what we [Louis 1x1 have given the king of england
and his Iieirs in fee and in demesne, the king of england and his
heirs will do liege homage to us andto our heirs, kings of france,
and also for Bordeaux, and for Bayonne, and for Gascony and
al1 the land which he holds on this side of * the sea of england
in fee and in demesne and for the islands, if any there be which
the king of england holds which are ofthe realrn of frahce, and he
shall hold of us as peer of france and duke of Aquitaine ; ...."
(United Kingdom Memorial, Vol. II, Annex A I, p. 142).
1 J. Havet. Les Couus Royales des Ilcs Normandes [Paris, 18781, pI. Havet,
it wiU be observed, states that the Islandcsontinued to be hetd of the King of
France "par foi et hommage" (as alsodoes Besoier: see paragraph 121,above).
The United Kingdom Government will shew (seeparagraphs 124 and 125,below)
that probably even this forma1Linkhad disappeared by 1259.
a Besnier, loc. citThe instruments referred to by Besnier, as "provisionally
settling" Anglo-French relations,were :the Truce of Chinon (1214). the Treaty
of Lambeth (1217) (see paragraphs112(a)and I15, above) and the renewed Truce
of Chinon (1220).
In Annex A r to theUnited KingdornMemorial, the word "deca" was mistrans-
lated "beyond". REPLY OF THE UNITED KINGDOM (3 XI 52) 5O7
By Article 6, the King of England, Henry III,agreed to relinquish :
" ...to us [Louis 1x1 ...and to our brothers ...any right the
kings of england ...have or ever Iiatl in the things which we ....
or Our brother hold or ever used to hold, that is to Say in the
duchy and al1 the land of Normandy, in the county and al1 the
land of anjou, of Touraine and Maine, and in the county and
all the land of Poitiers or elsewhere in any part of the Realm of
france or in the islands, if any are held by us or by our brother
[i.eb ., Louis IX or by his brother] or by others in our or their,
behalf, and al1arrears". (Ibid.)
123.The French Coiinter-Memorial (p.379) alleges that Article 4
of the Treaty "shows that the King of England owed homage in
respect of al1the islands belonging to the Kingdom of France which
he held". These "islands", the French Counter-Mernorial contends,
included not only "the occanic islands off Aunis and Saintonge" l,
but also "those in the Channel situatcd 'on this side of the English
sea' which had formerly belonged to thc Duchy of Normandy".
124. It is, however,by no means certain that the Channel Islands
were incIuded atd1 within the provisions of Articles 4 and 6 of the
Treaty of Paris. The lands referred to in Article 4, for al1of which,
itshould be noted, the King of EngInnd was fo do homage as "peer
of france and duke of Aquitaine", are divided into three categories :
(i) those which the King of France is giving to the King of Eng-
land ; (ii) those which the King of England holds, i.e. B,ordeaux,
Bayonne and Gascony, together with "al1 the land which he holds
on this side of the sea of england in fee ancl in demesne" ; (iii"the
islands, if any there be, which the king of england holds which are
of the realm of france." The Channel Islands are certainly not
included in (i) because, as the United Kingdom Gavcmment will
shew (see paragraph 127, below), these were in the ~iossessionof the
King of England at the time when the Treaty was being negotiated ;
nor can they have been included in (ii), because al1the territories
here referred to are on the mainland in the south-weçt of France.
125. The question of interpretation can, therefore, be confined to
the significance of (iii), i.e., "for the islands, if any there be, which
the king of england holds which are of the rcalm of france ...."It
wouId seem probable that such islands must refer to the "oceanic
islands off Aunis and Saintonge". Such an inference is supported by
the following consideration. The King of England held hiç French
possessions as "peer of france and dukc of Aquitaine" :it wouId,
indeed, be unlikely that he would do homage for the Channel Isla~lds
in this capacity, since these territories could never be regarded as
appurtenant to, stiü less a parce1 of, the Duchy of Aquitaine, which
lay in south-western France.
Saintonge was an arealying on the northern shore of the estiiary of the Gironde.
Aunis (which wasnot mentioned in Artic4eof the Treaty ofPariwas an area
lying imrnediateto north of Saintonge.50s REPLY OF THE UNITED KlNGDObl (3 XI 52)
126. As regards ArticIe 6, there are grounds for holding that the
Channel Islands did not corne within the scope of itsprovisions. This
Article states that the King of England undertook to relinquish al1
that he and his brothers held "in the duchy and al1 the land of
Nomandy, in the countyand al1the land of anjou, of Touraine aiid
Maine, and in the county and al1the land of Poitiers or elsewhere in
any part of the Realm of france or in thc islands, if any are held by
us or hy our brother [i.e., by Louis IX or by his hrother] or by
others ...."Here, it will he observed, the King of England $vascom-
pletely relinquishitzgthe territories specified, and, accordingly, not
~ndertaking to do homage in respect of them ; for, as has been
stated in paragraphs 115 to 117, above (see also paragraph 127,
below), the Channel Islands were, at the date of the Treaty, in fact
held by the King of England. Accordingly, they cannot have been
among the islands held by the King of France, over which al1rights
were, by virtue of Article 6, relinquishecl by the King of England.
It should also be notcd that the French Countcr-Jlemorial (p. 379)
asserts that the King of England owed homnpe in respect of the
Channel Islands. If this contention he correct (yhich the United
Kingdom Government are not yrepared to admit), it follows that
the Governme~it of the French Republic must themselves be taken
to have admitted that the King of England did not relinqtsishthe
Channel Islands, and that they are, therefore, outside the scope of
Article 6.
127. Eveii if it were conceded that thc Kiiig of Englalid did
homagc for the Channel Islands in 1259, it shou1cI be clearly
understood thal tliis in no iï-ise affectcd the dc Ifizclpossessioii
of the Channel Islands by the King of Eiiglaiid. That he was
in de fncfo possession of these IsIaiids, nt the very time when
the Treaty was being drafted l,is shewn by a11order of Henry III,
dated the 5th July, 1258, to Drew de Barentin, Suh-Warden of
the Islands, in the following terms :
"Mandate to Drew de Barentino [sic], on liis fc;ilty anci homage
and on pain of hisbody and lands, to gurird tlic islrinds of Gernere
and Jeresey, and the kittg's otherislattdsin liis kccping ; not per-
mitting Eclwardthe king's son, or any one on liisbehalf,to put
any constables in the castles or munitions of the said islands ;
or the saicl Edward or any one wlio can use force against the said
Drew, to cnter the said islands, castles or munitions without the
king's speciftl mandate" 2. [Italics added].
728. Rloreover, evcn if it could be shewti that the Kings of
France claimed suzerainty over the Chatiriel Islarids in 1259, the
The text of the Articles of the Trewas agreed in May. 1258,though the
Treaty was not actunlly ratified until Oct1259. Sec tlic paper by the French
historian. Dr. P. Chaplais. "The Maofnthe Treatof Paris (1259) andthe Royal
Style" (English IIisiorical Review, A1952,p.240).
a Cal. Patent Rolls. 1247-1258640. REPLY OF THE UNITED KINGDOSI (3 XI 52) 95)
IJnited Kingdom Government contend that such a suzerainty
tvould only have been of a verÿ tenuous nature. There is no
evidence that the French Kings ever, in aiiy way, enercised it
as, for example, they did in Gascony l. Furthermore, because of
a failure to exercise even a tenuous sovereignty, such sovereignty
(su~posing it ever to have existed) certainly ceased in time to
be even a rnatter of forrn. The last occasion on which an Englisli
King did homage for anything which he held of the King of
France was in 1329. This was when Edward III did homage for
the Uuchy of Guyenne and its appurtenanccs (in wliich the Channel
Islands were not included) 2. In inp case, al1semblance of hoinagc
for anything which the Kiiig of England held of the King of
France autornatically disappeared wheii Edivard III put fortvarcl
his claim to the Kingdoin of France in 1336.
129. The legal settlement estahlished by the Treaty of Paris
\vas, therefore, as follo\vs, The King of England ack~iowleclgecl
the suzerainty of the King of France over aIiy of his possessions
iii France itself, and also for üny islands which he held off Aunis
and Saintonge. But it appears improbable that the Channel
Islands were included in the Treaty as territories for xvhich the
Kiiig of England was requirccl to do homage. Even if he dicl
lioinagc for the Islands, this was piirely forinal, and for a lirnited
l~eriod. Ili any case, both beforc and after the Treaty of Paris,
they wcrc firrnly in the handç of the English King.
V. The sz~bseqr~en Tfreatiesarid 7'~tcce sn no way aflected,as regards
the CIsa?cuelIslands, the legal settleme~ttn~ndeby the Trenty of
Paris of 1259
The Treaty O/ Calais (or Brétigny) of 1360
130. In diçcussing the significance of Article 6 of the Treaty
of Calais the French Counter-IVIemorial(p. 380) distingiiishes two
kindç of islands : " 'the islai~ds acljacent to the lands, districts
In Gascony, the Kings of France exercised a suzerainty which consin tliï
hearing of appeals from the Gascon Courts in the Parkrnenf of Pans. This, the
Kings of England during the 13thand 14th centuries, did thebest to prevent,
and ultimately set up a soveroign Court in Aquitaine. Gasconappeals were addrcsscd
to the King and Council in England in siich numbers that ofGascon petitions
the Channel Islands, petitions were certaiaddressed to the King and Council
in England. and never (so far as can be ascertained) to the King of France.
Ryrner.Foedera, &c.(Revised Ed.), vol. ii,ii.p. 765.
The first fiArticlesare concerned with the cession to the King of England
of certain iemtones on the mainland of France, together\rith confirmatioto
hirnof others already in his possession, namely, Guyenne and Gascony, Agenais,
I'drigorcl. Quercy, Rouergthe County of Higome. Limousin, Saintonge, Angou-
mois and Poitou (in the IVest and South-West), andthe Counties of Montreiiil,
Ponthieu and Gufnes (in the North) ;in addition,Calais, which the King had
captured in 1347, was to be retained by him. It will be noted that Normaisy
not mentioned. REPLY OF THE UNITED KINGDOM (3 XI 52)
j10
and places mentioned above', that is to Say, first, the Oceanic
Islands, Noirmoutiers, Rè[sic], Yeu, Oléron and others, depend-
encies of the provinces ceded by the King of FranceJJ (p. ~SO),
and "the islands which the King of Englaiid alrcndy held, namely,
the Channel Islands adjacent to Normandy ~iot forming part hf
the districts s~iecifiedabove" (p. 380). It then proceeds in regard
to the latter islands to suggest a second distinction, nsmely,
that : "The King of France, who retained Normandy, coritinucd
to be lord of the islands near the coast, which were dependencies
of Kormandy and \rrere not at that time held by the King of
England" (p.380) hough the remairider contiiiued in the possession
of the King of England. Rut the French Couiiter-Memorial brings
fonvard no evide~ice in support of this last statement, which is,
indeed, pure conjecture. Nor does the Treaty itself contain any
evidencc whatsoever in support of s distinction being made between
some of the Channel Islands lying Iiear the Normandy coast of
which the King of France is alIeged to bc "lord", and others of
the sarne group, which were held by the King of England. If,
indeed, it were a question of geographical proximity, Alderney
(which the French Counter-Mernorial (p.383) nclinits tohave been
Englisli) is nenrer to tlie Normandy cnast than rire the llincluiers.
131. The distinction made by the Treaty clearly lies between
those islands adjacent to the lands \vhich the King of 1- rance
was ceding to the King of England uiider this Treaty (i.e., Xoir-
mouticrs, etc.), and those "which the King of England notirholds",
i.e., the Channel Islands as n whole P.roof that this is so lies in
the general co~isideratioiisadvanced above (see paragraphs 118-121)
that the whole group of the Channel Islands constituted an entity
in the Middle Ages. In addition, specific proof thnt the ;\linquiers
and the Ecréhous were included in the groui) is fotind iri Letters
Patent, dated the 28th June, 1360, (i.e .t,a timc when the Treaty
of Calais itself was being drafted at Brétigny), by wiiich'Edward II1
of England granted to :
"....Edmund Cheyne, keeper of thi:islanclof Gerrieseye, Jere-
seye, Serk and Aurneye, and the ofher islujzdsndjace~rtfhereto,
that he may have the said keeping for a further year beyond the
term of 3 years from z April, 32 Edward II1 [1358], for which it
was committed to him by letters patent of 6 [recte71 May in the
same year ....rendering 3001. yearly at the Exchequer by equal
portions at hlichaelmas and Easter" l.[Italics added].
Such a grant clearly sheivs that the larger islailds aiid the srndler
ones adjacent to them-in other words, the whole archipelago of
the Channel Islands-were in English hands.
132.It cannot, therefore, be argucd, :is the French Counter-
Mernorial appears to argue, that the Trenty of 1360 filrnisheç
l Cal. FinaRolls. vi128. REPLY OF THE UNITED KINGDOM (3 XI 52)
311
evidence that certain of the Channel Islands were not iri the
possession of the King of England, ancl that the onus of proviiig
tliat the filinquiers and the 12créhousescnped this alleged limitation
rcsts upon the United Kiiigdom Government. Nor can it bc
maiiitained, as the French Countcr-Mcmorial appcars to claim,
that the King of France remained lord of ariy "islands near thc
coast" of Normandy. The United Kingdoin Governrnent, tliere-
fore, maintairi that, in 1360, just as in 1259, the Channel Islands,
as n whoie, wcre firmly in English hands. The anus of provirig
that nny of theni escaperl this possession, whether hy Articles in
the l'rcatjr of Calais or of Pans, rests upon the Covernment of
the French liepulilic. Siich proof, the United Kingdom Govern-
ment maintaiii, ha5 not bcen adduced by the French interpretation
of eitiier of these two Trcaties. The contcmporary evidence whicli
has been exhibited abovc proves, on the other hand, that an
interpretation, which mairitains that the whok archipelago was
an Erlglish possession, is the correct one.
. The Treaty O/ Troyes of rqzo
133. The legal and feudal situation as rcgards the Channcl
Islands was in 110 way nlterccl L>ythe Treaty of 'I'royesof 1420,
between Charlcs VI of France and Henry V of England (see
, United I<ingdoin Mernorial, Tiol..II, Annex A 3), despite the con-
tention of the French Counter-Mernorial (yp. 381-382t) hat this
?1rcnty establislied a ne\v situation. ln support of tl-iiscontention,
thc .French Couiiter-blcmorial cites iri particular Article 18 l of
thc Trcaty :
"Also, wlien it shall happen that our said son, King Henry,
corne to the.crown of france, the Uucliy of normandy and also
tlieother places and each of them coiiquered by him in the King-
dom of france shall bc uiider tlie Jurisdiction, obcdience and
monarchy of tlie said crowrl of francc".
Irito this Article the Frerich Counter-Memorial would read thc
sig~iiiificancethat, ivhen Charles VI of France ir:issucceeded as
King of France by Henry VI of Englnnd in 1422 (Henry V of
England havirig died shortly before Charlcs VI), "it was to France .
tliat the AngIo-Norman islancls anci al1 the lands conquered, iri
gciieral, by tlie English were the11attached. It map iherefore bc
said that the Treaty of Troyes annulled the Treaty of Calais aiid
re-established the unity of the Kingdom of France" {pp, $31-382).
134.This Article, it will be observcd, refers to "thc 1)uchy of
normandÿ and also the othcr places ancl each of tliein co~iqucrccl
by him [Henry Ir] in the Kingdom of france shall he under the
Jurisdiction .... of the said cro~\~nof france". Biit Henry \'
Articl22 in the text of the Treasyprinted (from the origihlS.in the
Unitcd Kingdoin Mernorial, Vol. II, Annex A 3. p. 148. 5IZ REPLY OF THE UNITED KINGDOM (3 XI 52)
certainly had no need to compter, and would not have conqnered,
the Channcl Islands, for they had been held by the English Crow11
(except for the temporary occupation of somc of tliem) ever
since 1204, and were firmly iii liis possession before lie invaded
France. Consequently, there is no mention of them in the Treaty
of Troycs as one of Henry's conquests. iliorcover, that thcre was
no intention by Heiiry to merge them with the other possessions
of the French King is shcwn by the fact that John, Duke of
Bedford, the Kiiig's brother, to whom tlie Islands, witli their
appurtenanccs, werc granted in tail male in 1415 l, continued to
hold them until his death \rithout surviving heirs in 1435. Theÿ
then reverted to the King of England, aiid were re-graiited to
Humphrey, Duke of Ciloucester, Henry VI's uncle, in 1437 2.
Both these grants were made by Letters I'ateiit issuing from
the Englisli Chaiicery.
135.In face of the above evidence, it caniiot be held' tliat the
Trcaty of Troyes created a new situation of fact, by lvhich the
Channel Islands were attached to France. On the contrary, all
the available cvideiice shews that they retnained an cntity in
the possession of the English Crown.
The Trztce oj Londoît of 1471, a?td the Treaties of Picqztigny-
Amiens O/ 1475 and of Etaples of 1492
136. Te rcinainirig diplomatic instruments cited in the French
Counter-Memonal (pp. 382-383), which include t\vo 17th century
Treaties (see paragaph. 138, belo\j7),can be treated more hriefly.
In Article 2 of the Truce of London of 1471 (see Annex A 152 to
the prescrit Reply) bctwccn tlie restored King Henry VI*, and
King Louis XI of Frarice the worcls "the islands of Gueri~sey,
Jersey and Aimery [sic[ ]Alderney], and other countries, islands,
lands and seigiicuries which are, or shall he, held and possessed
by the said King of England or by his subjects", are allcged by
the French Counter-Mernorial (p. 382) to signify that "the oiily
Islands specified are those which, as exceptions, dicl iiot bclong
to the Kingdom of Fraiice" (p. 382). The French Counter-Mernorial,
however, ignores the phrase in the Article "aild other countries,
'isiands, lands and scigneriries", where "islarids" obviously refers
to the renlnining Channel Islands. hloreover, if the Article possess
a "caractère limitatif", as allegcd by the French Counter-Mcmorial,
in that it names only the Islands ~vllich\ve~-ein Englisli poçsessioii
(i.e.,Guernscy, Jersey aiid Alderney), liow is this to be reconcilëd
l Forty-fourth ginaiaReport of the Depvly Kerofthe Public Records (London,
18831, p. 575, citing French Rolls, 3 Hen. 6."In tail male: i.eto hisheirs
male.
L Forty-eighfA nnualReport ofthe DePuly Kesper of the PubRecords (London,
1887)~p.3I7, citiibid.15I-ien.VI.,m. 5.
Henry VI (1422-1461)was restoredto the throneof England duringthe brief
exileofEdward IV (1461-1.+83), from October, 147to April1471. REPLY OF THE UNITED KINGDOM (3 XI 52)
513
with the statement (p.313) that the United Kingdom Government
"cari eaçily provc prolonged possessiaii in the case of ....Jersr:y,
Guernsey, Alderney, Sark, Herm arid Jethou" ? As the United
Kingdom Governrneilt h~e stated before (sec paragaph 118,
above), there is no justification for nssuming that this or any
other document implies, by a failurc to enurnerate in full al1 the
individual Islands of the archipelago, that certain of them wcre
in the possession of the French Crown.
137. As for the 'Trcaty of Picquigiiy-Amicns of 1475, betweeii
EdtvarcI IV of Englanci and Louis XI of Frarice, aiid tliat of
Etaples of 1492 I,betweeii Henry VI1 of Englaricl and Charles VI11
of Francc, neither of these instruments contains any refercnce
ivhatsoever to the Channel Islands. They were siniply agreements
on the part of the Englisli sovercigns that they would evacuatc
French territory on the mainland.
135. Finally, thc French Coiintcr-3Icmorial (p. 383) cites two
Treaties of the r7th ce~itury-one of 1Go6, betivcen Jamcs 1 of
Engiancl rind Heiiry IV of Francc, the othcr of 1655, betwccn
Oliver Cromwell, Lord I-'rotector of 1Snglanc1,and Louis XIV of,
Francc. These werc both comincrcial agreements. Only Jeiscy.
rind Gucrrisey are meritioned, becüuse it was only betmeen those
two Islands and Francc that therc \vas any appreciable volume
of trade. Here again, tlie French Counter-Mcmorial, in effect,
iilsists upon a 'tcsractkre limitatif" hy asscrting that, because
only tiiro Islands are rnentionecl, therefore iieither the hlinqiiicrs
nor the Ecréhous werc then in I<iiglisli posscssiori. Brrt neither
is ihere any mention, for exarnplc, of Alderney or Sark, Herm
or Jethou : yct ihejr ri7ere indisputahly in English hands. 'I'hus,
the remarks made in paragraph 136 above, regarding the intcr-
pretatiori of the Truce of 1471, apply equnlly to thcse Treaties
of 1606 aiid of 1655.
VI. It is for the Governnze~ro tf tlze French RePitblic to shetw that
the1Minquiers attdthe Ecréhorrw s ereexclzl(Iedfrowtthegetaernl
seulement oj 1259, which did ?lotdist.ztfheKijig of L;?zglrind
ijzhis co>lfinz~olrisossessionof llie Chalt~lslands ns a reilrole
139. The French Couriter-Meinnrial has atteinpted to throw on
the Urzitcd Kingdom t.hc onris of shewing by name tlrat the
individiial Islands, and, in particular, the Miiiqiiiers and the
Ecréhoiis, rernainccl iil the posseçsion of the English Crown '.
l Rymer,op. cit(Orig. Ed.). 497-504.$05-9.
8The Government of the United Kingdom, while denying tlithe onus rests
iipon them to do sowillnevertheless in Sub-Secti2,below, adduce detailed
evidencctoprove that the Minquiers ancl tlie I7créliiifnct remain in tlie
possessioof theEnglish Crown.5I4 REPLY OF THE UNITED KINGDOM (3 XI 52)
The allegation that the burden of this proof rests upon the United
Kiiigdom Government is based upon the statemeiits that a
"juridical starti~ig point" was established b y the judgemeri t of
1202, which condcinned the King of England "to forfeit al1 the
lands which he held from the Ming of Fraiicc" (p. 383) ;arid that,
though the Unitcd Kingdom Government cri11prove possession
of some, "the Mernorial it has submitted in the present dispute
does not furnish any useful evidence tliat England ever posscssed
the Ecréhous and the Minquiers" (p. 383).
140. The United Kiiigdom Government, liowcver, dispute this
allegation that any burden of proof rests upon them. The judgement
which is the basis for this French contention has been shewn to
be a suspect and unsatisfactory instrument (seeparagraphs 108-1 12,
above). On the other hand,al1 the available evidence shews that
the English Crowii had title to, and possessiori of, tlie Channel
Islands, as an entity, from 106G.
141. The Trcaty of Paris of 1259, whose legality is unassailable,
{vas a gencral settlement of the disputes which had resulted from
the judgement of 1202, by which Henry III of England acknow-
ledged the conquests of Philip II, Louis VI11 and Louis IX. On
the other hand, ariything outside these conquests, such as the
Channel Islands (which had rcmained an English possessioii since
1066), was, in effect, confirmed to the King of England. The onus
of proving that the Minquiers and tlie Ecréhous were arnongst
the conquests of the French Kings, and that they were iiot a
part of the Ch:~niiel Islands as aii entity, rests, thereforc, upon
the Government of the French 12epublic. Thcre is nothing to
shew'that this is so in the evidence produccd by the French
Countcr-Mernorial in its study of the Treaty of Paris or aiiy other
Diplornatic Act.
142. The United Kingdom Government will now procecd to
support the foregoing submissioiis about the significance of the
Iliplomatic Acts, shewing that the ChanneI Islands, as an entity,
remained in the possession of the English Kings, by examination
and rejection of the interpretations placed by the French Counter-
hlcmorial on evidence relating spccifically to the Minquiers and
Ecréhous groups of Islets.
Sub-Section 2 :Evidence derived from Acts Concerning the Ecréhous
and the Minquiers Groupç of Islets from the 13th to 18th Centuries
SatmrnurjofActs Cotzcerningthe Ecrél~oz ~ sdtiu Mi~zqa~ierGs roicFs
of Islets
143. In this Sub-Section the United Kingdom Governnicr-it will
analyzc iii detail the evidence dcriveïl from Acts concernirig the
Mir-iquiersand the Ecréhous groups of Islets from the 13th tu the REPLY OF THE UNITED KINGDOM (3 XI 52) ,515
18th Centuries. They mil1examine and refute the interpretations
placed in the French Counter-Mcinorial (pp. 377-399) upon ccrtiiin
evidence which the United Kingdom Mernorial (see paragrnphs
125-134, ancl 153-157) s~ihrnitted to establish the (;ontentiori that
the Minquiers and the Ecréhous have, sirice meclieval times, been
in the possession of the English Crown. This Sub-Section will also
contain additional evidence to support this contention. As in the
Rlemorial, the United Kingdom Govcrnment will consider, first, the
main evidence reiating to the Ecréliousand, thcn, the main eviderrce
relating to the Minquiers. Certain minor points raisci:lby the French
Counter-hfemorial, which the Unitecl Kingdom Government con-
sideroflittle value or irrelevant to the dispute, will be more briefly
treated in the concluding paragraphs of this Sub-Section, or referred
to in notes.
144. The items of eviclence will be considcrcd iii the followirig
order :
A :Acts Concerningthe Ecrého.1 ~sEeirs
(i) The Charters of xzoo and 1203.
(ii) Tiie Quo Wnrranlo Procecdings of 1309.
(iii) The Letters of Protection of 1337.
(iv) The Rental of the 15th Century.
(v) The Paymciit in the Account of thc \Vardeil of the
ChanneI Islands, Sir Jolin de Roches, for 1328-9.
(vi) Th-e Prior of the Ecréhous and Legal Proceedings in
Jersey, 1323-31.
(viil The Confiscation of the 'Alien Priories'.
(kiiij The Drowning of Jerseymen at the Ecréhous in r:<of)
(ix) Passages frorn Le Geyt coricerning Fish-Tithes.
(s) Acts during the 17th Century.
H :Acts Coltcerningthe Jli~~quiersIslels
(i) ~he possessioii of the Ilcs Chausey and the alleged
dependencc upon thcrn of the Minquiers.
(ii)'SheCourts Iiolls of the Seignory of Noirmont, 1615-17.
(iii) The Appenl of Deborah Dumaresq agairist the Jiidge-
ment of the Royal Court of 'Jersey, 1692.
A :Acts Concevlzilzgihe Ecrélzoz~Isslets
(i) l'he Chartersof 1200 a~~d1203
145. The United Kingdom Government tvill first consider the
Charters of raoo and 1203 (see United Kingdoni Rleinorial, Vol. II,
Annexes A 8 and A 7), laying stress on what thcy consider to be
the true sigriificance of thesc Charters, and refusing the erroneous
iiiterpretatiori given to thcm by the French Couriter-Memorial. The
French conterition (p. 385) co~icerilingthc effcct of thegrant of the
35Ecréhoils in 1203by Piers des Préaux to the Abey of Val-Richer
is that:
"Picrs de Préaux'sgift was therefore not a sub-infeurlation,as
the British Memorial states in paragraph 126. The effect of the
free almsl was to sever the earlier feudal link. Henceforth, the
island of Ecréhou had no other temporal lord than Notre Dame
de Val Richer, which possessed it in full ownership, as a freehold.
It was no longer part of the fiefof the [Channel]islands". (Counter-
Memorial, p. 385).
The French argument in support of this contention rests on two '
sssumptions :
(a) That a gtant "i? l&beranz etpuram et.perpetuam elemosynamJJ
(i.e.in "fra.~tcheaîdmône" or 'frankalnioin') l extinguished
cornpletely the rights of the overlord : that is, it made the
grant an 'allodium' (allez~ ather than a 'fee'-an 'allodium'
being land heId in absolute dominion and thus freed of the
superior rights of an overlord.
(b) That any tenant could make a grant in 'frniikalmoin' provided
that it did not damage his overlord. Thus, in the present
case, Piers himself, in making his own grant to tlie Abbe-
of Val-Richer, could alienate the Ecréhous in this way,
because, as the Ecréhous were worthless, he did not damage
his overlord, King John.
Of these two assumptions, the first, iiamely, that a grant in 'frankal-
moin' \vas iiot a."sub-infeudation", but the coniplete surrender of
land to be held "in full ownership, as a freehold" 5 is the crucial one.
Such an interpretation of a grant in 'frankalmoiii' is, it will be shewn,
crroneous.
146. All land waç held, according to Anglo-Norinail law, by the
King as lord of al1 the soil, or of him'hy his teriants-in-chief or their
subordi~iate tenants. Thuç, there rnight intenrcne bet~veeritIie King
arid the ultimate tenant a number of sub-tenants, each linked to a
grantor immediately superior to himself. But neither the King nor
any superior of any grantee ever lost (uliless by his 0~~11 direct act)
his own riglztsover theland graîzted.A grantor could free a gift of land
from ariy obligations due to hirnself pcrsonally, but this did not free
it from the services owed to his own superiors. Even a gift in 'frankal-
moin' could not extinguish the feudal rights of this chain of gants,
as the French Counter-Me~norial attcmyts to maintain. Moreover,
l The Registry translate "franaumône" as "£me alms".The United Kingdom
be understood that, about rzoo, the various combinations of 'free', 'pure' andld
'perpetual' were used without clear distinctions being made bebveen them.
* The French text uses "alleu" ('allodium') which means "landineabsolute
dominion outside the feudal system". Thus. the Registry transoft"frcehold"
isinaccurate, because, unlike to-dayfreehold in the Middle Ages did nat mean
"land held in absolute dominion". REPLJ OF THE UNITED KINGDOh1 (3 XI 52) 5I7
if, as a resiilt of Piers' gift, the Ecréhous became an 'dlodium', how
can it be ~naintaiiied, as the French Counter-Mcmorial repeatet-lly
does, that these sarne IsIets, nevcrtheless, entered iilto the lordship
of the King of France ?
r47. That a grant in 'frankalmoin' extinguished altogether the
rights of the King and any nieçne lords, thus makingit a? 'allodiurn',
is, so far as the Unitcd Kingdom Governlnent are anrare u,nsup-
ported by any evidence eithcr in English or in Norman legal history.
It is, moreover, not sup~ioried by the very authority on which the
Government of the French liepublic themselves rely, namely
E. Blum's paper on Les Origiues du bref d? fief luiet d'attmône8.
In this pnpcr (p.376) Blum states :
"Même la pura elentosinnsur laquelle aucune juridiction laique
ne s'exerçait, restait tozcjours zcnetenure, sur laquelle, il est vrai,
le donateur ne retenait rien, fors des priéres", [Italics added].
Thus, Blum himself maintains that even a grant in "pura elemo-
sina" and liberated from any secular jurisdiction, still remained
"une tenure", that is, property over which the feudal rights of the
King and mesne lords had not been extinguished Further, the
Siimma de Zegibus ~Vorntannie in citrin lai'cal4 speaks (XXX, I)
with complete clarity of holders in almoin as "tenants".
Again, the foremost English medieval legril historians, Pollock
and hlaitland, state :
"Beside this, we constantly find religious houses taking land
in socage or in fee farm at rents and at substantial rents, and
though a gift in frankalmoin might proceed from the king, it
could often proceed from a mesne lord. I?rthis cdzse the mere gijt
couldnot renderthe land free /rom all secularservice ; in the donor's
h~nd it was burdemd; with such service and so burdeneditpassed
into the hands of the donee". [Italics added]
1 For example on page 385 of the French Counter-Mernorial it is stated that
"L'aumône est dite franche ou libre quand etle fait biendonné un alleu qui est
antérieur esttrompu.anDésormais, l'ile d'Ecréhou n'a d'autre seigneur temporeldal
que Notre-Dame de ValRicher qui la possEde en pleine propriéte comme un alleu.
Elle ne reléve plus du fief des iles". (The French text is here in viewof the
number of technical terms employed.) But on page380, the French Counter-hiemorial
states that "The King of France, who retained Normandy, continued[i.ein 13601
to be lord of the islands near the c....[Italics added.]
* This is contained in Travaux de EuSemaine d'histoire du droit normand tenue
d Jersey du 24au 27 Mai, 1923(Caen, 1925).
a It is clear from the context of the passcited (p. 376) above that Blum uses
"pura" asaffecting jurisdictiand dignity. See also Blum,op. cd., p.371,n. 2,
where he cites the Sumrnad6 Legibus Normannie in curia Inïca(erlE. J. Tardif).
vol.ii,c. I15 :"Elemosina aulem puva est in qzla princeps nisibitcrrenereliliel
jurisdicfioniseadignitntis" ("But alms are 'pure' when the prince ratairis nothing
for himself of the earthly jurisdiction or dignity".)
Thisis the body of Norman customary laws from the 12th Century onwards.
History O/Ewgiish Law (Cambridge, 1898), i244. 'Socage':"To hold insocage
is to hold of any Lordlands or tenements,yielding to him a certaine renby the518 REPLY OF THE UNITED KINGDOM (3 XI 52)
Thus, a grant in 'frankalmoiii' could never of itself free a piece of
land from burdcns incumbent upon it while it was in the donor's
hands.
148. Rloreover, that a gift in 'frankalmoin' could not liave been
an 'allodium' (allue) is shewn by the tact that 'allodin' had long
ceased to exist in hoth England and Normandy before 1200. Whcn
the word 'dlodium' is used in the Szimma de Legibus Norma?znie
in czrrialaicali (XXVI, 5), it ismerely to indicatc that 'allodia' were
held in burgage tenure l.In earlier centuries, the word 'itllodium'
does aypear in Normandy ; but the 'allodium', then, nevertheless, -
had a lord over it. Thus, the Duke of Normandy hirnself held the
Duchy as an 'allodium' for which he did service to the king of
France 2.
149, Accordingly, the contention of the French Counter-Mernorial
that the effect of a grant in 'frankülmoin' vas "to sever the earlier
feudal link" and to free tlie land of the supcrior rights of the over-
lord has been shewn to be erroneous. Land granted in 'frankalmoin'
was not freed of feudal services ; it did remain subject to the rights
of the King and any mcsiie lords. A grant iri 'frankalmoiii' was, in
other words, a sub-infeudation.
150. The second assuniption of the French Countcr-Memorial,
namely, that a te~laiit could make a gift in 'frankalmoin', provided
that he did not damage his lord, is eqiially erroneous, but can be
more briefiy dismissed in view of the fact that the frrst, and more
important, assumption has been disproved. lt is clcarly stated in
the Summa de Legibus IVorman~zie in cztvialafcali that : ,
"No man can make a grant in almoin of any land except that
which only is in his ownership" (XXX, 2) ;
and : "lTrom this also it is to be observed that, since the Duke lias
the jurisdiction and rights of his owii lordship ovcr the lands of
al1 wkio are subject to him, he alone can make gifts in almoin
free or pure" (XXX, 2)
These staternents are a reiteration of the general principle of al1
law, namely, that Nemo dut quod non habet. A tenant coutd not, in
making a grant-irrcspective of its value and, thcrcfore, of its
yeare foral1manner of services" (see StroudThe Judicial Diclioiiar(and Ed.)
(London, 1903).vol. iis.u.citing Termesde laLay); 'fee farm' : an cstate in fee
granted in perpetuity subjecto a rcnt (see1Vharton.s Law Lesicon (Ed. A. S.
Oppé)(14th Ed.) (London, 1938)s.v.).
1 'Burgage tenure': land hcld by burgtiers (townsmen) of the King or otlicr
lord for a yearly rent. (SeeWhartoop.ci#.,s.v.).
Pollock and Rlaitlanop. cit.i. 70-1.
XXX, 2."Nulius autem elernosinare potest ex aliqua terra, nisi hocsoluni
quod suum estineadcm".
"XX. 2. "Ex hoc eciam notandum est quod cum diixjusticianet juraprin-
cipatus sui in terris omnium habeat subditorum, ipse solus elelnosinas potest
iiberas facere sive puras". REPLY OF THE UNITED KINGDOM (3 XI 52) 99
damage to the overlord-give away somcthing ivhichwas not his
to give away, i.e., land freed of services due to an overlord.
151. The only exception to this principle would be if the overlord ,
expressly consented (either 1)yconcumng in his tenant's grant or in
a separate grant) to hisown riphts being given swa.yat the same tiine
that the tenant made the grai~t. In the prescnt casc, Piers heIcIthe
Channel Islands of John for certain services. Any grant made by
Piers of the Channel Islands remained subject to John's rights to
these services, and John could always demand that any grantee
from Fiers should ret~derthe services owed to John. Only John him-
self could dispose of his oini rights ; any lack of damage in the
making of a grant by Piers did not nullify this principle ofNemo
dcrtquod nonhubet.
152. However, this principle alone would not have prevented a
tenant from disposing of his own feuda1 rights in such a way tliat
the lord's rights might become, in fact, unenforccable. Thus, a
second feiidal principle was evolved, namely, that any grant by a
tenant might require the coiisent of his lord. The result of this
principle-as of the principle of Nemo dutquod ?tonhabet-was tliat
only John himself could dispose of his omn rights. Picrs could riot
give away John's rights.
153.To sum up, a gift in 'frankalmoin' did not free the land so
granted from the rights of the superior lord from whom the grantor
held it; the gift could not have this effect even if those rights were
so valueless that the superior lord wouId suffer no real loss. Only
the superior lord himself could give his rights away. In the present
case, Piers could not give away John's rights, and there is no
evidcnce that John hirnself gave them away, either by concurreIice
in Piers' grant or by separate grant. Piers des Préaux'sgrant, there-
fore, cannot have had the effect for which the French Counter-
Mernorial contends.
(ii) The Quo Warran toProceedings of1309
154. The second point on which the United Kiiigdom Govern-
~neiitplace special emphasis is the significance of the QtroWarra?tto
proceedings of 1309 (secAnnex A 12 to the United Kingdom hlemo-
rid). At these proceedings, the Abbot of Val-Richer (who has repre-
sented by the Prior of the Ecréhous) was summoned to answer the
King of England concerning a plea that he should sumender a mil1
in the Parish ofSt. Savioiir, Jersey, and the advowson of the Priory
of the Ecréhous, and also to xnswer a plca by wlmt warrant he
claimed to receive 20s. a year from the Royal Revenues of Jersey.
155. The argument of the French Counter-hlemorial rnakeç the
foliowilig two points:
(a) "There is nothing to show that the King of England exercised
any authority o.tTerthe priory" (p. 389).5533 REPLY OF THE UNITED KINGDOM (3 XI 52)
(b) "The King [of ISngland] was not entitled to the advowson
of the priory of Ecréhou because since 1203 it no longer
formed part of the fief of the islands(p. 390).
These points constitiite, however, no adequate ançwer to paragraph
129of the United Kingdom Mernorial, in which it isexplained ~vhy
the Abbot was required to answer for the advowson of the Priory
on the Ecréhous. This very summons establishes that the Justices
of the Crotvn considered the Ecréhous to be part of the King's
territory, andthus falling within their jurisdiction. Finding a Priory
on this territory, which they believed to bc part of the King's
demesne, they claimed for the King its advowson.
156. The French Counter-hlernorial is directed to shewing that
the King's claim to the advowson lwas not justified. The United
Kingdom Memorial, holvever, did not claim that it was. On the
contrary, it pointed out that the Abbot could have produced a
sufficient answer why he u7as entitled to the advowson. But the
fact that the Abbot was allowed to retain the advowson does not
imply an admission on the part of the King ofEngland that fie did
not exercise suzerainty over the Ecréhous (as the French Counter-
Mernorial apparently infers). The exercise of jurisdiction in thQzto
Warranto proceedings is itself the exercise of "authority over the
pnory", and thuç an assertion of suzerainty.
157. With regard to the second French contention, namely, that
the King of England was iiot entitlecl to the advowson of the Pnory
because, since 1203, it no longer formed part of the fief of the
Islands, the Government of the United Kingdom, as explained
above, would observe that the ownership of the advowson is not
the point which is being atlvanced for the suzerainty of the English
King over the Islet, and secondly, even if it were, the French major
premise (that, since1203, the Ecréhousno longer formed part of the
fief of the Channel Islands) is incorrect, as it depends upon an
erroneous view of the nature of 'frankalrnoin' (see paragraphs
145-153 above).
158. The Quo Warranto proceedings, apart from the question of
the Abbot's being summoned to answer for the advowson of the
Pnory, reveal plainly that the Prior (who answered for the Abbot)
believed that the Pnory and the land on which it stood belonged to
the English King. This is shewn, for example, by his statetnent that l
he and his fellow monk "semper celebrant ...pro dominoRege [of
England] eteius firoge?titoribus"("celebrate, as always, for the Lord
the King and his progenitors"). TheFrench Counter-Mernorial would
dismiss this statcment with the explanation that :"The Church has
' The French Counter-Mernorialapparently inierprcts the term "advowson"
as the protection whiwas givep by a layman to an ecclesiastical foundation
and31sapparently based on a Continental proftthe10thand Ifth centuries.e).
"Advowson" was the riglit to appoint someone to an ecclesiasticalliving. REPLY OF THE UNlTED KINGDOM (3 XI 52) 521
always been willing to pray for any Christian, even for an alien".
This may be so, but it supplies no adequate explaiiation of this
statement. The French Counter-Memorial ignores the pertinent fact
that, in this case, the offeringof prapers forthe King of England and
hiç-ancestors was based on a specific reason and not a general desire
to pray "for any Christian". The original obligation (i.e .,feudrtl
service) placed on the ~onks of the Priory \vas that of celebrating
Masses for King John of England, for Piers des Préaux himself, hiç
parents and his ancestors. When Fiers forfeited the Channel Islands
after 1204 ,hat feudal service reverted to his overlord, the King of
England l. That this was so, and, moreover, that it continued to be
so, is shewn by the fact that, in 1309 the Prior and his companion
were celebrating for the reigning Edward II of England as well as
for "his ancestors" as always ("semper").
159. Thus, the Q210 Wai~mto proceedings, when correctly
interpreted, fumish strong proof that the Ecréhous were posçes-
sions of the King of England. Briefly, this isshe~vnto be so by the
following facts. The Justices of the English King considered that
they could lay clairn to the advowson of the Priory because it
lay within the King's demesne. The Prior, who came as the diily
constituted proctor and attorney of the Abbot of Val-Richer, clid
not protest. He gave a factual description of the poverty of the
Ecréhous, and justified his tcnancy by asserting that he was
continuing the feudal service of prayers for the King of England,
and that he maintained a beacon to warn marinersa. Therefore,
it was "perrnitted to the said Prior to hold the premises as he holds
them rie., in the manner, and subject to the same conditions, irz
which he and his predecessors had done] as long as it shall please
the lord the Icing" (Annex A 12). It would cven appear that these
words are susceptible of the construction that the Abbot oflered
to relinquish the Islet, that the offer was accepted, and that the
Prior was allowed to hold, for the future, :tt the pleasure of the
King 3.
'.There exist other parallels of c.g.when the Vernons forfeited the lordship
of Sarkbecause they sided with Philip II against King Johnin 1203. the obligation
to pray for the family placed upon thehape1 of St.Magloire, which they had
founded, was transferreto the King ofngland.
The 20 shillings mhiche received from the King of England were for this
particular purpos: cf.RollsO/ th Assks held in th Chund Islands ...A.D.
1309 (SocidléJersiaise. 18th Pubn.), p. 319.
a Clearly, the Prioof the Ecréhous was a heavy drain on the mother house
of Val-Richer and did not pay for its ~ipkeep. However. the Abbot of Val-Richer
ninningf(see UnitedKingdom Memorial, Vol.ed1,paragraph 47 ;and Reply, n.1.he Priory
p. $23).Evidently, he regarded this as a dutynot incompatwith surrendering
the ownership of the propertin the site(i.ethe Islet itself). The rnany small
benefactions. both in Jersey and in France (see Memorial. Vol. II, Annex A 18).
had, presurnably,made it possible to provide the bare necessities to keep the
Priory alive, until the endowments in Jersey were confiscated in the rgth century
(seeparagraphs 69-176,klow). REPLY OF THE UNITED KlNGDOM (3 XI 52) 523
made to denizens and for?igners alike, for a limited or unlimited
period and invariciblydurirzgthe King' sEeasz~re T.his rcstrictio~i-
that they were granted during the King's plcasure-was intentled
to give the King the rigbt to revake them at will: it in no w-isc
meant that the person to whom thcy were granted must bt: a
foreigner. nforeover, Lettcrs of F'rotection were iiorrnrtllyinstrumentç
by which the King took the grantee's proyerty on Eriglish soi1
into his protection while the grantee was abroaci on the King's
service, or otherwise unable to look after the interests of his property
personally. The issue of such Letters, therefore, i1npIiec1that thc
grantee held property subject to the jurisdiciion of the King of
England.
163. In reality, hnwevcr, the question whether the Yrior of the
,Ecréhous was or was not a foreigner does not affect the issue of
sovereignty. The concept of nationdity is out of place in the
Middle Ages, when the overriding factor was feudal allegiance.
In any case, it can be shewn that the Priors of many Channel
Islands Priories (in addition to the t'riory of the EcréIiaus) were
Normaiis, owing a persorial allegiai~ceto the Kiiig of France. But,
what is to he notcd above all, is that, in respect of their possessioiis
in the Chanriel Isl:inds, al1 of which were held of the King of Eng-
land, they owcd allegiancc to tlie Kirig of England l.
(iv) Tlie Rental of the 15th Cenlziry
164 The French Counter-Mernorial (pp.38T388)at;ernpts ta çhetv
that the Ecréhous clid not belong to the English King, by asserting
that, because the Kenta1 (see Annex 18 of the United Kingdom
lThe French Counter-Memorial (p.392)States that the Prior of the Ecréhwas
not a "British"subject, and proof of this alleged to be shewn by the despaofh
two monks (one of whorn, presumably, was new Prior) by the Abbot of Val-Richer
to the Ecréhousin 1338 (sec paragraphs 47,48 and 131 of the United Kingdoin
Mernorial), when England and France were at war. The United Kingdom Govern-
ment do not dispute the fact that the Abbhad probably the right of presentation
to the Priory. and that the Prior may have been a French subject. But tin no
respect, signifies that the Islet itself was ever considered a French possession. Tlie
French Coiinter-Memorial rejects the year 1337 for this cvent (asin Callia Christiana.
vol.xi.coi.447),and places it in 1338, though the former date was accepted by
the French Cornmitteeof Experts in their Reporton the Ecréhous Islets in 1886
(see UnitedKingdom Mernorial. Annex A 42,p. 235).Theacceptance of 1338 as
the date is based upon a systemof reckoning known as the Mos Galiicaizus, xvhich
reckoned the yearfrom Easter to Easter, anwhich was introduced into the French
Because of its obvious inconvenience."it never became uniform for the wholeof
France, or popular outside court circles" (cf. C. R. Cheney, Haiidbook of Detcs
for Students of Englislr History (Royal Historical Society, 1.p 5-6).
The Frcnch Counter-Memorial (p.3x7) cnrnplains that the Rental. ris printed
in Annex A 18 of Vol.II of the United Kingdom Mernorial,isinaccurate, since
it tends to obscure the fact that a few Frenchmen rverebenefactoof the Priory.
It is, however, accuratelyreproduced from the text as printed by the SociCtd
Jersiaise (which is given as its authorihforeover, the title given to Annex18
shews that the bencfactnrs hadnot only corne from Jerscy and Guerrisey. but also
from France. 94 REPLY OF THE UNITED KINGDOM (3 XI 52)
Mernorial) shews that two or three Frenchmen made donations
to the Priory of the Ecréhous in the early 13th century, this is
evidence of French sovereignty. These Frenchmen, it is alleged,
would not have endonred a priory in foreign hands. III the words
of the French Counter-htemorial :
"These donations, granted on the mainland, after 1204, are
evidence that the subjects of the King of France did not regard
1 the island of Ecréhouas foreign territory" (p. 388).
First, it should be understood that, during the Middle Ages,
"national consciousness" can hardly be said to have existed,
especially so far as benefactions to the Church were concerned ;
and for the French Counter-hlemorial to read implications of
sovereignty into the grants by Frenchnien to the Priory is totally
unwarranted. Seconclly,even if conclusions bearing on the question
of national sovereignty could be drawn from the territorial origins
of these benefactions, itwill be noted by reference to the Rental
that more than thirty Jerseymen, compared with only three
Frenchmen, were benefactors of the l'riory.It is unlikely that al1
tliese Jerseymen made thcir benefactions in the year 1203; when
the Charter was .grariied, and the Islet indisputably an English
possession. Eveii in 1309, the Prior was cornplaining about the
poverty-stricken nature of the endowments. The majority of the '
benefactors, therefore, probably, made the gifts during the course
of the 14th century. Hence, following the reasoning of the French
Counter-Mernorial itself, tliere are stronger grounds for presuming
English possession than French possession on the cvidence to be
derived from the domicile of the beneiactors.
165. In actual fact, the cvidence that a small part of the endow-
ments of the Pnory of the Ecréhous lay in France proves nothing
about the allegiance of thc Priory itself. That some of these endow-
ments were in France is rnerely the converse of the fact that many
French monasteries held lands in the Chaiinel Islands and in
England. To imply, as does the Fn:nch Counter-Mernorial; that
thc subjects of the King of France would not have macle.donations
to the Ecrbhous merely because they were an English l>oçsession,
is a conjecture which is entirely \cithout foundation. Al1 the
Channel Islands were at this time in the .Diocese of Coutances ;
their law Ras still tlie laxvof Normandy ;the Islanditrs frequcnted
the Montmartin Fair, nesr Coutances on the mainlaiid ; their
language-even their dinlect-was identical ~ith that of the
Norman mainland. The Rental \vas includcd in the Mernorial
chiefly as an item in the historical background of the Ecréhous
Isiets; but, if any attempt be madc to draw from it arguments
as to sovereignty over the Islets, this is a piece of evideiice which
tells more in the favour of the Government of the United Kingdom
than in that of the Government of the French Republic. REPLY OF THE UNITED KINGDOhI (3 XI 52) 525
(v) The Pnyment in theAccoulztofthe Warden ofthe Char?nelIslands,
Siu John de Roches,/or 1328-9
166. The French Counter-Memonal (p. 391)asserts that a pay-
ment, found in thc Account of Sir John de Roches, 1328-9 (see
United Kingdom Memorial, Vol. II, Annex A IS), of 208.to the
Pnory of the Ecréhous (or "the Chapel of the Blessed Mary of
Ekerho in the sea" asthe Account calls it) is "certainly not evidence
that the Priory of Ecréhou was iinder British sovereignty". The
United Kingdom Memorial did not draw any conclusions from this
Account, which was mentioned (paragraph 47) merely for the
purpose of giving such historical details as could be found about
the Ecréhous.The French Counter-RIernorial, in addition to denying
that this payment furnishes proof of English sovereignty, would
appear to imply thst it might, on the other hand, supply evidence
of French sovereignty. This implication appears to be based on
an assertion that the payment of 20s.was made in lnoney of Tours
(tourîzois) and not sterling, just asa payment to the Abbey of
Holy Trinity, Caen, in Normandy, was made (it isalleged) in the
same currency.
167.If such an assertion be advanced by the French Countcr-
Memorial, it can rendily be disproved. First, if the20s. were paid
i11money of Tours (tournois), this does not mean that the use of
such currency was made because it was in payment to a foundation
on French soil. The money current in al1 the Channel Islands
throughout the Middle Ages (and, indeed, until the middle of last
century) was money of Tours l.Secondly, an exaniination ofthe
Account does not reveal that the payments were made in money
of Tours to the Priory of the Ecréhoiisand to Holy Trinity, Caen,
alone, and to no other foundations or.persons. The total disburse-
ments, it wil be noted, referring to various English foundations
(other than the Priory) and officials, as well as to Holy Trinity,
Caen, are given in money of Tours (fozcrnois),and then converted
into sterling. hloreover, the French Counter-hlemonal cannot
claim that the word ~ozc~nuisinserted in the body? of the tcxt
(Annex A 15, line 20 of p. -162) ,nly refers to two items of
payment made severd lhes above, nameIy, to the "Abbey of
Holy Trinity [La Trinité],Caen", and to "the Chapel of the Ulessed
Mary of Ekerho in the sea [the Priory of the Eciéhous]". In addition,
it must refer also to payments placed nearer to it,e.g.those made
to the various officials of the King of England's Court. There can
be little doubt that the scribindrawing up the document, inserted
tozcrnoishere, and later on (see line26,30 and 31of p. 162, Annex
A 15) as a.periodic note to signify thatal1the payments were in
money of Tours. His final addition was then given in this currency,
and equated with sterling.
lThis money is satthe present daymoney ofaccount in the Islands. REPLY OF THE UNITED KINGDOhl (3 Xf 52)
526
(vi) The Prior of the Ecréhous and kgal Proceedings in Jersey,
1323-31
16s. The United Kingdom Mernorial in parngrayh 47 referred
to several incidents wherein the Prior of the Ecréhouswas concerned
,inlegal proceedings which took place in Jersey (sceUnited Kingdom
hlemoriai, Vol. II, Aiinexes A 13, A 14 and A 16). These incidents
concern : (a) the alleged encroacliment upon the King's highway
hy the wall round the Prior's rnanse in Jersey, 1323 ;(b)the robbery
of some of the Prior's goods in Jersey, 1325, and (c) an assault
hy the Prior on a. widow in Jersey, 1331. The French Counter-
Mernorial contends (possibly with reason) that the jurisdiction of
the English Justices was exercised mcrely because these actions
took place in Jersey (i.e.,on English soil), ancl not because the
Prior was considered to be an English subject *. That rnay or may
rtot have been so. These incidents also, however, like the payments
in the Account of Sir John de Roches, were mentioned in the
United Kiiigdom Mernorial for the purpose of giving such historical
details as are kno~vn about the Ecréhous ; and no significance, it
will be noted, was drawn from the legal proceedings coilcerning
them. In the opinion of the United Kingdoni Goverriment, no
evidence can be drawn from thern to support either the United
Kingdorn or the French case.
(vii) The Co~rfiscatio ? ~the 'Alien Priories'
169. On page 393 of their Counter-Mernorial, the Government of
the French Kepublic refer to the Exiente of 1528 (sce United King-
dom Menioria1,'Vol. II, Annex A 19, p. 167) whcre certain wheat-
rents, forinerly due to the Priory of the Ecréhous,are shewn probably
to have been appropriated by tlie English Croivn. The Government
of the French Repiiblic argue that, since thcse wheat-rents are
shewn as having been confiscated by 1528, the confiscatiori cannot
have been due to the measures taken by Henry VI11 against the
English religious foundations (namely, the Ilissolution of the
Monasteries') P,but nlust have been "the result of measures taken
against the 'alien priories' ". The Unitcd Kingdom Government
accept this contention, brit they join issue with the Govcrnment
of the French Kepublic as to the meaning of the term 'alie~ipriories'.
The French Counter-Memoriaadvances a similar argumen(b) on p. 402 with
regard to the more recont Acts of Sovereignty c?xercised by the Jersey authorities
over both groups of Islets. The UniKingdoni Government'sreply to this argu;
ment is given in paragrap208-213, below.
1535.The French Counter-hIemoriarefers, in this connexion. to a "memo-sher
randum" of the and August, 194This document, which gave a brief summary of
tlie Unitedingdom case on thesubject of sovercignty othe Minqiiiers and tlic
Ecréhous. contained the statemthat : "Rents paid to the priory of *Ecrého'by
various persons in Jersey mere confiscated to the British Crown at the time of the
Reformationin about 1550". It isnoivadrnitted thatthis statementwas not
accurate, the rents having probably bconfiscated a good deal carlier. REPLY OF THE UNITED KINGDOM (3 XI 52)
527
The French Couilter-Mernorial statcs that :
"The confiscation of the Ecréhou rents can only be ascribed to
the fact that this priory [i.e., of tlie Ecréhous] was regarded as
foreign :it was the result of measUres taken against the 'alien
priories'" (p. 393) ;
and that :
"It shouid also be noted that the extede only meritions rents
due to the priory ofEcrkhou, but not the priory itself. The confis-
cation only ayplied to estates beloiiging to foreignersand situated
in Englishterritory. The King of England Iiad indeed appropriated
r8Ia.ism by cause of Escrd~ow[recte Escreho] in the içland of
Jersey, which was under his rule ;but he had not taken possession
of the island of Ecrkhou or of the chape1which stood there. That
is evidence that the islnnd is not regarded as British territory"
(p. 394) [Italics added].
170. According to the French argument, as stated in the first
of the Iwo citations given above, the term 'slien priorics' çeems to
mean a priory situated oii foreign-that is, French soil-but that
is not the meaiiing of the term at all. The term 'alien priory' did
not mean a priory which was itself situated on foreign soil-such
a priory, obviously, could never have bcen confiscatecl-but il
priory (or claughter house) cstablished on English soil, whosc
mother lioiise was situated on foreign soil. The Priory of the Ecréhous
was, indeed (as the French Counter-Alcinorial says on page 39-4,
an 'alien priory' ; but it was an 'alien priory' becausc it \vas the
daughter house oii Englisli soil of a French abbey-the Abbey of
Val-liiclier-and riot because it was 'alien' in the comrnonly accept-
ed sense of the word, merely 'foreign'-that is, situated on soil
other tlian Englisli soil1.
171. The Gover-ilment of the Frericli Repiiblic, Iiowever, make
a frirther point. They say that "it shoiild also be notcd that the
exterzleonly mentions rents due to the priory of Ecréhou, but not
the priory itself" (p. 394). Ili other words, according to tlie French
Counter-Mernorial, although the Priory's eiidowmcnts in Jerst:y
werc confiscated, the Priory itself oii the Ecréhous \vas not. No
significance is, however, to be attaclied to the omissioii in tlie
Extente of any mention of confiscation of the Priory buildings cin
the Ecrbhous. The Edenl~ was merely a list of wheat-rcnts payable
by certain Jersey parishcs in respect of the Priory of the Ecréholis
-probably to the English Crown. The Priory itself on the Ecréhous
produccd no reveiiiie of any kind ;rather it lind to be supported
from outside (e.g.,by endowrnents on the maiilland of France, ils
ive113s in Jersey, and an annual revenue of twcnty shillii~gs from
ofVal-Richer, as the 13rioryof Lihou (nearGuernsewassto the Abbey of hlont-bey
Saint-Michel on the French mainland. Thc Psioryof Liliou%vasalso a genuine
"alien priory".nd.as such, had its property in Guernsey confiscated.52s REPLY OF THE UNITED KINGDOM (3 XI 52)
the English Exchequer).This being so, it was hardly to be cxpected
that the Priory would itself be capable of paying rents to the
Crown, such as wodd be recorded inan Extente of this kind, even
if it had been confiscated,
172. Even if, howevcr, there is no known documentary evidence
shewirig that tlie Priorp itself waç confiscated, something is known
of its subsequent fate. There is no doubt at al1that the Priory fell
into decay and disuse, cven though the exact date at which this
happened is obscure. The Unitecl Kingdom Govcrnment submit
that the probable explanation of the decay of the Yriory is that
it was confiscated in ioto;dong with its endowments in Jersey,
as being an 'alien priory' (i.e.,the daughter housè on English
soi1 of the French Abbey of Val-Richer). At the very lcast, even
if therc was no actual confiscation of the Pnory buildings on
the Ecréhous, the dependence of the Priory on its coniiexion
with Jersey was almost certainly so great that, without its Jersey
endowments, it could not survive-unless the loss of the 'Jersey
endowments was compeiisated for by further financial support
from France. That this support was not forthcoming is surely an
indication thnt the Ecréhous were an English possession. The
Abbey of.Val-Richer would hardly have aba~idoned so completely
s Priory standing on French soil.
173. The French Counter-Ptlemorial attempts to explain (p. 394)
the decay of the Pnory by saying that it was clestroyed by the
English. This suggestion is apparcntly based upon the work of a
local historian, Hermant l, and also upon the fact that English
Protestants committed acts of destruction of the same kind on
the contineiitai mainland during the reign of Queen Elizabeth.
It is even stated that :
"It might even be argued that,if the islandCie.,the Ecréhous]
had been regarded as Englisli territory, the English would not
have destroyed the cliapel: it woulcl have been confiscated and
lianded over to the Anglican Church" (p. 394).
174. It is true that sotne former Catliolic monastic houses were I
takeii over by the Anglican Chiirch, but this only occurred when
there was a local population of sufficierlt size to jiistify using the
conve~itual church as a parish church. Where there was no need
of a parish church-and the ruins of many Abbeys in England
itsclf bear wit~less to this fact-the monastic house was either
destroyed or fell into decay. The implication, therefore, that the
destruction of the Priory by the English-assuming that it took
place 2-proves that the Ecréhous n-ere not English territory, is
totally untrue : if anything, the English would be just as likely
Ase has been shewn above, the date and actual circumstances of this aIleged
destruction areobscure. -53O REPLY OF THE UNITED KINGDOM (3 XI 52)
(ifminor) piece of evidence about the connexion of the lslet with
Jersey in the Middle Ages (see also paragraph 209, below).
(ix) Passuges from Le Geyt concer)ting Fish-Tithes
178. In paragraph 49 of their Mernorial, tlie United Kingdom
Government referred to the fact that Philippe Lé Geyt, a jersey
historian, stated that, in1692, fish-tithes were payable in Jersey,
in respect of fish caught off Jersey, and the "enclaves". Extracts
from Le Gcyt's work were cited in Annes A 69 (p. 285), where
it will be sceii that Le Geyt rnearis by "enclaves", the DIincluiers,
the Iles Chausey, the Ecréhous and certain other Xslets. The
French Counter-3lernorial (p. 395)insists that the word "eiiclaves"
does not mcan "dcyendci~cies" ; it may rather mean "an areü
which is completely independent, but is insct in anothcr area" ;
so that, in this passage, "enclavcs" means not the dependencies
of Jersey, but merely Islets nihich are inset in the sarne sea area
as Jersey. 'The United Kingdom Government must not be taken
as acceptiiig that this clefinition of the word is correct. The principal
argument or1which the .French intcrprétatioti rests, narnely, that
the Iles Chausey xïrere"undoubtedly French islands" at this time
is incorrect (see paragraphs 180-rSj, beloiv). Nevertheless, whatever
the precise meaning of tlie word "enclaves", the passage certainly
indicates that, at this time, Jersey fishermeii were wont to visit
the Ecréhous, as well as the Rlinrluiers and Iles Chausey. This
was the yurpose for which the United Kingdom Govcrnment
cited the passage in their 3lernorial.
(x) Acts dztring the 17th Cet~tzlry
179. Firinlly, the Frciich Counter-Mernorial (p. 396)tieals tvith
two Acts of the States of Jersey in 1646 ancl1692, which forbade
Jerseymeil to set foot on either the Ecréhous (or the Iles Chausey)
without special permission. These iiwc merely emcrgency measures
(taken in time of war) to preveiit the Ecréhous being uçed as a
stepping-stonc to France, and were particularly aimed at iireventing
the transport of suspicious charactcrs en route for thc mainland.
They cari he supplernented by others. issued by the nuthoritieç
of Jersey. Such replations prove nothing as to French sovereignty
over the Islets. On the othcr hand, indeed, they can be intcry-ted
as a furthcr exercise of Eiiglish sovereignty.
B :Acts Corzcernirtgthe Mi~zqtliersIslets
(i) Tupon them of the ilfinquierslzartseyand the aZlegeddepe?~dence
180. In considering tlie situation of the Rli~icluiersIslcts (about
which no cvidence enrlier than the 17th century appears to exist),
the French Couilter-;\lcniorial (p397) endeavours to associate them
with the Iles Chausey as a dependency, ancl to prove that, as REPLY OF THE USITED KINGDOM (3 XI 52)
53I
the Iles Chausey were (according to the French Counter-alemorial)
French, therefore the Miiiqiiiers must also be assilmccl to hc
French. There are, tlicrefore, turo cluestions to be answered :to
whom did the Iles Chausey initially bclong, and was there any
association between them and the hlinquicrs ?
181. In thcse paragraphs, the United Kingdom Govcrnment will
shew that, during the Middle Ages and probabIy down to at least
the rnicldle of the 17th century the Iles Cliausey, altiioiigli they
may have fallen temlmrarily into French hands during pcriods
of war, remained an English possession, within the entity of the
Charinel Islands. Secondly, the Unitecl Kingdom Govemrnciit
will maintain that tlic evideiice of an association between the
Iles Chausey and thc Miilcluiers rcsts on a very slender fouiidation ;
but, if this evidence be acceptcd, then, in so far as thc Uiiited
Kingdoni Government can shew that the English Crowii was in
possession of the Iles Chausey cluring the i\iiddle Ages, such
possessioii would render it the more likely that the Xlinquiers
also helonged to thc English Crown during this period. In any
case, when the Iles Chausey did findly pass iiito Frerich hands,
there is abundant evidence that the Minquiers still coiitinued
in the possession of the English Crown.
182. ASregards possession of the Iles Chausey cluring the Middle
Ages, the French Coiinter-Memorinl bases its evidcncc eritirely,
it would appear, on the n-ork of Father de Gibon, writing in the
present ceiitury. Even admitting the accuracy of his statements,
there is little in them to prove the assert ion iri the French Counter-
Mernorial that the Iles Chausey "have thereforc been uiider French
sovereignty ever sincc thc reuriion of Norniandy with France"
(p. 397). The principal item of evicience is that PhiIip V1, King
of France, confirmed in 1343 ' a grant by the Abhey of Mont-
Sairit-Michel to the Friars Rlinor of the Ordcr of St. Francis of
the Yriory on the Iles Chausey. Even if this statenient by de
Gibon bc accurate, littlc significance is to bc placed oii it. The
confirmation was, no doubt, made by Pliilip iri anticipation of
the capture of the Channel Islands. Follon~ing raids on Ciuernsey.,
Alderney and Sark hy the French in 1338 (the year after the
outbreak of the Hundred Years' War), Philili granted the whole
of the Channel Islands (which he did not possess) to his lieir, the
Dauphin. i3y 1343, hc may have captured niitl held for a whlle
the lles Chausey. But the French occiipation of any ofthe Channel
Islatids was brief ; for,by the English victorg at Crécy in 1346,
French military power Ras decisively brokeii for several years
to corne. ,
1 Accordingto the17tI1ccntury JerseyhistoriaJean Poingdestre(secUnited
Kingdom hlemorial, paragraph30),it"as in this year that the French captured
theTles Chausey (CcpsareorA DiscottrsoftheIsland ofJersey(SocittJersiaise,
10th Pubn.),p.98).
36 532 REPLY OF THE UNITED KINGDObI (3 XI 52)
183. On the othcr hand, thcre is evide~icethat, in the 14th ceri-
tury, the Iles Chausey were considered to be a possession of the
English Crown. l'hus, the Assizc of 1301)-the samc Assize as that
which dcalt with the Quo 1Ynrranfoproceedings rclating to the
Priory-shewç that the Ahbot of Mont-Saint-Xichel had put
fonvard a plea in the Court of the French King that he could
riot be sued therc in respect to the Zles Chausey, because tlitse
Islands were in the fee of the King of England. This plea had
been allo~ved him by the French King's Court, and the plaiiitiff
had been non-suited there l. Further; in 1337 (Z'.e.,the year in
ivhich the Wundred Years' \Var broke out), Nicholas, Abhot of
Alont-Saint-Michel, declared that the Isles Chaiisey were "in
regm A?tglie" 2.
184. 'Onthe strength of a phrase in rcBull of Pope Alexander III
(1178)-"fotam inszda)it de c~tztseCZLVE flerti.liewtisuis" ("al1 the
islancl of Chausey with its sppurtenaiiccs") the French Counter-
Iilemorinl (p. 397) would infer that tlic Minquiers were included
among the appurtcnanccs of the Ilcç Chausey 3. This appears to
be most unlikely, for the phrase "cum yertinentiis suisJ' is a
cornmonplace of charters and deeds ; but, even if this contcntioii
of the French Coiititer-Rlcmorial could lie inaintainetl, it isadditional
proof that, during the 14th century, the Minquiers were in English
possession. For tlie Iles Chausey were "in reg~ Anglie", ancl, if
the Minquiers were dependcnt on the lles Chausey (as, according
to the ~rcnch contention, they ~vere), they miist likewise also
have been ''in ~eg7zo Aflglie".
185. Ili thc ear1y.1jth century, a few years after war liad broken
out between Henry IT of Erigland and Charles VI of France, the
English iised the lles Chausey as a base for operations against the
last reniaining stronghold held in Continental Normandy hy the
French, Rloiit-Saint-hlichel. Ttiat the llcs Chauscy were still hcld
by the English in 1500 is shewn by ü Ut111 of Pope Alexander VI
(see Annex A 6 of the United Kingdorn hlemorial), transferring
l "A memorandum is made concerning the Abbots Island of Chausey, as to
which the Abbot cannot deny that it is of the iee of thelord the Kithat this
was atlowed him in the court of the King of France at thofaucertain mercliant
complaining of hirn".(Hallof theAssiresheEdiithe Channel Island...A.D. 1309
(Sociél4Jersiaise, 18th Pubn.)p,. 108.)
The context of this phrase:"Item in Constanciensi dyocesi quinque prioratus
E etquatuorsin Regno Anglie qui sunt ininsulis maris que sunt dicte Constancicnsis
dyocesis videliceprioratusde Sancto Clementc. prioratusde Laic, prioratiide
Lihou et prioratus de Chauseio". ("Ttem, in the diocese of Coutanccs there are
five Priories. one of which is in the Kingdom of France, namely, the Priory of Saint-
Germain-sur-Ay, and four in the Kingdom of England, which arein the Channel
Islands (themselvesn the diocese of Coutances), namely, the ProfSt. Clemcnt,
the Priory of Lecq, the Priory of Ixihou. and the Priory of the Chaus(Carlu-
laire des Iles iVorma>r(Soc.Jersiaise1gz4),p. 43, No. 26.)
The distance separating thesetwo grotips of Islands is, it should be iioted,
8 sea-miles.the Channel Islands from the Diocese of Coutances to that of
Winchester. In listing the Islands-Jersey, Guernsey, Chausey-,
Aldarncy, Herm and Snrk-the Bull expressly states that these
are "sztb szto [Henry VII] fem.porali dorninio" ("under his [Henry
VII!s] temporal dominion"),
(ii) Tlte Coztrt Kolls of the Seignory .of Noirfnoizt,1615-17
186. In thcir Couriter-Mernorial (p.398) the Governmerit of the
French liepublic reject the conclusions drawn from the ROUSof
the Seignorial Court of Xoirmont by the United Kingdom hlernorial
(paragraphs 154 and 204) .n essential fact to be stresseclregarding
the Fief of Noirrnont is that the Minquiers were conçidered to
be part of thnt Fief, which, üt this time, wns dircctly Iicld by
the King of England. The Fief hd becn Church yropcrty during
the Middle Ages, and [vas coiisequently acquired by thc Crown
as a result of the confiscation of the 'alien priories'. Certainly
from the reign ofEdtvard VI (1547-1553) iintil 1G43(in the reigii
of Charles 1), when itwas granted to Sir George de Carteret, the
King of England was the Seigneur, as the Unitcd Kingdom
Mernorial has proved (p. 88, paragraph 153 and note 3).
187. In the submission of the Government of the Ijnitccl King-
dom, the Minquiers wcrc included within ttic Fief of Koirmont
by the Crown's exercise of its na no riarliglito wreck of the
sea l cast up on the reef during the years 1615, 1616 and 1617
(see Annex A 20 of the United Iiingdom i?lernorial). Whether
the King was exercising this right as Seigneur of the Fief, or as
Sovereign, or indced, as both Seigneur and Sovereigri, is tl~us
really imrnaterial.. Tlie question raised by the F~ench Counter-
RIemorial (p. 398), wiiether or not the Court did grant thc wreck
to the Seigneur or the King, could only have arisen if the Seigneur
anri the King had been two different individuals. Again, though
the Frcnch Counter-hlemorial (y. 398) questions whether the Court
did givc tlie wreck to the Seigncur, this appears to have lieen so,
since the Court ordered its serjennt to irnpound it, iiione case at
least,"until other provision shall have been made". The significance
of the evidericeof thesc Court Rolls lies in the fact that the Seigneur
of Noirmorit (who happened atthis time to be the King of England)
laid daim to wreck cast up on the Rlinqriiers, because thesc Islands
were a part of his Fief.
1 The FrenchCounter-Mernorial (p. 398) rightly corrects the United Kingdom
Government'sinterprctatio(h,Iemorial, paragra146and 206)of the medieval
tenu "vraic': fr"seaweed" to "wreckage". This correction also applies to para-
graph 49 of the hfemorial. The distinction is, however, immaterial to the argument. REP1.Y OF THE UNITED KINGDOM (3 XI 52)
534
(iii) Tite A$$eal of Deborah Dzwzaresqagainst the Jztdgerneltl O/the
Royal, Cozlrtof 'Jersey, 1692 l
188. That wreck of the sea, when cast iip on thc Minquiers
bclongcd rather to the King-n point left open by tlie proceedings
of 1617-than to the Seigneur is she~rn by the judgement of the
Royal Court of Jersey on thc 6th August, 1692 (see rlnncs -4 21
of the United Kiiigdom Rlemorial), when the Crown, riow not
dircctly in yosscssionB of the Fief, claiinccl the wrecks of French
sliipç. The Seigiieur, it is troc, appealed to the Z'rivy Council
agairist the judgement of the lioyal Court, mhich had fourid in
favour of the Crown. The a.ssertion of the Frerich Countcr-hlemorial
(p. 399) that this wreck was claimed by t.hcCrownaswreck ofenemy
(i.e., French) ships, and thus prizes of war, is untenable. Had tliis
bccn tlic fact, it would ccrtainly have heen mcntioned in the
~xocccdings of the Court. But no~vhere in thc pleaclings is thcre
any referencc to "encmy ships" or to "prizc of \var". The Croli7n
nras rncrely claiming the wrecks by virtue of Section 13 of the
14th century Stntute, de Prerogalizia Regis (see pnragraphs 51
and 154 of the Ui~itcdKingdorn hfemnrial), which gave it the right
to "wreck of the sea tliroughoirt the whole realm ...cxcept in
such places as were privileged by the King." Thc eviderice provided
by tlie above case serves to reinforce thc coiitention of the Unitcd
Kingdom Govcrnrncnt in regard to that provided by the Boirmont
Coiirt liolls in 1615-17 nanicly, that the bTiiiquiers Islets were
3 part of the Ficf of Noirmoiit, and tliat, becaiisc the iiltimüte
lord of that Ficf was the King, it follnws that the hliiit.liiicrswere
an English possessioii.
rSg. In Siib-Section Iof this Section of their Reply, the United
Kingdom Governincnt have pro\-ed that the origiiial titlc of the
English Crown to the wholc of the Channel Islands crin be tracecl
back to 1066 ; thrit, from 1204 on~varcls, although C(.intinerital
Korrnnndy was lield by tiie Frcnch Kings, the Chaiinel Islaiids,
as an entity, wcrc hcld by the English Kiiigs ; that fhis de jacto
situation \vas placccl on a legal brtsis 1)~the Treatÿ of Paris(1259) ;
and that this situation \vas unaffccted 115a .iiy subsecluent Trcaties
or Truces. In Sub-Section z of this Sectioii of their Replÿ, thc
United Kingdoni Governmciit have substantiated these coriclusions
1 This constitutes a fourth example of evidencc in the United Kingdom's blemo-
Countcr-Mernorial (p. 398) that there are only three cases is, therefore, incorrect.
TlieSeigneur ivas now the infant son and heir of Philip DumHe mas in
theguardianshipofhis mother (Deborah Dumarcsq) at the time ziction.
TlicPrivy Council Iiegisters arc, uniortunately. silent as to the final outcome
of thc case.with particulür refererice to thc hlinquiers and the Ecrélioiisgroups
of Islets, and have proved thüt these particular groups (as ivell
as the Channel Içlaiids as a whole) remained in the possession of
the English ICings frorn the 13th to the 18th ceritiiries.
Sovereignty overthe Minquiersandthe EcréhousGroupsof Islets during
the 19thand20th Centuries
Sub-Section I :Introductory Remarks and ~oints'made by the Govem-
ment of the French Republic
190. In Section B of Part 11 of their Keply, the United Kingdom
Government will answer that part of the French Countcr-Mernorial
(pp. 399- OZ),in whicli thc Govcrriment of the Frcnch Republichave
considered tIieevidencc relating to thc csercise of sovereignty set
out, with rcgard to the Ecrélious, in Section A of Part II of the
United Kingdom Rlemorial, and, with regard. to the Mincluiers, in
Section B of the same Part.
xgr. The Governmeiit of the Frencli liepublic, oiipages 399-402
of their Counter-nlemorial, have made the following points :
(1) "As regards .the subsequent periocl, the Covernment of the
Frciich Republic thinks it unnccessary tc inake :Ldetailed
examination of the. factual arguments brought forward
in the British hlemorial".
(2) "For an exarniiiation of these.facts shows that they were
nearly al1subsequent tothe birtli of the disputc, that is,
to the year 1869, in the case of the Minquiers, and to
1876, in the case of the Ecréhous".
(3) "The few acts belonging to the period bcfore the birth of
the dispute, and likewise those subsequent: thereto, iiever
failedto encounter protcstç hy the Freiich Govern~neiit,
as is indeeci sho\vs.nby the British Memorial (Section C,
Part 1, Sectioii E, Part III)".
(4) "Acts of posscssion which are suhçequerit to the birth of
a dispute, or which were contcsted by the State coiiccrned,
aredevoid of value as ineans for the solution of the dispute.
There is therefore no question of British 'possessioii' of
these islets, and still less of 'peaceable' ~iossessioii".
(5) "In al1 these rnatters, the Jersey authoritics were exercising
a persona1 jurisdiction over their own sulijectç who hacl
sailed to the Minquiers or the Ecréhous, just as they
woiild have done hnd they rcturned from a voyage on
the open sea. The British Memorial does not adduce
any act of jurisdiction performed at the actual places in
question which woiild have iiivoIved territorial juris-
diction". 192. In Siib-Section z below, the United Kingdom Government
will make certain prcliminary observations on these French points. '
In Sub-Section 3 below, they will put forward their own positive
Contentions with regard to the validity of the United Kingdom
title to sovereignty over the Riinquiers and the Ecréhous groups
during the 19th and 20th centuries, In Suh-Section 4, they will
co~isider the claim of the Government of the French Republic
that they can adduce, for their part, "actsof possession performed
at the same periods as those relied on by the United Kingdom and
of such a kind as to outweigh them" (Counter-Memorisl, y. 401).
Sub-Section z : PrelirninaryObservationson the ~rench Points
French Point (1): l'hatit is"q~nnecessauyto make a detaikd exami-
rzlctiojzof the factzinlargztme?zkbrought jomard in the Britislz
iWertzori1"
193. The first French poiiit is thst it is "unnecessary to make
a detailed examinatio~i of the factual arguments brought forward
in the British Mernorial" (y. 399). With regard to this point, the
Unitcd Kingdom Govcrninent submit that it can hardly be main-
tained seriously that the evidence ofacts manifesting sovereignty
does not merit detailed examination by the Court. The United
Kingdom Government are confident that the Court'itself will wish
to consider this factual evidence, in the light ofthelegal submissions
on the issue of sovereignty set forth in paragraph 184 of the United
Kingdom Rlemorial. The reasons supporting this Contention are
given generally in Sub-Section 3 below.
FrenchPoint (2): Thattlzefactscitedix the Unite diilgdom Memo-
rial"were nearly ailszsbsequenlfothe birthof the dispztfe"
194. The second French point is that "an examinatioii of these
facts shows that they were nearly al1 subsequent to the birth of
the dispute, that is, to the year1869,in the case of the Minquiers,
and to 1876, in the case of the Ecréhoiis" (p.399).With ~egard to
this point, the United Kingdom Governmcnt submit that it is
incorrect to state that most of the evidence concerned relates to
a period subseqoent to the birth of the dispute. The United King-
dom Government do not accept the French contention that the
dispute was "born" iri 1869, as regards the Minquiers, and in 1876,
as regards thc Ecréhous, iri the sense that the Court must exclude
froin its consideration al1 evidence subsequent to thase dates. The
United Kingdom Government will, in Sub-Section 3 below, give
their view as to the latest date up to which the Court may take
into consideration evidence of acts involving the exercice of sover-
eignty over both groups-in other words, tlieir view as to what
is tlie "critivsl dateM-and the reasons why, in their view, this date
is, in respect ofoth groups, the date of the signature of the Com-
promis, namely, thc 29th December, 1950. ùIeanwhile, the United Kingdom Government will simply observe thrit there appears to
be no justification whatsoever for selecting the particular dates
which the Government of the French Republic have, in effeci,
selected as thc "critical dates".
195. The United Kingdom Government fail to rinderstand how
the dispute gis to sovereignty over the Mincluiers can be said to
have been "born" in 1869. Al1that happened in 1869 was that the
United Kingdom Chargé d'Affaires in Paris addressed a Kote
. (Annex A gr) to the French hlinistry for Foreign Affairs, protesting
against depredations by French fishermcn at the hlincluiers. The
French Note in reply (Annex A 52))delivcred in the following
year,merely stated that itliad been impossible to trace the offend-
ers, but that tvarnings had been issued to prevent ariy future
interference hy French fisfiermen with the tackle of jersey fishermeii
who resortcd tothe Miii(luiers.The I'rench Note made iio reference
to ariy French claim to sovereignty over the Minquiers. The first
claim to French sovereignty over the Minquiers was made in
M. Waddington's Note, dated the 27th August, 1888 (Annex il 53),
although, for the reasons given in paragraphs 202-205 below, this
does ~iotmean that 1888 is to be taken'zsthe "critical date", anci
that aIl evidence subscquent to 1885 must be excluded.
196. ils regards the Ecréhous, the United Kingdom Governinent
similarly fail to understand hotv the dispute as to sovereigiity
over this group can be said to have been "hom" in 1876.What
happened in 1876 was that the French Government deliverecl a
Note on the 27th Febniary (Annex A 31), allegiiig that the United
Kingdom Treasiiry Warrant of 1875 (Annex A 301, which consti-
tuted the Islai.id of Jersey asa Port of the Char-irielIslands, and
which included the Ecréhous within the limits of that Port, was
contrary to the 1839 Convention. No claim to French sovereigrity
was made in this Note. Such a claim wris first advanced in t
M. Waddington's Note of the 15th December, 1886 (Annex A 41),
although, for the reasons given iri paragraphs 202-205 helow, this
does not mean that 1886 is to be taken as the "critical clate", and
that dl evidcnce s&sequent to 1886 must bc excluded.
197. Even if, however, the Court 'felt itself obIiged to exclude
from its consideration al1 evidencc subsequeilt to1869 (or 1888),
in the case of the Minquiers, ancl al1,evidencc subsecluent 1876
(or 1886),in the case of the Ecréhous,the United Kingdom Govern-
ment still submit that there is a considerable-and, indeed, an
overwhelrning-body of evidence that,at theçe dates, the Minquiers
ziiidthe Ecréhous were British ~~ossessions.
198. For example, asis shetvn iparagraphs 166-r6g of Volrime I
of the Uiiited Kingdom Mernorial and also in Annex A 129,from
the beginning of the19th centtiry onwards, Jersey fishermen owned
a number of properties at Maîtresse Ile of the Minquierniid thcse REPLY OP TIIE UNITED KINGDOM (3XI 32)
539
manifesting United Kingdom scivereignty rcferrecl to in para-
graphs 135-152 arid 158-179 of Volume 1 of the United I(ingc1om
Mernorial, including, for example :
(a) The erection of the notice at the Ecréhous (paragrayh
136(a)(ii)).
(6) The rating of houses at the Ecrélious (paragraph 136(b)).
(c) The holding of inquests on bodies found at the Ecréhous
(paragraph 137).
(d) The exercise of Customs authority over the Ecréhous
(paragraph 138).
{e) The holding of Census eiiurnerations at the Ecréhous (para-
139).
(f) The grant of Crown leases of Maître Ile of the Ecréhaiis
(paragraph 140).
(g) The purchase of houçes by the Jerscy authorities, and the
registration of deeds relating to real property, at the
Ecréhous (paragraph 141).
(h) The Aying of the British flagat the Ecréhous (paragraph
142b)).
(i) The construction of a slij~~~ay,and the establishment of'a
mooring-buoy, at the Ecréhous (paragraph 142(b)).
(j) Official visits of Jersey authorities to the Ecréhous (para-
graph 142(cl).
(k) The rating of houses at the Jlinqttiers (paragraph 15g(b)j.
(1) The holding of inquests on bodies found at the Minquiers
(paragraph 160).
(m) The cxercise of Customs authority over thc Minquiers
(paragraph 161).
(12)The holding of Census enu'merations at the Minquiers
(paragraphs 162-3).
(O) The purchase and construction of houses by the Jersey
authonties, and the registratioii of deeds relating to renl
property, at the Minquiers (paragraph 164).
(p) The constructio~i of a slipway at the Minqiiiers (paragraph
165(cl)
(q) Th(paragraph 165(d))f.Beacons and Buoys at the Mincluiers
(Y) Official visits of Jersey autliorities to the hli~lquiers (para-
graph 165(e)).
The United Kingdom Goveri~ment çubmit, thereEore, that tlie
third French contention is substnritially wrong in fact, alid, iii
particular, that what ~night bc called the day-to-day routii~e
inanifestations of ordinary so~rcrcignty over the groups passed
without protest, or evcn comment, by the French authorities.54O REPLY OF THE UNITED KINGDOM (3 XI 52)
French Point (4) : That "Acts of possession which aresubsequentlo
the birth of a dispalle, or which were contestedby the Sfaie concerned,
are devoi odfvallte asmeails for the solzbfioO/ Iltedisplite"
201. The fourth Frencli point is that "Acts of possessio~.iwhich
are suhsequent to the birth of a dispute, or \\.hich were contcsted by
the State conceriied, are clcvoid of value as means for the solution
of the dispute. There is thcrefore no question of British 'possession'
of these islets, and still 1t:ssof 'peaceahle' possession" (p. 399).
With regard to this point, the United Kingdoni Government have
the following preliminary observations to make :
(a)It is not acts of possession which are subsequent to the birth
of a dispute which are devoid of value as a meniis for the
solution of the dispute, but only acts of possession which
are subsequent to the "critical date" (paragraphs 202-205,
below).
(b) It is agreecl that, iri certain circuinstances, acts of possession
which were contested by thc otl-ierState are dcvoid of value
as a means for the solution of the dispute,but these circum-
stances do not exist when the State \Thosetitle is contested
is relying upon an original title supported by cvidence of
cffectivc possession (yaragrnphs 206-207, below).
Prelinti.rraryObsenialioit(a) : It is not acts of possession whiclt are
subseqite~rtto Iltebirth of a dispzrtewhichciredevoidofvalareas a means
jar the solzttionoj fhe dispute, blit only acts oj fiossessionwhich are'
slsbseqa~en tl the "criticaldate"
202. The United Kingdom Government agree that, whenever any
dispute as to sovereignty is referred to an international judicial or
arbitral tiibunal, there is a date subsequent to which the legal rights
of one party cannot be affected by any action which tlie other party
may take. Consequently, it cari serve no purpore for the latter party
to put before the tribunal evidence of any acts which are subsequent
to thisdate, which is generally referreclto as the "critical date". The
selection of the "critical date" is esseiitially a rnatter for the tribunal,
although, naturally, the parties are entitled to submit their riews
on the subject. The selection of the "critical date" is, moreover, a
very serious matter, hecause-although the facts will vary with '
every dispute-oii the selection of the "critical date" may well
depend the entire clecisionof the tribuiial.
203. In many cases,a disputeas to sovereigiity turns upori a clear,
and distinct, fact or eveiit, such as a law or decree, proclaimin;:
sovereignty (promulgated by the one party and challenged by the
other) ; and the issue is the validity, under international law, of
such 1aw or decree. On these occasions, the "critical date" is the
date of the promulgation of the law or decree. So it uTas,forinstance,
in the case on tlie Legal Status of Eastern Greenland(SeriesA./B.- REPLY OF THE UNITED KINGDOM (3 XI j2) 541
Fasc. No. 53))wliere the issue wristhe vnlidity, as against Uenniark,
of the Nornregiaii royal proclamation of the 10th July, rg3r, pro-
claiming Norwegian sovereignty over Eastern Greenland. This pro-
darnatioii \\las described by Jhc Permanent Court of International
Justice asthe matter which "gave rise to the present dispute"
(p. 26). Accordingly, the Court said :
"The date at which such ~anish sovereignty must have existed
in order to render the Nonvegian occupation invalid is the date
at which the occupation took place, viz., July ~oth, 1931' ('. 45).
Later, iii describing this date as the "critical date", the Court said :
"....it is not necessary that sovereignty over Greenland should
have existed throughout the period during which the Danish
Governrnent maiiitains that it was in being. Even if the material
submitted to the Court might be thought insufficient to establish
the existence of that sovereignty during thc earlier periods, this
would not exclude a finding that it is sufficient to establisli a valid
title in the period irnmediately preceding the occupation" (ibid.),
In other words :was Denmark entitled to sovereignty over Eastt:rn
Greenlancl on the 10th July, 1931, or was this territory res ?azrlliz$s
on tha t date ? The Norïvegian-Danish dispu te oser Eastern Greeii-
land undoubtedly "began", or was "born", in one sense in 18.14,
when the Uni011between Deninark and Norway was terminated ;
and, indccd, the Court described the events of 1Sx4-1819 as "of
special importaiice in regard to the dispiite conccrning Greenland"
(p. 31). From 1921 onwards, it is quite plain that h'orwüy was
openly disputing Ilenmark's claim to sovereigntjr over Eastern
Greenland (pp. 37 etseq.).Yet, the Courtselected the 10th July, 1931,
asthe "critical date", and admitted evidence of al1events pnor to
thatdate, because it was on thatdate that there occurred the precise
event which focused the dispute. Indeed, to Iiave excliided al1
evidence subsequeiit tothe "birth" of the dispute, in the sense of the
controversy or diffcrence of view {vhichbegan in 1814, and ccrtainly
existed in I~ZT, wolild have been a redlictio ad nbsztrdei~na,nd would
have made it impossible for the Court to give a decision at all.
a.
204. In the Islnnd of Palmas arbitration l,a sirnilar importance
irras attached by the arbitrator, Dr. Mas Huber, to the "critical
dateJJ. According to Article 1 of the Compromis, signed in 1925,
"The sole duty of thc arbitrator shall bc to determine whether the
Island of Palmas (or Miangas) in its entiretforms a part of I.crritory
helonging to the United States of America or of Netherlands terri-
tory" ? The United Kingdom Governrnciit have italicizccl the worcl
"forms" in order to sheïv that the qucstion was put in the prcsent
tense in 1925. Yet Dr. Huber stated :"The questions to 11csolved
irrthe preçent ca.seare the folloiving:Was dhe iskctd O/ Pirk~rzn(or
Ajnerican ]ouritof Z*tt~rrtalionalLaw (19.xii867-912.
ibid.,p.868542 REPLY OF THE UNITED KINGDOM (3 XI 52)
Minngas) in 1898 a part O/ terrikoryunder Nefherla?zdssovereignty?
Did fAis sovereignly actzrallyexisf iiz 1898in regard to Plilmas (or
Miangus,) and are the facts provcd which were alleged on this
subject ?" [Italics in origiiiall.111other words, Dr. Hubcr selected
1898 as the "critical date". He did so, because this {vasthe date of
the corning into force of tlie Treaty ofParis, which-had there then
bcen Spaiiish sovereign ty over the Island-would, undoubtcdl y,
have transferred such sovcrcignty to the United States of America.
Accordiiigly, Dr. Huber rcferred to 1898as the "critical moment" '.
In this case, as in the case on the Legal Slatz~sof Eastern Greenlutzd,
there was a definite fact or event which focuscd the cvcnt, iiamely,
the.Treaty of Paris ; and the issue was the validity, or otherwise, of
the purported transfer uiider that Treaty of the title to the Island
from Spain to the United States. -4sit was put in a Lctter, dated the
7th Ayril, 1900, from the Secretary of Statc of thc United States of
America to the Spanish Minister at Washingtoii :"Was it Spain's
to give ?If valid title belonged to Spain, it passed ;if Spain had no
valid title, she could convey none" 3.It is significant, howcver, that
Ilr. Huber chose this date of 1898 as the "critical dateJJ, and not
1648, the date of the Treaty of Münster, \vhicli he described as "the
earliest treaty ....to dcfine the relations between Spain anci the
Ketherlands in the regions in question" 4-the date, in other words,
when the dispute may bc said to have hecn "born".
Zûj. From these two important precedents, therefore, it appears
that the tendency of international tribunals is not to idcntify the
"critical date" with the earliest origins of the dispute, or to put the
"critical date" a long way back in history so as to exclude the later
evidence. Such a tendency would, in fact, be completely iriconsistent
with the practice of international jùrisprudcnce which, it is kriown,
applies more liberal rules of evidence than inost muriicipal systems
do, and rightly attaches niore importance to the later evidence than
to the earlier evidence.
PreEi?nirzaryObservation (6) : It is agreed fltnt, in certain circzim-
stances, acts of possession which were contested by the otlaerStnte are
devoid of value as a meatis for the solzttion of the dispute ; birtthese
circumstances do not exist when tlie State whose Lille is contested is
relying ziPo?tan original tifle sztpporledby evidence of cgective posses-
sion
206. The United Kingdom Government do not dissent froin the
proposition that, in certain circumstances, it is not permissible for
the State whose title is contested (State A) to rely upon acts of
possession, the legitimacy of which wcre contestcd at the tiiiie of
lIbid., p. 896.
Ibid., pp. 880, 907.
IIbid.p.882.0. REPLY OF THE UNITED KINGDO31 (3 XI 52) 543
thcir performance by the other State (State B). These circumsta~ices
exist when tlic State whose titlc is contested is basing its claim upon
occupation or prescription. If State A's claim is based upon occupa-
tion, the fact that State B contests, and has contested, the validity
uf the occupation, may have resulted in risituation in which there
lias iiot bcen that contiiiuous aiid peaceful display of State A's
sovereignty which international law requires. In the case on the
LegnlStattrs O# Eastern GreenEnrtdt,he Court stresscd that :
"Another circumstance which must be taken into account by
any tribunal which has to adjudicate upon a claim to sovereigrity
over a particular tcrritory, ithe extent to which tlie sovereigrity
isalso claimed by some otlier Power" (p. 46).
The Court dcscrihed it as "one of the pcculiar features of the yresent
case", and, undoiibtedly, made it a grourid of its decision in favvur
of Denmark that, "up to 1931 (the criticnl clate) thcrc was no claim
by aiiy Potver other than Derimark to the sovereigrity over Grecn-
land" (ibid .im.ilarly, if Statc A's claim be based upon precsrip-
tioii, the fact that StaîeB contests, and ha contested, the validity
of tlie actsof sovereignty, may have resi~llcclin a situ:~tioiliiiwhich
State A's possession has iiot beeri continuous and pcriceful, siich as
interilatio~ial law requires. Thus, in thc Ajiglo-NorwegiaîcFishcries
casc, the Court gave, ainong its reasons for hoIding that Norway.
had an historic (prescriptive) title to certain waters, "the genernl
toleration of forcign States", anrl, in particular, the fact that "For
a pcriod of Inore thaii sisty years the Unitccl Kingclom Governnient
itsclf (theplaintiff Govcrnment) iino way contested" the i\ior\ve-
giu~ipractice of delirnitiiig tcrritorinl waters (I.C.J. lieporls 1951,
1'. 138).
207.' \Yherc, howevcr, a Statc is relying upoii an original tittc
supported by evidencc of effective possession, tlie circiimstances are
altogether diffcrent. Iii those circurnstanccs, proviclcd that thc
. original title be good, and provic.led that there has hccn cffectivc
possession, clcspitc contestation hy other States, thcii, the fact that
aiiother State has contested. or is contesting, the possession içwith-
oiit legal significance. If this wcre not so, there woiild be no such .
thing as secnrity of title in i~iteriiational law. Every State's titleto
its owii territory would be operi to challenge ; and, by the simple
process of making. a challenge, Iiuwever fornial or nominal, another
State could rcnder valiieless al1sulisequent possession by the sover-
eigii Statc, however coi~tinuous and pencefiil was thc previous pos-
scssio~i.
Frerlch Poirtt (5) : 1'1161the Jersey ai~tAoritiesI~~rvo erily exerciseli
jrtrisdicfio~tratione persona, and rtotratione soli
208. The fifth French point ir that "1ii al1 thcsc inatters, the
Jcrsey authoiities were esercising a personal jurisdiction over ttieir owr1subjects who had sailed to the Mincluicrs or the Ecrél-ious,just
as they would have done had they returiied from a voyage on the
open sea. The British Memorial does not adduce any act of juris-
diction perforrned at the actual places in question which would have
involved territorial jurisdiction" (p. 402). The United Kingdom
Govcrnment submit that this contention is clecisively refuted by
the nc\v evidence cited in Annexes -4 153, A 155 and A IjG of the
present Reply. This evidcnce consists of afidavits swom b37past
or present officials of the Island of Jersey, and makes it absolutely
clear that, not on1y have the Jersey authorities always considered
themselves as exercising jurisdiction rakionesoli over the Minquiers
and the Ecréhous, but also that it would have been illegal for ilzenr,
/rom the point of view of Jersey law,toexercisejuvisdiction inresfect
of ncts occttrri?zgwithin the grozt$sn~ponttyotherBasis.
209. From the affidavit of the former Solicitor-Generül and
Xttoriiey-General for Jersey, Mr.C. W. lluret Aubin (Annex A 153),
in p:lrticular, it is evideiit that the "Royal Court of Jersey has
cognizance of al! causes, civil, niised and crimiiial arising within the
Bailiwick of Jersey", except for certain vcry serious cases. Further,
this jurisdiction "does not extend tu caztsesarising outside tlBaiEi-
wick" [italics added],and " The IioyaE Court of Jersey lzastherefore
?tajurisdictio?ain the mafter of a crin~inaloflence conzmilted ozttside
the Bniliwick, even thozrghfhat o8ence be comnzitted Iiya British
szrbjectdomiciled or ordinarily resident with2.n.the Bailiwick" [itülics
added]. It is true that some States cxercisc jurisdiction, ratione
persona, over their siibjects abroad ;but the Jersey authorities, by
the ancient Constitutions dating back to the reign of King John
(1x99-IZI~), exercise no jurisdiction upon this basis (see Annex
A 154). The only jurisdiction thcy are, and always have been,
entitlcd to exercise is jurisdiction ratione soli. It niust, therefore,
have been ratioriesoli that the prosecution of George liomeril took
place in 1826 (United Kingdom Memorial, Volume 1, paragraph
136 (a)). It may also have been ratione soli that tlie inquiry was -
held in 1309 into the drowning of twenty-four Jerseyinen returning
from the Ecréhous, slthough it will be recalled tha.t the United
Kingdom Government citcd this pnrticular incident, not so much
' as cviclencc of jurisdiction ratione soli ovcr the Ecrrtihous by the
Jersey 'authoritics-althoiigh perhaps it could be so citecl-but
rather as evidence of the close connexion between Jersey and the
Ecréhous during the Middle Ages (see United Kingdom Nernorial,
Volume 1, paragraph 131; French Counter-blemorinl, p. 395; and
the United Kingdom RepIy, Part II, Section B, paragraph 177).
210, The affidavit of %Ir.C. \Y. Diiret Aubin states, therefore, the
general principle that the Jersey authoritiesexercise no jurisdiction
at all, ratiortepersoîi~, outside the Bailiwick of Jersey. Froni this,
the u'iiited Kiiigdom Government submit tliat it is legitimate to
draw the deduction that any jurisdiction that the Jersey autliorities REPLY OF THE UNITED KINGDOhl (3 XI 52) ' 545
rnay liave exercised, in medieval or modern timcs, in respect of
occurrences at the Minquiers or the Ecrhhous, must have been
exercised, so far as Jersey law was concerned, ratio?sesoli W.liether
this cxercise of jurisdictionwas valid intcrnationally is, of course,
another issue. It is one of international law, and is, indeed, the
issue now hefore the Court. The United Kingdom Govcrnment,
naturally, do not submit that the affidavit evidence of the Jersey
authorities isdecisivc in itself from the point of view of international
Iaw ; but they do submit that it is evidence of a cogent character,
which the Court is eiititled to take into account, that there is in
Jersey a constant tradition that the Minquiers and the Ecréhousare
dependencies of Jersey-or, to use the local expression, are areas
falling "tvithin the Bailiwick of Jersey", over which the Jersey
authorities maÿ properly exercise jurisdiction l.
2x1. The United I<irigdom Government submit that the general
principle stateci in the affidavit of Mr. C.W. Durct: Aubin is con-
firmed in detail by the afficlavit of the present Sergent de justice
and Acting Viscou~it of the Island of Jcrsey, Mr. H. V. Benest
(AI~I-~cx 1551, who ststes : (a) "That the law of Jersey has for
centuries required the holding of an inclucst on any corpse fou~id
within the territory of the Bailiwick where it wns not clear that
death \vas cluc to natural causes", and (b) "That tlie orderiiig oaii
inquest is in rio \iray alfccteby the question whether or not the
dccenscclwns 3.British subject or reside~itiii Jersey, the deterrnini~ig
factor being; as is statcd above, whether or not the corpse was
found within the territory of the Baili~~ick". There coulcl be rio
clenrer statemcnt of the principle that iiiquests are held by the .
Jerscy authorities rationesola ind upon no athcr basis. This pririciple
ayplies whethe; it be a matter of holding an inquest upon persons
drowned in 1309 (United ICingdom Xemorial, Voliime 1, paragraph
131,and Volume II, Ailnex A 79), or in 1917 (ibid paragraphs 137
(a)and Anncx A 84), or iri 194(ibid pa,ngrapli 137 (b)arld Aiinex
A 85).
212. The United Kingdom Government submit that yet further
detailcd confirniation of the gencral principle statcd in the affidavit
of Mr. C. MT.Iluret Aubin is to be founcl in thc affidavit of the
preseiit judicial Greffier of the Island of Jersey, Mr. P. E. Le
Coutcur (Anncx A 156), who states that "....the titlc to al1 real
' In the case between Germany and Spain over the CarolIslandsin 1885
(hioore's Iilternational Arbitrafianv. 5043). His Holiness Pope Leo XIXI
gave, asa reason for proposing that the Spanish title to the Islands should he
recognized,"a series of acts accomplished at different periods by the Spanish
ment has ever exercised a similar action over them" explained. accordi.g to His
Holiness. "the constant tradition, which mbettaken into account, and the
convictionof the Spanish people relative t[i.a.Spanish] sovereignty". His
Holiness' proposition was accepted by thc two Covcrnmcnts and emboinad
protocol. REPLY OF THE UNITED KINGDO31 (3 XI 52)
546
property situate within the limits of the jurisdiction of the Royal
Court of thc said Island passes by mattcr of record....", anil that
a Registry of Deeds \vas established for this purpose in pursuance
of an Ordinancc of 1602. Evidence has been given in pnrngraphs
208-211 above, that the Royal Court of Jersey has traditionally
regardcd t,heMincluicrs and tlie Ecréhous as bcing within the limits
of its jurisdiction ; but still further evidence of this fact may be
derived from thc Registry of Deeds establislied in 1602. In para-
graphs 141 and 164of the United Kingdom A~Iemorialr,eference was
made to a number of contracts and other transactioris involviiig real
property at the Ecréhous and the Rliiiquiers, respectively, which
were passed bcfore the Royal Court of Jersey (in accordailce with
the procedure described by Mr. P. E. Ide Couteur) ; and details of
these transactions are given at Annexes A 86, A 89-A 93, arid A 116-
A rzz, of Volume 11 of the Mernorial. For thcse transactiotis to be
recorded in the Jersey Registry of Deeds at all, it was iiccessary
for them to relate, at any rate, so far as Jersey law was coiicerned,
to "real prnpcrty situate {vithiri the lirnits of the jurisdiction of the
Royal Court" of Jcrscy
213. The United Kingdom Government submit that the cvidence
contained in thesc three affidavits is decisive;in that, from the point
of view of Jersey law, public as well.;~ privatc, the Minquiers and
the Ecrélious are "withiii tlie Bailiwick of JerseyJ'. This evidence
is net, of course, decisive from the point of view of international
law ; but it is strong, persuasive evidence, especially-and the
United Kingdom Government wish to emphasize this point-in the
absence of any similar, or corresponding, evidence on the other side.
Sub-Section 3 : United Kingdom Contentions
General Remarks and Statement of Contentions
214. The United Kingdom Government will now advarice their
own positiveContentions in regard to those argumeiits in the French
Counter-Memonal which relate to this part of the case, nameIy,
that, during the 19th and 20th centuries, the United Kingdom
On page 400 of thcir Counter-Mernorial the Government of the French Republic
state that "cvcifthere were British[sic] houses on the disputed rocks, the existence
of private propertywould not suffice to decide the question of sovereiofthe
disputed territoricsand refer to AI.F. Lindlcy's book on The Acquisiéionand
Gove~nmenlof Backward Territor inIi~ler~zatioLaw (London, 1926)at page 23.
The United Kingdom Government agree that the mere existence on disputed
territory ofrivate property belonging to the nntionals of one State is not decisive
on the issue of sovereignty, alihough (coupled ~5th other factors) it may be cogent
transactionsrclating to the real property of the individuals concerned are recorded
in that State's officia1 Registry of Deeds and when the Registry of Ikeds is only
auttiorizetto record transactionsrelatingto "real propcrtysituatewithin the
lirnits of the jurisdiction"The recording of the transactionthen bccarnes a
State act. noa private act. REPLY OF THE UNITED KINGDOJZ (3XI 53) 547
either maintained the original title lvhich it already had over the
Minquiers and the Ecréhous, or (if ii had no such original titlethat
it has acquired, and maintained, a valid title during the 19th and
20th centuries.
215. The. United Kingdom Government repeat the submis-
sions in paragrapli 235 of the Memorial, namely :
"(1) that the United Kingdom is entitled to exerciçe sovereignty
over the Islets and Rocks of both the Ecréhous and the
Minquiers groups by reason of having established the
existence of a root of title in ancient times which is sup-
portcd by effective possession in recent timcs to be fouiid
in acts which manifest a continuous and peacefd displ;iy
of sovereignty over the territories ;
Alternatively,
(2)that the United Kingdom is entitled to exercise sovereignty
over the Islets and Rocks of both the Ecréhous and the
Minquiers groups by reason of having cstablished title by
effective possession alone, such possession being founcl iii
acts which manifest a coritinuous and peaceful display of
sovereignty over the terri tories."
216. The United Kingdom Governmerlt nlaintain that submissicin
(1)above is unaffected by the French Counler-hIemoria1, becauie
the Counter-Memorial has failed to shew either :
(a) that the United Kingdom has not established the existence
ofa root of title in ancient times (sec Section A of Part II,
above) ;or
(b) that the United Kingdom has not supported this title by
effective possession hi recent times (see paragraph 21S,
below) .
217. The United Kingdom Government maintain that submis-
sion (2) above is unaffected by the Frcncl-i Counter-Mernoria.],
because the Counter-Memorial has failed to shew that the United
Kingdom has not established title by effective possession alone (see
paragraphs 219-23 I,belowj.
SIS. On the assumption that, in ancient times, the United King-
dom had a valid original title to sovereignty over the Minquiers and
the Ecréhous groups (Section A, of Part II, above), the United
Kingdom can only have loçt that title through one cir other of the
following means : (a) cession ; (b) abandonment ; (i.prescription.
The United Kingdom Government have cIearly never ceded sover-
eignty over the Minquiers and the Ecréhous to any other State ;
and the evidence adduced in Sections A and 13 of Part II of the
Mernorial-even if (which the United Kingdom Governinent deny)
itwere insufficient of itselfto estl~blisa title-is, at the very Ieast,
sufficient to prevenfits being held, either that the United Kingdorn
37548 REPLY OF THE UNITED KINGDOM (3 XI 52)
has ever abandoned, or failed to maintain, its original title to the
groups, or that France has acquired a title to the groups on the
basis of prescription.
219. The United Kingdom Government submit, further, that the
Countcr-Mernoriai has failedto shew that the United Kingdom have
not established title to the Minquiers and the Ecréhousby effective
possession alone. The United Kingdom Government's Contentions
on this point areas follows :
1. The Court is entitled to conSider evidence of al1 acts of pos-
session which took place before the "critical date".
II. The "critical date" in the preçent case is the 29th December,
1950.
III. Of the acts of possession exerciscd by the Jersey authorities
before the 29th December, 1950 the rnajority encountered
no protest on the part of the Government of the French
Kepublic.
IV. Such proteçts as the ~overnment: of the French Republic did
make were, in any case, incapable of preventing the acqui-
sition of title to the groups by the United ICingdom,either
by occupation or by prescription.
V. The acts of possession relied upon by the United Kingdom
Government were such as may properly be relied upon for
the purpose of acquinng title, either by occupation or by
prescription.
zzo. The United Kingdom arguments in support of the Conten-
tions listed in paragraph2x9 above, will now be developed.
United Kingdom Conventio~z I : The Caz~rt is entitled to consider
evidenceof dl actsO/ possessio~zwhich lookplace beforethe "critical
date"
221. The United Kingdom Government have already considered
this question in paragraphs zoz-205allove, and they believe that
they have shewn that, in arbitrations over sovereignty, it isthe
practice of international tribunals to select a certain date as the
"critical date", and to admit evidence of al1 actç of possession
relating to the dispute which took place before thc "critical date".
This matter wiUnot, therefore, be considered again here.
Unite dilzgdont Contention II : The "criticaldateJJin the present
case isthe 20th December. 1950
zzz. The United Kingdom Governinent submit that the "critical
dateJJ in this particular case is the date of the signatureattachto
the Compromis, i.e.,the 29th December, 1950. It has already beeii
shewn (paragraph 203, above) that the "critical date" in a dispute
depencls upoil the precise event that focuses the dispute. The precise event which focuseclthis dispute was the decision taken by the two
Governments on the 29th Decernber, 1950, to askthe Court to
determine "whether the sovereignty over the islets and rocks (in so
far aç they are Capable of appropriation) of the Minquiers and
Ecrehos groiips respectively belongsto the United ICingdo~nor the
French RepublicJJ [Italicç üdded]. Since, in this case, neither side
bases its claim to sovcreignty upon a proclamation (asin the case
on the Legal Slatr~sof Eastern Greenlarzd)or upon a Treaty (as in
the Island of Pal?~rascase), there is no instrument or event other
than the Compromis itself which can focus the dispute, and hence
form the hasis for the determination of the "critical date". The
Compromis does iiot merely confer jurisdiction on the Court :it dso
contains the core of the matter which the Court is asked to deter-
mine on the merits. When the parties çigned the Compromis, the
question which they put before the Court was essentially :"1)oes
sovereignty over the Minquiers and the Ecréhous belongnow (in
1950 )o the Uiiited Kiiigdom or to France ?" They did not ask the
Court to determine whether the United Kingdom Government had
the right to complain about the depredations of the French fisher-
men on the Minquiers in 1869, or whether France had the right to
claim sovereignty over the Minquiers in 1858, or srrhetherthe United
Kingdom Government had the right to include the Ecréhous within
the limits of the Port of Jersey in 1875, or whether France had the
rightto claim sovereignty over the Ecréhous in 1886. These dates,
like the important date of 1839 itself, arebut stopping-places or
stages i~ia dispute which, to be pedantic (but also accurate), must
be said to have "begun", or been "born", in 1202-4 l,or, possibly,
in 1066 .here is no reason for stopping at 1869and 1876 rather
than earlier. If the French argument were carried to its logical con-
clusion, the Court would have to place the date of the birth of the
dispute at some point in the Middle Ages, and would be prevented
from considering any later eviclence. This would be a reductio ad
absurdztm.
223. It may be objected that, in the Island of Palmas case,
although the Compromis waç signed in 1925, yet the arbitrator
selected 1898 as the "critical dateJ'.That was, however, because of
a special feature.' As has.been seen (paragraph 204, above), the
Treaty of Paris (which purportcd to transfer the sovereignty over
the Island from Spain to the United States of America) came into
force in thüt year ;and, unless Spain had title in 1898,no title coulcl !
have beeii transferred to the United States. It is true that an I
American General Ilad visited the Island in 1906 ; but this visit-
described by the arbitrator as "the first entry into contact by the
American authoritics with the island" 2-arose out of the purported
1 It is to be noted that the French Counter-Memori3S3)describe1202as' '
"the juridical starting point",
Dr. Huber described this event as"thenf the dispute". It seems, therefore,
possible for "the origin of the dispute" to be a later date than the "criticalmoment",
which inthiscase was 1898(American Journal of International Law, xxii. 872).55O KEPLY OF THE UXITED KINGDO31 (3XI 53)
cession of the Island by Spain, and led immcdiately to diplomatic
correspondence between the United States and Ketherlands Govem-
ments, which culminated in the conclusion of the Compromis in
1925. The arbitrator, accordingly, ruled that cvidence of events
subsequent to 1906 was to be escludecl, bat thnt, as for events
occurring during the period 1898-1906, ihey "cannot in thcinselves
serve to indicate the lcgal situation of the island at the critical
moment when the cession of the Philippines by Spain took place.
They are however indirectly of a certain interest, owing to the light
they might throw on the period imrnediately preceding" l.He con-
sequently allowed evidence to be admittcd ofa contract made in
1899 ,f taxation tables for1904-5, of the continuance in officeuntil
1917 of a headrnan instituted in 1889, and of assistance given in
the Island after the typhoon of 1904 e.
224. \Vith regard to the Islartdof Palmas precedent, 'the United
Kingdorn Government, therefore, suhmit :
(a) that, in the absence in the present case of a Treaty (such as
the Treaty of Paris of 18g8), or of any other international
instrument or act forming the clear ground of focus of the
dispute, the Court has no alteriiative but to regard the
Compromis itself as the focusing point of the dispute ;and,
hence, the course of the "critical date";
(b) that, even if the Court were to select some earlier date as the
"critical date", the events between that date and the
29th December, Igjû, would be "indirectly of a certain
interest, owing to the light they might throw on the period
immediately preceding".
22 j.The United Kingdom Government submit with confidence,
therefore, that, in the present case, the Court is entitled to admit,
and to evaluate on itsown merits, evidence of any facts prior to
the 29th Ilecember, 1950 .ven if, however, the French contention
were correct, and 1869 and 1876 were at one time "critical dates"
in the dispute, thc United Kingdorn Govcrnmcnt submit that, by
reason of the subsequent attitude adopted by the Government of
the French Republic, these dates ceased to have the character of
"critical dates". In the case of the Rlinquicrs, the United Kingdom
Government communicated to the Government of the French
Repubiic in Igûj a Memorandurn contaiiiiiig a full aiid unequivocal
assertion of the Unitcd Kingdom title to sovereignty over that
group. The Government of the French Republic acknowledged
receipt of, butnever replied to, this Memorandum (hlemorial, Vol. 1,
paragraphs 112-113, and Annexes A 69 and A 70). Further, when,
in 1929, itwas reported that a French national, M. le Roux, who
purported to hold a lease granted to him hy a document signed by
1Ibid., xxii. 907.
8Ibid., toc. cil. KEPLY OF THE UNITED KINGDOM (3 XI 52) 551
three French departmental officiais, was attempting to erect a hitt
on Rlaitresse Ile of the Minquiers, the Foreign Office addressed a
Note to the French Ambassador in London on the 26th Jnly, 1929
(Annex A 75),stating that, as no reply, other than an acknowledg-
ment, had ever been receivcdtothc 1905 hlemoranclum, the United
Kingdom Government had "accordingly al~vaysassumed that the
French Government had no desire to dissent from the vie~vsexpres-
sed in the memorandum, and they think that there inust be some
misunderstanding if a leüse has actiially bcen granted to Monsieur
Leroux by a French authority, as alleged. No reply was received
to this Note, buthl. Le Roux mithdrew from AlaitresseIle, having
only conçtructed a foundation wall some'eightcen inches high
(Mernorial, Vol. 1, paragraphs114 and 168, and Annexes A 75,
A 135-13 7nd C 20).This immediate reaction by the United King-
dom Government may be contrasted with the inactioti of the French
authorities torvards the construction of houçes at the Minquiers
during the 19th centiiry, which was referred to in paragraph zoo
above, and which occurred at a time when even the Government
of the French Republic admit that the Courtisentitled to take note
of such incidents.
226. In fact, during the interval between the exchanges of
1903-1905 and the exchangeç ~vhichled up tr,the conclusion of the
Compromis in 1950, the Government of the French Republic made
no forma1 claim to sovereigntyover the Minquiers Islets, apart from
the Notes of the 5th October, 1937,and the 10th January, 1938,
which were replied to by the United Kingdorn Government in a
Note of the 18th July, 1938 (filernorial, Vol. 1,paragrap115-1x8,
and Vol. II, Annexes A 76-78). An examination of these Notes
shews that, while France had not"le dessein de renonceA ses droits
souverains sur leslles MinquiersJ',her principal preoccupation then
(as on some other occasions) was not with sovereignty, but with
fishery rights, and that, when hlr. (later Sir) William Strang gave
the assurance that no interference with these fishery rights Ras
intended, the correspondence ceased. As for the Ecrkhous, there is
no record of any forma.1French clairn to soverejgnty having been
made between 1888 and 1950 .his was so, despite the fact that,
during this period, in the case of this group, asasein that of the
Minquiers, there occurred a number of acts manifesting United
Kingdom sovereignty, a large proportion of which not only pro-
voked no counter-claim to sovereignty on the part of the Govern-
ment of the French Republic, but did not eveii give rise to any
protest (see paragraph zoo, above).
227. These facts lead the United Kingdom Government to submit
that itcannot be open to a State artificially to create a "critical
date" by the mere process of making claims which arc only presçed
iip to a certain point, or which are subsequently abandoned, or
revived only after a niore or less proIonged interval-particularly KEPLY OF THE UNITED KINGDOM (3 XI 52)
552
where the claim is not accompanied by any proposal which wouId
lead to a final çettlemcnt of the dispute (e.g., a referencc to inter-
national adjudication). If it were open to States to create "critical
dates" in this fashioii, it would be possible for one Statc to keep
alive indefinitely claims which itdid not press to any final or definite
issue, and, at the çarne time, to niaintain that al1 the acts of user,
administratioii, etc., carried out by the State in possessio11after
the date of the original clairn, had no evidential value and were
periodicauy nullified l.It is submit ted that a claim can only per se
give rise to a "critical date", if it be accompanied, or followed
within a reasonable time, by concrete proposais for its settlernent
(e.g., arbitration) or, at least, by some attempt to bring it to a
definite issue. In the present caçe, France certainly made claims to
the groups ; and, ashas been dernonstrated in Section E of Part 1
of the present Reply, these ureresufficiently unequivocal to destroy
completely the whole basis of the French contention that. by reason
of the 1539 Convention, neither party was qualified to make a claim.
But; the clainis were not accompanied, or followed by, any pro-
posalç for arbitration or other definite method of settlement (as to
the possibilit.iesof which see paragraph 230, below) ; and they were
either not .pressed any further (in the case of the Ecréhous), or else
(in the case of the Minquiers) pressed for a time but not kept up,
and, eventually, revived onlp after a prolonged interval of over
thirty years. It is subrnitted that, in these circurnstances, the claims
(and still less any aliterior event) couId not possibly give rise to a
"critical date" in the sense of ilullifying the evidential value of al1
acts or events subsecluently occurring ; that, since the dispute does
not turn upon the legal effect of any one definite act or instrument
(such as a treaty of cession, or proclamation of sovereignty), but
upon the cumulative effect of acts of ordinary user and ndministra-
tion going back many decades, if not centuries, the "critical date"
can only be the date upon which the parties decided and ngreed hy
the Compromis to submit the issue to the Court; and that both
parties are fully entitled to put forwarcl, as evidence in support of
their respective claims, any facts or events occurring, or the
.existence of any situation which was in heing, before and right up
to that date.
lWhile the United Kingdom Government do not, foa moment. irnpute any
ivell known that territorial clairns are not infrequently put forward for tactical or
other ultetior reasons of some kind. and without any real expectation or intention
of pressing them toa solution. The "nuisancevalue" of such claimswould,obviously.
be enormously increasedf they at once gave rise to a :'critical date" having a
nullifying effect ual1evidencesubsequent to that date. REPLY OF THE UNITED KINGDOM (3XI 52) 553
United Kingdom ConientionIII : Of theactsof $ossessionexercised
Bythe Jersey autlzoritiesbcforethe29th December,1950,themajority
enco~tnteredno proteston the part of the Governmendof the French
Repztblic
228. The United ~in~dorn Gover~iment subrnit that it Iias
alréady been shewn in paragraph zoo above, that the majority
of the acts of possession exercised by the Jersey airthorities before
the 29th December, 1950, encountered no ,protest on the part
of the Government of the French Republic.
United Kingdom Contention IV: Suck protestsas the Governwent
of the French Repzrblic did make were, in any case, incaPabEeof .
preventingtheaqicisition oftifletothegroufiby th United Kingdonr,
either by occupationor by prescription
229. The next question which falls to be considered is whether
the French protests-an accoiint of such protests as there were is
given in paragraph zoo above-were capable of preventing the
acquisition of title to the groups by the United Kingdom, either
by occupation or by prescription.
230. The United Kingdom Government do iiot dissent from the
proposition that, where a State is seeking to estahlish title upon
the basis of occupation or prescription, the fact that (partic-arly
in the period immediately preceding the "critical date") the other
State contested tlie acts relieupon as acts of sovereignty, may
render those acts devoid of legal value. So far as occupation is
concerned, the opposition of the other State map have been such
that there simply has not been a "continuous and peaceful display
of sovéreignty" such as the law reqiiires. In the case on theLegaE
Stntzts of Eastern Greenland (Series A./B.-Fasc. No. 531, the
Permanent Court of International Justice stresed that "another
circumstance which must be taken into account by any tribunal
which has to adjudicate upon a claim to sovereignty over a par-
ticular territory, is the extent to which the sovereigntyis alsoclaimed
by some other Power" (p. 46). The Court described as "one of
the peculiar features" of that case the fact that"up to 1931 there
was no claim by any Power other than Denmark to thesovereignty
- over Greenland" (p. 46) ; and this feature was .undoubtedly one
of the reasons why the decision went in favour of Denmark.
SimiIarly, if it be sought to establish title upon the basis of pi-e-
scription, the fact that the possession has been contested may well
render the acts ofpossession relied upon devoid of legal value. For
there then will not have been the "peaceable possession" which the
Iaw requires. Thc question arises, however, in any particular case,
whether the contestation has been suficient to prevent the acqui-
sition of title by prescription. This question usually presents itself
in this form : are diplornatic protests, unsupported by anp other554 , REPLY OF THE UNITED KINGDOM (3XI 52)
action, sufficient to prevent the acquisition of title by occupation
or prescription ? The United Kingdom Government submit that,
under international law, diplomatic protests may act as a temporary
bar to the acquisition of title, but that they do not act as a complete
bar unless, within a reasonable time, they are followed up hy
reference of the dispute to the appropriate international organi-
zation or international tribunal-where such a course is possible
-or, at the least, by proposais to that effect, which the other party
rejects or fails to take iip. In the case of the Rfincluiers or the
Ecréhous, France could have invoked the procedure laid down in
the Franco-British Arbitration Agreement of the 14th October,
1903 ', or she might, pcrhaps, have brought the matter before
the League of Nations. Altcrnatively, she could have proposed a
reference to the Permancnt Court of International Justice or to
the present Court bp agreement ; and there were, of course, other
possibilitiesIt is submitted that the failure to adopt any of these
courses renders France's protests incapable of preveiiting the
acquisition by the Unitcd Kingdom of any title which would
otherwise be conferred hy occupation or prescription.
United Kifigdonz Contention V: Thnt the actsof $ossession relied
u$on by the United Kiltgclom Governlnentweresuchas ninyfiroperly
be relied %+onfor the pr~r+oseof acquirirtgtitle, eithby occupation
or by prescription
231.The United Kingdom Governrnent submit that, having
regard to the yhysical nature of the territories in question, and
upon the basis of the Iegal submissions made in paragraph 184 of
the Rlemorial, the acts of possession relied upon by the United
Kingdom as evidence of itssovereignty over the Minquiers and
the Ecréhous groups were such as may properly Tie relied upoii
under international law for the purpose of acquiring title, either
by occupation or by prescription.
Sub-Section 4 :United Kingdomdenial of the claim of the Government
of the French Republicthat Frenchacts of possessionduringthe 19th
and 20th Centuriesoutweighthose of thc UnitedKingdom
232. The Government of the French Republic claim, on page
401 of their Counter-Mernorial, that they can adduce, for thcir
part, "acts of possession performed at the same periods as those
relied on by the United Kingdom and of such a kind as to outweigh
them". It is stated in particular that France "assumed the sole
charge of the lighting and buoying of the islands for more tlian
seventy-five years without having encountcrcd any objection on
the part of the British Government", and that "France assumed
that public service of her own accord in 1861, twenty years before
any dispute had arisen".
British and Foveign Slafe Papers, xcvi. 35. REPLY OF THE UNITED KINGDOM (3 XI 52)
553
The Bztoys esfnblished 6y the Frewch az~thorities in flacchanszel to
tlte sozrtlt-weof llce Minquiers .
233. So far as the United Kingdom Government are awiire,
the only works of lighting and buoying undertaken by the French
authonties are thosc referred to in paragraps 101-112 of Volume
1 of the United Kingdom Rlemorial (see also Annexes A 64, A 66,
A 67 and A 69 of Vol. II of the hlemorial). These works, it will be
seen, were eçtablishecl by the French authorities during the second
half of the 19th century in the vicinity of the Minquiers, to açsist
navigation to the French ports of the mainland ;and, so far as
the United Kingdom Governrncnt are aware, the French authorities
have never maintained any lights at or round the Ecréhous.
234. In 1903-j it kvas disputed between M. Cambon and the
Foreign Office whether the lights in the vicinity of the Minquiers
irrereinside or outside territuriawaters ;but, in the Memorandum
handed to hl. Cainbon datecl the 17th August, 1903 (Annex A 69)
-a Mernorandum to which the Govertirnent of the French Repul~lic
never replied beyond a formal acknowledgment-the Foreign
Office said that :
"Rf. Cambon, in his fifemorandum of the 18th January last
[Annex A 671,above referred to, demurs to the statement iri the
A 663,that the workç of lighting and buoying, alluded to in His
Excellency's Nemorandum of the 15th July, 1903[Annex A 641,
have al1 been outside the 3-mile limit of the Minquiers, and His
Excellency lays stress on the fact that the only works executed
at the hIinquiers for the use of navigators have been carried out
at the expense of the French Government. His Excellency would
appear, however, to be under a misapprehension, as, according
to the information of His Majcsty's Governrnent, no works of any
kind have been executed by the French Government at the Min-
quiers, nor even in the immediate vicinity of the islands. It is
known that in order to assiçt the navigation of vessels to the
neighbouring French parts, the French Government, in 1865,
placed a floating light, which was replaced in 189by liglit buoys,
in the cliannel to the south-west of the Minquiers, at a distatice
of somewhat Inore than 3 miles from the low-water mark of the
main rocks, though within a distance of 3 miles from certain
appurtenant rocks and shoals visible only at Low water. His
Majesty's Government have not objected to the establishment of
these buoys, being unwilli~ig,unless in case of absolute necessity
and in rebuttal ofa direct clairnright,to assert British sovereignty
in opposition to a work of public utility which $er se prejudiced
in no wayBritish interests. They cannot, however, admit that the
placing of such liglits, to facilitate the navigation of ships bound
to St. hlaloin thedeep channe1to the southward ofthe Minquiers,
can be iield to establish n claim of any sort to the sovereignty
of those islets". REPLY OF THE UNITED KINGDOM (3 XI 52)
556
235. There can be littledoubt that, according to the contern-
porary rules of international law governing the delimitation of
territorialwaters, thc lights established by the French authorities
in the vicinity of the Minquiers were outside the territorial waters
of the latter. The normal rule prevalent at the time was that
temtorial waters were nieasured from the mainland and from
off-lying permanently dry islands, though not from bailks and
. rocks which were dry at low tvater only. It is true that Article 2
of the North Sea Fisheries Convention of 1882 * provided for the
measurement of territorial waters not only from the niainland,
but also "des tles et desbancs qui en d&pendentH ("from dependent
islands and banks"), but this reference to "dependent baiiks" was
a novel feature introduced in the Convention by way of derogation
from the normal rule. Further, the North Sea Fisheries Conventioii
of 1882 did not cover that part of the French coast near kvhich the
Channel Islands are situated e. The principal treaty provision
for this area was the Anglo-French Fishery Convention of 1839
(Annex A 2.71lvhich referred in its Article2 and g simply to "low
water mark", a definition which gave rise to difficulties, but which
seems to have been interpreted as referring only to the low water
mark on permanently dry land (including islands), and not to
formations dry at low water only S.
236, The United Kingclom Government submit, therefore, that
the lights established by the French authorities in the cliannel
leading to St. Ma10lay outside the territorial waters of the Minquiers
as delimited in the 1839 Convention. They further çubmit that,
even if it were held that these lights (or some of them) lay within
the territorial waters of the Minquiers, this would not affect the
sovereign title of the United Kiiigdom ta the group as a whole."
It can hardly be maintaincd that the single operation of establishing
and maintaining such lights "outweighs" the ~vholeof the acts of
possession of the Jersey authorities mentioned in paragraphs
158-17 9f Volume 1 of the United Kingdom Jfemorial. The most
that France can derive from these works is that, in the event of
the United Kingdom's being held sovereign over the Minquiers,
and on the assurnption that the lights are within territorial waters,
France haç a prescriptive right, in the nature of a servitude, to
maintain these lights without let or liindrance from the Jersey
authorities, as an aid to shipping proceeding to French ports.
The Survey oj the Miîzqz~iersby M. Beautemps-Ueazcprdin 1831
237. The Government of the French Republic further argue on
page 401 of their Counter-Memorial that it was a Frenchman,
lBritish and ForsiStatePupers. Ixxiii. 39.
Sca(Edinburghe&4London,191i),pp.643-4.also T. W. Fulton, Sovcreigntyof the
aFulton.op.kt.,pp.618,639-43. REPLY OF THE UNITED KINCDOM (3 XI 52) 557
M. Beautemps-Beaupré, and not an Englishman, Captain Martin
White, R.N., who made the first hydrographic survey of the
Minquiers. The United Kingdom Government .have no wish to
depreciate the work of M. Beautemps-Beaupré, who uiidoubtedly
surveyed the Minquiers in 1831(ancl lvho was, .apparently, known
to his conternporaries as "Père de l'hydrographie" 1) ; but they
would draw the attention of the Court again to paragraphs 143,
144 and 169 of Volume 1of the United Kingdom Memorial. From
these paragraphs, it is clear that Captain White not only surveyed
the Ecréhous as well as the Minquiers, but also that he surveyed
hoth groups in 1813-15 =-more than a decade and a half before
M. Beautemps-Beaupré ; and, furthermore, that, at the time of
his survey, he regarded the Minquiers at any rate as a British
possession.
The Sumey of the Minquiers by the French Hydrographie Mission
in 1888
238. It is also contended by the Government of the French
Republic that France is entitled to sovereignty over the Minquiers,
because, in 1888, a French mission erected some provisional beacons
there. "These sca-marks", it is said, "ivere respected, and no
protest was made against the French works undertaken in these
waters" (Counter-Rlemorial, p. 401). The mission which thc Govem-
ment of the French Republic have in mind is, no doubt, the survey-
ing party referred to in the first sentence of paragraphOI of Volume
1 of the United Kingdom Memorial, and which may have helyied
to provoke the diplornatic correspondence referred to in paragraph
102. At anv rate, in a long Note addressed to hl. Waddington,
dated the 21st November, 1888 (Annex A 54))to which the Govern-
ment of the French Republic did not reply, the Marquess of Salis-
bury dealt, inter ala'a,with certain hydrographic activities of the
French authorities at points round the Minquiers, pointing out
that these activities "cannot ....be cited as proofs of sovereignty
over the rocks themselves ....",and concluding with the remark
that "H.M's Govt have every confidence that yotir Government,
having the above stated facts broughts to their remembrance,
\vil1 at once admit that the right of Sovereignty of the British
Croivn over the Minquiers Group of Islets can no longer be
conçidered as open to doubt". It may be correct for the Government
1M. Dupperey, a Member of the French Academy. deliveaifuneral oration
on M.Beautemps-Beauprd in 1854, observed that his work had excited "l'admiration
des étrangers, notamment des Anglais, ont décernA son auteur le titre de
'Pdre de l'hydrographie' " (Discours PrAuxnFunévailiede M. Beaulemps-
Beauprk (Paris,n.d.1,IO).
A chart entitl"A Survey of the Island of Jersey and its Çurrounding Dangi~rs,
mas,in fact, published by the British hdmiralty on the 26t1821;eand agroup
further chart, N59.which included his work at the Minquiewas published
by the same authority on the 1st May. 1826.59 REPLY OP THE UNITED KINGDOM (3 XI 53)
of the French Republic to say that the hydrographie activities
of the French authorities did not in themselves encounter any
protest on the partof the United Kingdom Government l, but
the reason for this, as stated in the Foreign Office i\.Iemorandum,
dated the 17th August, 1905 (Annex A 6g), was that :
"His Majesty's Goveriiment have not objected to the establish-
ment of these buoys, being unwilling, unless in the case of absoiute
necessity and in rebuttal of a direct cliiimof right, to assert British
sovereignty in oppositioii to a work of public utility which per se
prejudiced in no way British interests".
On the other hand, the United Kingdom Government have always
made it clear-as also stated in the Memoraiidum of 1905-that :
"Thev cannot. ....admit that the ulecine of such liehts. to
facilita& the na;igation of ships bourid to s:. Malo, in th deep
channel to the southward of the Minqiiiers, can be held to establish
a claim of any sort to the sovereigty of those islets".
239. Leaving aside the separate, arid difficult, issue whether
the French lights were iiiside or outside the territorial waters of
the Minquiers, it is submitted that the attitude of the United
Kingdom Government to these hydrographic activities hxs always
been a reasonable one. This attitude has becn, not only to make
no objection to the maintenance of the lights established by the
French hydrographic service, but also to provide that service with
every facility. At the sarne tirne, it has been strenuously and
continuously denied that any activity on the part of the French
l At the same time, there is interestingcontemporsry cvidence that the work
of the French mission did meet with a certain amount of opposition. 'The French
official publicationAnnales Hydrographiques, 4c Serie, Tome premier(bis), Année
1950 (Etudc Historique sur les ingknieurç hydrographiqueset le servicehydrogra-
missions of 1888-9 to the Minquiers say:g51). p. 189. descnbing the hydrographic
"Ces deux missions entra'rnbrent quelques difficultés diplomatiquela natio-
nalitédu plateau des Minquiers n'étant pas définieaveccertitudeDes pécheurs
anglais de Jersey sJÇtaientétablis sur la maîtresse-îlet hissérent le paviltnn
anglais h 1:approche du bâtirncnt qui portait la mission. Bien que ce fut le gouvcr-
nement français qui entretintle balisage, on avait recommandé aux ingdnieurs
de n'dlever aucun signal durable sur les iles, de n'effectuer aucun travail hydro-
graphique dans les eaux anglaiscs de Jersey ct de ne soulever aucun incident.
les observateursde marée qui y furent placés et donnérent l'hospitalitéfidesté
sous-ingénieurs qui durenty passer la nuit,surpris parlemauvais temps et ne
pouvant regagner le bâtiment. Les journaux anglais des iles anglaises récrimi-
nèrent cependant assezviolemment, mais cette campagne n'eut aucune suite"*.
* "Dés1888 cependant le Ministrc des Affaires I?trangères d'Angleteavait
adressé j.soncollègue français, une lettre ob il revendiquaipour son pays la
souverainete sur le plateau.Des recherches faites cnFrance dans les Archives
et les bibliothèques donnèrent lieuàun rapport de cEah%alN et du Capitaine de
frégate BANARE qui concluaient qu'on devait considérer le plateau commc
n'appartenant B personne". REPLY OF THE UNITED KINGDOM (3XI 52) 559
hydrographie service could give rise to a French claiin to sover-
eignty.
240. In Section 13of Part II of this Replÿ, the Unitcd Kingdom
Government begaii by rnaking some preliminary observations on
a numlier of French points al1 directed to the conclusion that the
Court was not erititled to take into account the bulof the euiderice
cited in the United Kingdom hlemorial concerning the acts of
sovereignty exercised by the Jersey authorities over the biinquiers
and the Ecréhous during the 19th and 20th centuries. The United
Kingdom Government rebutted, in particular, the point that the
Court should not take into account evidence subsequent to 1869,
in the case of the Minquiers, and subsequcnt to 1876, in the case
of the Ecréhous. It was then shewn that, even if al1 evidence
subscquent to thesc dates had to be excluded, there was ovar-
whelming evidence that, at these dates, both groups were British
possessions, It was further shewn that only a few of the acts of
authoritp exerciscd by the Jersey authorities over the groups bac1
encountered French protests, and it was strcçsed that, while, iii
certain circum>tances, protests may prevent or delay the acqiri-
sition of a title by occupation or prescription, the position is
different when, as in the present case, a State is rclying mainly
upon an original title supported by evidence of effective possession,
and only seco~darily or alter?aelivelyon occupation or prescription.
It Ras also pointed out that the French argument that the acts
of the Jersey authorities in the groups were cxcrcised ratione
fiersolzw, rather than ratione soliw,as eritirely ~niscoiiceived.
241.The United Kingdom Government tlien put forward their
own positive Contentions on this part of the case. Thcy argued, in
the first place, that the evidence of the acts of the Jersey authoritieç
during the 19th and 20th centuries-even if (which the United
Kingdom Government denied) it were insufficient of itself to estab-
lish a titlc to the groups-\iras, at the very least, sufficieiitto prevent
its being held that the United T<ingdomhad abandolied, or failcd
to maintain, its own original title, or that France had acquired a
title on the basis of prescription.
242. It was argued, secondly, that, even if the United Kingdom
had no original title to the groups, the Uiiited Kingdom could,
neverthcless, establish title to them on thehasis of effective posses-
sion donc (i.e., by 'occupation or prescription). It was conteridcd
that the Court is entitled, as a matter of principle, to coilsider
evidence of al1acts of possession which take place beforc the "critical
date". The term "critical date" isa legal term of art not necessarilp
synonymous with the "birth of the dispute", but rather-oii tlie
authority of the Legal Stalzcs al Eastern Greenlandand Islarrd O/ 560 REPLY OF THIS UNITED KINGDOM (3 XI 52)
Palmas cases-the date on which there occurred the event ~vhich
could be said to have focused the dispute. In the present case, the
evcnt ~vhichfocused the dispute was the signature of thc Compromis
on the 29th December, 1950, so that this date is the "critical date".
It was then argued that, even if the Court were to select some earlier
date as the "critical date", events bctween that date and the
29th December, 1950 , ould, following the precedent of theIsland
of Palmas case, at least be "indirectly of a certain interest, owing
tothe light they might throw on the.period immediately precedi~ig";
that the Government of the French Republic made no forma1daim
to sovereignty over thc Minquiers between 1904-5 and Igjo (apart
from two Notes in 1937-38, mainIy concerned with fishery rights, in
which the sovereignty issue was raised onlyincidentally and dropped
when the United Kingdom Government gave the necessary assur-
ances about fishery rights), or to the Ecréhous between 1888 and
1950 ;that, during al1this time, the Jersey authorities exercised a
continuous and peaceful hsplay of sovereignty over both groups,
whereas the Government of the French Republic excrcised no sover-
eignty of their own, and confiiied themselves to occasioiial and
spasmodic protests ;ancl that these protests covered onlya few out
of the rnany Jersey acts of sovereignty.
243. The United Kingdom Government next submitted that
France's claims to sovereignty over the groups, though sufficiently
unequivocal to destroy completely the whole basis of the French
contention tliat, by reason of the 1839 Convention, neither party
was qualified tomake a claim, were unaccompanied by any proposal
for a final settlement of the dispute. The French claims, therefore,
could not be said to have focused the dispute, and so they did not
bring into beingany "critical date". Similarly, the spasmodicFrench
protests, unaccornpanied as they were by any proposals forsettle-
# ment, could not be said to have been sufficient to prevent or bar
the acquisition of title to the groups by the United Kingdom, eitlier
by occupatio~i or by prescription. On the contrary, as the United
Kingdom Government have submitted, the correct position-having
regard to the physical nature of the territories in question and to
the rules of international law on the subject-is that the acts of
possession exercised by the Jerscy authorities over hoth groups
were such as can properlybe relied upon for the purpose of acquiring
title, either by occupation orby prescription.
244. Finally, the United Kingdom Government refuted the claim
of the Government of the French Republic that their own acts of
possession outweighed those of the United Kingdom. Tt was pointed
out that these acts of possession (which in any case related to the
Minquiers only) were not such asto affect the issue of sovercignty
at all. REPLY OF THE UNITED KINGDOM (3XI 52) 561
FINAL CONCLUSION SF THE UNITEDKINGDOMGOVERNMENT
245. For the reasons set out in the preceding paragraphsof this
Ixeply,the United Kingdom Government request the Court :
(1) to reject i.~dotothe conc1,usionsof the Government of the
French Republic, set out oiipage 403 of their Counter-
Mernorial ;
(2) to adjudge and dcclare that the United Kingdom is entitled,
under international law, to full and undivided sovereigrity
over al1those Islets and Rocks of the Minquiersand Ecré-
hous groups which are physically capable of appropriation,
(Signed) R. S. B. BEST,
Agelaljor theGover?zmen tfthe
U~titedKingdom.
3rd November, 1952.562
Annexes to the Reply submitted by the Government of the United
Kingdom of GreatBritain and Northern Ireland
[NOTE.-For Annexes A I-A 140 see Volume II of the Unitcd Kingdom 1remorial]
Page
A 141 : Letter irom the Rt. Hon. R. Peel, Home Secretary, 24th Decem-
ber 1825, to the Rt. Hon. G. Canning, Foreign Sccretary,
giving detailed Information about the Oyster Pishery off the
Coast of the Cotcntin, carried on by British (including Jersey)
and Frcnch Fishcrmcn ...........................
A 142 : Dctailcd Analysis of the Lines drawn on the Chart referred
to in Article I of the Anglo-French Fishery Convention of 1839,
defining Fishery Limitsonthe Coasts of Great Uritain and France
A 143 : Dispatch from the French Ambassador, Ith February 1870, to
thc Foreign Off~ce urgingUniformity of Penalties to be imposetl
on British and Frcnch Fishermcn for Fishery Offences ......
A 144: Dispatch from the Foreign Office. 13th April 1870. to the Frencll
Ambassador, expressing readiness to consider the qiicstion of the
Uniformity of Penalties for Fishcry Offences ............
A 145 : Sea Fisheries Act, 1843 (6 & 7 Vict. c. 79) ............
A 146 : Lcttcr from the Ilt. Hon. G. Canning, Foreign Sccretary, 12th
January 1824, to Messrs. H. Hobhousc and J. Planta. instructing
tliem to negotiatc witli the French Ambassador onthe basis of
a 3-Rlile Limit for the Oyster Fisheries off the Coast of the
Cotentin ....................................
A 147 : Reasons why a Common Oyster Fishery Right does not imply
or involve a Common General Right of Fishery .........
A 148: Article 13 01 thc Treaty of Utreclit, 11th April 17r3 ......
A 149 : Article 3 of the 'Crciity of Paris. 3rd Septembcr 1783 ......
A 150 : Norwegian-Swedish Fishery Agrecrncnt, 20th Uecember 1950
.A 151 : Subsequent Practicc and Conduct of the Parties as a guide to
tlie correct interpretationof a Treaty :Judicial Vicws cxpressed
in Cases before the International Court of Justice .........
A 152 : Article 3 of the Trucc of London, ~Gth February 1471 ...
A 153 :,Afidnvit of C. W. Duret Aubin. forrnerly Solicitor-CcncraI antl
Attorney-General for Jersey, 18th September 1952. regarding
the Jurisdiction of the Royal Court of Jersey ............
A 154 : The Constitutions of King John (1199-1216), granted to the
Islands of Jersey and Guernsey .....................
A 155 : Amdavit of W. V. Uenest, Sergent de Justice and Acting Vis-
count of the Island of Jersey, 12th September 1952, regarding
thc holding of Inquests on Corpses within the Bailiwick ...
A 156 : Affidavit of P. E. Lc Couteur, Jiidicial Greffier of the Island
of Jersey. 20th August 1952, rcgarding the Registration of Deeds
in the Island of Jersey ...........................
A 157 : Letter from hlr. Ii. S. B. Hest, Agent for the Government of
the United Kingdoni, to Professor T. 2;.S.Plucknctt. Professor
of Legal History in the University of I,ondon, 24th July 1953,
rcquesting an Opinion upon the I2ffect of a Gift in Pranlral-
inoin, and upon tlie Nature of an Advowson and of Quo IVarranto
I'roccedings in Medieval Law .............. ANNEXES TO U.K. REPLY (NO..A 141)
563
Letter from the'Rt. Hon. R. Peel, Home Secretary, 24th December 1825,
to the Rt. Hon. G. Canning, Foreign Secretary, giving.detailedInforma-
tionabout the Oyster Fishery off the Coastof the Cotentin, carriedon
by British (including Jersey)
and French Fishermen
[Foreig n 8ce Yupers, 27/340]
th
Whitehall 24th Decr. 1825.
My dear Canning,
1 had a long interview some days since with two persons from Jersey
weli acquainted with the Oyster Fishery on the Coast of Normancly,
and who in answer to various questions put to them by me, gave mc
Information of which the following is the substance.
1should first statethatone ofmy informants isColonel Touzel a very
respectable and intelligent Native of Jersey, who was employed by the
British Governme~it in the year 1823 as a Commissiorier in the Negotia-
tion which was then carried on with France respecting the OysterFishery.
The other,a Man of the name of Richardson who for some time acted
as Pilot of a Manof War, but for the last four years has been practically
engaged iri the Oyster Fishery in the actuadredging for theOysters.
The Fishery by tlie British and Jersey Ronts commences in Janiiary,
and continues untiI June, and sometirnes unti1 July-
The French commence the Fishery in October, and end in conformity
witli tlieir reguiationon the 30hApril.
The I'eriod at which the oyste; spawns is frorn May to Aupst, and the
Fishery is tlierefore carried oby our Fishermen for a portion of the
time at a.period of the year when it is very destructive.
The French and the British Fishermen fisli alike for the fullgroicrn
Oyster only.
The French are compelled to bring ashorc what is called the Cutch
(that is, thAnimal in its intemediatestate between Spawn and oyster)
and deposit it on preserved Beds nearthe Shore.
The British throw the Cutch overboard, witliout regard to the pl:tce
of its deposit.
Nearly the whole of the Oysters caught by the British and Jersey
Fisherrnen isconsurned in Englnnd-The Consumption of Jersey does
not amount to the five hundredth part of it-The Oysters are brougiit
to England, placed upon artificial Reds, and after having been fattencd,
are sent to the London Market.
The produce of our Fishery from the Nonths of February to October
in eachof the years under mentioned has been as foIlows ;
Tubs of Oysters564 AKSESES TO U.K. HEPLY (NO. A 141)
The Tub of Oysters contains from 5 to 600 Oysters.
Our Fishery is carried on by British Boats and by Jersey Boats.
The jersey Boat is from IO to 15 Tons burthen, and employs four
hands-
The British Boat is from 15 to 30 Tonsburthen, and employs from four
to seven Men.
The Places from which the British Boats chiefly corne are these,
Portsmouth Ramsgate
Queenborough London
Rochester Malden[sic]
Southampton Poole
Colchester Cowes
Milton and
Feversham[sic] Chichester
Guernsey employs about 20 or 30 Boats.
The following Lists will give the number of boats ernployed in the
Fishery in each of the folloming years.
British Boats Jersey Boats Total
1819 - 7.57 - 82 - 259
1820 - 145 - 94 - 239
rszx - 135 - III - 249
1822 - 11s - 122 - 230
1823 - 107 - 132 - 239
1824 - 90 - 138 L 226
1824 - 60 - 160 - 220
You will perceive that there has been from 1819 to the present year,
a gradua1 diminution in the number of British boats-and very nearly a
corresponding increase in the number of Jersey boats.
The provisional limits of the Fishery, now in force, under which Our
Boats are for the present interdicted from fishing within six miles of the
French Coast were established in September 1824.
The Fishery ofthe present year has been therefore carried on, subject
to the restriction which they impose, and it appears from the Return
of fish caught, that the Produce of the last year was as great as that
of any ofthe five preceding years escepting the year 1823-It fell short
indeed of that of 1824 by one thousand barrels.
1 asked Colonel Touzel and Richardson how this was to be accounted
for-how ithad happened that the British Boats when forbidden to
approach within 6 miles of the Norman Coast, had been very nearly as
successful as they were first, when no regulation at al1 was in force :-
and secondly, when the regulation imposed only the limit of three miles.
On being asked this question, they admitted that very nearly al1 the
Oysters taken by the British and Jersey Fishermen had been taken .
withinL the limit of six rniles-They said the British and Jersey Boats
had been in the habit of dredging by night, and either escaped the vigi-
lance of the French Cruizers, or were purposely left unmolested by them,
except indeed in some case of flagrant violation of the Orders,
l Underlined in theoriginalBIS. AKNESES TO U.K. REPLY (NO. A 14) 56.5
They considered that not less than four fifths ofthe Oysters takeby
us were taken within our assigned limit of six miles-and that, were
that limit rigidly enforced,there would be an end to our Fishery-
They saicithat Captain Freemantle of the Jasper, had, by wayof experi-
ment, dredged for Oysters dong or just outside the Line whicisparallel
to the French Coast at a distance of six miles-thatis-the Line of our
present Limits, but without success.
At this distancefrom the Shore, the depth of water is frorn g to 12
fathoms-Between the limits of 3 and6 miles, the depth is from6 to8
fathoms.
In their opinion the French Cruizers did not interfere with our Fisher-
men during the last year, because tlie French have almost a superfiuous
supply of Oysters for their market within 3 miles of the Shore-iind
very rarely fish beyond that distance.
In the year 1814 ,ysters sold at Granville for14 livresa thousand,
now they sel1for2 livres a thousand,
The French employ about rzo Boats in theirFishery.
About 2000 persons including wornen and children are employed in
Jersey in picking and cleaning the Oysters and packing them for the
English Market.
1think 1have now detailed al1the information which I received on the
subject of the Oyster Fishery.
Itis perhaps desultory and unconnected from having been given in
answer to Questions put by me to my Informants in the course of our
Conversation. 1hope however there isno material point connected with
the mere practical detail of the fiçhery, omitted.
Believe me
My dear Canning,
Very faithfullyYours
ROBERT PEEL.
The Kight Honorable
George Canning
&c &c &c
ANNEX A 142
Detailedanalysis of The Linesdrawnon the Chattreferred toin Articlex
of the Anglo-French Fishery Convention of 1839, defining Fishery
Eimits on the Coasts of Great Britain and France
Point A.-3 miles frorn the low water line of the mainland at Point
Meinga.
BetweenPoints A aizd B.-The furthest distance of any point on the
line from the nearest drying rock lyingoffany feature permanently
above water is 5.2miles. The nenrest distance from a point on the
line to a drying rock off tIlesChausey is2.5 miles.
Point B.-3+ miles from the nearest drying rock of the Iles Chauseand
about the same distance from a drying rock 1.6miles from Maitresse
Isle (Minquiers).- 566 AXEEXES TO U.K. KEPI-Y (.;O.A 142)
BetweenPoi~lts B and C.-The nearest point on the line ta rock of the
Iles Chausey is 2.9miles distant.
Point C.-3.2 &iles from the nearest rock of the Iles Chausey.
Between points C end Dm-The shorteçt distance frorn the line to the
nearest rock ofthe Iles Chausey is2.85 miles.
Point 0.-2-85 mileç from the neareçt rock of the Iles Chausey.
Betwee~tPoints D and E.-The furthest distance from the low water line
of the mainland, or to a rock off the Iles Chausey, is5 miles. The
nearest distance to the mainiand low water line is 5 miles. The
furthest distance from the line to a drying rock lying off the main-
land is 49 miles. The nearest distance from the line to a drying
rock within 3 miles oftliemainland low water line is 2.8miles.
Point E.-4.7 miles frorn the nearest point on the low water liiie of the
French rnainland and 3.75 miles from the iiearest off-lying drying
rock.
Bdween Poi~ctsE and F.-The lirie runs directly towardthe mainland.
Point 17.-2.4 miles from the low water line of the mainland and 1.6
miles from the nearest off-lying drying rock.
Betwee~tPoints F and G.-The point on the line furthest from the low
water line of the mainland is 2-4 miles distant (at F). The point
nearest to the low water line is1.8miles distant. The point nearest
to an of£-lyingdrying rock of the mainland is0.9 mile distant.
Point G.-Distance from the nearest point ofthe low water line of the
rnainland is 2.2 miles. Distance from the nearest off-Iying drying
rock is19 miles. Distance from Chausséedes BŒufsis about 2+ miles.
BetweenPoints Gand H,-'The point on the line nearest to the low water
line of the mainland is 1.8 miles away. The point furthest away is
at Point G (2.2miles).
Point H.-1-95 miles fronl the nearest point on the low water line
of the mainland ancl 1.3 miles from the nearest off-lying drying
rock.
Between Points H and 1.-The furthest distance from the low water
Iine of themainland to a point on the line is2.1miles. The nearest
distance is 1.5 miles at Point 1. (A rougli average distance is 1.9
miles).
Point I,-I.~ miles from the neareçt low water line of the mainland,
3.5 miIes from a drying rock on Basses de Taillepied and 5a miles
from drying rocks of the Ecréhous group. ,
Beiii~eenPoints I and K.-The furthest distance from the low water
line of themainland to the line is 2.9 miles (at PoinK), the nearest
distance is1.5miles (at Point 1)A rough average distance is2 miles.
Point K.-2.9 miles to the nearest point on the low water line of the
mainland. 3.4 miles froni the Iciwwater line at Cape Carteret. 3.7
miles from the nearest drying rock of the Ecréhousgroup. ANNEXES TO U.K. REPLY (NO, A 143) 567
Dispatch from the French Ambassador, 11th February 1870, to the
Foreign Office, urging Unifomity of Penalties to be imposed on British
and French Fishermen for Fishery Offences
[Foreign O8ce Papers, 9714481
Londres II Février 1870.
' Monsieur le Conite,
Ainsi que le sait Votre Excellence, lamise en vigueur de Ia convention
sur lespêcheriesconclue le II novembre 1867 lentre l'Angleterre ct la
France, a étéretardée jusqu'à ce jour par des causes diverses. L'approba-
tion du Parlement ayant été expressément réservée, cet Acte inter-
national a dû êtresanctionné d'abordparun bill[sic] qui porte la datc du
13juillet18689, mais qui imposait 5 l'administration britannique l'obli-
gation de procéder au préalable à l'enregistrement général de tous les
bateaux de pêchedu Royaume Uni[sicj. En France, d'autre part, Af:le
Garde des Sceaux a reconnu la necessité[sic]dc présenter au Corps Lbgis-
latif un projet de loi destiné à remplacer la loi d1846 sur les pêcheries,
pour mettre celle-ci en harmonie avec les dispositions nouvelles di: la
Convention relatives a la juridictionetaux pénalités.Le Département de
la Justice s'est trouvé,.àcette occasion, amenéBesaminer attentivement
la législation anglaise sur la matière et l'étude qu'il a faite du Bit1 du
13 juilIet1868 lui adonne lieu cie constater que ce Bill s'écartait, srrr
certains points importants, du texte mêmede la Convention.
En présence de ce défaut de concordance, le Gouvernement de 1'Em-
pereur acru devoir réunir lesmembres françaisde la Commission intcrnn-
tionalequi avait étéchargéede préparer la Convention du II Novembre
1867 et il leur a confiéle soin d'examiner s'il était possible d'acccpter
toutes les combinaisons de la loi anglaise, et d'introduire,le cas échéant,
dans notre It5gisfation, une règlementation[sic] analogue qui eiit pour
effet d'établir entre les pêcheursdes deux nations une complète rki-
procité de traitement.
La Commission Françnise[sic] a consignéle résultat de ses études dans
une note dont j'ai l'honneur de transmettre ci-joint copie à Votre
Excellence. Elle fait ressortir, L la fois, d'une part I'esagération des
pénalitésdont sont passibles les pêclieursfrançais pour contraveiitions
corninises en dehors des limites de pêchecomparées à cellesque stipule
la Convention pour la mer commune ; d'autre part, l'impossibilité où nous
serions d'introduire, par réciprocité,dans notre proprc: législation, cles
dispositions analogues Acelles du Bill de1868.
En me priant d'entretenir Votre Excellence à ce sujet, le Ministre (les
Affaires Etrangéres de l'Empereur ne se dissimule pas, Monsieur le
Comte, le c8té délicat de la question qui le préoccupe. Il ne saurait
méconnaître, en éffetlsic], le droit que le principe de In souveraineté
territoriale, donne au Gouvernement Britannique, de régler,comme il le
' See Annex A 28 (United Kingdom hlemorial.Vol. TT.pp. 187-208).
Sea FisheriesAct, 1868 (31& 32 Vict.c. 45).
3 Xot printed.568 ANNEXES TO U.K. REPLY (NO. A '143)
juge convenable, l'exercice de la pêchedans la mer réservée.Mais il lui
semble dificile, d'un autre &té, d'admettre que les pècheurs[sic] des
deux nations déjà liéespar une Convention de p&che[sic],puissent être
respectivement soumis des deux côtés du détroit et contrairement à
l'application du principe de la réciprocité, à des pénalitésaussi diffé-
rentes. Le Gouvernement de l'Empereur, adoptant les conclusions de la
Commission, a pensé qu'il était indispensable que la législation pénale
fût identique dans les eaux territoriales des deux pays, et que les péna-
litésne s'écartassent pas de celles qui onétéfixéespar la Convention cle
1867 et par le Bildu 22 août 1843 l.
MFle Comte Daru exprime I'espoir que le Gouvernement de la Reine,
frappé des considérations dCveloppéesdans la note ci-jointe ne se refu-
sera pas à userdu droitque lui conf&rel'Art[sic]7 du 13juillet1868, pour
apporter à ce mêmeBill les modifications qu'il semble comporter.
Le Gouvernement de l'Empereur attacherait d'autant plus de prix à
voir accueillir ses suggestioris, à cet égard, qu'il éprouverait un plus vif
regèt[sic], dans le cas contraire, a[sseJvoir dans l'obligation de recourir
à la combinaison éventuellement proposée par la Commission et qui
consisterait à édicter des penalités[sic] semblables à celles qui sont en
vigueur~ur les &tes d'Angleterre, mais qui seraient uniquement appli-
cables, à titrede réciprocité,aux pécheurs[sic] anglais délinquants dans
les eaux territorialefrançaises.
La mise à exécution de la Convention de 1867, étant d'ailleurs subor-
donnée au vote du projet de loi qui doit être soumis au Corps Législatif
dans le cours de la présente session, Mf le Comte Daru aurait un trés
grand intérêtà ce que la décision du Gouvernement Britannique lui
fût connue dans le plus bref délaipossible.
Permettez moi[sic], hlonsieur le Comte, de me faire auprès de vous
l'interprète de ce vŒu et de saisir cette nouvelle occasioti pour vous
prier d'agréer les assurances de la très haute considération avec laquelle
j'ai l'honneur d'être,
de Votre Exceltence,
letrès humble et très
obéissant serviteur.
Son Excellence ?ilonsieur LAVALETTE.
le Comte de Clarendon.
--
l Sea FisherieAct, 1843 (66-7 Vict. c.79). See AnnexA 145to the prosent
Reply.
* Not printed. ANKEXES TO U.K. REPLY (SOS. A 144-145)
569
ANNEX A 144
Dispatchfromthe Foreign Office,13th Apd 1870,to the FrenchAmbas-
sador, expressing readinestso consider the question ofthe Uniformityof
Penalties for Fishery Offences
[Foreign O@ce Papers, 9714483
F O -4pl 13. 1870.
M. 1.Ambr
If 1 have hitherto delayed in replying to Y E note of the 11thof Feb.
regarding the present position of the Fisheries Convenq it has been ouing
to the anxious desire of H Ms'[sic] Govf to see whether means cannot M. de.f ~ .
be found to arriveat a satisfactory understanding on the pointsto wlijchL.avaiette.
the French Govt have called attention.
With this object 1 have considered the matter' with The Lords of
Trade. It appears however that it is not competent for H Ms Govi to
establish in the matter of the Fishery Regulations a scale of penalties
identicalwith theçcale which is the rule in France.Witha view, however,
to a solution of the matterH Ms'[sic]Govt will be ready to consider any
particular penalty imposed here to which the French Govt specinlly
objects in order to see whether that penalty can be reduced consistently
with other Brit : Legisl. & with the due maintenance of order within
British Waters.
In requesting Y E. to Iiave the goodness to invite explanations on
these poiiits from the Impr Govt 1 have &c
C[LARENDOK]
Sea Fisheries Act, 1843 (6 & 7 Vict. c. 79)
[Statzdtesat Large, xxx~v. 860-703
An Act to carry into effect a Convention between Her Majesty and the
King of the French concerning the Fisheries in the Seas between
the British Islands and France. [22d August 1843.1
'WHEREAaS Convention was concluded between Her Majesty and the
' King of the French on the Second Day of Augzrst in the Year One
' thousand eight hundred and thirty-nine defining the Limits of the
' Oyster Fishery between the Island of Jersey and the neighbouring
'Coast of Prnnce, and ais0 definjng the Limits of the exclusive Right of
'Fishery on al1 other Parts of the Coasts of the Briiisk Islands and
' France :And whereas by the Eleventh Article of the said Convention
'it is stipulated andagreed, that" With a view to prevent the Collisions
' which now from Time to Time take place on the Seas lying between
' the Coasts of Great Brifsin and of France between the Trawlers and 57O ANNEXES TO U.K. REPLY (NO. A 145) .
' the Line andlongNet Fishers of the Two Countries, the High Contract-
' ing Parties agree to appoint, within Two Months after the Exchange
of the Ratifications of the present Convention, aCommission, consisting
' of an equal Number of Individuals of each Nation, who shall prepare a
Set of Regulations for theGuidance of the Fishermen of the Two Coun-
' tries in the Seas above mentioned ; the Regulations so drawii up shall
' be submittetl by tlie said Commissioners to the Two Governments
' respectively for Approval and Confirmation ; and tlie High Contracting
' Parties engage to propose to the Legislatures of their respective Coun-
' tries such Meaçures as may be necessary for the Purpose of carrying
' into effect the Regulations which may be thus approved and confirmed:"
' And whereas, pursuant to the said Convention, Commissioners duly
' appointecl and authorized by Her Rlajesty and His Majesty the King
' of the fiencla respectively have agreed upon certain Articles set forth
' in the Schedule annexed to this Act for the Guidance of the Fishermen
' of the Two Countries in the Seas lying between the Coasts of the United
' Kingdom of Great Britairr and Ireland and those of the Kingdom of
' France, which Articles, in further Fulfilment of the said Convention,
' have been approved and confirmed on the Part of Her Majesty by
'One of Her Majesty's Principal Secretaries of State, and on the Phrt
of His Rlajesty the King of the French by the Ambrissador Extraordi-
' nary of His said Majesty to the Court of Loitdon :' Be it therefore
enacted by the Queen's most Excellent Rlajesty, by and with the Advice
and Consent of the Lords Spiritual and Temporal, and Comrnons, in this
present Parliament assembled, and by the Authority of the sanie, That
Confirmation the said Articles shall be binding on al1Persons, and shall have the Force
of of Law, as fully as if they were herein severally and specially enacted.
Amendment II. 'And whereas by the said Conventioii and Articles Frenclt Fisher- .
of 13 14 'men are forbidden to fish in the Seas between the British Islancts and
Car. 2. C. 28. 'France within the Distance of Three Riiles from Low-water Mark,
'as defined in the saicl Convention and Articles, but are not forbidden
'to fish anywhere beyond the said Distance of Three Miles: and whereas
'by an Act passed in the Reign of King Charles the Second, intituled
'An Act for the ReguEalionof the Pilchard Fishery in the Coztnties of
'Devon and Cornwall, the taking of Fish in the Manner therein rnention-
'ed is forbidden, unless it bc at the Distance of One League and a Half
'at least from the Shores of Devo?~ and Cornwall respectively ;' be it
enacted, That after the passing of this Act the said Act of the. Reign of
King Charles the Second shall be construed as ifinstead of tlie Distance
of One League and a Half the Distance specified in the said Convention
and Articles had been therein inserted and specified as the Distance
within which such taking of Fish as is therein mentioned is forhidden,
that is to Say, the Distance of Three geographical Miles (of which Sixty
make a Degree of Latitude), which Distance shall, be reckcined from
Low-water Mark, esccpt in Bays, the Mouths of which do not exceed
Ten sucli geographical hliles in Width ; and for such Bays shall be
reckoned from a straight Line drawn from Low-water Mark off one
Headland to Low-water Mark off the other Headland of such Bays
respective1 .
For enforcing III. Andi be it enacted, That it shali be lnwful for the Lords of the
Convention Cornmittee of Her Rlajesty's Privy Council appointed for Trade and
Articles. Foreign Plantations, if and when they shallthink fit, to appoint somany
Persons as they shall think necessary to ensure the due Execution of the ANNEXES TO U.K. RBPLY (NO.A 145) 57I
said Convention and Articles, and it shall be lawful for every Pers011so
authorized, at al1 reasonable Times, upon producing his Authority, if
required, to board or enter upon and esamine every British \Tessel,and
to examine the Nets, Instruments, and Implements of Fishing thereunto
belonging or used therewith ; and if any of the Nets, Instruments, or
Implements of Fishing shall be found in contravention of the said
Convention and Articles they shall be forfeited to Wer Majeçty, and the
Person in whose Possession the same shall be found shall, on Conviction, .
be liable to a Penalty of not less thnn Eight Shillings or more than Three
Pounds, or to be imprisoned, with or without hard Labour, for any
Time not less than Two Days and not longer than Ten Days, or if con-
victed more than once of having such unlawful Nets, Instruments,
or Irnplements in his Possession, shall be liable to a Penalty not more
than Six Pounds, orto be imprisoned, with or without hard Labour, for
any Time not longer than Twenty Days.
IV. And be itenacted, That it shall be lawful for the Lords of the brd of
Committee of I-Ier Majesty's Privy Council appointed for Trade anclde empower-
Foreign Plantations, from Time to Time as may become necessary, to ed to make
make and ordain such Rules and Bye Laws as to them shall seem cxye- Bye Laivs for
dient for the more effectua1 Performance of the said Convention i~ilProtection of
Articles, and from Time to Time to annul or alterthe saine, and substitute
others instead thereof j and it shall be lawful for.the Lords of the saicl
Committee to impose any Penalty not exceeding Five l>ounds in al1
Cases where any Penalty is not fixed by this Act or by the said Articles
for any Breach of the said Rules and Rye Laws, and to direct that al1
Nets, Instruments,or Implements of Fishing whatsoever used contrary
to any of such Rules and Bye Lawvsshall be forfeited, destroyed, or
removed, as the Case rnay require ; provided always, that al1such Kiiles '
and Bye Laws shall be approved by Rer Majesty, with the Advice of
Her Privy Council, and al1the said Rules and'Bye Laws. when so apllrov-
ed and confirmed, and until annulled or altered by the like Authority,
shall be binding on al1Persons as if the same had been herein enacted.
V. And be it enacled, That the said Ruleand Bye Laws, when approved Publication of
as afoiesaid, shall be printed, anca Copy of the sarne shall be deposited Bye Laws.
with the Clerk of the Peace for each County adjoining the Seas in which
such Rulcs and Bye Lnws are proposed to be enforced, and in the Islands
1
of Guernsey, Jersey, Snrk,Alderney, and Man, and with al1the Collectors
of the Customs and Coastguard Officers at the different Stations, and i
in such and somany Places as to the Lords of the said Committee shall
seem fit ; and printed Copies of the said Rules and Bye Laws shaIl be i
provided by the Lords of the said Cornmittee, and sold at a Price not !
exceeding One Shilling for each Copy ; and Notice, bot11of the Publica-
tion of the same, and the Place or PIaces where the same may Bebought,
shall be given for Three Calendar Montlis subsequent to Publication
thereof in such of the Metropolitan and Provincial Newspapers as the
Lords of the said Cornmittee shalI appoint; and for the Purpose of
convicting any Person offending against the said Rules and Bye Laws,
a printed Copy ofsuch Rules and Bye Laws obtained from the Office
of any Cterk of the Peace with whom the same may be lodged, and certi-
fied by him to be a true Copy thereof, shall be taken as Evidence of
such Kules and Bye Laws, and the due Publication thereof.
VI. 'And whereas an Act was passed in the last Session of Parliament, Articles
' intituledAn Act to reguiatethe Irish Fisheries,and it is not expedient he suspendeci ANNEXES TO U.K. KEPLY (h'o. A 145)
572
in Ireland ' to interfere with the Provisions ofthe said ,4ct further than is necessary
while thereis' for giving full Effect to the said Convention and Articles ;' be it enacted,
*O Afixed That it shall be lawful for the Lords of the said Committee, by a Rule
Fiahery or Rules to be made by them from Time to Time, and approved of by
106.6- Victc. Her Majesty with the Advice of Her Yrivy Council, to suspend the Opera-
tion of the said Articles of this Act, or such Part of them as to them
shall seem fit,with respect to the Fisheries on the Coast of Ireland, or on
any Part thereof, so long as such Fisheries shall be carrieon euclusively
by the Subjects of Her Majesty, and also, with the like Approval, to
make such Bye Laws as to them shall seem fit for enforcing the said
Articles and this Act on the said Coast of Ireland, or on any Part thereof,
as soon as the same shall be frequented for the Purpose of Fishery by
French Fishermen.
Rules and VIT. And be it enacted, That al1 Rules and Bye Laws made by the
Bye to Lords of the said Committee in pursuance of this Act shall be laid before
be faid beforeParliament within Six \Veeks next after the Approval thereof by Her
Parliament. Majesty, if ParIiament be then sitting, or if not, then within Six Weeks
next after the next Meeting of Parliament.
Part ofof VIII. And be it enacted, That so much of the last-recited Act as
provides that the Cornmissioners of Public \Vorks in Ireland shall divide
106. Vict.c.the Coast of Ireland into Districts, forthe I'urposeof keeping a Registry
of al1 Vesscls engaged in Fishing on the said Coast, shall be repealed ;
and that the several Collectorships of Customs on the Coast of Ireland
shall be substituted for the Districts established under the Authority
of the said Act ; and that the Numbers, Marks, and Letters by which
al1 Britis V essels engaged in Fishing between the Coasts of the United
Kingdom and F~ance shall be distinguished shallbe in conformity with
the said Convention and Articles ; and the Registry of al1 such Vessels
shall be kept under the Superintendence of the Cornmissioners of Her
Majesty's Customs, and in conformity with the said Convention and
Articles.
Ofiicers and IX. And be it enacted, That it shall be lawful for such Officers and
Men of Her Petty Officers belonging to Her Majesty's Navy or Revenue Service,
Westy's and for such Officers and hfen of the Coast-guard Stations as shall be
Officersandd thereunto authorized by the Commissioners of Her Majesty's Customs, .
hfcn ofReve- and such Persons as shall be appointed as aforesaid by the Lords of the
nue and said Cornmittee, subject to such Directions as the Lords of the said
~ ~ ~ ~ ~ - ~C~o~ ~ ttee shall from Time to Time think fitto prescribe, to go on
Service, board any Briti Vshssel employed in Fishing, and examine the Certificate
enpowercd to01Registry, and Nets, Instruments, and Implements of Fishing belonging
enforce the to or used with such Vessel, and whether the Regulations of this Act
Provisions ofhave been complied witli, and whcthcr the Master or other Persons on
Act. board such Vessel are carrying on the said Fishery in the Manner hereby
required, and to seize any Nets, Instruments, or Implernents of Fishing
which are illegal or used contrary to the Provisions of this Act, or any
of the Rules or Bye Laws made by the Lords of the said Committee ; and
it shall be lawful for the Officers and Meii employed in Her Majesty's
Navy or Revenue Service, and in the Coast-guard Service, and such
other Persons as shall be appointed for that Purpose by the Lords of the
said Committee, to execute for the Purpose of this Act, on Sea or on
Land, the Warrants of any Justice or Justices of the Peace as fully as
any Person authorized to execute Warrants of any Justice of the Peace
may now execute the same on Land within their respective Districts, ANNEXES TO U.K. REPLY (NO. A 145) 573
and also to do al1 such other Acts on Sea or Land, in relation to the
Preservation of the Peace among Perçons engaged in Fishing, and the
Enforcement of the Provisions of this Act, as any Constable may law-
fully do within the Lirnits of his Jurisdiction.
X. Andbe itenacted, That every Person assaulting, resisting, or wilfullyPenalty fa;
obstructing any other Person, duly authorized under the Provisions of obstructing
this Act to enforce the Execution of the said Articles, in the Ferformance perSons on
of his Duty, on Conviction before any Magistrate or Justice of the Peace Duty-
by the Oath of any credible tvitness, or upon his own Confession, shall
be liable toa Penalty not more than Five Pounds, or may be imprisoned,
with or without hard Labour, for any Time not longer than Twenty-one
Days.
XI. And be it enacted, That al1Offences agai~istthe said Articles, or wh, ,hall
against any Rule or Bye Law made in pursuance of thiç Act, committed have cogni-
by any of Wer Majesty's Subjects, rnay be heard and determined upon zance of Olfen-
the Oath ofany credible Witness or \Vitnesses, or upon the Confessionof cesby British
the Party accused, by any Magistrate or Justice of the Peace having
Jurisdiction in the County or Place in which or in the Waters adjacent
to which the Offence shall be comrnitted or to which the Offerider siiall
be brought ;and ,everysucli Magistrate or Justice of the Peace shall have
Power to award the Penalties provided by the said Articles, or by aiiy
shaIl be convicteda; andpwhenever any pecuniary I'enalty and Forfeiture
shall be imposed on any sucli Offender, and shall not be forthwith paicl,
with the reasonable Costs and Charges attending the Conviction, the
same shall be levied by Distress and Sale of the Goods of the Offender
by Warrant under the Kand and Seal of such Magistrate or Justice of
the Peace.
XII. And be it enactecl, That al1 Offences against the sait1Articles, IV~O shall
or against any Rule or Bye Law made in pursuance of this Act, commit- have cogni-
ted by any Subject of the King of the French,or any Person serving on zance of Offen-
board any FrenchFishing Boat or Veççel,within the Limits uritliinwhich cesby French
the general Right of Fishery is by the said Articles exclusively reserved
to the Subjects of Her Majesty, may be heard and determined upon the z,h,iSi
Oath of any credible IVitness or Witnesses, or upon the Confession of Fishery
the Iarty Accuçed, by any Magistrate or Justice of the Peace having ~i,i~,.
Jurisdiction in the County or Place in which or in the Waters adjacent
to which the Offenceshallhave been comrnitted or to which the Offender
shall be brought ; and the Offender, upon Conviction, shall pay such
Penalty not exceeding Ten Pounds as the Magistrate or Justice of the
Peace shalI award, or instead of awarding a pecuniary Penalty, and also
in case of the Nonpayment of any pecuniary Penalty awarded, it shall
be lawful for the Ilfagistrate orJustice of the Peace to order that the
Vessel to which the Offendcr belongs shall be detained'for any Period
not exceeding Three Calendar Months.
XIII. And'be it enacted, That whenever any Subject of the King of Proceedings
the French, or anp Person serving an board any French Fishing Boat in case oOf-
or Vessel, charged with any Transgression against the said Convention fentesbY
and Articles, shaii be brônght into any British Port, pursuant to the Fk;':;
Sisty-fifth Article, in order that the Offence may be duIy established, theBntiçh
it shail be lawful for the Person by whom such supposed Offender shall Fishes
be so brought; or for any Person acting under his Authority, to take such ~i,it,.
supposed Offender forthwith before a Magistrate or Justice of the Peai:e, ASKEXES T0 U.K. REPLY (NO. A 145)
574
and al1 Constables and Peace Officers ancl others shall be required, if
necessary, to give their Assistance for that Purpose ; and it shall be law-
fui for the BIagistrate or Justice of the Peace before whom aiiy such
supposed Offender shall be brought to incluire by al1lawful Ways and
Means into the Case; and a Copy of the Depositions, Minutes of Pro-
ceedings, and al1 other Documents concerning the Transgression shall
be authenticated under the Hand of the Collector of Customs, and shall
'be sent by him to the Britis Consular Agent residing in the Port to
which the Offender's Boat or Vesse1 beloiigs.
Compensation XIV. And be it enacted, That in al1Cast:s where the Breach of any of
for Damage. the said Articles, or of any such Kules or Rye Laws, by any of the Sub-
jects of the King of the Frenchwithin the Limits within which thegeneral
Right of Fishery is by the said Articles exclusively ,reserved to the Sub-
jects of Her Majesty, or.by any of Her hl~~jesty'sSubjects, wlicther or
not within the said Limits, shall have caused any Loss or Dainage to
any other Party or Parties, it shaIl be lawfril for any 3lagistrate or Jus-
tice ofthe Peace before whom the Offence shall be inquired into to take
Evidence of such Loss or Damage, and to award Compensation to the
injured Party, and to enforce Yayment of such Compensatioii, in like
Manner as the Pajment of any pecuniary Penalty for any Offenceagainst
the said Articles may be enforced.
Saivage for XV. And be it enacted, That whenever any fishing Boat, Rigging,
Boats.&c. Gear, or any other Appurtenances of anSi Fishing Boat, or any Net,
Picked uP at Buoy, Float, or other Fishing IrnpLement, shall have been found or pick-
Sea. ed up at Sea and brought into a BritishPort, and shall not be forthwith
delivered to theCollector of Customs, pursuant tothe Sixty-first Article,
it shall be lawful foriiy Magistraie or Justice of the Peace, on Applica-
tion of the said Collector, to issue his Warrant for delivering of the said
Articles to such Collector, who shall take pos.session of the same, and
deliver thesame tothe Owner thereof or his Representative, on Payment
to hirn, for behoof ofthe Salvors, of such Compensation as the said Col-
lector shall award pursuant to the Sisty-second Article.
Conviction XVI. And be it enacted, That no Conviction under this Act shall be
not to be quashed, set aside, or adjudged void or insufficient for IVant of Form
quashed for only, or liable to be removed, by Certiorsri or othenvise, into Her
Want Of Majesty's Court of Queen's Bench, orany other of Her Majesty's Courts
Form. of Record, but every such Conviction shall be final to al1 Intents and
Purposes unless the same shall be reserved on Appeal as herein-after
provided ; provided always, that no Person shall be convicted of any
Offence committed against the Provisions of this Act unless thc Prose-
cution for the same sliall be commenced within Tliree Calendar Months
from the Time of the Commission of such Offence.
XVII. .4nd be it enacted, That, in any Case of a summary Conviction
Appeal.
before any hlagistrate or Justiceofthe Peace, any Person whoshall think
himself aggrieved by the Conviction may appeal to the Court of General
or Quarter Sessions of the Peace to be next holden for the County or
Place wherein the Cause of Cornpiaint shall have arisen, if such Court
shall not be holde? within Twenty-one Days next after such Conviction,
otherwise to the next Court but One, provided thst such Pcrson at the
Time of the Conviction, or within Forty-eiglit Hours thereafter, shall
enter into a Recognizance, with Two sufficient Securities conditioned
personally to appear at the said Session,totry such Appeal, and to abide
the further Judgment of the Court at such Session, and to pay çuch Costs . .
ANSEXES TO U.K. REPLY (NO. A 145) 573
as shall be by the last-mentioned Court awarded ; and it shall be lawful
for the Magistrate or Justice of the Peace by whom such Conviction shall
have been made to bind over the Witnesses who shall have been examincd
in sufficient Recognizances to attend and be examined at the Heai-ing
of such Appeal, and that every such Witness, on producinga Certificate
of his being so bound, under the Hand of the said lllagistrate orJustice
of the Peace, shall beallowed Compensation forhis Time, Trouble, iind
Expences in attending the Appeal, which Comperisation shall be paid,
in the first instance, by the Treasurer of the Caunty or Borough, in like
Manner as in Cases of Misdemeanor, under the Provisions of an Act
passed in the Seventh Year of the Reign of King George the Fourth, 7 G.+.C. 64.
intituled An Act for imfiroving theAdministration oj Criminal Justice
in England ; and in case the Appeal shall be dismissecl, and the Con-
viction affirmed, the reasonable ISxpences of al1such Witnesses attend-
ing as afaresaid, to be ascertained by the Court, shall be repaid to the
Treasurer of the County or Borough by the Appellant.
XVIII. And be it enacted, That in this Act the \tords "British Vessel" Aieaning of
shall be construed to mean every Britishor IrishFishing Vessel or Fish- "British\.'es-
ing Boat, and also every Fishing Vessel or ITishing Boat helonging to sel,"&c.
any of the Islands of Guernsfiy,jersey, Sark, Alderney, or Man, or any
Island thereunto belonging, and the IVords "British Port" shall be con-
strued to mean any Port of GreatBritailz or Ireland,or of any of the said
Islands.
XIX. And be it enacted, That this Act may be amendetl or repealed AC^ may 11e
by any Act to be passecl in this Session of Parliament. arnended.&c.
SCHEDULE to which tlie foregoing Act refers.
REGULATION for the Guidance of the Fishermen of Great Britain and
of France, in tlie Seas lying between the Coasts of the Two Countries ;
prepared in pursuance of tfie Provisions of the EIeventh Article of
tlie Convention concluded at Paris on thezd of August 1839 between
Her hlajesty and the King of the French.
DECLARATION.
The undersigned, HerBritannic Majesty's Principal Secretary of State
for Foreign Affairs on the one Part, and the Ambassador Extraordiiiary
of His hiajestythe King of the French at the Court ofLondon on the
other l'art, having examined the annexed Regulations for the Guidance
of the Fishermen of Great Britain and of France, in the Seas lying be-
tween the Coasts of the Two Countries, which Regulations have been
prepared, in pursuance of the Provisions of the Eleventh Article of the
Convention concluded at Paris on the zd of August 1839 between Her
Britannic hfajesty ancl His Rfajesty the King of the Freiich, by the Two
Cornmissioners duly authorized to that Effect by their said Majestics,
have, in the Name and on the Behalf of Her Majesty the Queen of the
United Kingdom of Great Britain and Ireland, and of His Iiiajesty the
King of the French, and by virtue of their respective full Powers, ap-
proved and confirmed, and do by these Presents approve and confirrn,
the said liegulations ; reserving to their respective Governments, con-
formably to the Terrns of the above-mentioned Article, to propose, if576 ANNEXES TO U.K. REPLY (NO. A 145)
necessary, ta the Legislatures of both Countries the Measures which
may be required for carryirig the said Kegulations into execution.
In witness whereof the undersigned have signed the present Declara-
tion, and have affised thereto the Seals of their Arrns.
Done at London, the Twenty-third Uay of June in the Year of our
Lord One thousand eight hundred and forty-three.
The undersigned, namely,-
011the Part of the United Kingdom of Great Britain and Ireland,
Anthony Ferrier, Esquire, Her Britanriic Majesty's Consul for the
Departments of Finistère, hlorbihan, and Côtes du Nord in France ;
And on the Part of the Kingdom of France, François Lange, Knight
of the Royal Order of the Legion of Honour and Commissary of
Marine of the First Class;
Duly appointed and authorized by their respective Governments to
act as Cornmissioners for the Purpose of preparing a Set of Regulations
for the Guidance of the Fishermen of the Two Countries, in the Seas
lying between the Coasts of the United Kingdom and those of the
Kingdom of France, in conformity with Article XI. of the Conven-
tion between Great Britain and France, signed at Paris on the
zd August 1839 :
Have ageed upon the following Articles, which they submit to their
respective Governments for Approval and Confirmation :-
ARTICLE1.-British and French Subjects fishing in the Seas lying
between.the Coasts of the United Kingdom of Great Britain and
Ireland and those of the Kingdom of France shall conforin to the
following Regulations.
ARTICLE II.-The Limits within which the general Right of Fisheryis
exclusively reserved to the Subjects of the Two Kingdoms respec-
tively are fixed (with the Exception of those in Granville Bay)
ai Three Miles Distance from Low-Water Mark.
With respect to Bays, the hfouths of which do not exceed Ten
Miles in Width, the Three MileDistance is measured from a straight
Line draun from Headland to Headland.
ARTICLE III.-The ;\files mentioned in the present Regulations are
geographical Miles, of which Sixty make a Degree of Latitude.
ARTICL EV.-The Fishery Limits of Granville Bay, established upon
special Priiiciples, are defined in the First Arofcthe Convention
of the Second of August One thousand eight hundred and thirty-
nine,as follow :
The Lines drawn between the Points designated by the Letters
A., B.,C., D., E., F., G.,W., I., K. on the Chart annexed to the
Convention are acknowledged as defining the Limits between which
and the French Shore the Oyster Fishery shall be reserved exclu-
sively to French Subjects ; and these Lines are as follo;that isto
say :- ANNEXES TO U.K. REPLY (NO. A 145) 577
The First Line runs from the Point A., Three Miles from Low-
water Mark (Point Meing:l bearing South), to the Point B., of
which the Land-marks are Agon Tower on witti the Clump of
Trees upon Mount Kuchon, and the Summit of Gros Mont in a
Line with tlie Signal Post on Grand Isle.
The Second Line runs from the said Point B., towards Agon
Tower and the Clump of Treesupon Mount Huchon in the Uirec-
tion North, Sixty-four Degrees East, until at the Point C. it
brings the Windmil of Lingreville to bear due East.
The Third Line runs from Point C. due East towards Lingre-
ville Windmill until the Grand Huguenant is brought to bear on
the Etat Rock at Point D.
The Fourth Line runs from Point D. Northward, and keeping
the Grand Huguenant in one with the Etat Rock, untiI it inter-
sects at E. a Line whose Land-marks are Agon Tower on with
Coustances Cathedral.
The Fifth Line runs Eastwards from Point E. to Point F,,
where the Steeple of Pirou is brought to bear in a Line with the
Senequet Rock.
The Sixth Line runs from Point F., due North, to Point G,,
where the Steeple of Blainville is brought in a Line with the
Senequet Rock.
The Seventh Line runs from Point G. (in the Direction of Pirou
Steeple) to Point H,, where the Lighthouse on Cape Cartei-et
bears North, Twenty-four Degrees West.
The Eighth Line runs from Point H. to Point 1, iiearly abreast
of Port Bail ;Point 1. having for Land-marks the Fort of Port
Bail in a Line with the Steeple of Port Bail.
And finally, the Ninth Line runs from Point 1. to the Three
Grunes at Point K., wherc Cape Carteret bears East, Ten Degrees
North, in a Line with Barneville Churcii.
Al1the Bearings specified in the present Article are to be taken
according tothe true hleridian, and not according to the Magnetic
Meridian.
ARTICLEV.-It is forbidden to British Fishermen'to set their Nets
or to fish in any Manner whatsoever within the French Limits ;
and it is equally forbidden to French Fishermen to set their Nets
or to fish in anjr Marinerwhatsoever within the British Lirnits.
ARTICLE VI.-Al1 British andFrench Fishing Boats shall be numbered.
Thereshall be a Seriesof Nurnbersfor the Fishing Boats belongi~ig
to each Collectorship of Customs in the United Kingdom, and a
Series of Numbers for the Fishing Boats bclonging to each District
of Maritime Registry in France ; and to these Numbers shall be
prefixed the initial Letters of the Names of the respective Collector-
ships or Districts.
ARCollectorships of Customs,ereande in France several Districtsal of
in which Case the initial Letter alone would not suffic;the disti~i-
guishing Letter or Letters for tlie Boats ofeach Collectorshiprir
Districtshall be designated by the Board ofCustoms in the United
Kingdom, and by the Ministry of Marine inFrance.578 ANKEXES TO U.K. REPLI' (NO. A 145)
ARTICLE VII1.-The Letters and Nurnbers shall be placed on each
Bow of the Boat, Three or Four Inches (Eight or Ten CcntimAtres
French) below the Gunnel, and they shall be painted in White
Oil Colour on a Black Ground.
For Boats of Fifteen Tons Burthen and upwards, the Dimen-
sions of these Letters and Numbers shall be Eighteen Inches
(Forty-five Centimhtres French) in Height, and Two, ancla Half
Inches (SixCentimétres French) in.Breadtli.
For Boats of Icss than Fifteen Tons Burthen, the ~Iirnensions
shall be Ten Tnches (Twenty-five Centimètres French) in Height,
and One and Three Quarter Inch (Four Centimétres French) in
Breadth.
The same Letters and Numbers shail also be painted on each
Side of the Main Sail ofthe Boat iii BlackOil Colour on White
Sails, and in WhiteOilColour on Tanned or Black Sails.
Thcse Letters and Numbers on the Sails shall be One Third
larger inevery Way than those placed on the Bows of the Boat.
ARTICLE IX.-In order that the Fishing Boats of Jersey, Guernsey,
and other Islands of the same Cluster rnay be distinguished from
the Fishing Boats of the other British Islands, theNumbers shall
precede the initial Letter of the Narne of thc Island to which such
Boats may belong.
Each of these Islands shallhave a separate Series of Mumbers.
ARTICLE X.-A11 the Biioys, Barrels,and principal Floats of each
Net, ancl al1 other Impiements of Fishery, shall be marked with
the same Letters and Numbers as those of the Boats to wliich they
belong.
These Letters and Numbers shall be large enough to be easily
distinguished. The Owners of Nets orother Fishing Implements may
further distinguish them by any private Marks they judge proper.
ARTICLE XI.-The Letters and Numbers of British Fisliing Boats
shall be insertedon the Licences ofthose Boats, afterharing been
entered in the Registry Book kept at the Collectorship of Customs.
TheLetters and Numbers of French Fishing Boats shall bc inserted
on the Muster Rolls of those Boats, after being entered in the
Registry Book kept at theMaritime Registry Office.
1
ARTICLE XII.-The Licences of British Fishing Boats andtlie Muster
Rolls of French Fishing Boats shall contain the Description and
Tonnage of each Boat, as well as the Names ofits Owner and of its
hlaster.
ARTICLE XII1.-The Fishermen of both Countries shall, when required,
.exhibit their Licences or hfuster Rolls to the Commanders of the
Fishing Cruisers,and to al1other Personsofeither Country, appoint-
ed to superintend the 1;isheries.
ARTICLE XIV.-The Name of cach Fishing Boat, and that of the
Port to which she belongs, shall be painted in \%'hiteOil Colour on a
Black Ground on the Stern of the said Boat, in Letters which shall
be at least Three Inches (Eight Centimètres French) in Height, 'and
Half an Inch (Twelve Millimétrcs French) in .Breadth. AKNEXES TO U.K. REPLY (XO. A 145) 579
ARTICLE XV.-It is forbidden to efface, cover, or conceal, in any
Manner whatsoever, the Letters, Numbers, and Narnes placed on
the Boats and on their Sails.
ARTICLEXV1.-Trawl Fishing may be carried on during al1 Seasons
in the Seas lying between the Fishery Limits which have been fixed
for the Two Countries.
ARTICLE XVI1.-Trawls shall be made with Nets, the Meshesof which
shall be at least One Inch and Three Quarters (Forty-five MilIi-
mètres French)square, from Knot to Knot, along the Line.
ARTICLE XVI1I.-The Length of the Wooden Yard or Beam to
which the upper Part of the Mouth of each Trawl-net shall be
fastened shall not exceed Thirty-eight Feet (Elevcn Mètres Five
hundred Millimètres French).
ARTICLEXIX.-The under Part of the Trawl-net, to a Length of
Ten Feet (Thrce hlètresFrench) fromitsExtremitymay bestrength-
ened by Rubbing Pieces made of old Nets ;but these Rubbing
Picces shall be so fastened that they shall not corsnarrow the
hleshes of the Trawl-net, which must always remain at least One
Inchand Three Quarters (Forty-five MillimètresFrench) from Knot
to Knot, dong the Line,pen and unobstructed.
ARTICL E X.-The Size of the Meshes of any supplementary Nets
which may be added to Trawls shall be at leastTwo Inches (Fifty
MilfimétresFrench) square, from Knot to Knot, along the Line.
ARTICLEXXI.-Such supplernentary Nets shallbe so fitted as not
to cross or narrow the Meshes of the Trawl-net, which must always
rcmain at least One Inch and Three Quarters (Ebrty-five Afilli-
métres French) from Knot to Knot, along the Line, open and
unobstnicted.
ARTICLE XXI1.-The total IVeight of the TITOIrons or Head pieces
of a Trawl sI-ial1not exceed Two hundred and eighty-seven Pounds
(One hundred and thirty Kilogrammes French).
ARTICLX EXII1.- The total Weiglit of Iron Chains or Leadç usedior
loading the Ground Rope of a Trawl shall not exceed One hundred
and ten Pounds (Fifty Kilogrammes French).
ARTICLE XXIV.-T~~W~ Fishing is forbidden in al1 Places wliere
there are Boats engaged in Herringor Mackerel Drift-net Iiishing.
ARTICLEXXV.-Trawl Boats shall always keep at a Distance of at
least Three Miles from al1 Boats fishing for Herrings or Mackerel
with Drift-nets.
ARTICLE XXV1.-Whenevcr Herring or Mackerel Boats shall com-
mence Drift-net Fishing in ri~iyPlace whatever, the Trawl Boats
which rnay be nlready fishing in such Place shall depart therefrom,
and shall keep at a Distance of at Ieast Three Miles from the said
Drift-net Herring or Mackerel Boats.
ARTICLE X.XVI1.-Herring Fishing isfrceal1the Year round.
AKTICI,E XXVII1.-The Meshes of al1Nets used for Herring Fishing
shall not be less than One Inch(Twcnty-five hlillimhtres French)
square, from Knot to Knot, along the Line.
39sgo ANNESES TO U.K. REPLY (NO.-4 145)
ARTICLE X.X1X.-\Thenever decked Herring Boats and undecked
Herring Boats shall commence shooting theirNets at the sarne Time,
the undecked Boats shall shoot their Nets to Windward of the
decked Boats, except they should prefer going to Leeward, to a
Distance of at least Haahlile, to shoot their Nets.
ARTICLE XXX.-The decked Boats on their Part shall shoot their
Nets to Leeward of the undecked Boats, unless they prefer going to
Windward, to a Distance ofat least Half a Mile, to shoot their Nets.
ARTICLEXXX1.-IVhen decked Boats shall arrive on Grounds where
fishing is already begunby other Boats, amongst which shall be
undecked Boats, the decked Boats so arriving shall shoot their
Nets to Leeward of the undecked Boats, except they should prefer
going to Windward, to a Distance of at least Half a Mile, to shoot
their Nets.
ARTICLE XXXI1.-IVhen undecked Boats shall arrive on Gounds
where fishing is alrcady begun by other Boats, amongst ïvhich shall
be decked Boats, the undecked Boatç'so arriving shall shoot their
Nets to Windwai-d of the decked Boats, except they prefer going
to Leeward, to a Distance of at least Halfa Mile, to shoot their
Nets.
ARTICLEXXXII1.-If, however, it should happen that the Spot
should be so near to the Fisherymits of One ofthe Two Countriess are,
that the Boats of the other Country would by observing the above-
mentioned Regulatioiis, be prevented from taking Part in the
Fishery, theaid Boats of the other Country shalbeat liberty to
shoot their Nets at a lessDistance than that prescribed in the preced-
ing Articles for decked and undecked Boat;but such Fishermen
as may take advantage of this Permission shall be responsible for
any Damage or Losses which their drifting may cause to the other
Boats.
ARTICLE XXX1V.-Fishermen of the one Country shall not avaii
themselves of the Circumstances mentioned in the preceding Article,
nor of any other Circumstances whatsoever, to shoot their Nets
within the Fishery Limits of the other Country.
ARTIC ~~LX~.-Whenever set Nets are employed for the Purpose
of taking Herrings, the Boats engaged in this Fisheryshall always
remain over their Nets.
These Boats shall moreover be bound to observe the prohibition
contained in Article LVII. in favoofDrift-net Fishing.
ARTICLE XXXV1.-Mackerel Pishing isfree al1the I'ear round.
ARTICLEXXXVI1.-The Meshesof al1Nets used for Mackerel Fishing
shall not be less than One Inch and One Sixth (Thirty Millimétres
French)square, from Knot to Knot, dong the Line.
ARTICLX EXXVII1.-Tt is forbidden to al1Fishermen to!oad thelower
Parts of Mackerel Drift-nets with Leads or Stones.
ARTICLE XXX1X.-Boats going to fish for Mackerel with Drift-nets
are required, when they shall arrive on the Fishing Ground, to
lower al1Sails, to show that they have taken their 13erths. ANNEXES TO U.K. REPLY (NO. A 145) 581
ARTICLE XL.-The Boats mentioned in the preceding Article shall
keep Three Quarters of a Mile at least apart from one another
when they shoot their Nets.
ARTICLE XL1.-The Meshes of Nets known by the Name of Bratt
Nets shall not be less than Four Inches and One Third (Eleven
Centimètres French) square, from Knot to Knot, along the Line.
ARTICLEXLI1.-The Meshes of the middle Nets of Trammels shall
be at least Two Inches (Five Centimktres French) square, from
Knot to Knot, along the Line.
The hleshes of both of the outer Nets of Trammels shall bc at
léastSix Inches (Fifteen Centimétres French) square, from Knot to
Knot, along the Line.
ARTICLE XLII1.-Fishermen using Uratt Nets, TrameIs, and other
set or anchored Nets shall place Buoyson such Nets, in order that
Vessels sailing in those Places may avoid thern,
ARTICL EL1V.-Such Bratt Nets, Tramrnels, orother set or anchored
Nets shall not, escept in unavoidable Cases, rernain more than
Twenty-four Kours in the Sea without being taken up.
ARTICLES XLV.-Oyster Fishings shnll open otheFirst ofScptcmber
and shall close on the Thirtieth of April.
ARTICLE XLV1.-From the First of May to the Thirty-first of August
no Boat shall have on board any Dredge orother Implement whatso-
ever for catching Oysters.
ARTICLEXLVI1.-It is forbidden to dredge for Oysters between
Sunset and Sunrise.
ARTICLE XLVII1.-The Fishermen shall cul1 the Oysters on the
Fishing Ground, and shall irnmediateiy throw back into the Sea
al1Oysters less than Two and a Half Inches (SixCentimétresFrench)
in the greatest Diameter of the Shell, and also al1 Sand, Gravel,
and Fragments ofShells.
ARTICLE XLIX.-It is forbidden to throw into the Sea on Oyster
Fishing Grounds the Ballast of Boats, or any other Thing whatso-
ever which might be detrimental to the Oyster Fishery.
ARTICLE L.-For the Purpose of distinguishing by Day Drift-net
Fishing Boats from Trawl-Boats, bothshalI carry at the Mast-head
Vanes, which shall be at least Eight Inches (Twenty Centimètres
French) in Height, and Two Eeet (Sixty-one Centimétres) in
Length.
The Colours of these Vanes shall be, for-
British Trawl Roats, Red.
French Trawl Boats, Blue.
British Drift Boats, White and Red. jLp*L
French Drift Boats, White and Blue. [email protected]
It is understood that the Vanes of Drift Boats ~halbe divided
vertically into Two equal Parts, of which the White shall be nearest
to the Mast.
ARTICLE L1.-Tt is forbidden to al1 other Fishing Boats to carry
Vanes similar to those mentioned in the preceding Article.582 ANNEXES TO U.K. REPLY o. A 145)
ARTICLE LI[.-It is forbidden to al1 Boats to anchor between Sunset
and Sunrise on Grounds wherc Herring or MackerelUrift-net Fisliing
is going on.
This Prohibition does not apply to Anchorages which may take
.place in consequence of Accidents ariy other compulsory Circum-
stances, but in such Case the Master of the Boat thus obliged to
anchor shall hoist, so that they shall be seen from a Distance, Two
Lights placed horizontally about Three Feet (One Mètre French)
apart, and shall keep these Lightsup al1 the Time the Boat shall
rcmain at anchor.
ARTICLE LII1.-In order that Boats fishing with Drift-nets may be
easily recognizedat Night, the Masters of these Boqts shall hoist
on one of their Masts Two Lights, one over the other, Three Feet
(One hlbtre French) apart.
These Lights shall be kept up during al1 the Time their Nets
shall be in the Sea between Sunset and Sunrise.
ARTICL EIV.-A11 Fishermen are forbidden, escept in Cases of abso-
lute Necessity, to show Lights under any other Circumstances than
those mentioned in the present Regulations.
AI~TICLL EV.-The Meshes of the various Nets before mentioned shall
be of the prescribed Dimensions, measured when the Net is wet.
ARTICLE LV1.-It is forbidden to use Nets for any other Kind of
Fishing than that for which each of those Nets may be lawfully
employed, with respect to the Sizeof its Meshes, or of its Fittings.
ARTICLE LVI1.-lt is forbidden to set or anchor Nets, orany other
Fishing Implernent, inany Place where Herring or Mackerel Drift-
net Fishing is going on.
ARTICLE LVII1.-No Boat shall be made fast or held on to the Nets,
Buoys, Floats, or to any Part of the Fishing Tackle, belonging to
another 13oat.
ARTICLE LIX-It is forbidden toal1 Persons to hook or lift up the
Nets,Lines, or other Fishing Implemeiits belonging to others, under
any Pretence whatsoever.
ARTICLE LX.-When Nets of different Boats getfou1of each other,
the hlasters of the said Boats shall not cut them, except bp mutual
Consent, unless it sliahave been found impossible toclear them
by other Means.
ART~CLE LX1.-A11 Fisliing Boats, al1Rigging, Gear, or other Appur-
tenances of Fishing Boatsal1Nets, Buoys, Floats, or other Fishing
Implements whatsoever, found or picked up at Sea, shall, as soon
as possiblebe deliveredto the Collectar of Customs,ifthe Article
saved be taken into England, and to tlic Commissary of Marine,
if the Article saved is taken into France.
ARTICLE LXII,-The Collecter of Custorns, or the Commissary of
Marine, as the Case may be, shallrestore the Articles saved to the
Owners thereof, or to their Representativcs.
Theçe Functionaries may, when the Circumstances aresuch as
to cal1 for it, award to the Salvors a suitable Compensation for
their Trouble and Care. This Compensation, which shall in no Case AKNEXES TO U.K. REPLY (s". A 145)
583
esceed One Fourth of the actual Value of the Articles saved, chall
bepaid by the Owners.
ARTICLE LXI1I.-The Execution of the Regulations concerning the
Fittings of Nets and the Size of their hleshes, the Weight and
Dimensions of Fishing Instruments, and, in short, concerrling
every thing connected with the Implements of Fishing, isplaced,
with respect to the Fishermen of each of the Two Nations, under
the exclusive Superintendence of the Cruisers and Agents of their
own Nation.
Nevertheless, the Commanders of the Cruisers of each Nation
shall mutually acquaint the Commanders of the other Nation with
any Transgressions of the above-mentionedRegulations,committed
by the Fishermen of the other Nation, which maÿ come to their
Knowledge.
ARTICLE LX1V.-Infractions of Regulations concerning the placing
ofBoats, the Distances to be observed, the Prohibition of certain
Fisheries by Day orby Night, or during certain Periods of the Year,
and concerning every other Operation connected with the Act of
Fishing, and more particularly, as to'Circumstmces likeIy to cause
Damage shall be taken cognizance of by the Cruisers of both Nations,
whichever rnay be the Nation to which the Fishermen guilty of
such Infractions rnay belong.
ARTICLE LXV.-The Cornrnanders of Cruisers of both Countries shall
exercise their Judgrnent as to the Causes of any Transgressions
cornmitted by British or French Fishing Boats in the Sens where
the saicl Boats have the Right to fish in cornmon ; and wlien the
said Commanders shall be satisfied of the Fact of the Transgression,
they shall detain the Boats having thus infringed the establishecl
Regulations, and rnay take them into the Port nearest to the Scene
of the Occurrence,in order that the Offencernaybe duly estnblished,
as well by comparintg he Dcclarations and caunter Declarationç
of Parties interested,as by the Testimony of those who rnay have
witnessed the Facts.
ARTICLE LXV1.-When the Offence shall not be such as to reqiiire
exemplary Punishment, but shall, nevertheless, have caused Injury
to any Fisherman, the Commanders of Cruisers shall be at liberty,
should the Circurnstances admit of it, to arbitratat Sea between
the Parties concerned, and on Refusa1 of the Offenders to defer to
their Arbitration,the said Commanders shall take botli them and
their Boats into the nearest Port,to be dealt with as stated in the
preceding Article.
ARTICLE LXVI1.-Every Fishing Boat which shall have been taken
into a Foreign Port, under either of the Two preceding Articles,
shallbe Çent back to herown Country for Trial asoan as the Trans-
gression for which she may htive been detained shall have been duly
established. Neither the Boat nor her Crewshall, however, be detain-
ed in the Foreign Port more than Four Days,
'
ARTICLE LXVII1.-The Depositions, Minutes of I)roceediiigs, and
al1 other Documents concerning the Transgression, after being
authenticated by the Collecterof Customs, or by the Commissary
of Marine, according to the Country into which tht: Boat rnay have584 ANNEXES TO U.K. REPLY (KO.A 145) '
been taken, shall be transmitted by that Functionary to the Consular
Agent of his Nation residing inthe Port where the Trial is to take
place.
This Consular Agent shall communicate these Documents to tlie
Collector of Customs, if in the United Kingdom, or to the Comrnissary
of Marine, if in France ; and if, after having conferred with that
Functionary, it shall be necessary for the Interest of his Countryrnen,
he shall proceed wirh the Affair befort: the competent Tribunal or
Magistrates.
ARTICLE LX1X.-A11 Transgressions of these Regulations established
for the Protection of Fisheries in the Seas lying between the Coasts
of the British Islands and those of France shall, iboth Countries,
be submitted to the exclusive Jurisdiction of the Tribunal or the
Magistrates which shall be designated by Law.
This Tribunal, or these hlagistrates, shall also settle al1Differences,
and decide al1 Contentions, whether arising between Fishermen of
the same Country, or between Fishermen of the Two Countries,
and which cannot have been settled by the Commanders of Cruisers,
orby the ConsularAgents-and the Collectors of Customs, or Commis-
'saries of Marine, according to the Country.
The above-mentioned Jurisdiction shall not, however, be under-
stood to apply to hlurder, Felony, or any other grave Crime ; all
such Crimes remaining subject to the ordinary Laws of eacli Country
respectively.
ARTICL .LXX.-The Trial and Judgment of the Transgressions
mentioned in the preceding Article shall always take place in a
summary Manner, and at as little Expence as possible.
ARTICLE LXX1.-In both Countries the competent Tribunal or
Magistrates shall be empowered to adjudge the following Penalties
for Offenceç against the Regulations committed by Fishermen
subject to their Jurisdictio:-
First. Forfeiture and Destruction of Nets or other Fishing
Implernents which are not conformable to the Regulations.
SecondIy. Fines from Eight Shillings (Ten Francs) to Ten
Pounds Sterling (Two hundred and fifty Francs), or Imprison-
ment for not less than Two Days, and not more than One
Month.
ARTICLE LXXI1.-The Use of Nets or other Fishing lmplements of'
which the Fittings, Size of Meshes, Dimensions, or IVeight shall
not be conformable to the Regulations established for each Kind
ofFishery shall subject the said Nets or IrnpleLmentsto Seizure and
Destruction, and the Offenders to a Fine of not less than Eight
Shillings (Ten Francs) nor more than Three Pounds Sterling
(Seventy-five Francs), or to lmprisonment from Two fo Ten Days.
In Cases of Repetition of the Offence, the Fine or Imprisonment
may be doubled.
ARTICLE LXXII1.-A11 Persons shall be condemned to a Fine of from
Eight Shillingsto Five Pounds Sterling (Ten Francs to One hundred
and twenty-five Francs), or to lmprisonment from Five to Fifteen
Days, who either by .Night or by Day, conjointly or separately,
shall offend against the Measures established by the Regulations ANNEXES TO U.K. REPLY (NU. A 145) 585
against those concerning-eace and good Order, and specificalIy
First. The Letters, Numbers, and Names to be placed on the
Boats and their Sails, and on Nets, Buoys, &c.
Secondly. The Vanes to be casried by the Boats.
Thirdly. The Distances to be observed between tlie Boats.
Fourthly. The placing and anchoring of Boats.
Fifthly. The placing or shooting ofNets, and taking them up.
Sixthly. The clearing of Nets.
Seventhly. The placing ofBuoys upon Nets.
Eighthly. Lastly, the Lights tobe shown.
In Cases of Repetition of any of these Offerices, the Fine or
Imprisonment rnay be doubIed.
ARTICLE LXX1V.-In al1 Cases of Assault committed at Sea by
Fishermen on other Fishermen, or whenever they shall have iaten-
tionally caused Damages or Loss, the competent Tribunal or Magis-
traies may condemn the Delinquents to a Term of Imprisonment
Sterling (One hundredDaand twenty-five Francs).eeding Five Younds
Should therc have been at thesame Time any Infringement of the
Regulations, the Imptisonment or Fine above mentioned rnay be
awarded over and above the Penalties to which the said Infringe-
ment shallhave given rise.
ARTICLELXXV.-The cornpetent Tribunal or Magistrates shall,
when the Circumstances are such as to cal1for it, award, overand
above al1 Penalties inflictecl for Offences against the Regulations,
the Payment of Damages to the injured Parties, and shall determine
the Amount of such Damages.
ARTICLE LXXV1.-The Conditions under which tlie Fishing Boatsof
either of the Two Countries shall be at liberty to corne within the
Fishery Limits of the other Country are laid down in the following
Articles, whiclialso specify and regulate the Penalties to be inAicted
for Infraction of the said Articles.
ARTICLE LXXVI1.-The competent Tribunal or hfagistrates shall
exclusively take cognizance (in the same Manner as stipulated in
ArticIe LXIX.) of the Infractions rnentioned in Article LXXVI.
ARTICLELXXVII1.-The putting into the Chausey Islands by
British Oyster Pisliing Boats is regulated by the Six folloaing Arti-
cles.
ARTICLELXX1X.-The putting into the Chausey Islands by British
Fishing Boats, in consequence ofDamage, evident bad Weather, or
any other compülsory Circümçtances, isa Right confirmed by Article
VI1 of the Convention of the Second of August One thousand
eight hundred and thirty-nine.
ARTICLELXXX.-The Expediency of putting in, under any of the
Circurnstances rnentioned in the preceding Article, must naturally
be determined by those Fishermen who rnay find it neccssary to
avail themselves of this Right.
Neverthdes, ~vheneverthe British Fishing Boats shall be able to
communicate with the Commander of the British Station,they shall5s6 ANNEXES TO U.K. REPLY (NO.A 145)
not put in until they are authorized to do by the said Commander's
hoisting the following Signal,-aBlue Ensign at the Mast-head.
ARTICLE LXXX1.-The Commander of the English Station may,
when heshall consider this Measure necessary, authorize the weaker
Boats, which are consequently the most exposed to the Effects of
bad \Veather, to put into the Chausey Islands whilst the other
Boats shall continue to fish.
This Permission çhall be made known by the following Signal,-
a Red Ensign at the Afast-head.
ARshall have authorized the Whole or Part of the British Boats to
seek Shelter in the Chausey Islands, in consequence of the above-
mentioned Causes, he shall give Notice thereof immediately after-
wards to the French Cruisers by means of the following Signals ;
viz.-
For the -4nchorage of al1 the Boats (provided for in Article
LXXX.), a Blue Peter placed under the Blue Ensign at the hIast-
head.
For the Anchorage of the weaker Boats (providcd for in Article
LXXXI.), a Blue Peter placed underthe Red Ensign at the Bfast-
head,
ARTICLELXXXII1.-'ivhenever the Appeararice of the Weather,
although it be not actually stormy at the Time, yet shall be so
threatening that Boats could not gain Shelter ofthe British Channel
Tslands before it cornes on, the British Commander, taking on
himself the Responsibility of the Measure, may authorize the said
Boats to anchor at Chausey, by hoisting a Blue Peter.
This Permission shall, at the same The, be made known to the
French Cruisers by means of a French Flag hoisted at the Mast-
head over the saiclBlue Yeter.
These Flags shall not be hauled down until the French Cruisers
at the Alast-head, an English Flag.nd answered it by hoisting, also
ARTICLELXXXIV.-When British Fishing Uoats put into Chausey
they shall keep together in thesame Ilart of the Anchorage.
Should any compulsory Circumstances prevent their doing so, the
Commander of the Englisli Station shall inforrn the French Station
thereof by hoisting, in addition to the Flagsflying toannouncc the
putting in of the Boats, an Union Jack under the said Flags.
ARTICLELXXXV.-The Fishing Boats of the one Country shall not
approach nearer to apy Part of the Coast of the other Country than
the Limit of Three Miles, specified in Article IX. of the Convention
signed at Paris on the Second of August One thousand eight huiidred
and thirty-nine, except under the following Circumstances :-
First. When driven by Stress of Weather or by evident Damage
to seek Shelter in the Harbour, or within the Fishery Lirnits of
the other Country.
Secondly. When carried within the Limits established for the
Fishery of the other Country, by contrary Winds, by strong
Tides, orby any other Causeindependent of the Will ofthe Master
and Crew. ANNEXES TO U.K. REPLY (NO. -4145)
587
Thirdly. When obliged by contrary Winds or Tide to beat up in
order to reach their Fishing Ground ;and when, from the same
Cause of contrary Wind or Tide, they could not, if they remained
outside, be able to hold on their Course to their Fishing Groiind. .
Fourthly. When, during the Werring Fishing Season, the Herring
Fishing Boats of the oneCountry shall find it expedient to anchor
under Shelter of the Coasts of the other Country, in order to
nwait a favourable Opportunity for yroceeding to their la~vful
Fishery outside ofthe Limits dehed byArticleIX. of the Conven-
tion of the Second of -4ugust One thousand eight hundred'and
thirty-nine.
ARTICLE LXXXV1.-Whenever, in any of the Cases of ~sception
specifiedin the preceding Article, the Fishing Boats of either Nation
shall have occasion to sail or anchor within the Limits defined by ,
the Convention ofthe Second ofAugust Onethousand eight hundred
and thirty-nine, the Masters ofsuch Boats shall immediately hoist a
Blue Flag, Two Feet high and Three Feet long, and shall keep this
Flag flying at the Mast-head so long as they shall remain within the
said Limits; consequcntly this Flag shall not be hauled down until
the Boats are actually outside of those Limits.
These Boats, when within the aforesaid Lirnits, are not only
prohibited from fishing themselves, but are also forbidden to send
their small Boats to fish, even outside of the Limits in question.
They rnust al1(with the Exception of Herring Boats which may be
waiting, as they have the Privilege of doing, for a favourable
Opportunitjr to proceed to their lawful Fishery,) return outside the
said Limits, so soon as the Causes shal! have ceased which obliged
them to comc in under the Cases of Exception specified.
It is further agreed, conformably to the Tenor of the present
Regulations, that the Fishing Boats of the one Country shall not
use the Ports of the other Country for the greater Convenienci: of
their Fishery Operations, either in proceecling from thence to their
lawful Fishery in the Seascomrnon to both, or in returningthereunto
after Fishing ; it being understood, however, that this Stipulation
does not in any Manner impair the Right of putting into Port in the
Case ofException specified in Article LXXXV,
ARTICLE LXXXVI1.-It is forbidden to Herring Drift-net Fishing
Boats to shoot their Nets earlier in the Day than Half an Hour
before Sunset, except in Places where it iscustomary to carry on
this Drift-net Fishing by Daylight.
ARTICLELXXXVII1.-Herring Fishermen, being within the Fishery
Limits of either Country, shall comply with the Laws and Regiila-
tions of the said Country respecting the Prohibit.ion of fishing or1
the Sabbath Day.
ARTICLE LXXX1X.-The Commanders of the Cruiser of each of the
Two Countries, and al1Officersor other Agentswhatsoever nppointerl
to superintend the Fisheries, shall exercise their Judgrnent as to
the Causes of ay Transgressions committed by the Fishing Boats
of the other Country, and when they shall be satisfied of the Fact
of the Transgression they shall detain or cause to be detained the
Boats having thus transgressed the preceding Regulations (fronr588 ANNEXES TO U.K. KEPLY (NO. A 146)
Article LXXVI.), and shall take them'or cause them'to be taken
into Port, ,where, upon clear Proof of the Transgression being
brought by the detaining Party before the competent Tribunal or
, Magistrates, the said Boats so transgressing may be condemned to
be kept fora Period not exceeding Three Months, or to a Fine not
exceeding Ten Pounds Sterling (Two hundred and fifty Francs).
In testimony wliereof the respective Cornmissioners have signed the
present Regulations, and have thereto affixed their Seals.
Done in London, the Twenty-fourth Day of May in the Year of
our Lord One thousand eight hundred and forty-three.
Letter from the Rt. Hon. G. Canning, Foreign Secretary, 12th January
1824, to Messrs. H. Hobhouse and J, Planta, instructingthcm to nego-
tiate with the French Ambassador on the basis of a 3-Mile Limit for the
Oyster Fisheries off the Coast of the Cotentin
Foreign Office,
January 12-1824
Gentlemen]
His hlajesty's Governmeiit, and that of France having respectively
agreed to name Cornmissioners, for the purpose of coming to some ami-
cable adjustment of the differences, which have arisen between the
subjects of the two Countries, respecting the Oyster Fisheries on the
Coast of France, and the Island of Jersey,and you having been selected
to be His Majesty's Commissioners for the adjustment of this question,
1 am to direct you to meet the Prince de Polignac, who haç been named
by His Most Christian JZajesty to treat on the subject,on the part of
the King of France.-
As you are acquainted with the previous discussions, 1 have now only
tostate to you, the principles upon which His Majesty's Government are
willing to corne to finalsettlement of this question.
The basis already proposed of a specifick distance from the Low
Water Mark, appears to be the one, on which the Negotiation, and
Settlement, may be most easily and properly founded.-
It remains then only to agree upon that distance- The proposition
which you. will bring forward on the part of your Govt, is, that each
nation shall possess an exclusive Fisliery within onemarine League from
its own Shore, and that the small Islands of Chausey, although unin-
habited shall enjoy the same privilegein this respect, as the continental
parts of France- the space between these two distances to be left for
the Mutual Fisheries of both countries.- ANNEXES TO U.K. REPLY (NO. A 147) 939
This distance of one Marine League is fixed upoii as being that which
has been most usually adopted by nations, in questions of territorial
jurisdiction in the waters adjacent to their Shores; and it is more partic-
ularly to be enforced in this case from the consideration that if a greater
distance were fixed upon not only would the French Fishermen remain
in possession of the most valuable part of the Fishery, but the two fines
of demarcation would interfere with each other.-
You witl therefore use your best endeavours to obtain thissettlement
from the French Ambassador.-
There would be two ways of applying this line when fixed either
strictly and generally, or hy reciprocal Modification as to particular parts
of the Coast, in which latter case attention will be required to local
intereçts, in respect towhich, much must be left to your discretion.-
Itis however not improbable that a boundary line of land marks, or
Buoys may be proposed as more practicable and better adapted to the
end in view, than a strict adherence in every case to the Marine League ;
if so,you are authorized to consent to such modifications.
Ifin thecourse of the discussions you should find that facilities will be
afforded to an amicable arrangement by imposing on British fishernien
in this part of the channel restrictions as to time and mode ofcarrying
on their employment analogous (as far as they may he found appticable)
to the regulations which are understood to be imposed by the French
Government on it's[sic] own Suhjects, you are at liberty to enter into
a stipulation to that cffect;but you will bear in mind that in order to
meet the general convenience, it will be necessary that these restrictio~is
and regulations should be as simple and distinct as possible.-
In order to put you in possession of the reasoning by which theseveral
points of these instructions are to be supported, 1 enclose a copy of the
report from the King's Advocate General to the Secretary of State for
the Home Department in conformity to which these instructioiis have
been drawn.-
1 am,
Gentlemen
Your hIostobedient
Humble Servant
GEORGE CANNING.
Henry Hobhouse Esqr
&
.Joseph Planta Esqr
&c &c &c
Reasons why a CornrnonOysterFisheryRight does not irnplyorinvolve
a Common GeneralRight ofFishery
I. As was stated in paragraph 68 of the Reply, itis immaterial for the
purposes of the United Kingdom argument whether or not the Govern-
ment ofthe French Republic are right in their contention that a commonright of fishery for oysters must involve a general right of fishery in the
area, and that, therefore, Article 3 of the 1839 Convention must be
read in the sense of conferring on Uritish anclFrench fishermena comrnon
right to participate inl1the fisheries off the hlinquiers andthe Ecrehous.
As the United Kingdom Government hope to have sliewn (piiragraphs
75-80 of the Reply), the French contention about the existence of a bar
to claims of sovereignty would not follow any more from this position
than it would follow from a position in which there was simply a
common right to fish for oysters. Nevertheless, the United Kingdom
Government contend that (in respect of whatever operative effect it
May have had) Article 3 was, in fact, confined to the oyster fishery for
the following reasons :
(a) The whoie Convention, as its title, its preamble and its previous
history (see paragraphs 49-52 of the Reply) indicate, had as its main
purpose the regulation of the oyster fisher-yand the settlement of dis-
putes that lïad arisen about thnt type of fishery.
(6) Article 3 itself in terms relatecl to the oyster fishery only, and it
has been shewn earlier (see paragraph 62 of the Reply) that the second
paragraph of Article g had no application as such to Article 3, and cannot
Iegitimately be read as having such an application by inference.
(c) The technique of the oyster fishery isa distinctive one ; andthere
is, in fact, no physical or adininistrative impracticability aboatposition
in which two countries have common oyster fishery rights in acertain
area, but al1other fisheries are exclusive to one of them. Oyster dredging
is a distinct form of fishing, considerably more ancient than trawling.
The implements used, namely, oyster dredges, comprise a triangular
iron frame with a scraping bar which is towed along the bottom, objects
dislodged by the scraper collecting in the net and wire mesh bag attached
to the back of the dredge frarne. It is contended by some that the trawl
was developed from the oyster dredge by extending its width and depth
of mouth, and by dispensing with the triangular frame, the towing
ropes being attached directly to iron runners held apart by a beam, the
iron scraping bar being replaced by a foot rope. An oyster dredge is
designed to scrape inanimate objects off the bottom. It cannot be used
to catch fish which can easily escape from the shallow bag or avoid the
dredge altogether, since, to work effectively, it must be dragged very
slowly along the bottom. The only other shellfish of commercial impor-
tance which can be taken by oyster dredges are escallops and their very
near relatives "queens". It would clearly be feasible, however, to return
such escallops to the sea sincc they are not damaged in any way during
dredging.
2. The present French view is not one which has invariably been main-
tained by the French authorities, as is shewn by the corrcspondence
which took place in 1884 between the French Minister for Foreign
Affairs, the' Minister of Marine, and the Préfet Maritime of Brest given
in Annex A 46 of Volume II of the United Kingdom Mernorial, and
referred to in the Marquess of Salisbury's Note to Count d'Aubigny of
the 27th October 1887 (Annex A43). In the course of this correspondence,
M. Peyron, the French Minister of Marine, said (Annex A 46) :
"M. le président du conseilpense quela convention du 2 aoUt 1839,
autorise nos nationaux à pratiquer la pêchedes huîtres, près des
Ecrehous, mais que la revendication de propriété de ces roches, ' Tho abovetcxt has been transcribed from thc original I1IS.of the Treaty,
preserved in the Public Record Ofice, London (being the ratificati bynLouis XIV,
mhose signature it bsars). A printed tcxt of the same Article,mith a translation.
is to be found in British and Foveign State Pupers, 1812-1814. vol.i, pt. i.
Pp. 420-421.
a The accents are mostly omitted in the original MS.
uszfdes. ANNEX A 149
Article 3 of the Treaty of Paris, 3rd September1783
[Foreign #fice Treaties, 93181 1
Article 36
It is agreed that the People of the United States shall continue to
enjoy unmolested the Right to take Fish of every Kind on the Grand
Bank, and on al1the other Banks of Newfoundland, also in the Gulph of
St Laurence and at al1 other Places in the Sea, wfiere the Inhabitants
of both Countries used at any time heretofore to fish. And also that the
Inhabitants of the United States shall have Liberty to take Fish of
every Kind on such Part of the Coast of Newfoundland as British Fisher-
men shall use, (butnot to dry or cure the same on that Island) And also
on the Coasts, Bays and Creeks of al1 other of his Britannic Majesty's
Dominions in America, and that tlie American Fishermen shall have
Liberty to dry and cure Fish in any of the unsettled Bays, Harbours and
Creeks of Nova Scotia, Eilagdalen Islands and Labrador so long as the
same shall remain unsettled, but so soon as the same or either of them
shall be settled, it shall not be lawful forthe said Fishermen to dry or
cure Fish at such settlement, without a previous agreement for that
Purpose with the Inhabitants Proprietors or Possessors of the Ground.
The above texthas been transcnbed (rom the original AIS. of the Treaty,
preserved in thc Public Record OfficeL,ondon. A pnnttextof the same Article
isto be found. in Britishaiid ~&ei~n State Papers, 1812-18x4 vol. i,pt. i.
pp 781-782. ANNEX A 150
Norwegian-Swedish Fishery Agreement, 20th December 1950
[St. prp. nr.15(1951 l)
[Nowegian Text] [Swedisk Text]
Overenskomst Üverenskommelse
angAende fiskeriforholdene i visse angdende fiskerifiirhAllandena i
sjaomrader tilhorende Norge og vissa tiü Sverige och Norge
Sverige. horande vattenomraden.
Hans Majestet Norges Konge Hans Majestat Konurigen av
og Wans Majestet Kongen nv Sverige och Hans hlajestatKonun-
Sverige som ansker 5 skape gen av Norge, Som 6nska skapa
sà gunstige vilkar Som mulig for s5 gynnsamma villkor Som moj-
de av deres borgere sorn fisker i ligt for dem av deras under-
grensetraktene, har oppnevnt sStar, som fiska i de till de tva
som sine befullmektigede : landerna gransande farvattnen,
Hans Majestet Norges Konge : hava for sadant andarnàl till sina
Sin Statsminister og fungeren- fullinaktige utsett:
de Utenriksminister Einar Ger- Hnns hlajestat Konuiigen av
hardsen, Sverige :
Hans Majestet Kongen av Sin Utomordentlige och Befull-
Sverige : maktigade Ambassador hos Hans
Sin overordentlige og befull- Rlajcstat Konungen av Norge
rnektigede Ambassad~r hos Hans Hans W:son Ahlmann,
Majestet Norges Konge Hans Hans Majestat Konungen av
W:son Ahlman[n], Norgc :
som etter & ha utvekslet sine Sin Statsrninister och tillforord-
fullmakter Som er funnet i god nade Utrikesminister Ei~iar Ger-
og rett form, er kommet overens hardsen, vilka, efter att hava
om falgende : utvaxlat sina i god och behorig
form funna fullmakter, hava
overertskommit om folja~idearti-
klar :
Artikkel I. Artikel I.
Svenske fiskereskal ha adgang Svenska fiskare aro berattigade
til & fiskp5 norsk fiskerioinrAde att idka fiske norskt vattenom-
ved ytre Oslofjord utenfor en rlde vid yttre Oslofjorden utan for
linje Som g5r fra skjæret ved en linje, Som gCirfr9n skaret vid
sorpynten av Ertholmen i Kauer sydspetsen av Ertholmen i Kauer
til Miritre Heiaflu (Pa. br. 58" till Midtre Heiaflu (58' 56,8'
56,8' 0. lgd. roo 53,4'). OmrAdet* N. ro0 53, 4' 0.). OmrAdet be-
begrenses i vest av en linje gransas i vast av en linje dragen
trukket fra et punkt 2 nautiske frari en punkt belagen 2 distans-
mil 0st av skjæret ved sorpyn- minuter ost om skaret vid sypd-
spetsen av Ertholmen i liauer p5
ten av Ertholmen i Rauer pA
l In accordance with theprovisionosf Articlg oftheAgrccrnent, ratifications
were exchanged in Stockholm on the 17 April1951. ANNEXES TO U.K. REPLY (NO. A 150) 594
Norwegian-SwedishFishery Agreement, noth December 1950
[Translation]
AgreementConcerningthe Fisltery Conditionsin Certain Waters
Belolzgingto ilrorway and Sweden
His Bfajesty the King of Norway and His Majesty the King of Sweden,
wishing to create conditions as favourable as possible for those of their
subjects who fish in the frontier waters, have appointed as theirpleni-
potentiaries :
His Majesty the King of Norway :
His Prime Minister and Acting Minister for Foreign Affairs,
Einar Gerhardsen,
His Majesty the King of Sweden :
His Ambasador Extraordinary and Plenipotentiary to His
Majesty the King of Norway, Hans W :son Ahlmann,
who, having exchanged their full powers and found them to be in good
and true forrn, have agreed as follows :
Article I
Swedish fishermen sIiall have permission to fish in Norwegian fishing
waters in Outer Oslofjord seawards of a linerunning from the skerry
at the south point of Ertholmen in liauer to rnid-Heiaflu (58' 56.8'N.,
IO" j3.4' E.). The area is bounded on the west by a line drawn from a
point two nautical miles east, along the above-mcntioried line, of the
skerry at the south point of Ertholmen in Rauer to a point which lies
four nautical miIes due south from the southernmost skerry in Svennor,
and on the east by a Iine running from a point which lies five and a half
nautical miles weçt of mid-Heiaflu along a line between the Iatter and
the skerry at the south point of Ertholmen in Rauer to a point lying to
the northwest of the light and bell-buoy GrisebAene (5s'55'N., IO"46.7'
E.).595 AXSEXES TO U.K. REPLI' (XII . 150)
den f@rnevntc linje til et punkt nyssnamnda linje till en punkt,
som ligger 4 nautiske mil rett- Som ligger 4 distansminuter
visende syd fra det sydligste rattvisande syd om det sydligaste
skjzr i Sveniior og i ast av en skaret i Svennor, samt i ost av
linje trukket fra et punkt som en linje dragen frb en punkt,
Iigger 5& nautiske inil vest av som ligger 54 distansminuter
Midtre Heiaflu p5 linjen mellom vast Midtre Reiaflu p5 linjen
denne og çkjæret ved sorpynten mellan denna och skaret vid
av Ertholmen i Rauer og til sydspetsen av Ertholrnen iRauer
et punkt Som ligger nordyest och till en punkt, som ligger
for lys- og klokkeboyen Grise- nordvast om lys- og klockbojen
baene (N.br. 58' 55,o' 0. lgd. Grisb&darna (58' 550' N. IO"
10" 46,7'): 46,7' O.).
Artikkel 2. Artikel 2.
Norske hskere skal ha adgang Norska fiskare aro berattigade
til fiske pA svensk fiskeriom- att idka fiske5svenskt vatteiiom-
rAde utenfor en linje Som g8r fra rade utanfor en linje, Som g8r
et punkt Som ligger nordvest for fr8n en punkt, Som ligger nord-
lys- og klokkeboyen Grisebaene vast om lys- och klockbojen
Grisbldarna (56" j5,0' N. IO"
(N.br. 58"55,o' 0.lgd. IO"46,~')
til nevnte klokkeboye (N.br. 46.7 0.) till namnda lys- och
58" 53,o' 0.lgd. IO" 50,o') og klockboj (58'53,o' N. IO" 50' O.)
derfra til et punkt som ligger 6 och darifran till en punkt, Som
nautiske mil rettvisende vest ligger 6 distansminuter rattvi-
fra nordre pynten av @ya h!or~ sande vkt om norra udden av
(N.br. 58" 40,o' 0,lgd.IO" 57,3'). on hlor6 (~8~40.0N. IO" 57,3'0.).
Omrgdet begrenses i syd av en Omrhdet begransas i soder av en
linje trukketfrasistnevntepunkt linje dragen fr&n sistnamnda
rettvisende vest. punkt rattvisande viisterut.
Artikel 3.
Artikkel 3.
Norske og svenske fiskere Som Svenska och norske fiskare,
fisker pBsvensk, respektive norsk vilka bedriva fiske p& norskt
fiskeriomrade, skalrette seg etter respektivesvenskt vattenomrade,
alle de lover og bestemmelser skola ratta sig efter de lagar och
som gjelder for landets egne bestammelser, som galla for lan-
fiskere Som fiskerpP samme om- dets egna fiskare i sarnma omrAde.
rhde.
Forpvrig skal de, uansett Dock skola de, oavsett vilka
hvilke bestemmelser Som gjelder foreskrifter,Som ma gdla for
for landets egne fiskere p& de landets egna fiskare p% namnda
nevnte omrAder, ikke ha adgang omriden, icke aga att pA det
til 3 fiske med fastst3ende garn, andra landets omrade idka fiçke
ruser elIer ruseliknende redskaper med forankrade garn, ryssjor
og heller ikke med krabbe- og eller ryssjeliknanderedskap och
hummerteiner pa det annet lands
ej heller med krabb- och hum-
omràde. mertinor. ANNEXES TO U.X. REPLY (NO, 4 150) 595
Article 2
Xorwegian frshermen shall have permission tofish in Swedisf hishing
waters seawards of a line runnirtgfrom a point lying to the northwest
of the lightand bel!-buop Griseb5ene (58"55' N., 10' 46.7'E.), tothat
bell-buoy (j8 "3'N., IO" 50'E.) and thence to a point lying six nautical
miles due west ofthe northernmost point ofthe island oMar@ (58"40' N.,
IO" 57*3'E.).Thearea isboundecl on the south by a line drawtl due west
from tlielastnamed point.
Article 3
Nonvegian and Swedish fishermen who fish inSwedisk and Norwegian
fishing waters respectively shall conduct themselves in accordance mith
al1 the laxvs and regulations in force for the country's own fishermen
fishingin thesame area.
In addition,without regard to theregulationsin forcefor the country's
own fisliermen in the areaç named, they shall not be permitted to fish
with mixed tackie, bownets or similar tackle nor with crab and lobster
pots in the other country's territory. ANNEXES TO U.K. REPLY (NO. A 150)
Artikkel 4. Artikel 4.
Nye regulerende bestemmelser Nya foreskrifter betraffande
vedrarende fisket i de omrader fisket i de i artiklarna I och z
som er nevnt i artiklene r og z angivria vattenomddena kunna
skal bare kunne utferdiges og utfardas och sattas i kraft allen-
settes i verk etter forutgaende ast i samforst&nd meilan de for-
drgftelser mellom de to regje- dragsslutande parterna.
ringer.
Artikkel 5. Artikel 5.
Fiskere fra begge land skal Det skal vara bade laiidcrnas
fritt kunne ferdes og ankre overalt fiskare tillatet att fritt fardas
i de farvann Som er nevnt i och ankra allestades ide vatten-
artiklene I og 2. ornrLden, som aro angivna i
Dette skal dog ikke vzre til artiklarna r och 2.
hinder for at fiskedfartsyer fra Kid nu sagts, skall dock icke
det ene land Som fisker pB det utgora hinder mot att fiskefartyg
annet lands fiskeriomrade, blir fran der ena landet, Som fiskar
visitert av myndighetene i sist- inom det andra landets fiske-
nevnte land for at disse kan omrAde, visiteras av veder-
kontrollere at de lover og be- borande myndighet i sistnamnda
sternrnelser Som gjelder for fisket landfor kontroll av efterlevnaden
bliroverholdt, Visitasjon kan ogs5 av gallande lagar och bestam-
finne sted f8r A kontroliere atde melser ang5ende fiske. Visitiation
ornbordvaprende p5 fiskefarts- [sic] mi jamval aga rum for
yene ikke foretar noen handling kontroliering av att pii fiske-
Som strider mot vedkommende fartygen ombordvarande perso-
lands svrige lover og bestemmel- ner icke foretaga nAgon handling,
ser, Som f.eks. bestemmelsene Som strider mot vederborande
for vern av landets sikkerhet og lands ovrige lagar och bestam-
bestemmelsene vedrarende smug- melser, sasom foreskrifter till
ling. skydd for landets sakerhet och
Visitasjonen skaldog foreg.pi angaende smuggling..
en slikmate, at den forarsaker Nil namnda visitationer skola
minst mulig avbrekk i fartfiyenes dock foretagas p& sadant satt,
fiske. att de valla rninsta mojliga
olagenhet ifartygens fiske.
Artikkel 6. Artikel 6.
De fartayer sorn driver fiske i De farkoster, som idka fiske i
de farvann Som er ornhandlet i de vattenomrkien, Som angivits
artiklene I og 2, skal være i artiklarna I och 2, skolavara
tydelig merket med nummer og tydligt markta med nummer och
distriktsmerke isamsvar med de distriktsmarke i enlighet med
gjeldende bestemmelser i deres de i deras hemland gallande
hjemland. bestammelserna. ASNEXES TO U.K. REPLY (NO.A 150)
596
Effective new regulations regarding fishing in the areas named in
Articles I and 2 can be prepared and brought into force only as the
result of discussions between the two govemments.
Article 5
Fishermen from both countries may freely travel and anchor anywhere
in the waters named in ArticlesI and 2.
There shallnevertheless be nothing to prevent fishing vesselsfrom the
one country whichare fishin ingthe other country's rvaters from being
visited by the authorities of thelatter country, so that these can ensure
that the laws and regulations in force for fishing are being observed'.
Such visits may also take place toensure that those on board thefisfiing
boats are taking no action contrary to other laws and regulations of the
country concerned as, for example, the regulations for protection of the
country's security and regulations concerning smuggling.
The visit shall nevertheles be made in such a way as to cause the
least possibilnterferencewith the vcssels'fishing.
The vesseIs which fish in the waters described in ArticleI and z shall
be clearly marked with numbers and district markings in ,accordance
with the regulations in force in their own country.597 ANNEXES TO U.K. REPLY (No. A150)
Artikkel 7. Artikel 7.
Oppsynet rned at bestemmel- Tillsynen over efterlevnaden
sene i denne overenskomst blir av bestammelserna i denna over-
overholdt skal utoves av hvert av enskommelse utovas av vardera
de to lands myndigheter innen landets myndigheter inom deras
deres eget omrilde. omrAde.
Hvis myndighetene i det ene Darest myndigheterna i det
land skulle treffe tiltak mot et ena landet finna anledning att
fiskefartsy fra det annet land ingripa mot ett fiskefartyg fràn
eller mot ombordverende p5 det andre landet eller mot om-
et slikt fiskefart~y som folge av bordvarande pA sidant fartyg i
at fart~lyet eller de ombord- foljd av att fartyget eller darA
vzrende har overt rAdt gjeldende ombordvarande overtratt lagar
lover eller bestemmelser pA det eller bestammeIser galIande inom
fsrstnevnte lands fiskeomride, forstnamndalands vattenomr&de,
skal de sorge for at vedkommen- gligger det namnda myndigheter
de myndiglieter i det annet land att utan dr6jsm81 lata darom
blir underrettet uten opphold. underratta vederborande myn-
dighet i det andra landet.
Artikkel 8. Artikel 8.
Begge parier forplikter seg til De fordragsslutande parterna
straks A treffe de tilt& Som er forpliktasig att omedelbart vid-
n~rdvendige for A sikre gjennom- taga de atgarder, Som aro erfor-
f~ringen av denne overenskomst derliga for att sakerstalla genom-
og5 underrettehverandre herom. forandet av denna overens-
kommelse samt ait omsesidigt
darom underratta varandrü.
Artikkel 9. Artikel 9.
. Denne overenskomst skal rati- Denna overenskommelse skall
fiseres, og ratifikasjonsdokumen- ratificeras och ratiiikations-
tene skal snarest mulig utveksles instrumenten skola snarast moj-
i Stockholm. ligt utvaxlas i Stockholm.
Artikkel IO, Artikel IO.
Denne overenskomst trer i Overenskommelsen trader i
kraft ved utvekslingen av ratifi- kraft ioch rned det ratifikations-
kasjonsdokumentene. Den gjel- instrumenten utvaxlüts. Den
der inntil I, januar 1956 og forblir gallande intill den I
fornyes automatisk for I ir om januari 1956 och forlanges auto-
gangen rned mindre den oppsies matisk I &r &t gangen rned
rned minst seks rngneders varsel mindre den av endera parten
av en av partene f0r utgangen uppsages minst sex mhader
av hver periode, fore varje periods utgang.
Ti1 bekreftelse herav har de Tilf bekraftelse harav hava
respektive befullmektigede un- respektive fullmaktige underteck-
dertegnet denne overenskomst nat denna overenskommelse och
og forsynet den rned sine segl. fo[r]sett densamma rned sina
sigill. ANNEXES TO U.K. REPLY (KO. A 150)
597
Article 7
Supervision to ensure that the regulations in this agreement are being
observed shall be undertaken by the authorities of each country within
its own territory.
If theauthoritiesof one country take measures against a fishing vessel
of the other country or against the crew of such a fishing vessel as a
result of the vessel othe crew having transgressed the laws and regula-
tions in force on the first-named country's territory, they shall ensure
that the appropriate authorities in the other country rire inforined
without delay.
Article8
Both parties pledge themseives to take immediately such measilres
as are necessary to ensure the implementation of this agreement antl to
inform each other of the fact.
This agreement shall be ratified and the documents of ratification shall
be exchanged as soon as possible in Stockholm.
ArticleIO
Thisagreement comes into force upon the excliange of the documents
of ratification. It is valid until January rs1gj6 ,nd is automaticnlly
renewed for one year at atime unless itis denounced by one of theparties
at leastsix months before the expiry of such period.598 ANNEXES TO U,K. REPLY (NO.A 150)
Som skedde i Oslo i fyra
Utferdiget i Oslo 20.desember exemplar, varav tvà pi svenska
to5panorskog to pa svensk.hvorav och tv%pi norska, den 20 decem-
ber 1950.
(u) Ehar Gerhardsen. (u) HansW:sonAhEmann.
(u) Ham W:son Ahlmann. (26) Einar Gerhardsen.
Slutpratokoll.
Ved underskrivingen av den Vicl undertecknadet av den
overenskomst Som i dag er overenskommelse, Som i dag
inngatt mellom Norge og Sverige inngattsmellan Sverigeoch Norge
angaende fiskeriforholdene i visse angaende fiskeriforhallandena i
sj0omrQder tilhorende Norge og vissa till Sverige och Norge
Sverige, har undertegnede be- horande vattenomAden hava un-
fullmektigede pB vegne av sine dertecknade fullmak[t]ige B sina
regjeringer gitt fslgende er- respektive regeringars vagnar
klaring : avgivit foljande forklaring.
Det hersker enighet mellom Det rader enighet rnellan de
de to parter om at : tva parterna om foljande.
Uten hensyn til artikkel 3, Orivçett artikel 3, 5t. r, i
forste ledd, den nevnte overens- forenhda overenskommelse aro
komst skal norske og svenske svenska och norska fiskare tills
fiskere inntil videre ha adgang vidare berattigade att 5 det
til p% det annet lands omràde andra landets omrade nyttja de
& bmke de fiskeredskaper Som fiskeredskap, Som de aga bruka
er tillatt brukt ideres eget land, i sitt eget land, dock sà att
dog slik at norske fiskere ikke norska fiskareicke mg fiskamed
skal ha adgang til 2 fiske med snorpvad och annan tràl an
snurpenot og annen tral enn raktrA1 p5 svenskt omrade och
reketralpA svensk omr&de, og svenska fiskare icke rn5 fiska
svenske fiskere ikke skal ha med annan tral an raktral pB
adgang til 5 fiske med mnen norskt omrade. B&da parterna
tral enn reketral pAnorsk omrilde. aro cmellertid eniga om att arbeta
Begge parter er imidlertid enige for attfA till st%ndgenensamma
om 2 arbeide for A fA istand- besthmelser i vad avser mask-
brakt felles bestemmelser for- dimension samt redskapens stor-
sividt det gjelder maskest~rrelse lek och konstruktion.
og redskapenes storrelse og kon-
stmksjon.
Utferdiget i Oslo20. desember Som skedde i Oslo i fyra
1950,i fire eksemplarer, hvorav exemplar, varav tv8 pA svenska
to pi norsk og to pi svensk. och tv8 pLnorska, den 20decern-
ber 1950.
(u) Einar Gerhardsen. (u) Huns W:son AMmann.
(u) Hans W:son AhEmann. (u) EinarGerhardsen. ANNEXES TO U.K. REPLY (NO.A 150) 598
In confirmation of which the respective plenipoîentjarjes have signed
this agreement and sealed it with their seals.
Drawn up at Oslo, December zoth, 1950, in four copieof which two
are in Norwegian and two in Swedish.
[Signed] EIKAR GERHARDSEN.
HANS W: SON AHLMANS.
PROTOCOL
At the signature of this agreement which has to-day been reached
between Nonvay and Sweden regarding the fishing conditions in certain
waters belonging to Norway and Sweden the undersigned plenipoten-
tiaries haveon behalf of their governments gjven thfallo~vinexplana-
tion :
Agreement has been reaclied between the two parties tha:
Without regard to Articl3, first sentence, in the agreement concerned,
Nonvegian andSwedish fishermen shall until further notice have perrnis-
sion to use in the territory of the other country the fishing tackle which
is permitted in their own country except that Norwegian fishermen are
not permitted to fish with purse-nets nor with any trawl other tIian
prawvntrawl in Swedish waters, and Swedish fishermen are not perrnitted
to fish with any other trawl than prawn trawl in Norwegian wati:rs.
Both parties have meanwhile agreed to co-operate in the drawing up
of joint regulations regarding the size of the meshes of fishing nets and
size and constructioof tackle.
Drawn up at Oslo, 20tDecember 1950 i, four copiesof which two are
in Xorwegian and two in Swedish.
[Signedj EINAR GERHARDSEN.
HANS W :SON AHLMANN.599 ANNEXES TO U.K. RICPLY (KO. A 151)
ANNEX A 151
Subsequentpractice and Conductof the Partiesas a guide to the correct
interpretationof a Treaty : Judicial Views expressedin Casesbeforethe
International Court of Justice
In the case concerning the International Status of South-WestAfrica
(I. C.J. Reports 1950, p. 128) the Court expressed the following view
(at pp. 135-6 )
"Interpretations placed upon legal instruments by the parties to
them, though not conclusive as to their meaning, have considerable
probative value when they contain recognition by a party of its
own obligations under an instrument".
In the case concerning the Cornpetenceof the GeneralAssentbly for the
Admission of a Stateto the United Nations (TC..J. Reports 1950, p. 4),
the Court, having rejected recourse to the dravauxpréflaratoi~eo sf the
Charter, went on asfollows (at p. g):
"The organs to which Article 4 entrusts the judpent of the
Organization in matters of admission have consistently interpreted
the text in the sense thatthe General Assembly can decide to admit
only on the basis of a recommendation of the Security Council;
In particular, the Rules of Pracedure of the General Assembly
provide for consideration of the merits of an application ;md of the
decision to be made upon it only 'if the Security Council recom-
mends the applicant State for membership' (Article 125). The Rules
mereiy state that ifthe Security Council has not recommended the
admission, the General Assembly may send back the application
This last step has been taken several times:it was taken in Reso-.
lution 296 (IV), the very one that embodies this Request for an
Opinion".
p. 4),the Court said(atsp.25) :l case (Merits) (1.C.J. Reports I949,
"The subsequent attitude of the Parties shows that it was not
their intention, by entering into the Special Agreement, to preclude
the Court from fixing theamount of the compensation".
This last pronouncement was referred to by Judge Read in his dissenting
judgement in the Asylt~m case (I.C. J. Reports1950 ,. 266), where he
quoted it and said (at pp. 323-4:
"The third test relatesto the understanding of the parties to the
treaty as to its meaning, reflected by their subsequent action. It
may be observed that this Court [in the Corfu Channelcase] relied
upon an examination of the subsequent attitude of the Parties
with a view to ascertaining their intention, when interpreting anII
international agreement . . . . . . . . . . . . , , . ANNESES TO U.K. REPLY (NO.A 151)
600
Judge Read then reviewed the practice of the parties to the Havana
Convention of 1928,and concluded (ofikt., pp. 325-6 )
"It is impossible to escape the conclusion that the Parties to the
Convention have acted over a period of twenty-t~?oyears upon the
understanding that the use ofthe expression 'urgent cases' was not
intended to be a bar to the grant of asylum to political offender....
Accordingly, the Peruvian interpretation fails to meet the third
test[i.e., of subsequentpractice]". ANNEXES TO U.K. KEPLY (NO. A 152)
Article3 of the Truceof London, 16thFebruary1471
[Exclteque?(7'reasuryof Recei$t), Dl'plomatic Documents, No. 540 '1
[Article 3 21 Item Et [p]e[n]dant lesd' treues çeur estat abstinen "de
guer[re] et entrecours de mar[ch]a[nd]ise et cinq [a]ns apres les [djesdit
et Reuocacion
Lesquelz ne pourront estre faiz ne Intimez lucques apres le terme de
dis [alns pro~~T6 VZ a finy passe et accomply Led' tresxpien et nys
souverain seignr Le Roy [de] fra[nce] ne f[era] o[u] souffrera faire par
lui ne par ses subgez soit pour sa querelle ou pour la querelle dautru[y]
aucune descenteguerre hostillite aggression ou Inuasion [au dit Royaume]
dangleterre seigneurie dirlande ville et marche de calais guysnes et
hannes [Ysles] de g[re]nesey Iarzey et aunery l0 [et] autres pais vsles
terres et seigneuries qui sont ou seront tenues et possidees par led'
sr l1 Rob d]a[ngle]te[r]re [ou pa]r sessubgez
The original MS. is in a very poor condition. Xssing words, and missing parts
of words,are shewn insquare brackets. In a few instances, these have been supplied
by the text printed by Rymer. Faderu, &c. (Onginal Ed.), xi.683+0 (p. 684.
for the above Article), fromthe enrollment on the Treaty (French) Roiis, 49 Hen.
VI, m. 4, which, apart from minor uariatians,isthe same.
Vhe substance of this Article is repeated in Art4,iin appropriatelyvaried
language, regaiding a reciprocal undertakingby Henry VI.
alesdites.
abstinence.
"youchajnement.
venant.
' Ledit.
t~esth~es$ia~~.
*nostre.
laThe words "[Ysles ...aunery" are interBned in the originalMS. ; also in
Article 4 (for which, see n.2 above).
l1seigneur. Article 3of TheTruceof London,16thFebruary 1471
[Exchequer (Treasury of Receipt), DifEomaticDocumenk, No. 5403
[Translation]
[Article31Also, and during the said truces relating to astate ofabstinence
from war and to commercial intercoufie, and for hve years after the
renunciations and Revocation thereof, 1Vhichcannot be made, and of
which Notice cannot be given,Until the period of ten years, nest ensuing,
shaIl have expired, elapsed and been cornpleted, the said most christian
andour sovereign lord,The King of france, will not make, or suffer to be
made, by him or by his subjects, either becauseof his own grievance or
the grievance of others, any raid, war, hostile act, aggression or Invasion
(against the said Kingdom] of england, lordship of ireland, the town
and march of calais, guines and hames, [the Islands]of guernsey, Jersey
andalderney [and] other territories, islands, lands and lordships, which
are, or will be, heland possessed by the said lord King of england or by
his subjects.602 ANNEXES TO U.K. REPLY (NO.A 153)
ASNEX A 153
AffidavitofC, W. DuretAubin,forrnerlySoiicitor-General and Attorney-
GeneralforJersey, 18thSeptember 1952,regardingtheJurisdictionof the
Royal Courtof Jersey
1, Charles Walter Duret Aubin, Cornniander of the Order of the
British Empire, of "Belfontaine"inthe parish of Grouvillein the Island
of Jersey, make oath and say as follow:-
I. 1 am a Barrister-at-Law and an Advocate of the Royal Court of
Jersey. I held the officeof His Majesty's Solicitor General for Jersey from
1931to 1936and that of His Majesty's Attorney General for Jersey from
1936 until 1948,when 1retired.
2. The Royal Court of Jersey has cognizance of al1 causes, civil,
mixed and criminal arising within the Bailiwick of Jersey "exceptis
casibus nimis arduis", that is tsay,high treason and disputes arising
between the Governor and the major part of the Jurats.
3. This jurisdiction was first conferred upon the Court by the "Con-
stitutions of King John" and does not extend to causes arising outside
the Bailiwick.
4.TheRoyal Court ofJersey has therefore no jurisdiction in the matter
of a criminal offence committed outside the Bailiwick, even though that
offence be committed by a British subject domiciled or ordinarily resi-
dent within the Bailiwick.
[Signed] C. 13'..DURET AUBIN.
SWORN by the within-named
Charles Walter Duret Aubin
at St. Helier, in the Island
of Jersey, this 18th day of
September, 1952,before me-
[Signed] WEDLEY G. LUCE
Notary Public,
Jersey. ANICESES TO U.K. REPLY (SO.A 154)
604
The Constitutions of King John (rxgg-rz1 6ranted to the Islands of
Jersey and Guernsey
[Philip Falle, Cresarea: Or, an Account of Jersey, The greatest of the
Islands remainirtgto the Crown of Eqzgland O/the ancient Dutchy of
Normandy (2nd Ed. :London, 1734)p~ p, 329-332. Appendix, No. 1]
NUMB. 1.
The Constitutioîzof King John*.
Rot. Hen. 3 Inquisitio facta de Servitiis, Consuetudinibus, & Libertatibus Insul.
de GERESE & Guenrese,& Legibus constitutis in Insulis pcr Dominum
Johan?zernRegem, per Sacramentum Roberti Blondel, Radtdphi
BurneE,&c. qui dicunt, &c.
CONSTITUTIONES gE E'rovisionesconstitute per Dominum Johaw-
nemRegem, postquam Normanniualienata fuit.
Im#rimis, constituit Duodecim CoroîzutoresJuratos, ad Placita &
Jura ad Coronam spectantia custodienda.
II. Constituit etiam & concessit pro securitate Insularium l,quod .
BalEivus de cefero per visum dictorum Coronatorumpoterit placitare
absque Brevi de Novà Disseisinâ factà infrà aniium, de Morte Anteces-
soris infrà annurn, de Dote similiter infrà annum, de Feodo invadiato
semper, de Incumbreio Maritagij &c.
III. Ii debent eligide lndigenis Insularum, per iilinistros Domini
Kegis, & Optimates Patrie ;scilicet post Mortem unius eorum, alter
fide dignus, vel alio casu legitimo, debet substi7.i
IV. Electi debent jurare sine conditione, ad rnanutenendum Sisalvan-
dum jura Domini Kegis & Patriotarum.
V. Ipsi Duodecim in qualibet Insulâ, in absentiâ Jzcsticiariorum, &
uni cum Jztsticiariis cùm ad Partes illas venerint, debent judicare de
omnibus casibus in dictâ Insulâ qualitercunque emergentibus, exceptis
Casibus nimis arduis, & si* quis legitimè convictus fuerit a Fidelitate
Domini Regis tanquam Proditor recessisse, vel manus injecisse violentas
inMinistros Domini Regis modo debito Officiumexercendo.
VI. Ipsi Duodecim debent Emendas sive Amérciamenta omnium
premissorum taxare, predictis tamen arduis Casibus exceptis, aut aliis
Casibus in quibus secundum Consuetudinem Insularum mer& spectat
redemptio pro voluntate Domini Regis & Curie sue.
VII. SiDominus Rex velit certiorari de Recordo Placiti corarn Justi-
ciariis et ipsis Duodecimagitati, Justiciarii curn ipsis Duodecimdebent
Recordum facere ; & de Placitis agitatis corarn Balliv& ipsis Juratis
in dictis Insulis, ipsi debent Recordum facere conjunctim.
* The Original of these Constitutions of Ki~gislost; bu6 they are exfant
in an Inquest of his Son Henry III, which vecites and confirms them.
t Thcrc is hera T~anspositia that perplexes the Scnsc. It oikghtto be, SciIicet
post BIortemunius eorum, vel atio casu Icgitimo, aiter fide dignus debet substitui.
['Recte"InsuIarum".]
[* "ut si(= as when) is probably intended.] API'NEXES TO U.K. REPLY (NO. -4154)
604
ANNEX A 154
The Constitutionsof KingJohn (1199-IZIg ~a,nted to the Islands of
Jersey and Guernsey
[Philip Falle, Casarea : Or, aa Accoant of Jersey, The greatestofthe
Islands remaining do the Crown of England of the uncient Dutchy of
Normandy (2nd Ed. : London, 1734), pp. 329-332 ,ppendin, No. IJ
[Translation]
Inquisition made touching the Services, Customs, ancl Liberties of the ~011of
Islands of Jerseyand Guernsey ,and the Laws established in the IslandsHenry 111.
by John tiie Lord the King, by the Oath of Robert Blondel, Ralph
Uurnel, etc., u7hoSay, etc.
CONSTITUTIONS and Provisions established by John the Lord the
King, after Normandy was alienated.
1. First, he constituted Twelve Sworn[Juratos] Coroners, to keep the
Pless and Rights pertaining to the Crown.
II. He also constituted and granted for the security of tlie Islands tl~at
the Bailifi thenceforthmight, by view of the said Coroners, without a
IVrit, hear pleas of Kovel Disseisin made within the year, of Mort d'Ances-
tor within the year, of Dower likewise within the year ; of a mortgaged
Fee, of Incumbrance of Marriage, etc., at any time.
III. They are to be elected from the Natives of the Islands, by the
Ministers of the Lord the King, and the alagnates of the Land ; towit,
after the Death of one of them, or in other lawful case, another worthy
of trust is to be substituted.
IV. Those elected are to çwear, without condition, to maintain and
preserve the rights of the Lord the King and of the Inhabitants.
V. The same Twelve, in whatsoever Island, in the absencc of the
Justices, and toghether with the Justiceç when they shall corne tothose
Parts,areto judge touching ail cases in the said Island, howsoever arisirig,
except Casesthat are too difficult, as when any shall be Iawfully convictcd,
as a Traitor, of having departed frorn hls Loyalty to thc Lord tlie King,
or of having Iaidviolent hands upon the Ministers of theLord the King
when exercising their Officein a lawful manner.
VI. The same Twelve are to fisthe Fines or Amerciaments of alI the
prernises, the aforesaid difficult Cases only excepted, or other Casein
which, according to the Custom of the Islands, redemption pertains
solely to the will of theord the King and of his Court.
VII. Ifthe Lord the King desire tobe certified touchiiig the Record of
a Plea brought before the Justices and the same Twelve, the Justices
with the sarne Tivelve are to make a record ; and, touching the Pleas
brought beforc the Bailiff and the same Sworn persoiisJuratis] in the
said Islands, the same are conjointly to make a Record. VIII. Quod nuIlurn Placitum infrà quamlibet dictarum Insularurn
coram quibuscunque Justiciariis inceptum, debet estrà dictam Insulam
adjornari, sed ibidem omninb terminari.
IX. Insuper constituit quod nulles de libero Tenemento suo, quod per
annum & diem pacificétenuerit, sin6 Brevi Domini Regis de Cancellariâ,
de Tenente & Tenernento faciente mentioiiem, respondere debeat vel
teneatui*.
X. Quod nullus pro Feioniâ damnatus extrii Insulas przdictas,
Hereditates suas infra Insulas forisfacere potest, quin Heredes sui eas
habeant.
XI. Item,siquisforisfecerit,& abjuraverit Insulam, & postea Dominus
Res pacem suam ei concesserit, Srinfr2i annum & diem abjurationis
revertatur ad Insulam, de Hereditate su2 plenariè debet restitui.
XII. Item, quod nulles debet imprisonari in Castronisi in Casucrimi-
nali, vitam vel membrum tangente, & hoc per judicium Dtrodecim
Coronalorz~m J.uratorum,sed in aliis liberis Prisonis ad hoc deputatis,
SIII. Item, quod Dominus Kex nullum repositzvn ibidem prohibere
debeat nisi per electrionem l'atriotarum t.
XIV. Item, Constitutum est, quod Insutani non debeant coram Justi-
ciariis ad Assisas capiendas assignatis, seualiaPlacitatenenda, respon-
dere, antequam transcripta Commissionum eorundem sub Sigillis suis
eis liberentur.
XV. Itzm, quod Justiciarii per Commissionern Domini Regis ad
Assisas capiendas ibidem assignati, non debent tenere Placitainqualibet
dictarum Insularum, ultrà Spatiumtrium Septimanarum.
XVI. Item, quod ipsi Insulani coram dictis Justiciariis post tempus
predictum venire non tenentur.
XVII. Item, quod ipsi non tenentur Domino Regi Homagium facere,
donec ipse Dominus Rex ad Partes illas, seu infra Ducatum Normannis
venerit, aut aliquem alium per Literas suas assignare voluerit in iisdem
Partibus, ad predictum Hornagium nornine suo ibidem recipiendum.
XVIII. Item, Statutum est pro tuitione & salvatione Insularum &
Castrorum, & maximè quia Insule propè sunt, & juxtà potestatum
Regis Francie, & aliorum iiiimicorum suorum, quod omnesYortus Insu-
larum ben&custodirentur; 8;Custodes Portuum Dominus Rex constituere
precipit, nedamna sibi & suis eviniant*.
* This Article was insertcd to restheViolence of the Gouernors, who having
the whole Power Civil and ~lfililary in their hnnds, invaded Men's Estates, and
$ossessed themselves of tbymlheir sole Authority.
t I knownotruhatiottraO#thisArticl;instead of prohibitshouMundoublcdly
be promovere. By Prrepositus must be meant the Provost in Guernezey,isthe
same Oficer as the Vicontin JERSEY.
* When Henry III confrrmed the Constitutions, PhidepAubigny, JVavden of
the Islands, obtainadSupplement of some other Articles and Concessions about
Trade, which beiag otrouse nt present are here omitted. AKNEXES TO U.K. KEPLY (h'oA 154) 6~5
VIII. That no Plea begun within whichsoever of the said Islands before
whomsoever of the Justices, is tobe adjourned without the said Island,
but there to be wholly determined.
IX. hforeover, he established that no one,touching Iiis free Tenement,
which he shall have held peaccably for a year and a day, without the
Writ of the Lord the King from Chancery making mention of tlie Tenant
and the Tenement, is to answer or be held.
X. That no one condemned for Felony without the Islands aforesaid,
can forfeit his Inheritance within the Islands, so thathisHeirs may not
have it.
SI. Also, if any shall forfeit, and abjurethe Island, and aftenvar.1~
the Lord the King shall grant him his peace, ancl nithin a year and
a day of his abjuration he shall return to the Island, he is to be fully
restored as touching his Inheritance.
XII. Also, that no one is to be imprisoned in the Castle except in
a criminal Case touching life and limb, and thiç by Judgement of the
Twelve Sworn Coroners, but in other free Prisons appointed for this
purpose.
XIII. Aço, that the Lord the King is to have no Provost there uniess
by election of the Inhabitants.
XIV. Also, it was Establiçhed, that the Islanders arc not to answer,
in the presence of the Justice zippointed to take Assizes, or to hold
other Pleas, before the transcripts of the snme Commissions shall be
delivered to them under their Seals.
SV. Also, that the Justices appointed by the Commission of the
Lord the King to take Açsizes there, are not to hold Pleas in any of
the said Islands, beyoiid the Space of three Weeks.
XVI. Alço, that the said Islanders arc not bound to come before
the said Justices after the period aforesaid.
SVII, Also, that they are not bound to do Homage to the Lord
the King, until the Lord the King himself come to those Parts, or comc
within the Duchy of Norrnandy, or desire,by his Letters, to appuint
some other person inthe same Parts,t8 receive the aforesaid Homage
in his name.
XVIII. Also, it is Enacted for the protection and security of the
Islands and Caçtles, and especially because the Islands are iiear, and
hard by the power of the King of France, and of others of their enemies,
that al1 the Harbours of the Islands should be well guarded ; and the
Lord the King commands them to appoint Custodians of the Harbours,
Iest hurt should come to hirnself and his.606 ANXEXES TO U.K. REPLY (SO. A 155)
Affidavitof H. V. Benest, Sergent de Justice and Acting Viscount of the
Island of Jersey,12th September1952r ,egardingthe holding of Inquests
on Corpses within the Bailiwick
1, the undersigned; Herbert Vyvian Benest, Sergent de Justice and
Acting Viscount of the Island of Jersey, make oath and Say as follow:-
I. That the law of Jersey has for centuries requircd the holding of
an inquest on any corpse found ~vithin the territory of the 'Bailiwick
where it was not clear that death \vas due to natural causes.
2. That Philippe Le Geyt, Lieutenant Bailiff of Jersey frorn 1676
to 1692, in an unpublished work on "les l'rivil&ges, Lois et Coûturnes
de l'Isle de Jersey", known to Jersey lawyers as "Le Code le Geyt",
wrote (Livre 5, Chapitre 4, Article IO) :
"Les corps de gens péris par quelque accident subit ou violent
ne doivent être dépouillez enterrez ni transportez avant que la
Justice les ait vus, sur telle peine ou amende qu'ylpourra échoir.
A cet effet le Vicomte par mandement et commission du Bailli
descend promptement sur les lieux. 11y produit une enquéte de
12 Hommes qui font serment de visitcr le cadavre et de rapporter
s'ils croyent en leur conscience que la iilort est arrivée fortuitement
ou par aide d'autruy ou de soy même et le Procureur du Roy y
doit estre présent ou l'Avocat en son absence." ;
and in his publishecl work, "La Constitution, Les Lois et lcs Usages
de Jersey" in the Chapter entitled "De la Levée et Visitation des
Cadavres" (Tome II, page j55), he wrotc :
"A Jersey la levéeet visitation se faiten présence des gens de
laReyne, par le ministère du Vicomte ct d'une enquête de douze
hommes".
3. That the present practice is esactly :ts stated byLe Geyt, escept
that there has of recent years been a departure from the rulc that the
inquest should be helcl at the place wherc the corpse was found : it is
now custornary to remove the body to the General Hospital, if the
Bailiff so permits,and to hold the inquest there.
4. That the ordering of an inquest is in no way affectby the question
whetller or not the deceased was a British subject or resident in Jersey,
the determining factor being, as is stated above, whether or not the
corpse was found within the territory of the Bailiwick.
[Signed] H. V. BENEST
Sworn by the within-named Acting Viscount.
Herbert Vyvian Benest,
at Sr Helier, Jersey, tliis
1ztf1day of September
1952, before me :-
[Signed] HEDLEYG. LUCE
Notary Public
Jersey Affidavitof P. E. Le Couteur,Judicial Greffier of the Island of Jersey,
20th August 1952, regardingthe Registrationof Deeds in the Islandof
Jersey
I the undersigned Philip Edgar Le Couteur, 'Judicial Greffier of the
Island of Jersey, make oath and say as follows :-
I. That by virtue of my said office1 am Registrar of Deeds of the said
Island.
2. That, subject to the laws of the said Island relating to quadragc-
narian possession, that is to Say, peaceful and uninterruptecl
possession over a period of forty years, the titleto al1realpro-
perty situate within the Iimits of tlie jurisdiction of the Royal
Court of the said Island passes by matter of record.
3. That the Registry of Deeds of the said Island was established in
pursuance of an Ordinance of the States ofthe said Island dated
the 24th July, 1602. which provides that a11deeds relating to
real proyerty, which shall be passed before the Bailiff, or his
Lieutenant, and two or three of the Jurats of the Royal Court,
shall be engrossed and registered.
4.That the said Ordinance is re-enacted in al1essentialparticulars by
the Code of Laws for the Island ofJersey approved of, ratificd
and confirrned by Order in Council of the 28th March, 1771.
5..That Article 8 of the "Loi (1891 )ur l'admission des Ecrivains"
provides that such deeds shall be presented to the Bailiff only
by the Attorney General, the Solicitor General, or one of tlie
Advocates or Solicitors of the Royal Court.
6.That the parties to such deeds must appear before the Bailiff, or
his Lieutenant, and two or three of the Jurats of the Royal
Court and swear that they will neither act nor cause anyoni: to
act against theterms of the deed upon pain of perjury.
7. That such deeds, which are not signed by the parties, are then
signed by the Uailiff and the Jurats before whorn tlie parties
have appeared.
8. That such deeds are then handed to the Registrar of Deeds for regis-
tration and, after having been registered and sealed with the
seal of the Bailiwick, are delivered to the party entitled to the
possession thereof.
g. That the said Ordinance and the said Code ofLaws provide that al1
such deeds, if not registered,shall be nul1 and void.
[Signed] P. E. LE COUTEUri
Judicial Greffier.
Sworn at St. Helier, Jersey,
this20th day of Auguçt,
1952, before me.
[Signed] HEDLEY G. LUCE
Notary Public, ANNEXES TO U.K. REPLY (NO. A 157)
608
Letter from Mr. R. S. B. Best, Agent for the Governmentof the United
Kingdom, to ProfessorT. F. T. Plucknett, Professorof Legal History in
the University of London, 24th July 1953, requesting an Opinion upon
the Effectof a GiftinFrankalmoin, and uponthe Natureof an Advowson
and of Qzco Warrant0 Proceedings, in Medieval Law
FOREIGN OFFICE,
London. S.W. I.
July 24; I9j3.
Uesr Professor Plucknett,
1 enclose herewith copies of the written pleadings which have so far
been exchanged between the Government of the United Kingdom of
Great Rritain and Northern Ireland on the one hand and the Govem-
ment of the French Republic on the other hand in the case of the Min-
quiers and the Ecréhous, which is at present before the International
Court of Justice at TheHague. Oral hearings in the case are due to begin
on September 17.
From a perusal of the pleadings so faexchaiiged, you will be able to
see that the parties are at issue on certain questions of medieval law.
These are principally as follows:
(1) The eoectzuzdermedievallaw of a gijt in jrankalmoin.
In Annex A 7 to the United Kingdom Memorial isgiven the text of a
Charter iri which one, Piers des Préaux, wIio had been given a grant of
the Islands of Jersey, Guernsey and Alderney and certainother lands by
King John of England (see Annexes A 8, A g and A IO to the United
Kingdom Memorial), granted in 1203 to the Abbey of Val-Richer, which
was situated near Lisieux in Normandy, "the island of 'Escrehou' ".
It is stated in paragraph126 of the United Kingdom Memorial that this
grant was a "subinfeudation", which is there definedasa "sub-grant of
property which he 1i.eP.iers des Préaux] held as feudal tenant of an
overlord."
On page 385 lof the French Counter-Mernorial, however, it is stated:
"For the decision of the present dispute it isimportant to note
that this gift was made in free, pure and perpetual alms (inliberam
et pzcramet fier$etr~amélemosynam). Jn the law of the period the
term 'alms' coverecl any donation made to n church. 'îhe aIms were
said to be frank and free when they made the gift into a freehold,
liberated from any feudal tenure : it only required a service of
prayers. Cf. E. Blum : Les origines du bref de lai et d'audne in
Travaztx de lasemaine d'histoiredudroitnormand, 1923, p.371 etseq.
"Piers de Préaux's gift was therefore not a sub-infeudation, as
the British Mernorial Statesinparagraph 126. The effect of the free
alms was to sever the eartier feudal link. Henceforth, the island of
' The pagination of the Counter-Mernorial given here (and subsequentis)
thatofthe French tex:the translation, however. is by the Registry of the Court. ANNEXES TO U.K. REPLY (NO. A 157) 609
Ecréhouhad no other temporal lord than Notre Dame de Val Richer,
which possessed it in full oumership, as a freehold. It was no longer
part of the fiefof the islands."
Thiscontention of the French Counter-Mernorial is dealt with at lerigth
in paragraphs 145 to 153of the United Kingdom Keply, paragraph 1j3
summing up the United Kingdom Government's argument as follonrs :
"To sum up, a gift in 'frankalmoin' did not free the land sogranted
from the rights of the superior lord from whom the grantor held it ;
the gift could not have this effect even if those rights u7ereço
valueless that the superior lord would suffer iio real loss. Only
the superior lord himself could give his rights away. In the present ,
case, Piers could not give away John's rights, and ti-iereis no
evidence that John himself gave them alvay, either by concurrence
in Piers' grant or by separate grant. Piers des Préaus's grant,
therefore, cannot have had the effect for which the French Counter-
Memorial contends."
On pages 697 and 668 l, however, of their liejoinder, the Government of
the French Kepublic re-affirm their contentions in regard to the effect
of this gift. But you will see that, while maintaining that the grant in
frankalmoin removed the Ecréhous from the fief of the Islands, thc
Rejoinder admits that the superior lord retained his rights because the
grantor could not give greater rights than he himself had. But it is theri
suggested that although, for these reasons, the Ecréhous continued to
depend on King John as Duke of Normandy, they dirl so through the
intemediary of Val-Richer ;ancl that when, with the conquest of Nor-
mandy by France, theright lode~nand allegiuncefrom Val-Richer passed
to the King of France, the Ecréhous did so too.
1 think' it would be of great assistance to the Court, whicli is here
confronted with a difference of view between the parties as to tiie effect
under medieval law of a certain type of grant, if you could set out shortly
your understanding of the law operating in England, Normandy and the
Channel Islands during this period in regard to tenurcs generallp, and
particularly in relatioii tagrant such as that made by Piers des Préaux
to the Abbey of Val-Richer, and as to the merits of the French co~iten-
tion described above.
(2) The nature of an advowson and of 'Quo Warranto' proceedings in
medieval law.
In Annex A ra to the United Kingdom hlemorial is given the text of
an Assize Roll containing certain Quo Warrawto proceedings relating to
the Priory of the Ecréhous Islets, which took place in 1309. The signi-
ficance to be attached to these proceedings is disputed between the
parties (see United Kingdom Mernorial, paragraphs 12s to 130 ;French
Counter-Memorial, pages 388to 391 ; United Kingdom Reply,paragraphs
154to rgg ; French Rejoinder, pages 698and 699).In the United King-
dom Memorial an advowson (advocatio)isdefined as "a right ofpropeity
entitling the owner to present to an ecclesiastical office" (paragra128),
and it is stated (paragraph 129) that :
' The pagination of the Rejoinder given here (and subsequenisthat ofthe
French text.610 ANNEXES TO U.K. REPLY (NO. A 157)
"The fact that the Abbot was required to answer for the advow-
son of the Priory establishes that the King of England and the
Justices believed the Ecréhous to be part of the King's territory :
had it been otherwise, the Justices woiild have had no jurisdiction.
And it raises a probability that, in the opinion of the King's advisers,
any right which tlie Abbot might have in the Ecréhous was held
directly of the King : the King claimed the advowson as his right,
thus asserting tliat, unless the Abbot could shew title to it, it
belonged to the King. In the absence of evidence to the contrary,
the advowson of a church belonged to tlie oumer of the land on which
the church stood ; the King was therefore asserting, not merely that
he was the lord of whom the Ecréhous were held, but further that,
unless the Abbot could shew title, he (the King), Ras the imrnediate
lord of the Islets. This assertion can only mean that the Ecréhous
had always been part of the demesne of the Crown iii the Channel
Islands, and that, thougli they might be included in grants to
IVardens like Piers, when such grants determined, the Isletç reverted
to the demesne of the Crown. What happened, in short, u7as that
the King's advisers, finding a church on land which they believed to
be part of the King's own demesne, claimed the advowson."
The point which it was sought to rnake in this passage was that, if the
King owned the Ecrbhous in demesne (i.e. as what we should now cal1
the private law owner) as well as having sovereignty over tliem, then he
would automatically own the advowson of any church situated on the
Ecréhous unless someone else could shew a better right to it. But the fact
that he did not own the land in demesne(ifsuch should be the case)would
not in any way mean he was not the political sovereign or suzerain of
the Islets ; and the Quo Warranta proceedings were in themselves the
evidence of the latter, since they constituted +er se an assertion and
exercise of territorialjurisdiction.
These contentions are denied in the French Counter-Mernorial, where,
apart from asomewhat different meaning being given to the term advo-
catio',it is asserted on page390 that "the King [i.e., of England]was not
entitled to the advowson of the priory of Ecréhou" (leroi n'a pas qualité
pour se dire avoué du prieuréd'Ecréhou),and that the proceedings of
1309 are a proof of that assertion. These arguments are reaffirmed on
pages 698and 699 of the Rejoinder, despite the answers to them given in
paragraphs 154 to 158of the United Kingdom Reply.
You will see from this that the parties are somewhat at cross-purposes,
for it was never the United Kingdom contention that the question of
sovereignty depended on whether the King himself held 'the advowson.
The view put forward in the French pleadings really dealswith adifferent
point from that contended for in the United Kingdom pleadings, which
was that, irrespective of the outcomeof the Quo Warranto proceedings,
they constituted in themselves an exercise of territorialjurisdiction
over, or in respect of, the Ecréhous.
Advocatio is translated as avouerie, and it is stated 390)that "L'avoué
était un laïc qui était chargé de la défense d'unétablissement ecclésia:tilue
avait la garde dces[sicbiens et percevai$ ce titre diverses redevancParfois
il avait un droit de patronage qui lui permetdeidésigner le chef de l'établis-
sement ou tout au moins d'approver sa nomination." ANNEXES TO U.K. REPLY (NO. -4 157) 611
The parties are, therefore, at issue as to (a) the ~neriningof tlie term
advocatio,and (b) thecharacter of theQuoWarranto proceedings of 1309.
Accordingly, 1 feel it wouldbe of assistance to the Court if you could
explain the term advocatioas understood according to the law of the
period, and alsodescribe the nature ofQztoWarranto proceedings gener-
ally, particularlinrelation to the proceedings of 1309and to the question
whether those proceedings did ordidnot constitute an exercisc of terri-
torial jurisdiction over the territoron which the church which was
the subject matter of the proceedings stood.
Yours sincerely,
R. BEST.
Professor T. F. T.Ylucknett,
Professor of Legal History ithe University of Loiidon,
The University of London,
W.C.1.
The University of London.
The Senate House.
London, W.C. I
19 Aupst, 1953-
Dear Mr. Best,
On 24 July last you sent me two questions of mediaeval law. 1 hiive
studied tliem carefully, and have pleasure in encIosirig a noteof the
results which 1have reached.
Yours sincerely,
T, IF. T. I'LUCKNETT
R. S.B. Best, Esq.,
The Foreign Office,
London, S.W. 1.
Question 1
THE EFFECT UNDER MEDIAEVAL LAW OF A GIFT
IN FRANKALMOIN
I The answer ta this question is not really difficult ; but for reasons
which will appear, it is necessary to consider a passage in the French
Contre-Mémoire as a preliminary to the discussion ofthe substance of
the question. It occurs on page 385, and the foilowing is the translation
by the Kegistry Saveas to the wordalleuEnglish common law has neither
the word nor the thing, and historiansake use of "alod"to express the
French alleu and the Latin alodzrm.
"The alms were said to be frank and free when they made the
gift an alod, liberatedfrom any feudal tenure :itonly requireda
service of payers. Cf. E. Blum : Les originesdu bref de laiet
d'aumône in Z'ravauxdela semaine d'histoirdu droitnormand, 1923,
p. 371 etseq.
Piersde Préaux'sgift was therefore nota sub-in feudation,açthe
British Mernorial states in paragraph 126. The effect of the free
alms was to scver the earlier feudal link. Kenceforththe island of612 ANXEXES TO U.K. REPLY (ND. A 157)
Écréhouhad no othertemporal lord thaii NotreDamede Val Richer,
which possessed it in full ownership, as an alod. Itwas no longer
part of the fiefof theislands."
The argument of the Contre-Mémoireis therefore this : free alms creates
an alod ; an alod is outside the system of feudal tenures : therefore
Ecréhou ceased tobe held feudally of king John. In order to understand
alms (aumône, elemosyna), we are compelled by this line of argument to
consider alod (alleu, alodizrm.
2 Feudalism is primarily the social and legal system which grew up
between the Loire and the Khine, which is its classical home. Thence
it spread far and wide, but not everywhere. In parts of France, especially
in the south, there was much land which never became feudal, but
retained its ancient Roman character. Its owners still enjoyed,the abso-
lute property derived from the Roman dominium. In particular, they
owed no homage, fealty, customs or services to any lord ; the devolution
of their alleuwxas not governed by feudal custom (which was gcnerally
primogeniture) ; and their alleacxwere freely alienable without obtaining
any licence or paying ariy feudal due.
This of course does not mean that every piece of alodial land was an
independent sovereign state (even the Roman dominikm was not as
large asthat), and the French crown immediately asserted its paramount
rights of administering justice throughout the realm, whether a locality
was fief or alod. The result is thus expressedby Olivier Martin, Histoire
de la coutume de Paris, 1. p.221-
" ...l'indépendance de l'alleu s'entend au point de vuedu domaine, .
de la propriété,mais non au point de vue de la juridiction. L'alleu
peut en effet relever d'une juridictioii supérieure, êtreinclus dans
un ressort, quoiqu'étant indépendant de tout fief.
Ainsi subordination en ce qui concerne la justice, franchise abso-
lue en ce qui concerne la propriété, tels sont les deux traits qui
caractérisent la condition juridique de l'alleu."
Even a weII-authenticated alod, 'therefore, is not necesarily exempt
from royal and seignorial jurisdiction.
3 \Ve now corne to the staternent of principle contained in the passage
from the Contre-Mémoire set out in yaragraph r supra, nameIy, that
a gift in frankalmoin converted the land into an alod and dissolved the
feudal bond. The French case relies heavily on this principle, drawing
from it serious consequences and appIying them to the specific problem
of Ecréhou. Itis unfortunate thatthe Contre-Mémoirecites no authorit
for this crucial dogma ; the reference to Edgar Blum's article whic ii
immediately follows is not helpful, for Bltim says nothing.at al1 about
alod.
In fairness to the French argument it has therefore been necessary
to ascertain the historical basis of the dogrna that a gift in frankalmoin
dissolved the feudal bond. The dogma seems to be old, although nowhere
near so old as the critical date1203, and a certain amount of authority
(although not very good authority) can be adduced for it.
4 The story seems to begin with the Somme Rurale written about
1397 by Jean Boutillier. He does not state the principle, but he uses
language which was used by later writers who based the completed ASNEXES TO U.K. REPLY (lio.A 157) 613
dogrna upon it. The passage occurs in part I of his Somme, on folio
151 b of the edition of1538, and is thus printed :
"Tenir par aurnosne si est tenir ce qui est donne a lesgtisc par
telle rnaniere que le donneur tout si franchement a donne que
lesglise en est pure possessoresse sans moyen et ne le tient que de
Dieu ; e ainsi nestoit que le don fust consenty et amorty de prince
dont en souuerainete ce est tenu : car lors nen doit lesglise relief
seruice ne redeuance suppose que ce soit fief en noble tenement."
(To hold by alms is to hold that which is given to the church in
such wise that the donor has given everything so freely that the
church has pure possession of it without intermediary and holds
it only ofGocl;and it would not be thus unless the gift were approved
and amortised by the prince of whose sovereignty it is held, because
thencefonvard the church would owe for it no relief, service or due-
supposing that it were a fief in a noble tenement).
5 Two centuries after Boutillier, this idea was taken up by an even
more influential and popular writer, Antoine Loisel, who publishecl his
Instiizdes coutzimièresin1607. This work is in the form of adages or
maxims which the author calls "rules" (règles)d,rawn from alarge variety
of customary and Roman sources. Règle84 (in the numbering of the
last ecIition o1846) lisas foIIows :
II
Tenir en niainmorte, franc-alleu, ou franc aumôiie, est tout un
en effet."
(To hold in mortmain, free alod, or free alms, is al1 one in effect).
Here at last, theri, four hundred years aftethe donation of Écréhou,
is the explicit statement of the dopa that the cffect of free alms and
of free alod, is just the sarne.Ewn so, the coroilary is notyet draivn
that such a gift dissolves the feudal boncls-apparently a rnuch more
recent deduction frorn Loisel's rule.
6 The Institutes of Loisel have been commented upon by a number of
eminent French lawyers at various dates, but they al1concur in holding
that règle84 can only be accepted subject to serious c~ualifications,antl
it is significant that the editors of the last edition cite against Loisel's
thesis the Custom of Norrnancly (this will be considered in due course).
Modern historians likewise have reservations to makc. For example,
Paul Cauwéswrote thus in the article "Aumdnc"in the Gvrsnde Eizcy-
clopédie:
'Il n'y a entre l'alleu et la franche aumone qu'une ressemblance
extérieure,A cause de l'exemption des devoirs féodaux. C'est en
s'en tenant à cette ressemblance extérieure que Loisel a pu écrirde
son c8té :'Tenir en mainmorte, franc-alleu, ou franc aumane, est
tout un'(Loisel, RègJe84). Mais ,ous la plume de Loisel,I'assimila-
tion des franches aumanes aux alleux était loinde signifier cette.
franchise absolue dont parle Boutillier. Pour lui, l'alleu, pas plus
que lafranche aumône ou le fief amorti, n'échappe i la seigneurie."
(Between the alod ancl free alms there isonly a superficial resem-
blance due to the exemption from feudal dues, It was in reliance
upon that superficial resemblance that LoiseI, on one hand, could
write : "To ho1d.h mortmain, free alod, or free alms is al1 one"614 ANNEXES TO U.K. REPLY (NO. A 157)
(Loisel, Règle84). But under Loisel's pen, the assimilation of free
alms and alods was far from meaning that absoiute freedom of
which Boutillier speaks. For him, the alod does not escapefrom
lordship any more than free alms or the fief in mortmain).
Therc is no need to assembly further opinions here, for the French
Dziplique, page 697, has reached substantially the same conclusions as
those indicated here, nameIy, that free alms was nevertheless a tenure,
that the service of prayers was due from it, that the analogy with alocl
was only 'une qomparaison approximative', that there was still a feudal
lord of whom Ecréhou was held, etc. The foregoing remarks are never-
theless necessary because they show how unsatisfactory isthe approach
to this question through Boutillier and Loisel, especially since much
more solid grounds for a decision exist in Xorman law itself. It must be
remembered that Boutillier and Loisel, each in his generation, was
writing a general law book at a time when there was in truth no
general French law but oiily a number of different customs. The prac-
tical solution of any legal problem (such as the question of Ecréhou)
must be sought in the precise rules of its local law, and not in the
debatable generalitiesof writers who were making brave attempts,
many centuries later to Romanise or to unify French law.
The conclusion seems to be, therefore, that the rule about free alms
being the same thing as frec aIod ought to be eliminated from this dis-
cussion, with al1 its corollaries, because(la)it is several centuries later
than the facts concerned, (b) it has received constant and seyere criticism,
(c) even taken at its face value, it does iiot prove that Ecréhou was
not held feudally, and above aIl,because (d) it is to Xorman law that
%vemust look, and not to idealised staternents of generaI latir.
7 So we now reach the he:irt of tlie cluestion:What was the effect of
Piers' donation of kcréhou according to Norman law in tlie year 1203
when it was made ?Norman law of that epoch is very richly documented
and has been studied in detail by a succession of erninent historians.
There is for example the very thorough work by H. Lagouëile: La
conception féodalede la p~ofiriétéen Normafidie (1902) who introduces
his discussion of free alms tiius :
"Il s'en faut de beaucoup cependant que l'aumbne soit i l'époque
de Ia Summa, l'alleu justicier que lion s'est trop facilement repré-
senté. Nous sommes en presence d'une tenure, d'une dependance
[sic]réell...."
(Alma at the time of the Summa, however, is far from being the
alodial justice which has been too easily imagined. We are in the
presence of a tenure, of a real dependeil....)
It willbe noticed that lagouëlle repudiates the notion that there is
any conriection between alms and alod in Normandy. Tndeed, how could
there be, since from its firstday Normandy had been a fief held by
homage from the French crown ? That alms is a tenure is stated with
great clarity in theSumma, c. XXX :
"Per elemosynam autem tenere dicuntur illqui tenent terras
in elemosynam puram Deo et sibi servientibus collatas, in quibus
Clepoche in the typescripin error.] ANNEXES TO U.K. REPLY (No. A 157) 6r5
collatorcs nihil penitus sibi retinent aut heredibuç suis, nisi soliim-
modo dominium patronale, et tenent de illis per elemosinarn tan-
quam de patronis."
They are said to hold by slms who hold lands given in pure alrns to
tod and his servants, wherein the donors retain nothing to thern-
selves or their heirs save only the patronal domain ; and they hold
fromthem by alms only, asfrom patrons).
Norman law contemplated, therefore, that a tenure in alms wouId be
created by way of subinfeudation. This brings us to the French Contre-
Mémoire p. 385 (citedszrfi~aparagraph I)where .thestatement of this
proposition in the British Mernorial (paragraph 126) is contested on the
ground that alms was equivalent to alod, and that alod was land without
a lorclIt hüs already been sho~vn that that identification is late, and
fallacious. From the passage nomrproduced from the Summa it is clear
that the rule of Loisel (whether or not it was valid elsewhere) is esactly
@e opposite of the Norman law which in fact governed the grant of
Ecréliou.
Indeed, the Norman conception of alms passed to England where it
became a rule of law that a tenurc in alms can only be created by subin-
feudation (Littleton, Tenuves, section 141 ; Coke, First Institutes,
f.gg a). Tenures in alms still exist in EngIand, but they must al[ beolder
than the yeür 1290 because in that year the statute Quia Empiores
(Statutesof the Kealm, 1. p. IOG) forbade subinfeudation ; this had the
effect (noticed in Littlcton, Teitures, section 140) of rnaking future
gifts in almç impossible, because alms can be created in no other way
than by subinfeudation.
8 The Summa de Legibrts Normannie esplains the logical necessity
wliich in Norniandy as inEngland compelled the donor in alms to make
his gift by subinfeudation, in the words immediately following those
quoted in the preceding paragraph :
"Nullus autem elcmosynare potest es aliqua terra, nisi hoc soIum
quod suum est in eadem. Unde notandum est quod nec dux, nec
barones, nec eciam aliquis, si homines sui aliquid de terris quas
tenent de eis elemosynaverint, propter hoc debcnt sustinere aliquod
detrirnentum, et nihilominus domini eorum in terris illielemosyna-
tis justicias suas esercebunt vel jura sua levabunt."
(None can make alms out of any land, save only that which is Iiis
own therein. Whercfore note tiiat neither tlicduke, nor baro~is,
nor anyone, ought to sustain nny detriment if tlieir men make alins
ofthe lands which they hold of thern ; and their lords shall esercise
their justice and levy their rights in the lands so put in alms, not-
withstanding).
These clear staternents of the thirteenth-century custumal pf Nor-
mandy should lay at rest any doubts as to what happened to bcréliou.
Piers des Préaux held the fiefof thc isIands from his loJohn. He wishi:d
to bestow part of that fief upon the abbey of Val Riches, and is at liberty
to do so if he arranges not to prejuttice his lord. Hc cnnnot withdraw
hirnself from John's homage and substitute a stranger (the abbey), for
[' aliquid rcpcateinthe typescriptin error.]616 ANNEXES TO U.K. REPLY (SO. A 757)
he is John's man for all the lands which he holds of him, and caiinot
compel his lord to accept a stranger in his place. His only course, in
Norman as in English law, is to subinfeudate. In that way alone could
the relationship of tord ancl tenant between John and Piers continue to
subsist intact.+So that is what Piers did, As a resulf, the abbey of Val
Richer holds Ecréhou of Piers in alms ; Piers holds Ecréhou and al1 the
rest of his fief of the idands by knight service of John (as before). Kow
John has rights of justice, and other rights, over the whole fee which
he had given to Piers. The Norman custumal expressly deals with that
point too : "their lords shall exercise their justice and shall levy their
rights in the lands so put in alms, riotwitlistanding". So Écréhou was
still part of Piers' fief, and over it his lord John still exercised his justice
and his rights, "notwithstanding".
Hence there is no question ofPiers' fiefbeing diminished in geograph-
ical area-and it was scarcely diminished in value either, for Piers
got several centuries of prayers very cheap, a bargain in which his lord
John also shared. No feudal ties were broken ; but a new tie was created
whereby the abbey of Val Richer became tenant in alms of its new lord
and benefactor Piers, as far as ecréhou was concerned.
g The hierarchy of lordships over Écréhou is therefore (a)the abbey
of Val Richer whicli is tenant in clemesne, holding the island of (6)
Piers who is lord of the whole fief of the Isles, who in turn holds of (c)
king John as duke of Normandy, who holds ultimately of (d) the king
of France. Itis necessary to insist on this, because the Contre-Mémoire,
p. 386, first paragraph, and elseu~here, rn-aintains that in 1203 while
John was still duke, he was over-lord of Ecréhou because he was (as
duke) also over-lord of Val Richer :
" .... l'île d'Écréhou dépendait de lui par l'intermédiaire de l'ab-
baye au Iieu d'en relever par l'intermédiaire du fief des iles."
(.... The island of ficréhou was his dependency, through the
=Ibbey, instead of being held through the fief of the islands).
This greatly confuses the argument because it completely misunder-
stands thirteenth-century feudalism. In that system, relationship~ were
primarily "real," and only secondarily "personal." The relationship
between the abbey and the duke was based strictly upon land-holding
and must be ascertained from the state of the tenures. The abbey (like
most land-owners) held different fiefs of differentlords, but each tenure
was carefully distinguished from the rest, both aç to the rights of the
tenant and as to the rights of the lords. 1 Val Richer presumably held
estates in Normandy of the duke; but that gave the duke no rights
over estates which Val Richer held of someone else-even although that
someone else was in turn a ducal tenant. The duke's rights over Ecréhou
were those reserved to kim expressly or byimplication uyon the sub-
infeudation which he made to Piers of the fief of the Islands (rights,as
we have seen, which could not be defeated by Piers' further sub-infeuda-
tion of Écréhou to the abbey).
l Thus a decision of the Sorman Exchequer explains that ifa lord holds t~vo
fiefs, hcannot make the men of one fief plead in the other, nor can he enforce
the judgements made in one fief in the other, becausc it would ba contempt
of the king's justi:Atirerneniet Jz~giésd'Eschequicrs (ed. Génestal and Tardif),
no. 40. ANNEXES TO U.K. REPLY (NO. A 157) 617
ro Events subsequent to the grant to Val Richer are clear enough.
l'iers presumably forfeiteti his fief of the IsIes (part of which consisted
in the lordship over Ecrhhou), and so Val Richer became John's imme-
diate tenant. The so-called condemnation of John in the court of Philip
Augustus is the one and only example in this story of a feuda1 tie being
broken-in the only way in which it could be broken by feudal custom.
Philip Augustus 'defied' John. As Petit-Dutaillis has show11 (Revzic
historiq CueL,VII, p. 178) the result of that defiance was that John
ceased to be tenant of Normandy, and ceased to owe homage for it ;
Philip Augustus ceaçed ta be John's lord, and owed him no further
protection, The feudal nexus was at an end, leaving two independent
powers to contest for the vacant prize. Philip Augustus got continental
Normandy : John held oti to the Isles. Both monarchs regarded their
respective conquests as annexed to their several crowns.
Question II
THE NATURE OF AN ADVOWSON AND OF QUO kVAIIKAN'T0
PKOCEEDINGS IL: >IEDIAEVAI,LAiV
II The pleadings on both sides show some uncertainty as to the natiire
of the proceedings in 1309 printed as Annex 12to the British Rlemorial.
The assize roll itselispartly responsible for the obscurity, because1:he
court dealt with two different proceedings simultaneously, and recorded
both of them in one record. hloreover, the first line othe Latin test
as printed is a running headline (customary inlarge rolls) which only
roughly indicates the natureof the matter which follows it.
The abbot of Val Ricfier nnswered two differcnt clainisThe first was
based upon what contemporary English la~vyers would have called a
writ ofright, and the proceedings upon itoccupy lines 2to 5 of tlie print,
comprising the words 'Abbas de vauricher ....vt Ius et cetera'. The
second claim was upon a writ of QUO warranto and occupies the rest
of the record, SavetheIast four lines. Thelast four lines 'Et quia Pr....
placuerit' record the judgement in favour othe chürch. The same parties
and the same (or sirnilar) titles were invoIved in both cases, aso they
could conveniently be heard together :but they were based upon different
forrns of action.
The second of these claims-the quo warranto proceedings-can be
considered first, and eliminated, because they throw no light upon the
situation of Ecréhou. The defendant was merely called upon to show by
what title he claimeda rent charged upon the royal revenues and receiv-
able ai the hands of the king's receiver in jersey.Sincejt isnot denied
that Jersey wis in theking'sdominions, the use of his normal jurisdiction
there calls for no further comment.
12 The firçt daim, however, isstrictly relevant tothe present purpose.
The roll is in the form, common in the English courts, appropriate to
proceedings upon a writ of right 'precifiquod reddat'.This is a petitory
action in which the demandant claims land or other 'real' property 'as
his right and inheritance'.n the roll, that formula is often abbreviatod
(as here)to the words 'utius&c7.The lacuna in the third line of thprint
can be confidently filIed by the words 'placitoqziodreddatl-and tlie
printed translation has assumed that those are the missing words. The
king claims as his right two things: a mil1 situated in Jersey (which, ANNEXES TO U.K. REPLY (SO. A 157)
618
like the rent payabIe in Jersey, does ncit elucidate the situation of
Écréhou),and the advowson of the priory of Ecréhou.
13 The word advocatio has been translated as avouerie; this would
be correct for documents coming from certain parts of France where the
institution of avoueries still survived ; but there is no trace of such
survivals in Normandy or England. There can be no doubt that on this
roll advocatiobears the same sense as the words jus pntronatus, which
were the more familiar expression in Norniandy for an advowson. This
is the right of a patron to presenta suitable person to the bishop, who
thereupon ought to institute that person into the church (normally,
but not invariably, a parish church) which is subject to thc patron's
right of presentation. In strict analysis, ail advowson is a right, incor-
poreal and invisible. Such things in the middle ages were treated ~vith
much concreteness. One could be seised, and disseised, of an advowson ;
it could be taken into the king's hand on a variety of pretexts; it could
be bought and soId ; on occasion a jury might be sent to see it (visum
faceve)-although what the jurors actually saw, and what the sheriff
took into the king's hand, uras the church door.
Wherever possible, the normal rules ofland laiv applied to it, and to
this day advowsons (which still exist in Erigland) are classified as 'real
property'. In the middle ages English and Norman law treated them as
'lay fiefs', 'fiefs nobEesf.They were truly fiefs, held feudally, sometimes
bp military service, and closcly assimilatetl to land. It was very general
for the lord of a manor (seigneurie)to be patron of the villagecliurch, and
a charter which mentiooed a manor 'witti its appurteiiances' wns held
to include the advowson under the word pertinenciis.Abunclant proof
of this is to be found in F. Soudet, Les seigneurs patrons des églises nor-
mandes ait moyen Bge, in Semaine d'lzistoirdu droit nornzaridfenue u
Jersey, 1923,pp. 313-326 The almost idcntical position in England is
describecl in Pollock and Maitland, History of English Law (zrid edn.),
II, pp. 136-9 ..
24 The very intimate connection between an advowson and the soil is
espressed in Sztmma of Normandy, CX.5 : "cum jus patronatus fundo
inhereat" (since the advowson is inherent to the soil);and Norrnan law,
unlike English, would not tolerate the separation of the advowson from
the soil:
"Item, il estjugié que nul ne puet vendre le droit de patronnage,
se il ne vent tout le menbre de hauberc,"
(Ttem, it is adjudged that none can sel1 the right of patronage,
unkess lie sells the whole fee).
-Atiremens et Jugiés d'Escheqziiers(ed.
Génestal and 'Tardif), no.18.
Itis clear therefore that in Norman law an advowson is itself a fief,
and that itis inseparable from the soil of the fief to which it is appurte-
nant. The Summa, CX shows the procedure when litigation arises-the
writ to the royal officer, the order to çee the church, to sumnion the
jury, etc., in exactly the same fasliion as in litigation aboutland. The
jurisdiction is manifestly territorialand nopersonal.
Now this case of 1309 shows a petitory action for the advowson of
Écréhou held in the king's court. The jurisdiction of that court can have ANNEXES TO U.K. REPLY (NO. A 157)
619
no po'ssiblebasis Savethat ccréhou, the advowson and the soil, are k~thin
the king's dominion. True, the abbot of Val Richer may very possibly
have been a Frerichman, but his abbey held (or claimed to hold) the
advowson and tfie island.The abbot admitted the jurisdiction bymalring
an attorney to appear on his behalf. There was no reason'whatever for
the abbot appearing in an English court to answer for Ecréhou or its
advowson, Saveonly that he held it of the English crown, as his predeces-
sors had once held itofPiers des l'réauxandthen of John.
The record therefore attests to a solemn and public exercise of sover-
eignty over the island when the justices of Edward II held a petitory
action for an advowson inherent in the soil of the islandThe fact that
the justices decided against theking merely adds further testimony to
the regularity and good iaithof the proceedings.
15 Since there has been some speculation.in the pleadings on both
sides as to the nature of Edward II'sclairn, a wordmay be added here,
althou 1itis not çtrictly materiaThe casenrose in 1309 ,ver acentziry
after f l foundation of the priory. That was time enough for memory
of what had happened in1203to fade. The true facts could not have
been accessible to the crournlabvyerssince the charter desPrkaux must
have been preserved at Val Richer. It may have heen thought that
Piers was the founder and patron, and that the crown had succceded
to that position. ,Later, it would have corne to light that Piers had not
founded the priory, but had merely given a, site so that Val Richer
could fourid it. Additional Annexes submitted by the Governmentof the
United Kingdom of Great Britain and Northern Ireland
[NOTE.-For Annexes A I-h 140, see Volume II of the United
Kingdom Jlemorial '; and for Annexes A 141-A 156, see
Volume II of the United Kingdom Reply 2.For Annex A 157.
see the document subrnitted by the United Kingdom Govern-
ment on tlie 28th August, 1953 3.1
Page
Prefatory Xotc ................................. 622
A 158 : The Administration of tlic Channel Islands, 1200-1373 ...... 523-625
A 159 : The Examination before the Lieutenant Bailiff of Jersey, 28th May.
1706, of Martin Desheulles, French National and Fugitive from
French Justice, who Sheltered at the Ecreho[Ecréhous] Islets,
where he was found by Jersey Fishermen, and talccn to Jerscy 626-627
A 160 : Act of the States of Jersey, 26th January, 1754, Fiohibiting, in
view of an Outbreak of Plague at Rouen, al1 Commercial Inter-
course with France, and further Prohibiting the Entry into any
Jersey Harbour or the Islands and Rocks of Chauzé[Chausey],
Marqués[Blinquiers] and Tcrehots[Ecr6hous] of any French Ship 628-629
A IGI :,Act of the States of Jersey, 6th September, 1762. ordering that
Representations be made to the Earl of Egremont, one of His
Majesty's Principal Secretaries of State, asking that. upon the
Conclusion of Peace with France. the Chausey Islands should be
Declared Part of Wis Majesty's Dominions, as formerly they were 630
A 162 : Act of the Jersey Piers and Harbours Cornmittee, 12th January,
1779, subsidizing Jean Richardson and his Crew to carry out
Rescue Work at the Biinquais[Minquiers] Islets in behalf of the
States of Jersey ................................. 631
A 163 : Letter from the Lieutenant Governor of Jersey to the Foreign
Office. 1st December, ISOI, enclosing a Memorial signed by the
Principal Inhabitants of the Jersey Parishes of St. hlartin :md
Trinity, briefly relating the History of the Chaussè[Chausey]
Islands, and Cornplaining that the French had Deprived thern,
some years previously. of the "iree liberty" of Fishing in the
Vicïnity of those Islands, and of Cutting Vraic there ...... 631-634
A 164 : Judgement passed by the Royal Court of Jerscy. 28th May, 1811,
upon the Salving by Jcrseymen of a Vessel Wrecked at the
Marquaisplinquiers] Islets........................... 634-635
A 165 : Judgement passcd by the Royal Court of Jersey, 3rd October.
1817. upon the Salving liy Jerseymen of a Vessel Wrecked at the
hlinquais[Alinquiers] Islets........................... 636-637
A 166 : Letter from thc Lieutenant Bailiff of Jersey to the Lieutenant
Governor of Jcrsey. 27th May, 1821, reporting upon the Oystcr
Fishery betwcen the Channel Islands and the French Coast, and
deploring the Limits proposed by the French Government, which
would Deprive a Large Humber of Jersey Men and \lromen of
their Livelihood ................................. 637-639
See pp. 142-349.
, ,, 563-607.
3 ,, ., 608-619. U.K. ADDLTIOXAL AKXEXES 621
Page
A 167 :Dispatch from the Foreign Office to th: British Xmbassador in
.Paris. 29th March, 1837, regarding the Appointment of an Xnglo-
French Commission to Settle the Limits of thc Oyster Fishery
between Jersey and the French Coast. and cnclosing a Copy of a
Letter from the Admiralty to the Foreign OAice, 14th February,
1837. upon the Subject of the same Limits ............... 639-642
A 168 : Inquest, 5th October, 1850, upon 1.H. Gosset, a Passenger in the
steamer Supevb, which was Wrecked at the Minquiers Islets on the
24th September, 1850.............................. 642
A 169 : Inquest, 5th October, 1850, upon W. Crany, a I'assenger in the
Steamer Superb, which was Wrecked at the Minquiers Islets on
the yth September, 1850 ........................ ..643,
A 170 : Inquest, 12th October. 1850, upon H. V. Belot, a Member of thc
Crew of the Steamer Superb, which was Wrecked at the blinquiers
Islets on the 24th Septembcr, 1850. .................. 643-6.44
A 171 : Inquest, 28th May. 1859, upon an IJaknown Seaman, believed to
be a French National, who was found Drowned near the Ecrehos
[Ecr6hous] Islcts, and brought Ashorc in the Parish of Trinity,
Jersey. on the 17th May, 1859. ..................... 644
A 172 : Minutes of the Anglo-French commission, 28th December, 1666,
to 16th January, 1867, for the Revision of the Fishcry Convention
of the 2nd August, 1839, and the Fishery Rcgulations of the
24th May, 1843 ................................. 644-658
A 173 : Prosecution of Philippe Pinel, 23rd July. 1881. for an Assault upon
H. C. Bertram, Customs Official of Jersey, when Discharging his
Duties at Blancrl[Blanc] Ile, one of the Ecréhos[Ecréhous] Islets,
belonging to the Parish of St. Martin, Jersey ............ 558
A 174 : I : Article in Lu Gazelle Géographique et l'Exploration of the
4th fibruary, 1886, pp. 93-4, dealing with the Question of
Sovereigntyover the EcrPhous Islets. and an alleged proposal
to erect a Fortthereon by the United Kingdom. ...... 659-661
II : Two Articles of the 23rd-25th January, 1886. by M. Sutter
Laumann, Special Correspondent of the French Newspaper,
La Justice (which appeared in the Issues of the z4th, 26th
and 27th January, 1886),describing a Visit to the Ecr6hous
Islets, to inquire into the Question of Sovereignty ovcr the
Islets, and an alleged proposa1 to erect a Fort thereon by the
United Kingdom .............................. 661-674
III : Article by M. Pierre Giffard, a French Journalist. in La
Chvoniqrre de Jersey of the 30th January, 1886, recording
a Visit to the Ecrhhous Islets, to inqtiiic into an alleged
proposal to erect a Fort thereon by the United Kingdom675-681
A 175 : Prosecution by the Jersey Authorities in the Royal Court of Jersey,
3rd March, 1913, of a Jerseyinan, F. Billot, for having Broken and
Entered the House of R. R. LempriEre at Blanc Ilc, one of the
Ecréhos[Ecr6lious] Islets. Dependencies of the Jersey Parish of
St. Martin, and StoLen Provisions and other Articles ......... 681-682
A 176 : Prasecution by the jersey Authorities in the Royal Court of jersey,
8th October. 1921, of two Jerseymen, G. F. LevCe alias G. Huelin,
and C. H. Miller, for having Stolen a Boat, and for having Broken
and Entered a Building belonging to the Jersey Customs Authority
at the Ecréhos[Ecréhous] Islets, and Stolen .Provisions ...... 683
A 177 : Amdavit of A. E. Mourant, &LA., D. Phil., D.M., F.G.S., 17th
August, 1953,testifying that Stone from the Ecréhous Islets was
used in 17th and 18th Century Buildings in the l'arishes of
St. Martin and Trinity, Jersey ........................ 684-665 U.K. ADDITIOKAL ANNEXES
Prefatory Note
r. 'The Annexes contained in the present volume are numbered in
continuation of the system adopted in the previous United Kingdom
pleadings.
2. Ljrith reference to Anries A 167, "Dispatch from the Foreign
Office to the British Ambassador in Paris,29th March, 1837, regarding
the Appointment of an Anglo-French Commission", etc., the United
Kingdom Government are submitting the text of the final copy of the
letter, taken frorn Foreign Offic Papers, 1461181 together with an
enclosure (referred to in the Foreign OfficcDispatch) from the Admiralty
to the Foreign Office ofthe 14th February, 1837. \i7hen discussing this
Dispatch in the United Kingdom Memorial, paragraph 78,and note 1,
reference was made to, and a quotation given from, the draft which
is to be found in Foreign OfficeYapers, 271535.The United Kingdom
Government have now discovered the final copy of this letter, and
submit this text-together with the enclosure referred to above-as
an Additional Annex for the sake of completiiig the documentary
records of the case.
3. \Vith reference to Annex A 174, which consists of tliree separate
documents, narnely,
(a) An article in La Gazette Géographiqza et Z'ExfiEoralionof the
4th February, 1886,
(b)Articles in La Justice of the e4th, 26th and 27th January, 1886,
(c) .4n article inLa Chronique de Jersey of the 30th January,.xSS6,
these were mentioned in Annex A 45 of the United' Kingdom Memorial,
but they were not reproduced in Annex A 46, which gave some of the
documents referred toin Annex A 4j. The sbove-mentioned documents,
therefore, are now given in order also to complete the documentary
records of the case.
(Signed) R. S. B. BEST,
Agent for the Covernme~rt
of the United Kingdom.
11th Seplember, 1953. ANNEX A 158
~he Administration of the Channel Islands, 1200-1373
[NOTE. The distinction between a "Lord of the Islands" (Dominzcs
Insularum) and a "Warden of the Islands" (Custos I~ts~durum ay in
the difference between a grant of the Islands in fee or for life, and a
grant of their custody during royal pleasure or for a definite period.
The first type of grant conferred a "benefice", the second an "office".
Thus, when the King of England made a Inan "Lord of the Islands",
lie alienated a considerable part of his own dominion over tliem. A
"\ilarden of the Islands", on the other hand, was sirnply the King's
agent-his "bai1iff"-in the Islands. See J. N. Le Patourei, The Mediaial
Admiwistration of the ChannelIslands 1199-139 (9ondon, 1937)~p. 37.1
Piers des Préaux, Lord of the Islands (except Sarlr).
Geoffrey de Lucy, \Varden of Guernsey and Alderriey.
Hasculf de Suligny, IVarden of Jersey.
Philip d'Aubigny (the elder), \Varden of Guernsey and
Alderney.
Philip d'Aubigny (the elder), \Varden of Jersey.
Philip d'hubigny (the elder), \Varden of Sark.
Philip d'ilubigiiy (the younger), \ITardenof the Islaiids.
Geoffrey de Lucy, \Varden of the Islands and their
castles'.
Rugh de St. Philibert, Warden of Jersey and its castle.
Richard de Grey, Warden of the Islands and their
castles.
\Villiam de St. Jean, Warden Af the Islands and tlieir
castles.
Richarcl de Grey Joint-Wardens of the Islands ;incl
John de Grey their castles.
Henry de Trubleville, \Varden of the Islands.
Philip dlAubigny (the younger),Warden of the Islancls
and their castles.
Henry de Trubleville, Warden of the Islands and tlieir "
castles.
Henry de Trubleville, Lord of the Islands.
IViIliarnde Bueil, '\.Vardenof the Islands.
Drew de Barentiti, Warden of the Islancls2.
Richard de Grey, Warden OF the Isiands and ttieir
c'astles.
Edward, Lord of Aquitaine (and subsequently King
Edward 1 of England), Lord of the Islands 3,
Geoffrey de Lucy was also Joint-Keeper of thesea-coastbetween Pevensey
and Bristol in England, sharing these duties rvith the Barons of the l'arts.
See Le Patourel.op. ci6.p. 39.
He had been appointed Sub-Warden of the Islands (atthough styled "\Varden
of the Islands") in 1235.See ibid.App., p. 123.
Guernsey, totKing Henry III, bis father, who then,appointed Sir Gilbert Talbotnd
and Thomas Roulton Joint-Keepers of these lands. See ibid., App., locir. Arnold son of John de Cotnis, "Bailiff [Warden] of the
Islancls" l.
Otes de Grandison, Warden of the Islands.
Otes de Grandison, Lord of the Islands.
Henry of Cobham, Warden of the Islands and their
castles.
Nicholas de Cheny, Warden of the Islands and their
castles.
Otes de Grandison, Lord of the Islands '.
John de Roches, Warden of the Islands and their
castIes 8.
Piers son of Bernard de Pyn- ' Joint-Wardens of the Is-
sole4, Laurence de Gaillars, 1lands and their castles.
William de Cheny, Warden of the Islands and their
castles
Thomas Wake of Lydell, Warden of the Islands and
their castles.
Henry, Lord Ferrers, Warden of the Islands and their
caitles.
Henry, Lord Ferrers, Joint-Wardens of the Islands
William of Montaeute, 1 and their castles.
Thomas Ferrers, Warderi of the Islands and their
castles.
Thomas of Hampton, Warden of the Islands and their
castles.
Thomas Ferrers, Wardeii of the Islands and their
castles,
Robert Wyvill, Joint-Wardens of the Islands
Thomas de Clifford, and their castles.
-ohn Mautravers, Warden of the Islands and their
castles ?.
He had served the office of Sub-Warden (when usudy styled "Bailiff") from
1271to 1275. See ibid., App.,loc. cet.
' His death was reported in 1318, and the Islands were then granted by King
Edward II to his eldest son, Edward (aftewards King Edward III) ;but, since
the report of Grandison's death proved to be false. the grant never became eflective.
See ibid.A.pp.. p. 125.
a He had served the office of Sub-Elrarden, jointly with Ralph Bassett.from
1326to 1327. they being charged with the defence of the Islands in Grandison's
absence ;and again, jointly with Robert ofNorton. from 1327to 1328,for the
same purpose. See ibid., loc.cil.
' He is, however. called "Petrus Bernard' de Pynsol'" (Piers Bernard' of:
"Pynsol' ") in Assize Roll.5 Edw. III, m. 19.See Annex A 14 to the United
Kingdom Mernoriai.
He was also appointed \Varden, jointly rnth \Valter of Weston (Sub-\Varden
in 1331, c,133.+ an5 1338-40i) n 1343 ; but the appointment apparently never
became effective. See Le Patourel. op. cif., App.. p.27 ; alsoibid., pp. 126-7
for Weston as Sub-\Yarden.
"Cf. n. 5. above.
' He was appointed'in thefirst instance for one year, "with fuUjudicial powers",
his appointment beingrenewed in 1349(t"ce), in 1351 and in 1352.See ibid.,
App., Eoc. cil. 1354-1356 William Stury, Cliarden of the Islands and tlieir castles l.
Thomas de Holand, LVarden of the Islands and their
1356-1357 castIes '.
1357-1358Otes de Holand, Warden of the Islands and their
castles
1358-1367 Edrnund de Cheny, Warden of the Islands and their
castles
1367-1373 Walter Huwet, Warden of the Islands and their
castleç
'With full judicial powers. Sec ibid., App., p.128.
With full judicial powers. See ibid., -4pp.Eoc.cit.
With.ful1 judicial powers. He had been appointed Sub-Warden in 1356. See
ibid.. App., IOG .i#.
With full judicial powers. He was appointed in the first instancfor three
years. his appointment being renewed in 1360 for one year, and in 1362 for five
years.See ibid., App.toc. cil;and cf.the United Kingdom Reply,p. 510, para. 131.
With full judicial powers. See Le Patourel, op. cif., App.,ioc. cit. U.K. ADDITIONAL ANNEXES (NO. A 159)
The Examination before the LieutenantBailiffof Jersey, 28th May, 1706,
of MartinDesheulIes, French National and Fugitive from French Justice,
who Sheltered at theEcreha [Ecréhous] Isletswhere he was foundjby
Jersey Fishermen, and taken to Jersey
[StatePcrpers,47/21
A jersey. Du z8mc AIay 1706, . Monsieur le Lieutenant Gouverneur
present l.
Par devant Jean Durell Escf Lieutenant de Nonsieur le Bailly, assisté
de Philippe le Geyt et Charles Dumaresq Juréts.
Martin Desheulles aagé de 30 a 32 ans se clisant natifde la paroisse de
Creance en Basse Normandie viron quatre Lieus Ioin de Coutance a dit
que [s]on metier est de faire du sel blanc,et que dans le mois d'Aoust
dernier de nuit étant en Compagnie de deux Marchands qui étoient venus
pour acheter du sel, Un parent dvd' Desheulles et deux Domestiques, iI
survinst troisCommis qui les voulurent maltraiter disants qu'ils me-
noient un trafficq deffendu,et que sur cela s'étans mis en deffensc les
trois Commis furent tués,Ce qui ayant obligé ledit Desheulles a s'enfuir
ilauroitêté du depuis Cachéde lieu en lieu, et finaHement auroit trouvé
Ie moyen de passer dans un bateau de la Cote de Normandie sur les
Rochers d'Ecreho, ou il fut mis bas Dimanche au soir dernier 26? jour
de ce mois, et coucha la la nuit le bateau qui I'avoit apporté s'en étant
retourné sitost qu'il l'eut~nisbas ; Que le Lendemain matin qui étoit
hier il vinst un bateau de cette Isle a Ecreho y charger du Vraicq, et
qu'a force de prier ceux qui étoient dedansde vouloir prendre ledt Ues-
heullesdans leur bateau et l'aporter icy iysconsentirent et l'aporterent
accordamment, Et qu'étans arrivésicy hier laprés midy le Maistre du
bateau l'amena a Monsieur le Gouverneur,
Ledt Martin Desheulles dit qu'ity a cinq ou six jours que les nouvelles
vinrent en Normandie que L'armée qui assiegeoit Barcelone avoit eté
battue, Qu'ils avoient perdu quinze cents hommes de la Maison du Roy,
et que viron quarante milIesentout avoient êtédesfaits. Ledit Desheulles
dit aussy qu'il a ouy dire qu'aujourdhuy a la Lande du Bois Roger on
devoit fairela reveüe d'un Regiment de Milice qui devoit ensuite étre
envoyé vers la Hougue ou se doit faire un Camp cet Eté.
Ainsy Signé. M. Desheuiles.
[' So attempt has been made eitherto insert rnissing accents, or to correct
wrong accents, in this Jersey French document.]
LEI.e., Jersey.] U.K. ADDITIONAL ANNEXES (SO.A 159) 626
ANNEX A 159
TheExamination before theLieutenantBailiffof Jersey, 28thMay, 1706,
of Martin DesheulIes, French Nationaland Fugitive frorn French Justice,
who Sheltered at the Ecréhous [Ecreho] Islets,where he was found by
Jersey Fishermen, and taken to Jersey
[Sfate Pafiers, 47/21
[Translation]
Jersey, the 28th May, 1706.Inthe presence of the Lieutenant Governor
Before Jean Durell, Escl.,Lieutenant Bailiff, assisted by Philippe Le
Geyt and Charles Dumaresq, Jurats.
Martin Desheulles, 30 to 32 years 'old, describing himself as a native of
the Parish of Cérences in Lower Normandy, about four leagues distant
from Coutances, said that lie was a salt-refiner by trad;andthat, in the
month of August last 2,at night, beiiig in the Company of two merchanis,
who had corne to buy salt, one of the said DeslieuIles' relatives, and two
servants, they fell in with three excisemen, who offered them violeiice,
alleging that they were carrying on an unlawful trade ; and tliat they,
having thereupon taken defensive action, the three excisemen were
killed ; the which having compcl[ed the said Desheulies to flee, he had
since been obliged to go into hiding from place to place, and at length
found the rneans of crossing by boat from the coast of Normantly to
the Ecréhous Rocks, where he was landed in the evt:ning of Suriday,
the 26th day of this month and slept there that night, the boat which
had brought hirn Iiaving gone bâck so soon as she had landed him ; that
the neut morning (which was yesterday 4),a boat from this Island 5,
upon her way to collect vraic, arrived at the Ecréhoiis ; and that, by
dint of entreating the crew to agree to take the said Desheulles in their
boat and bring him here, they gave way, and accordingly brought him ;
and that, upon their arriva1 here yesterday afternoon, the Master of the
boat took him before the Governor.
The said Martin Deslieiilles said that, five or six days ago, thenews
reached Normandy that the army which was besieging Barcelona had
been defeated ; that it hadlostfifteen hundred men of the King's House-
hold [Cavalry] ;and that, in all, some forty thousand men had been
defeated.The said Desheulies also snid that he had hearrl that a militia *
regirnent waçgoing to be reviewed to-day at "La Lande du Bois Roger",
and aftenvards sent to the neighbourhood of La Hougue, where a camp
was to be estabiished this surnmer.
Signed tlius. M. Desheulles.
Department of Manche.
1705.
' August (1706).
27th August.
".e., Jersey.
28th August.627 U.K. ADDITIONAI. ANNEXES (NO. A 159)
Du méme jour.
Jean Picot Maistre de bateau a dit que luy et son Equipage partirent
hier au Matin pour Ecreho pour y aller charger du Vraicq, et qu'étans
arrivés la ils y trouverent un homme qui est le mérnequi senomme Mar-
tin Desheulles, Et que lesayants instamineiit priésde l'aporter icy ils le
firent, ety arriverent le méme jour a viron les quatre ou cinq heures
aprés midy et incontinent led!Maistre mena ledt Desheulles a Monsieur
le Gouverneur.
Ainsy rnerclié
Jean Picot
Greff' de la Cour Royalle de l'Isle
Vraye Copie. Jean Dumareq. de Jersey. U.K. ADDITIONAI. ABNEXES (NO.A zj9)
627
The same day.
Jean Picot, the Master othe boat, said that hand his crew left yester-
day morningl for the Ecréhous, ta collect vraic, and thawhen they
got there,they found a man who isthe same as him who callshimself
Martin DesheuUes ; and that he having at once begged them to bring
him here, they did so, andarrived the same day, at about fouror five
o'clock in the afternooand the said Master forthwith brought the said
Desheulles before the Governor.
Marked thus the mark + of
JeanPicot
Greffierof the Royal Court of
Truc "PY- Jean Dumart?sq. th, Island of Jersey.
l 27th August. Act of the States of Jersey, 26th January, 1754 P,rohibiting, in view of
an Qutbreakof Plagueat Rouen, al1CommercialIntercoursewith France,
andFurther Prohibiting theEntryinto any Jersey Harbour or the Islands
and Rocks of Chauzé [Chausey], Marqués [Minquiea rn]d Icrehots
[Ecréhous]of any French Ship
[Acte des Etats de l'lle de Jersey, 26 Ja~zvier, 17541
1754 Estats tenus.
Janvier AIonsf te Licutenl Gouverneur present '.
L'Ali mille Sept cents cinquante quatre, le vingt-SixEjour du mois de
Janvier. ,
Par devant Charles Lempriere Ecsr Seigneur de Rozel, Lieut : du
Très-Honp Seigneur Jean Comte Granville, Vicomte Carteret, Lord
Cürteret, Baron dc Ilawnes, Presiclent du Très-Honorable Conseil
Privé de sa Majesté, Chevalier du Très-Noble Ordre de la Jarretiere,
Seigneur de St Ouën &CS, Bailly de l'Isle de Jersey assisté de Michel
Lempriere, Jean le Hardy Jean Poingdestre, James Pipon, Jeaii Duma-
resq fs : Elie,Jean Durnaresq fs: Jean, François Marett & Charles
Wilgrove Escz Jurets, presents le ProB Général du Roi. Erle Depz
Viconte[sicj, corne aussi Monsr le Doyen, & 3IessT les Ministres de
St Ouën la Trinité, GrouvilleSt Jean, SCPierre, Çt~relade, SI Laurens
St Clement & St Sauveur, avec les Corin* de St Pierre, SI Helier,
SI Sauveur, la Trinité, SE Marie, St Brelade, Si Ouën, S$Laurens,
Grouville, Si Clement & St Martin.
Apres le Serment de MTTho : Syvret, le Reverend Rlonsf François le
Coûteur Recteur de la Paroisse de St Martin, est exoiné maladie.
Apres le Serment de hl? Jean Anley, fil? David Anley ConnE de La
Paroisse de SIJean, est Exoiné par rnaladië[sic].
Monsf le Lieutent Gouverneur ayant cejoiird'hui produit une Lettre de
Monsr Ie Lieutenf Gouverneur de l'Isle dc Guernesey, datée du 24? du
courant, donnant avis qu'il a receu Information par Afidavits que la
Ville de Rouen en France est yresentement infectée de la Peste & qu'il
y a des Directions données dans tous les Ports d'Angleterre au sujet du
Commerce avec la France :Les Estats sur ce assemblés extraordinaire-
ment ayant pris le tout en consideration, ont trouve apropos d'Ordonner
afind'empêcher(sous le bon plaisir de Dieu) l'Infectionde se comrnuni-
quer parmi nous, d(interdire tout Commerce avec la France 4,& partant
ii est Ordonnécomme ensuit.
Qu'aucun Vaisseau ou Bateau venant du Royaume de France ne
sera souffert à entrer dans aucun Havre, ni mettre i Terre Aucun Passa-
[lNo attempt has been made either to insert missing accents, or to correct
wrong accents,in this Jersey French document.]
['fils.]
[vu7.1
margin. inpencil.]rance underlined, and a cross set against these words in the U.K. ADDITIONAL ANSESES (SO. A 160) 629
gers ou Marchandises en aucun Endroit de cette Isle l,pareille Deffence
etant faite à l'egard des Iles& Rochers de Chauzé,Marqués, & Icrehots,
ou Rochers adjacents 2.
Qu'aucun Vaisseau ou Bateau ne sera permis à sortir hors cle cette
Isle pour aller directemf en France.
Que tous Vaisseaux ou Bateaux venants des Isles de Guernesey,
Origny 9,ou Serck, ne seront admis dans aucun des Ports de cette Isle ',
s'ils ne produisent urie Lettre de Santé duëmt authentique.
11est de plus Ordonné que les Maîtres ou Comrnantlants des Vaisseaux
ou Bateaux qui sortiront de cette Isle ' feront Afidavit de l'endroit ou
ils sont destinés,fi rue tant eux que ceux qui s'y enviendront ne s'appro-
cheront d'aucuns autres Vaisseaux ou Bateaux qu'ils rencontreront en
Mer, qu'en se mettant au Vent d'iceux, 6rs'ils apprennent qu'ilsvien-
nent de la Côte de France, ou qu'ils ayent rencontré Aucun Vaisseau
Infecté, ils s'eloigneront incesscmmt Sans garder plus outre Correspon-
dance, siir peine de Milles Livres d'.4mende vers Ie Capitaine ou autre
Cornmandat, tiers au Roi, tiers aux Pauvres, & l'autre tiers au Delateur,
ou de Punition Corporelle, S'ils n'ontde quoi payer,
Et pour empêcher les atterrnges qui pourroient se faire par Auciins
Vaisseaux ou Bateaux venants des Lieux Sus mentionnks, il est Ordoriné ,
qu'il y aura des Gardes de Jour & de Nuit tout au tour de cette Isle
aux Environs des Havres ou Lieux d1Atterrage qui ne permettront
aucune Personne de venir à Terre avant d'avoir été Examinés pqe
Connétable ou Centeniers de la Paroisse Sur l'avertissement qui lui
Sera donné de l'arrivée de tel Vaisseau ou Bateau, étant commande A
tout Personne de prêterson assistance aux Gens de la Garde au cas de
Besoin, & sera notifiéde nouveau à celui qui garda le Bateau de Santé
qu'il aità faire son Devoir & observer lesOrdres dêja donnés avec toutes
les Precautions possibles, toutes lesquelles Deffences & Ordonnances
Subsisterontjusqu'a autre ordre Et Sur ce qu'il pourroiy avoir quelques
uns de nos Bateaux presentement en Icrehot, il est entendu que tels
Bateaux pourront etre Admis à retourner en cette Isle l étants préala-
.blemt e~aminés par Ies Connktables ou Centeniers, comme devant est
dit, Ce qui sera Pubiii: tantnu lieu Ordinaire qu'aux Paroisses.
[l rd.,Jersey.]
Ta I<ocherde Cherrd .... adiucenundcrlined in riencil.1
Alderney.]
I'~~7.1 630 U.K. ADDITIONAL XNKEXES (NO. A 161)
Act of the Statesof Jersey, 6th September,1762, orderingthat Represen-
tations be made to the Earlof Egremont,one of His Majesty'sPrincipal
Secretaries of State, asking that, upon the Conclusion of Peace with
France, the ChauseyIslands shouId be Declared Part of His Majesty's
Dominions, as formerly they were
[Acte de E'Etat de E'Ilede Jersey, 6 Septembre, 17621
1~6~. Estats tenus
68 Septw Monsf le Commandant en Chef present l.
L'An Millc Sept cents Soisante-deux, le Sixième Jour du mois de
Septembre.
Par devant Charles Lempriere Escr Seigneur de Rozel, de Dielament,
de Saval,&cf Lieutene du Trés-Honb2 Seigneur Jean Comte Granville,
Vicomte Carteret, Lord Carteret, Baron de Harnes, President du
Très-HonF Conseil Privé de sa Majesté, Chevalier du Trés-Noble
Ordre de la Jarretiere, Seigneur de St Ouën, &c! Bailly de l'Isle de
Jersey, assité de Jean le Hardy, Jean Poingdestre, James Pipon,
Jean Durnaresq, Charles Hilgrove, Daniel Messervy, Jacques Lern-
priere,Tho : Pipon, & Edouard Ricard, Esc: Jurats, presents le
Procr Genl du Roi, & le Dep- Vico, comme aussi Monsr le Doyen, &
Mess; les Ministres de St Martin, Grouville, St Jean, St Pierre, Sb
Laurent & St Helier, et les Conne de St Laurent, St Sauveur, SC
Helier,Sb Marie, StBrelade, StOuën, Sf Pierre,StClement, la Trinité,
Si Jean,SC Martin, & Grouville :
[. . . . . , . . . -. -. . . . . . . . . .al
Monsr le Lieutent Bailly aiant Produit aux Estats, une Kepresentatz
qu'il a preparée pf presenter A Monseignf le Comte d'Egremont, un des
principaux Secretaires d'Etat de Sa Majesté, pour lui representer aux
noms desd- Estats, les Avantages que cette Isle, & les Isles voisines
Recevraient, si à la Conclusion de la Paix, Les Isles de Chausey étoient
comme d'ancienneté déclarées du Domaine de Sa Majesté ; Après
Lecture de laq-, elle a êtéApprouvée, & Signée par les hlembres des
Estats, Et ledt Sr Lieutent Bailly remercié pour les Peines qu'il a prises
àce sujet, lequel, esde plus requisde laTransmettre àJames D'Auvergne
Escr Dep? des Estats en Angleterre, & le prier de la presenter audt
Monseigneurle Comtc de la Maniere qu'il croira la plus convenable.
r1 So attempt haç been made either to insert missing accents, to correct
wrong accents, in this Jersey French document.] ANNEX A 162
Act of the Jersey Piers and Harbours Cornmittee, 12th January, 1779,
SubsidizingJean Richardson and his Crew to carryout Rescue Work at
the Minquais [Minquiers] Islets in behalf of the States of Jersey
[Acte du Comitédes Havres et Chaussées ,2 Janvier,17791
..-"
Le Comité est convenu d'Acheter un Bateau ouvert de Grandeur conve- 120 Janvier.
nable pour Servir de Bateau de Santédans lequel un Maître avec deux
Hommes Seront emploïés[sic] & Sont Mess? lesConnêtables l de Sf
Helier, & SI Brelade Autorisés d'Acheter Iedt Bateau au prix le plus
raisocable qu'il Sera possible, pour êtrepaïe[sic] paleProduit de l'An-
crage & de convenir avec un Maître & les Gens propres pour ceService.-
Le Comité est Convenu de proposer aux Etats de paier[sic] lSomme de
Soixl'cluatre Livres d'Ordre sur le produit de l'Ancrage à Me Jean
Richardson pour l'usage de Son Bateau & ses Peines & celles des Person-
nes avec lui qui ont été aux Minquais dans l'Intention de Secourir &
Sauver les Personnes qu'il y avoit lieu de croire y avoient été Nau-
fragées.-
ANNEX A 163
Letter from the Lieutenant Governor of Jersey to the Foreign OEice,
1st December, 1801, enclosing a Mernorialsigned by the Principal Knhabi-
tants of the Jersey Parishes of St. Martin and Trinity, briefly Relating
the Estory of the Chaussè [Chausey] Islands, and Cornplaining that the
French had Deprived them, some years previously, of the "free Liberiy"
of 'fishing in theVicinityof those Islands, and of Cutting Vraic there
Jersey 1stDecember 1801.
My Lord,
1 have the honor to submit to the consideration of Your Lordship the
accampanying Rlemorial, which has been handed to me by Charles Lem-
priere Esqr,Seigneur of Rozel ; a Gentleman of the most considerahle
landed property, and wealth in this IçIand.
1 am not sufficientlymaster of the subject, to be able to statewith
accuracy to Your Lordship, whether a free communication and inter-
[' No attempt has been made eitherto insert missing accents, or to corrt:ct
wrong accents,in this Jersey French document:]course with the Islands of Chaussèmight not hold out a degree of facility
to carrying on an Illicit Trade, (to the injury of His Majesty's Revenue)
~4th the Republic of France, to which it is so contiguous ; but 1have no
hesitation in declaring that permission being granted to the Inhabitants
of this Island to cut and dry Vraic, or Sea Weed on that spot, woüId
assuredly be attained with considerable advantage.-
The~e are not Settlers atpresent on the Island of Cliaussè, nor have
been for a considerable time before the War.-
1 have the honor to be,
My Lord,
Your Lordship's,
Most Obedient
humble Servant
A GORDON
Lieut General
Right Honorable
Lord Hawkesbury
8ic &c &c
To the Right Wonourable the Lord Hawkesbury
His Majesty's Principal Secretary of State &c &c
His Xajesty's Faithful Subjects The Principal
Inhabitants of the Parishes of St Martin, and of
Trinity, in the Island of Jersey, beg leave to Ke-
present-
That the Island of Chausé was formerly deemed a Neutra1 Island, or
rather reckoned in the nurnber of the British Isles. That the said Island
is included in the Pope's Bull, annesing to the Diocese of Winchester,
the Islands of Jersey and Guernsey l.
That in the year 1756 Co~nmodor[e]Howe made a conquest of the said
Island, and kept possession of it; which, itdoes not appear to have been
afterwards, or before, particularly, and formally ceded.
That the Inhabitants of this Island of Jersey have enjoyed the free
libertyof fishing about the said Island of Chausé, and of cutting Vraic,
or Sea Weed, on the Rocks of the said Island, and of drying it upon the
land, as a Manure ; but were deprived of that liberty some years ago,
by the French ; by which prohibition, large Tracts of Land could not be
cultivated, to the great detriment of His Majesty's Revenues, in this
Island ; and to tlie no small prejudice of the Inhabitants.
Ali which is hurnbly submitted to your Lordship's Judicious and
Benevolent Consideration ; and hopes are entertained, from your kiiown
zeal to promote the King's Service, and the good of His Subjects, that
by hleans of Your Lordship's favourableinterposition, the Inhabitaiits of
this Island, may, in future, enjoy the full liberty of fishing at the said
Island of Chausé, and of Cutting Vraic, or Sea weed, on the Rocks there,
and drying it on the Land, as has be,en heretofore the case : And that,
['Dated 20th January,1500. See Annex A 6to the United Kingdom Govcrn-
ment Mernorial.]upon giving proper Security, if required, that No Tobacco, or other
prohibited Goods,shoubecarriedby themto the Island, nor smugg'gled,
f[ro]rn thenby,them into France.
Jersey z3!ovember 1801.
Principal Inhabitants of the ParSthlartin.
CHARLES LEMPRIIIKE S,eigneur ofel.
GEO :BANDINEL GEO :NOEL[S~CP].cocurator
CHARLES LE TOUZEL Rector. JEAN GODFRAY
GEORGE BERTRAM Constable JEAN FALLE
PHIL :GODFRAY HELIERPAYN
ELIEDE QUETTEVILLE Cent.. CLEMENT BUESNEI,
JEAN MALLET THO% AUBIN
S[ ?]KOBICHOX DANIELPAYN
PH :COLLAS FRANCISDE QUETTEVILLE
MICHEL BAUDAINSSUTVE THOMAS SOHIER
DAVIDGAUDIN - PHILIPPEAUBIN
CLEMENT LAFFOLLEY Josuk NOEL[SZ'C]
PHILIPKICHARDSON FRANÇ~AHIER
GEO :GAUDIN JEAXNICOLLE
THO?BEAUGIÉ JosuÈ[sic] AUBIN
PH :GODFKAY CLEMENT HUBERT
CLEMENT ~~ESSERVY
LAURENS DUFEU
the Principal Habitants ofParishof Trinity
J: LA CLOCHE Kectf of Trinity's-
PH^ LE GROS Connétable
CH.MAREIT CHARLES Pof Phi1:Carteret Esqf
DANIEL LE BRETON
DAN PELLIER-pro.. du bien pub. Seigneurof lTrinity
CHARI.^^.A4~~~~*~~ Snr~~ CHAIII.EÇPOINGDESTREattorney
CH^A COUTANCHE ta the Guardianship of
CH;LARBALESTI jEp. , Phil:Raoul Lempriere EsqT
JO~X PERCHARD SeigneurofDielament &c: .
FRANÇOISGAILLARD
JEAN DE LALANDI:
PHIL :RONDEL
CH :ROMMERIL
PHILJIATT~NGLEY
CH :DOREY
ELIE STARCK
JEAN CABOT
JosuÉ DOREY
THOMAS EE[S~C]RICHE
JEAN LE BOUTILLIER
FRAN- GRUCHY
JEAN NOR~MN
CHAKI~E DSOREY
CHARLES ALEXASDRE
PHILIPLEG[Ro]s,Procf dù Bien public U.K. ADDlTlOXrlL ANKESES (NO.A 164)
634
Judgement passed by the Royal Court of Jersey, 28th May, 1811, upon
the Salving by Jerseymen of a Vesse1Wrecked at the Marquais
[Minquiers] Islets
[RGlesde La Cozir Royale de Jersey,28Mai, 18x11
r81r. Sur l'action faitAElie Dure11Escf & Mf Jean Aubin par Jean Touzel
Escf, 31rEdouard Le Rougetel, Kicolas De S. Croix, Jean Le Vesconte,
Mai 28~. Charles Le Veçconte, Jean Filleul, Thomas ~ouzel Phi1 :Jlourant, Hugh
Mallet, Jean lilourant 81 Phi1 : Journeaux pour voir confirmation de
l'ordre de Justice a eux signifié,exposant qu'au commencement du
mois de Mars 1810, les dits Jean Touzel Edouard Le Rougetel & autres
leurs parçonniers allèrent avec des bateaux aux rochers appellés Mar-
quais dans l'intention d'y faire la pêcheoù ils decouvrirent un Navire
qui étoit coulé fond sur les dits rochers & personneà bord. Que lesdits
Touzel, Le Rougetel & leurs dits parçonniers s'employèrent tant par eux
mérnes, qu'au moyen des personnes qu'ils engagèrent pour les*assister,
& parvinrent à sauver du naufrage une partie des Agrésdud~t Xavire
& une partie de son chargement, tout quoi ils ont apporté en plusieurs
voyages en cette île', lesquels effets ont étCréclamésd'un c6té,par ledit
MT Jean Aubin,agissant pour les propriétaires dudit navire, & d'une par-
tie de son chargement ; & de l'autre &té, par ledit sieur Durellagissant
pour les propriétaires d'une autre partie diidit chargement; & concluant
à ce que lesdits sieurs Durell Bt .4ubin ayent a leur payer pour leur
droits desalvage la moitiédu net produit, des ventes des dits effets les-
quels ontétévendus àI'enchèred'un co~uii accord, le tout selon queplus
au long est contenu audit ordrc surles peinesy contenues & ouir depat
de témoins suivant à l'acte de la Cour h ce sujet suivant les prémisses
& droit & jugement suivant iilenvoi par devant le Corps de la Cour.-
Item sur l'action faite auxditshlr Jean Aubin & Elie Durell Escr par
Rlf Jean Le Cacheur, hl! Phi1 : Hamon bIrCharles Hamon, hlFhfathieu
Le Touzé, MT Jean Le Vescontc & Mf Thomas Filleul pour voir confir-
mation de l'ordre de Justice 2ieus signifié,exposant que dans le mois
de Mars 1810, étant aussi Ala pêcheavec leurs bateaux auxdits rochers
appellés Marquais, ils découvrirent ledit navire qui étant abandonné par
son equipage, étoit couléà fond sur les dits rochers. Que lesdits Kemon-
trants furent de suite au bord dudit navire où ils virent qu'il y Ctoit
déja arrivé au bord plusieurs personnes, lesquelles empêchèrent pour
lors lesdits Remontrants de rien entreprendre pour sauver ce qui étoit
a bord ; mais finalementledit navire ayant étéabandonné par ceux qui
I'avoient abordé les prémiers, lesdits Remontrants réussirentA sauver
tant des Agrès dudit navire qu'une partie de son chargement, qu'ils
?
['No attempt has been made either to insert missing accents, or to correct
wrong accents, norto correct grammatical errors. in thiFrenchdocument.]
I.e., Jersey.] U.K. SDDITIOKBL AXNESES (lioA 164) 635
apportèrent en cette îiel par plusieurs voyages. Que ces effets, itleur
arrivée furent reclamés d'un cdté par lesdits sieurs Aubin & Diirell,
agissant comme dit est, & par eux vendus à l'enchère pour l'avantage
commun de tous les intérressés & afin d'en éviter la perte & le dépérisse-
ment. Que z les dits Remontrants conçoivent que d'après les peines
qu'ils ont eues, l'empêchement qui leur a étéoffert, E;les risques qu'ils
ont encourues pour sauver ces diiferens articles, hors dudit batiment,
ils doivent êtrereçus à partager conjointement avec les autres sauveurs
sur le pied du tiers du produit de la vente de toutes lesmarchnn<lises
ainsi sauvées hors dudit navire; &-concluant à ce que lesditsMr Jean
Aubin & Elie Dure11Escr agissant comme sus est dit ayent à leur payer
pour leur droitde salvage sur le pied clu tiers du net pr'oduit des ventes
desdits effets comme plus au long est contenu audit ordre sur les peines
y contenues suivant les prémisses & ouir droit & jugement suivant à
l'envoi par devant le Corps de la Cour & depôt de témoins suivant B
l'acte de la Cour à cesujet.- Et sur l'action qui est faite auxdits Elie
Durell ESCF Br Mf Jean Aubin agents pour les propriétaires du navire
Cleaveland par MFJean 13ertram heritier de feuMT George Uertram son
frère, pour lui payerla somme de cent soixante six livres treizc sous
quatre deniers, argent suivant l'ordrdu Roi, dont ils lui sont rédévables
pour l'usage du Cutter qui appartenoit audit defurit avec son équipage
à sauver partie des debris dudit navire & de son chargement, & ouir
depBt de témoins suivant l'acte de la Cour à ce sujet, & ouir droit &
jugement suivant Al'envoi aux causes remises par acte en date de l'an
1810, le267 jour de Novv Elie Durell Junf Gent :, Edouard Nicolle
Gent :, George Moss, ~i Jean Benest fils François, $Irjean Duma-
resq, hlr CIement Dolbel, MI Charles Filleul Junf, hll Elie Sicolle junr,
MF François Poingdestre[sic], MT Jean Le Geyt fils Phi1:, Mf George
Averty, Mf Pliil : Battams,Phi1 :Godfray Gent :, MTJosué Graut Senf,
Mf Clement Touet, RlfPhi1 :Toiiet, BlfTliomas Le Clercq Junf 8i ]Vil-
liarn Battam[sJ A la cause à témoigner suivant les prémisses & ouir
record d'officier. Après que lecture a étéfaite de la deposition duclït
[sic] Clement Touet prise par devantle Vicomte & queles autres temoins
ont deposé par serment, toutes les parties ont été entenduèsen toutes
leurs raisons & allégations par Ie moyen de leurs Avocats. Après quoi
la Cour considerant toutes les circonstances a jugé que lesdits Jean
Touzel Escf, Edouard Le Rougetel, Nicolas De St: Croix Jean Le Ves-
conte, Charles Le Vesconte, Jean FilleulThomas ~ouzel, Phjl: Mouiiint,
Hugh Mallet Jean Mourant, & Phi1 : journeaux, ont droit à un tiers
du net produit de tous les effets par eus sauvés hors dudit navire, &
apportés à terre, deduction préalablement faite des frais des vendues
& des fraix de Magazin & de chariages des dits effets,8r aussi des fraix
Judiciaires de toutes les parties & à la charge de pliis de payer audit
Jean Le Cacheur tant pour lui & son bateau que pour Icsautres hoinmes
dudit bateau, la somme de cent livres d'ordre ; audit Phi1Hamoii, tant
pour lui Brson bateau que pour les autres hommes dtidit bateau vingt
quatre livres d'ordre, & audit Jean Bertram, héritier comme dit est,
cent trente troislivres six sous huit deniers d'ordre.
['1.e..Jersey.]
[' Q untten overq.] Judgement passed by the ~oial Court of Jersey, 3rd October, 1817,
upon the Salving by Jerseymen of a Vesse1 Wrecked at the Minquais
[Minquiers] Islets
[Rbles de La Cour KoyaEede Jersey, Octobre,IBI~J
1.. . . . . . . . , . . . .. . . . . . . . 1
Entre Edouard Nicolle Ecg tant e~ison nom que comme attourné de
Philippe \Vinter Ecg et de Philippe Nicolle Jung d'une part, Et Mf!
François Laffoley tant en son nom que comme attourné de Rlc Jean
Selous et McJean Jean Propriétaires du Cutter Rose d'autre part ;
L'Actionnant de voir confirmation de l'Ordre de Justice à eux signifié,
exposant que Lundi r4W Avril 1817, ils sortirent de cette ilel avec deux
Marins pour aller aux Minquais, couper du vraic, qu'en approchant des
Rochers ils decouvrirent a un Navire qui leur parut dans un danger im-
minent de perir, qu'ils gouvernhrent immédiatement sur ledit Navire,
afin de lui rendre toute l'assistance en leur pouvoir, que quand ils s'en
approchèrent ils s'apperçurent que le grand mât et le mât d'artimon
étoient coupés ou rompus et que l'équipage l'avoit abandonné conside-
rant alors qu'il y avoit un vent frais de la partie du Nord, qu'il étoit
marée montante, que le Navire étoit entrainé par ces causes vers la côte
de France, à trois milles par heure ; Que de tems à autres il touchoit
sur des eciieils eque par consequent il ne pouvoit manquer d'être totale-
ment perdu avec sa cargcaison,si quelques mesures n'étoient immedinte-
ment prises pour l'arrêter, les Remontrans l'abordèrent et decouvrirent
que c'étoit le Navire la Minerve appartenant de Jersey. - Qu'ils le
conduisirent dans un endroit convenable entre les rochers et là avec la
plus grande difficulté et au risque de perdre leur Bateau, ayant reussi
à delier une (les Ancres ils la jettère~it et mirent le Navire dans un état
de sureté autant que leurs moyens le leur permettoient. - Qu'ayant
ISI~. debarassé le Navire des voiles et du cordage des mats coupés, ils en
OCtrC3. chargèrent leur Bateau et arrivèrent h Jersey le lendemain et donnérent
information de ces circonstances à Mess? IVinter et Nicolle Proprié-
taires dudif Navire. - Qu'ils s'en retournèrent immédiatement au bord
où ils trouvèrent un autre bateau avec trois liommes et ils continuérent
à chargerle reste des voiles et une quantité de Marchandises qu'ils debar-
quérent à la Tour de Sf Aubin et quedepuis ils n'ont point cesséd'assister
les propriétaires à sauver la cargaison jusqu'au moment de la pcrte totale
du Navire. - Que les Remontrans ayant ainsi étéles premiers à aborder
ledit Navire Minerve après que son équipage I'avoit entièrement aban-
donné,l'ayant arrêtéen jettant l'ancre au peril de leur yie, sans laquelle
mesure il auroit ététotalement perdu surles rochers qui bordent la cBte
de France ou peut êtreauroit coulédans le trajet, se considerant comme
les seules causes qu'ily ait eu aucune partie de la cargaison sauvée se
sont adressésauxdits Messg!IWinter et Nicolle tant en leurs propres noms
que comme agissans pour ies assureurs et autres interesçéç audit Navire
[' I.e., Jersey.]
IZNo attempt liasbeen made eitherto insert missing accents, or to correct
wrong accents, inthis Jersey French document.] et à la Cargaison leur ont demandé une recompense égiileau service qu'il
leur ont rendu, aux dangers qu'ils ont encourus et 5 la peine qu'ilsont
pris pour sauver partie de lacargaison, mais que lesdits SieursWin ter
& Nicolle ont refuséet sont encore refusans d'entrer dans aucun arrange-
ment avec eux. - Et concluant à ce que lesdits Philippe Winter ECS,
Philippe Nicolle Jung Ecg SrEdouard Nicolle ECF lesquels ont disposéen .
vente publique des Narchandises gi debris provenant duclit Navire
Minerve & cargaison ayent immediatement à payer auxdits BlcFrançois
Laffoley, Me Jean Selous 8i hic Jean Jean la sixihme partie du produit
desdites Ventes, en outre le Salvage qui leur revient sur la partie desrlites
Marchandises & desdits debris qu'ils ont sauvée eux mêmes ;le tout
selonque plus au long est contenu audit ordre, sur lespeinysconteniies ;
cause d'Amirauté ; suivant les premisses & ouir les dépositions des
témoins prises & redigéespar écrit&logéesau Greffe, etdroit & jugenient
par devant le corps de la Cour suivant à l'envoi par acte en date du
19$ jour d'Août 1817 A l'évocationde la cause George Philippe Benest
& Aaron De StiCroix Ecp Jurés ont étédispensésdlen,juger de ce qu'ils
sont Oncles des défendeurs, & après que lecture a été ,faite des déposi- 1617.
tions des temoins ci-devant redigéespu écrit & logéesau Greffe & que octrc 3.
les parties ont. été entendues en toutes leurs raisons & allégationpar le
moyen de leurs Avocats, La Cour a jugé que les Acteurs ont droit de
yrelever une dixihme partie du net produit de la totalité des debris,
marchandises & effets qui ont étésauvésdudit Navire & de sa cargaison
& leur aensuite accordéle tiers du net produitdc la partie dcsdits detiris,
marchandises & effets qu'ils ont eux memes sauvée après ledit dixihme
preleué, 8rsont les defendeurs condamnés aux frais & afin de règlerla.
proportion qui revient aux acteurs selonla présente Sentence, les parties
ont été envoyées examiner par devant le Greffier qui pourra donner
Serment .-
Letter from the Lieutenant Bailiff oJersey to the Lieutenant Governor
' of Jersey, 27th May, 1821, reporting upon the Oyster Fishery between
the Channel Islands and the French Coast, and deploring the Limits
proposed by the French Government, which would Depiive a Large
Numberof Jersey Men and Women oftheir Livelihood
[Foreign Ofice Papers, z7/zbz]
COPY. Jersey 27th May 1821.
Sir!
The importance of the question now in agitation between the English
and French Governments, respecting the Oyster Fishery, has induced
me to trouble Your Excellency, with some observations which may
perhaps throw sorne additional light on the Subject. Itis'not possible to ascertain the period when the Inhabitants of the
Island of Jersey first dredged for Oysters near the French Coast.-The
Boats of Jersey, from time immemorial, have fished between the Coast
of the Island and that of France, without any restriction, during times
of peace.
There is no instance of their having met with any opposition until
Iate1y.-So long as the catching of Oysters was limited to the consump-
tion of the Inhabitants of the Island, the qiiantity was very inconsider-
able and the Boats employed were but few.-lt was not till the Year
1810, that the Fishery was carried on to the present extent. At that time
some of the English Oyster Companies sent their Agents to this Island,
to purchase 0yçters.-The Boats of Jersey were not sufficient to supply
so large a dèmand, and a great number of English Smacks engaged in
the business.-This excited the jealousy of the French Fishermen who
had been in the habit of supplying Oysters for the English Market, from
the Ray of Cancale.-
This extensive Bay, between S! Ma10 and Granville, abounds with
Oysters, and the Fishery has, 1 believe, always been carried on by the
French exclusively within the two Head=lands.
It is not with respect to that part of the Coast that the present diffi-
culty has arisen.
The principal Oyster Banks in question lie between the Port of Gran-
ville and that of Carteret ; most of them are within two leagues from
the French Coast, and it is tbere that OurFishermeii have been molested,
and forcibly driven away.-From the best information that can be col-
lected, it appears that there are a great number of Oyster Banks in those
parts.
Some of these Banks have beeii known a long tirne, otlierç have been
recently discovered, by Our Fisherrnen, and it is generally believed that
more will be found in the progress of the Fishery.-It is thereforeevident
that there exists abundance of Oysters to supply the demands of the
two Countries.
IVe are ansious to maintain the right of dredging in coInmon with the
French, wheiiever Oysters are to be found, at suchdistancenevertheless
frorn the French land, as isat al1 times under water, and may therefore
be justly denominated the open Sea. Should it be found however that
the right of dredging within a defined distance from the land, docs, or
ought to belong exclusively to the subjects of each respective Country,
it is lloped tliat such distance will not extend to the Limits claimed by
the ITrench,two leagues frotn low \Vater Rlark.
Such a determination would annihilate our Fishery and oblige the
English Companies to have recourse to the French for Oysters.
Looking on the Chart l, your Escellency will perceive that the Line of
demarcation for which the French contend, particularly round the Island
of Chansey ¶, wouid confine Our Fishermen within very narrow limits.
-Such a replation would also necessarily subject them to the search
of the French Ships of LVartliat woulcl be statloned (as they now are)
to prevent Vessels having tackle for dredging Oysters, from approaching
their Coast,-I must not omit to add that such a Kegulation would also
have the effect of depriving our Fishermen of the opportunities of acquir-
[l Chart attached.][.Vut rcproduced.]
i2 RRce Chausey.] U.K. ADDITIONAL ANNEXES (SO.A 167) 639
ing that accurate knowIedge of the Tides and rocks along the French
Coast, which could make them useful pilots for His Majesty's Ships,
when required.-
Under every point of View the matter appears to me to he worthy
of the most serious consideration.-The Island hris expendcd a 1:irge
Sum of Money to build a safe and commodious harbour for the reception
of the numerous Vessels engaged in this Fishery.-More than a thauçand
Seamen have been annually employed, and many hundred Women R-
Children earn their daily Subsistence, during the Season, in selecting &
lading the 0ysters.-The whole of this lucrative business will disappear
from the Island,and be transferred ttlieFrench, if our Fishermen are
precIuded from dredging within the Circle which the French propose to
draw round their Coast.-If a certain hfargin round the French lan$
must be considered as their exclusive property, the Inhabitantsof this
Island confidently hope that His Müjesty's Govcrnment will use its
powerful influence to confine such a privilege within the narruwest
bounds, and thereby maintain its loyal & faithfuSubjectsin the enjoy-
ment of al1 the Advantages they have hitherto derived from this pros-
perous Fisherp.
1 have &c
Signedl
Thomas Le Breton
Lieu$ Bailly,
His Excellency
hlaj:Gen) Gordon
sc &c 8-c
ANNEX A 167
Dispatch from the Foreign Office to the BritishAmbaçsador in Paris,
29th March, 1837, regarding the Appointment of an Anglo-French
Commission to Settle the Limits of the Oyster Fishery between Jersey
and the French Coast,and enclosing a Copyofa Letterfrom theAdrni-
raItyta the Foreign Office14th February,1837,upon the Subjectof the
same Limits .
[ForeigtzO@ce Y~zpcrs,146/r8r l]
89 85. Foreign Office
March zgt?1837.
My Lord,
1 have had under my consideration Your Excellency's Despatch
N? 353, of last year, inclosing the further answer of the French Govern-
ment to the propositions which Your Escellency had been instructed
The draftof this Dispatch to bc foundin ForeignOfficePapers.271535.to make to them for the appointment of a Mixed Commission, with a
view to come to a new arrangement of the limits of the Oyster Fishery
between the Island of Jcrsey and the neighbouring Coasis of France.
1am sorry to observe that the answer of the French Government to
this proposition, as contained in the Notes inclosed in Your Excellency's
Despatcl-i abovementioncd[sic], is far from meeting the views of His
Majesty's Government, and is indeed altogether unsatisfactory. It is in
substance the same as thc ansiver previously given, and the objections to
itare threefold :
15 The Functions of the Commissioii proposed by the French
Government \voiild be limited to layingdown and marking out a prede-
temincd Boundarp ; by \++hichno concession of any value would be
made to the British Fishernien ; -
2% \i'liilst the British Fishermen would thus gain nothing, the French
would obtain a forma1recognition of their pretension to the ~vholeof the
valuable Fishing ground, of wliich a great part extends to a distance
of sevcn or eight miles from tlic shore ;rtnd wliich they now hold only
under the provisionai arrangement of 1824 ;.-
e~ 'l'liecoercive rneasures demandeci by the French, in return for a
concession whicli the British Fishermen coiisider to be utterly valueless
to thern, woulcl add to the exasperation of the latter,and leacl to more
serious conflicts than thosc ~vhichhave already occurred.
1 have thereforc to instruct Your Escellency again to press upon the
French Governrnent the expediency of appointing a Commissioii in the
Spirit ofthe proposa1 originally suggesteci by His Majesty's Government.
Your Escellency will observe to Count Molé,that ifthe French Govern-
ment speak of exclusive rights on their part, whicii they Say have esisted
from time immemoriai, they must remember that those rights arc denied
by the British Government ; and that the uninterrupted esercise of such
rights by the French can be disproved. That the esisting arrangement
is purely ternporary and informal, and would be put an end to st any
time, if either party should declare that it would lno longer abide by
it ;since that arrangement rests upon no forma1 convention or recorded
agreement between the two Governments ; but was merely atemporary
arrangement made between two Lieutenants of the respective Navies
on the spot ; for the supposed convenience of the parties ; and until the
two Governments should come to a final settlement of the matter.
Iinclose for Your Excellency's information a Copy ofa Letter lately
received from Sir William Symonds upon this Subject.
Iam with great trutti and respect,
My Lord
Your Excellency's
most obedient
humble Servant
PALMERSTON
His Excellency
The Earl Granville
&c &c &c
[lwould in another hand.] U.K. ADDITIONAL ANNEXES (SO. A 167)
[Enclosure]
Admiral ty
-copy.
14th February 1837.
Sir,
I have the honour to acknowledge the receipt of your letter dciteci
Jan? 18th with the inclosures containing the correspondence betiveen
the Foreign Officeand His Majesty's Ambassador at Paris, antl betu-een
His Excellency and tlic French Government relative to aproposition
which has been made to the latter for the appointment ofa commission
with a view to come to a new arrangement of the lirnits of the Oyster
Fislicries between the Island of Jersey and the neigtibouring Coast of
France, and having perused the same and having also subsequently
visited the Island of Jersey where 1made it my business to enquire more
fully into facts, begthat you will be pleased to inform Lord Palmerston
that it is stimy firrn opinion that no mixed commission nor any sort
of negotiation will realisethe jukt urishes andexpectations of those con-
cerned in the British oyster Fisheries, until the much to be lamented
provisional arrangement of 1824 is superseded by an order to our Cruizers
not to protect British 1;ishermeii withian league 'of the French Coast
similar to that of ,1822.-IVhile that provisional arrangement existi the
French Fishermen have al1 ancl even more than they desire, and it is
their interest not to negotiate further as they are enjoying a space
beyond al11awfullimit.-
The oyster banks in question which the French very adroitly term
Huitieres[siclEand Uepots[sic] cl'huitres, pretending they were fonned
by their Fishermen, have been created by the natural causes of Tides,
Currents, &c, and are amply sufficient to supply the Markets of both
Countries, in proof of which the Merchants of Granville have offereti
to supply the English Market at 36 solsthe thousana.-They are wiihi~i
sight of the habitatioiis in Jersey, and so early a1771 laws were enacted
in Jersey and confirrncd by the King in Council for the proper manage-
ment of them.
My letter of the2? Fcbruary last explained rny views of this subject
to which 1 have littlé to add.
The French Govt, 1 have no doubt, when informed that we claim our
rightfeclleague from their Coast, but are ready to wave those rights in
particular spots to conciliate them, providcd we have an equivalent else-
where, will be anxious to negotiate by a rnixed Commission or other-
wise, mutual accommodation and reciprocal concession will followl .and
.
when the boundary is decided it will be the interest ofthe French to
buoy off the limits, and a Steamer sent by this Govf might watch thc
Fishery and prevent aggressian.
In conclusion with respect to the meditated concession to tlie North-
ward of the Tour d'Agon referred to in the document of the hfinisterof
Marine, dated the 316tOctober last, a reference to tlie Chart will prove
how valueless such an extension of1irnit.wouldbe to the British Fishery,
[' withia lcague underlined.]
Hrcifieres underlined.]
righlful Eeagweunderlined.]
[' thinterlinedbut erroneously aftebe.] as the Principal Oyster beds are al1lvithina league of the shore in the
Bay of SfGermain.
I have returned herewith ailthe documents which you transmitted
to me, & 1am &c
/signedl
W. Symonds-
John Backhouse EsqF
&c &c , Bc
Inquest, 5th October,1850u ,pon1. H, Gosset, a Passenger inthe Steamer
Sttfierb, which was Wrecked at the MinquiersIslets on the 24th Sep-
tember, 1850
[Rbles de La Cour Royale de jersey, 5 Octobre, 18501
Messieurs Pierre Hernery, Jean Godfray, George PhilIipe Benest, Jean
Philippe Aubin, Charles Sullivan, Pierre Bichard, Nicolas Robilliard,
Philippe Rive, François Le Maistre, Ptiilippe Jeune, Philippe Arthur,
& Thomas Gray, actionnés par le Procureur Généralde la Reine, pour
faire leur rapport à la Justice, comment ilscroient en leurs consciences
que la mort est arrivé?iIsaac Hilgrove Gosset Ece, trouvé mort prés des
hvée de "Minqzriers" '; Et ouïr Sur ce le rapport di! DéputéVicomte ; Ont fait
Corps. leur rapport à la Justice, d'opinion uniforme, comme ils avaient fait par
devant ledit Sieur DéputéVicomte, qu'iis croient en leurs consciences
que ledit Isaac Hilgrove Gosset Ecg., âgé de 47 ans ou environ, a été
noyélors du naufrage du bâtiment à Vapeur "Superb" l,dans la matinée
du Mardi, 248 Septembre 1850 ;que ce naufrage est la conséquence de
la coupable imprudence de MgJean Priaulx, Maître au bord dudit
bâtiment, en conduisant ledit bâtimerit "Superb" ',dans un endroit
dangereux, sans le connaître & hors de la course ordinaire, en venant de
"Si Malo" l à Jersey ;& la majorité desdits hommes a étéd'opinion
que MT John Fleming, lequel était Contre-Maître au bord dudit bâtiment,
est coupable d'une grande imprudence en ayant essayé de conduire
ledit bâtiment parcet endroit là.
[' Underlined.] ANNEX A 169
Inquest, 5th October, 1850, upon W. Crany,a Passenger in the Steamer
Superb, which was Wrecked ai the Minquiers Islets on the 24th Sep-
tember, 1850
[RGles de La Cour Royale de Jersey, 5 Octobre, 18501
Messieurs Pierre Hemery, Jean ~Godfray, George Philippe Benest,
Jean Philippe Aubin, Charles Sullivan, PierreBichard, Nicolas Robilliard,
Philippe Rive, François Le Maistre, Philippe Jeune, Philippe Arthur, S-
Thomas Gray, actionnés par le Procureur Généralde la Reine, pour
faire leur rapport a laJustice comment ils croient en leurs consciences
que la mort est arrivée à William Crany, trouvé mort en mer prés des 1.~~6,,je
"Minqzbiers" ; Et ouïr sur cele rapport du DéputéVicomte ; Ont fait Corps.
leur rapport à la Justice, d'opinion uniforme, comme ils avaient fait
par devant ledit Sieur DéputéVicomte, qu'ils croienten leurs conscieri-
ces ue ledit William Crany, lequel était âgé de 14 ans, ou environ. et
nati? de ''DublifiJl.en ''Irlande" 1,a ét6 noyk, lors du naufrage du
bâtiment à Vapeur "Superb" ',dans la matinée du Mardi 249Septembre
1850 ; que ce naufrage est la conséquence de la coupable imprudence de
A15 Jean Priaulx, Rlaitre au borcl dudit Bâtiment, en conduisant ledit
bâtiment "Sz@e~b"*, dans un endroit dangereux, sans le connailre,
et hors de la course ordinaire, en venant de "Si Malo" l,à Jersey, 8rla
majorité desdits hommes a été d'opinionque Mg John Fleming, lequel
était Contre-Maître au bord dudit bâtiment, est coupable d'une graride
imprudence, en ayant essayé de conduire ledit bâtiment par cet endroit
là.
Inquest, 12th October,1850, upon H. V. Belot, a member of the Crewof .
the Steamer Sz~fierbw, hich was Wrecked at the Minquiers Isletson the
24th September, 1850
[Rbles de La Cour Royale de Jersey, 12 Octobre, 18501
Messieurs Philippe Pellier, William Vesconte Le Quesne, Philippe
Duheaume, fils Philippe*, Jean Syvret, Thomas Aubin, Hélier Le
Mottée, ~ViItiamRobinson Matthews, Jean Simonet, Henry Bailhache,
Jean François Le Feuvre, Jean Hélier De SE Croix, & George Mallet,
actionnés par le Procureur Généralde la Reine, pour faire leur rapport h Levée de
la Justice comment ils croienten Ieurç consciences que la mort est
arrivke A Henry Vine Belot, trouvé mort près des "Minquiers" ; Et
ouïr sur ce le rapport du DéputéVicomte ; Ont fait Ieur rapport A la
Justice, d'opinion uniforme, comme ils avaient fait par devant ledit
[lUnderlined.]
[' fils Philippe repeatederror.]
[$Underlined.]Sieur Député Vicomte, qu'ils croient en leurs consciences que c'est le
cadâvre de hI.Henry Vine Belot, âgé de 21 ans ou environ, lequel for-
mait partie de l'équipagedu bateau à Vapeur "Szrfierb"',et qu'ila été
noyClors du naufrage dudit bâtiment dans la matinée du 248 Septembre
1850.
Inquest, 28th May, 1859, upon an Unknown Seaman, believed to be a
French National, wha was faund Drowned near the EcrChos[Ecréhousl
Islets,and brought Ashore in the Parishof Trinity, Jersey, onthe
17th May, 1859
[Rbles de la Cour Royale de Jersey, 28 Mai, 18591
Messieurs François Edouard Duchemin, Philippe Bausaint, Joseph
Beaugié, George Guille, Philippe Gruchy, George Starck, François
Lucas, John Le Hucquet, Philippe Amy, Joseph Ferret, Elias De Grucliy
et John Cabot, actionnés par le Procureur Généralde la Reine, pour
faire leur rapport devant Justice, commentilscroientenleurconsciences
que la mort est arrivée àun inconnu, trouvé mort en la paroisse de la
Trinité. Et ouir sur ce rapport du Vicomte. Ont fait leur rapport 11la
Justice d'opinion uniforme comme ils avaient fait par devanIc Vicomte Levéede
(à l'exception dudit Mr John Hucquet qui a été exoiné par maladie corps.
et lesdits SieurAmy et Cabot qui n'ont point répondu a I'rippelde leurs
noms, qui étaient de la méme opinion) Que le cadavre était celui d'un
Inconnu supposé êtreun mariri français, qu'il fut trouvé flottant en mer
prèsdes roclierdits "les Ecréhos" danslamatinée du Mardi 17 Mai 1859,
dans un étatde décomposition qui le rendait toàtfait méconnaissable.-
ANNEX A 172
Minutes of the Anglo-French Commission, 28th December, 1866 to
16th January, 1867, for the Revisionof the Fishery Convention of the
2nd August, 1839, and the Fishery Regulations of the 24th May, 1843
[Foreign Ofice Pafiers, 9714471
[NOTE. Notwithstnnding the statement upon the final page of these
Minutes, to the effect that the Commission stood adjourned until tlie
19th January, 1867, no trace has been found of the record of that
Meeting, nor of a subsequent Meeting or Meetings, if any there were.
The words immediately below arethe original titlofthe Minutes.]
IL Underlined.] Minutes
of the
International Commission
for the revision
of the
Convention of 1839 and the Regulation of 1843
on the fisheries
Paris
January 1867.
The first meetingofthe International Fisheries Commission tookplace
at the Ministry of Marine on Friday the 28th December 1866.-The
English Commissioners present being-
The Right Honorable Stephen Cave M.P.
Vice President of the Board of Trade
Frederick Goulburn Esqy
Deputy Chairrnan of the Board of Customs
George Shaw Lefevre Esqr M.1'.
and
Captain Hore 1C.N.
Naval attaché to the Embassy in Paris-
The proceedings were opened by the Marquis de Chasseloup Laubat
hlinister of Marine in person who, after briefly alludingto the objects
-forwhich the Commission was appointed, suggested that the Regdations
preparcd in pursuance of the Provisions of the Convention concluded at
Paris on the 2% August 1839 should bc considercd seritim-
The Minister of Marine introduced NL Manceaux, Conseiller d'Etat,
as President of thc Comrnission-
The other French Commissioners yresent were
' MFHerbet-Conseiller d'Etat-Director of Consulates
at the Office of ForeignAffairs-
,, Ozenne-Conseiller d'Etat-
Director of Foreign Commerce
,, Amé-Administration of Commerce and
indirect taxes
,, I'alase de Champeaux-Captain in the Navy
Chief of theOfficeof FisIlcries-
MLW. W. Emerson Tennent of the Board of Trade Private Secretary to
MT Cave and MrA. Richmond of the Customs Private Sccretary to
MFGoulburn were also present-
MF Cave handed to the President a Nemorandum ofwhich the foIlowing
is a Copy-which the English Commissioners suggested should form the
basis of the discussion as constituting the principal points fornsider-
ation-
IG The abrogation of al1regulations respecting timesand the mocles
of fishing in the seas beyond the threc mile limit-
22 The framing of a short and simple code of police regulations in
order to preserve the yeace of the Sea, to prevent collisions between the fishermen ofthe two Countries and to bring offenders to justice
with al1possible despatch-
3g The more precise definition of the Geographical limits overwhich
the regulations shall extend-
4% The permission to the fishermen of both Countries to sel1fish on
tems of reciprocity in the Ports of either Country, subject only to such
regulations as may be necessary for the protectionof the Revenue-
The Memorandum was received by the President and directions were
given for its translation into French before the next meeting of the
Commission-
A conversation of some length took place as to the mode of proceeding
and eventually the President stated that very few of the French Commis-
sioners had çtudied the question minutely and that it was impossible to
discuss it in so large a meeting-He suggestcd thereforetliatin order to
Save time a Sub-Committee should be appointed to consider mntters
of detail and to report to the Comrnission-
It mas stated in reply by the English Co~nmissioners that they had no
power to delegate their duties to any onc or more of their body and
finally the propositioofthe President wasacceded to on the understand-
ing thst tlie report of the Sub-Cornmittee was not in any to bind the
Commission-
The Yresident suggested that the first clause in the Memorandum
presented by the English Commissioners should be referred to a Sub-
Committee which was agreed to and Captain de Champeaux was nomi-
nated as the French and ?il: Shaw Lefevre and Captain Horc as the
English Members of the Sub-Committee.
It \vasalso agreed that a Gentleman practically acquaintetl with the
questions under discussion, though not a Member of the commission,
might attend the Committee to assist Captain de Champeaux.
The Commission then adjourned until Friday the 4th January 1867at
11.30 a.m.-
S. C. Jan. 4. 167
Friday 4thJanuary 1867.
MT de Manceaux in the Chair-
ML Cave Mr, Herbet
,, Goulburn ,,Ozenne
,, Shaw Lefevre ,, Ainé
Captain Hore ,, de Champeaux
,, Carron-
Mr Richmond and Mr de Joinville the Secretaries were also prçsent-
The Minutes of the preceding meeting were read and adopted-
M: de Champeaux gave an Acount of the proceedings of the Sub-
Committee nominated at the preceding meeting to consider the 1% and
2- paragraphs of the hlemorandum presented by the English Commis-
sioners-
Inthe first place the Sub-Comrnitteeconsidered it expedient to embody
in one document the Convention of 1839 and the Regulations of 1843 '
[l1843 alteredfrom 1842.1 U.K. ADUITIOS~~L ANKEXES (K~. A 172) 647
founded tliereon in order to avoid al! unnecessary repetitions- The
Sub-Cornmittee were also of opinion that it was desirable to abolish
al1 regulations which have [becorne] obsolete or useless- To this end
the Sub-Committee had prepared a scries of Articles containing the
regulations which it considers desirable to retain.
3P de Champeaux suggested that the Commission should examine,
at any rate in a superficial manner, the articles on which there was a
cornplete understanding between the members of the Sub-Cornmitti:e-
ML Cave did not see any objection to the courseproposed but observed
that, though the Commissioners rnight be agreed upon any Articles,
they could not be adopted separateiy butmust depend upon the Commis-
sioners coming to an agreement upon the Convention as a whoIe-
de Champeaux replied that the document in Iiis hands mas onlya
proposed draft prepared with a view of obtaining the opinion of the
Commissionwhich was not in any way bound thereby.
Turning to thefirst paragraph ofthe Memorandum presented by the
English Cornmissioners MFde Champeaux informed the Commission that
he had received from hl?Shaw Lefevre in the name of the English Sub-
Cornmittee a Eilemorandum on the subject- There isno difference of
opinion as regards the regulations respecting tirnand modes of fishing
escept as far as Oystersareconcerned- On this point the memoranclum
contains some arguments to which he had not yet had time to rcpiy
having only received the document the previouç day-but he proposed
to do so before the next meeting-
Taking as a basis the hlemorandum above referred to the Sub-Com-
mittee proposed a new ArticleNo I. founded on the ArticleNE g and IO
of the Convention of 1839 subject to certain amendmeiits.
31~ Cave suggested that a Clause siioutd be inscrtcd to include the
Channel Islands in the terms "Iles Britanniques"-
ML de Champeaux resumed the reading ofthe proposed Article-Na z
of the new set to be identical with ArticlI. of the Convention settling
the fishing limits in tBay of Granville-
The original Chartsigned in 1839was produced and the Comrnissioriers
decided that itwas not expedient to make any alteration in the bound-
aries-
Article 2 of the Convention is no longer required being embodied in
the New Article No I.
Article 3 forthe same reason may be suppressed being treated of more
iulty in Articl16 of the regulations-
Article 4should be done away with in consequence of the impossibility
of carrying itout.
Article5 istreated of in Articl6of the Regulations, the wordmurkeda
being inserted therein-
Article 6will be embodied in the above mentioned Article-
Article 7rnay be abolished as useless-
Article 8 may be dispensed with for the present the question being
treated of when Article 85of the regulations is under consideration.
Articles9 and IO have already been embodiedin the new ArticleI.
Articles IIand 12are no longer required.64s U.K. .4DDITIOKAL ANXEXES (NO. A 172)
hïr de Champeaux then proceeded to consider the Articles of the regu-
lations of 1843 Articles I. 2. 3. 4 and 5 being merely a repctition of
the Articles of the Convention may disappear-
Article 6 should be retained amendcd as above stated and should also
embody Articles 7, 8. 14 and 15 al1 of which relate to the markingand
numbering of boats-
No9 relating to the marking of boats belonging to the Channel Islands
should be considered at some future time-
Articles IO,II, 12and 13should be rctained at any rate in substance-
Article 16 is reservcd for future consideration- The Sub-Committee
however expressed an opinion that, setting aside the question of Oysters,
there should be no restriction on the times and modes of fishing in the
seas beyond the three mile limit-except so far as police regul t'ns are
desirable and under these circumstances No 17,18, rg. zo,21.22 and 23
might be dispensed witli-
Mr Herbet asked whether there might not be reason to fear tliat fisher-
men in the Mediterranean or elsewhere would make use inthe scas within
the three mile limit of implements &conly allowed outside.
Mg de Champeaux replied that this \vas not a question for an Interna-
tional Commission but one for the legiçlation of each Country and it
would therefore be for the French Government to make such rcgulations
asit might consider desirable.
An Article will be substituted for NE 24, 2j and 26 and discussed
liereafter-
The following Articles as far as 45 may be done away with, with the
exception of NE 29, 30, JI.32 and 33 the consideration of which was
adjourned-
On the motion of RP Ozenne the propositions of the Sub-Cornmittee
were ordered to be printed and distributed amongst the Rlcmbers in
order that each may be in a position to form hisown opinion as far as
the matter has progressed-
ML Cave rcquested that n Sub-Committee might be named to consider
in the intervnl before the iiext meeting of the Commission the subject
of the sale offish-
This was agreed to and-
h.1Cave MTde Cliampeaux
,, Goulburn ,, Amé and
,, Carron
were named as Members of the Sub-Cornmittee-
The meeting was adjourned at a quarter to two until Friday the
11- January at the same hour-
S.C. Jan.II? 1866 l.
Report of the Sub-Committee
La sous Commission[sic] nommée a la dernikre sceance[sic] de la
Commission chargéede la revision de la Convention de 1839 etdu règle-
ment de 1843, concernant les pêcheriesdans les mers situées entre les
[lRecte r867.1Côtesde France et ,cellede la Grande Bretagne, a pensé qu'il convenait
de renfermer dans un seul acte,cellesdes dispositions de cette Convention
et du Reglement[sic] intervenu pour son execution[sic] qu'il paraissait
utiIe de maintenir-
- . .. - . . . .
[' exprime' altcrefroni expui~nb.]
44 Regulations of 1843 modified by the Sub-Cornmittee in the manner
suggested at thelast meeting. Each Article was considered separately-
ArticleI.(gg and IO& Articles of the Convention combincd).ML Amé
criticized the wording of the zzparagraphof tliis Article but stated that
it was not important as there couldbeno doubt as to the rneaning-
ArticleI. was then agreed to-
Article z (rg Article of the Convention) was agreed to without any
discussion-
The Sub-Committee had thought itdesirabIe in order to avoid difficul-
ties which have been often occasioneby several subjects beirig embraced
in one Article, to divide that relating to the marking and mumberi~g of
boats into five bearing the numbers from three to eight inclusive-
No 3 (6tfArticle of the RegulationNo 4 (71'1 rticle of the Regulations)
No 5 (8th14t hnd 15- Articles of the Regulations)N06 (~ot!~Article of
the Regulations)No 7 (11th Article of the Regulations) were agreed to.
No 8 (12thArticle of the Regulations) having been read the President
enquired whether the names of the Owner and of the Jlasterbeinginsert-
ed on the Muster Rolls or Licences was siifficient identification in the
case of the Master not being on board and the Mate incharge ;or would
it not be better that the name of the latter should be also inserted ?
&IL Carron was quite of this opinionand asked how proceedings could
be taken in England in the cvent of the Mate giving a false name when
charged with some offence-
ML de Champeaux replied that the name of the Owner alnne afforded
, a considerabIe guarantee as he would no doubt give up the name of the
person in charge of his boat, besides which the Master in the event of
proceeding being taken against him, would, in ordet to Save himself,
only be too ready tostate who was acting for him- M',de Champeaux
considered therefore that the Article as it stoodas quite sufficient on
the understanding that every Engliçh fishing-boat should bc lirovided
with a proper Licence-
ML Goulburn undertook that this should be strictly attended to-
Article 8was then agreed to.
g (No 13 of the Regulations) was agreed to without any dis-
cussion-
Article IO (No 16 of the Regulations) 'I'his Article irivolves a new
principle viz[sic] the abolition of al1 regulations for fiof al1 kinds
with the exception of tliat for Oysters and after several observations
from different Members of the Commission on points of detail the .Article
was finally agreed to in the following ternis-
"Fishing of al1 kinds, with the exception of that for Oysters,.by
"whatever means and at al1seasons may be carried on in the seas lying
''beyomi the Fishery limits which have been fixed for the two Countries".
Bearingin mind the terms of the above Article the Commissiondecided
that the Articles17.18. 19.20, 21.2s. 23, 27.28. 34,35,36. 37. 38, 39,
40,4r, 42, 43 and 44 of the Regulations of 1843 should be abolished-
Articles 24.25. 26,29, 30,31, 32 and 33 have been embodied by the
Sub-Committee in Articles which will be considered further on and
Articles45, 46, 47, 48 and 49 which relate to the Oyster Fishery will
form the subject of future deliberation.
31: de Champeaux proposed the abolitioii of Articles50 and 51 of the
Regulations on the ground of their being practically useless but the
[lbeyotzd underline,.] President remarked that the Commission ought to be carefuI not to
abolish police regulations which might in certain cases lie found useful-
Mf de Champeaux replied that the Sub-Comrnittee had not lost sight
of this fact in recommending the abolition of Articles50 and gr wliich
relate to the different coloured Vanes tobe carriedhy fishing boats. In
realjtyif theboatç were along ivay off it \vas jmpossjble to djstinguish
the colour of the Vanes and if near there was no difficulty in deciding
how they were employed without referring to the Vanes. In every scnse
therefore it wns desirable that Article50 and 51 should be abolislied-
The Commission decidcd on the suppression of these two Articles-
The Co~nmissiondecided to retain Article 52 of the Kegulations, which
atfirst sighwould appear to be embraced in the Article determining the
distancefishingboats should keep apart, AITShaw Lefevre having paint-
ed out that this mle aas not only good in itself but referred tolbc>ats
and not fishing boats only.
'l'lieCommission directed this Articlc be inserted asNo 11of the iiew
Series-
The consideration of Article12 ofthe new Series (Kz 53and 54 of the
Kegulations) then took place-
ME Shaw Lefevre remarked that the word fishermen in the last para-
graph must be understood to menn fishermen with drift nets a as a11
trawlers are obliged ta carry a light, and that it would be betterorder
to avoid doubt that the words çhould be inserted-
The proposition of MF Shaw Lefevrc waç adopted and the Articlc
agreed to-
ArticIe 13 (Ng 24, 25 and 26 of the regulations) was then discussed-
illde Champeaux remarked that the provisions of the Iast pnragrapli
of this Article were tao scvere having, in his opinion, been framcd in
consequence of the great importance attached by the English to the
Herring fisherp- So much so indeed that Il?Shaw Lefevre stdl thought
that all the Articles governing the distances which should separatc the
boatç might be embodied in one throwing in every casc the onus of any
damage on the Trawler-
After some further rernarks the Commission decided to adopt the
proyosed Article reserving the question as to the distance, that of three
miles appearing excessive, and AITShaw Lefevre especting some further
information from England on this subject.
Article 14 (Nz 29 & 30 of the Regulations) was agreed to subject to
the same question asthe prcceding Article.
Article 15 (,"y 31 Br 32 of the Regulationç) was agreed to on the
Iike condition-
Article 16 (No 33 ofthe regulations) was then read.
hfr Shaw Lefevre requested that the consideration of this Article
rnight be deferredas its adoption appeared to him materially to depend
on the deciçion which might be corne respecting the distance tbe main-
tained.
hff Champeaux was of opinion that the conditionsof this Article were
more favourable to the French than to the English fishermen and that
it was desirable to retain it, the tems however being more clearly cs-
pressed- . .
1'al1underlined.]
[awith cirinets uiiderlincd.] The Article was referred back to the Sub-Committee to decide on the
wording the principle being maintained.
Article 17 (No 58 of the regulations) was agreed to without any dis-
cussion-
Article 18 (No 59 of the regulations) The Commission decided to retain
the tcxt of the old article omitting only the four last words "under any
yretence whatsoever" as it was thought possible that a boat might be
obliged in order to clear herself to lift the nets belonging to anotherboat.
Articles IQ (No 60 of the remlations) and 20 NE 61 and 62 of the
regulations) were agreed to-
Article 21 (No 63 of the regulations) On the consideration of this
Article Mr de Champeaux remarked that the adoption of the principIe
of the freedom of fishing woiild render certain alterationsnccessary in
the wording- Al1restrictions as to the description of nets, the size of the
meshes &c having been abolished no superintendence on this head
would be required from the Cruisers, but it was çtill very desirable that
the regulations wliich ithad been considered dcsirable to retain, such
as the marking and numhering of the boats, the Licenses &c. should
be strictly attendedto.
hl! Shaw Lefevre waç of the opinion that a breach of the regulations
regarding Licenses should only render a boat Iiable to be stopped from
fishing-
hl? de Champeaux considered that an Eriglish boat without a licence
should be treated as if found within the French territorilimits.
After some further observations Article21 vasagreed to in the follow-
ing terms- .
"The execution of the regulations concerning the Licences, the mark-
"ing and numbering of borits and impIements of fishing, the liglits and
"signals is placed "with respect&c &c " to the end of Article 63 of the
regulations-
The question of the insertion of the words "dans la mer Commune"
was reserved for future consideration-
Article22 (No 64 of the regulationswas agreed to, the text of the old
articIe being retained subject to the necessary alterations and reserving
the question of the Oyster Fishery-
The Commission adjourned at 2.30 until Wednesday the 16thJanuary
at 11-30 a.m.
apyroved S.C.
Wednesday 16thJanuary 1867
ML Manceaux in the Chair.
31:Cave 315 Herbet
,, Goulburn ,, Ozenne
,, Shaw Lefevre ,, Amé
Captain Hore ,, de Champeaux
,, Carron-
Mr Richmond and M~de Joinville the Secretaries were present U.K. ADDITIONAL -4SKEXES (NO.A 172) 653
The Minutes of the preceding meeting were read and adopted-
The President suggested 'that the Commission should, at the present
meeting, consider the question of the Oyster fishery which was agreed
to and MT de Champeaux was called upon for the report of the Cornmittee
on this subject.
de Champeaux again repcated, what he had stated at a previous
meeting, that there was a difference of opinion as regards the Oyster
fishery and that the Eiiglish and French Members had not been able to
corne to an understanding on the matter- The arguments on both sides,
the English lvishing todo away ~viththe close season and the French to
maintain it, are fully expressed in a report which was readto the Com-
mission by this Gentleman and a Copy of which is annexed to this
Minute-
Al' de Champeaux then informed the Commission that he had since
received a further Memorandum from MT Shaw Lefevre in which that
Gentleman again referred to the arguments of the English Commissioner
in favour of the perfect freedom of fishing and drew particuler attention
to the fact that the French Government had by their Law of the 10 May
1862, regulating the Fisheries within the three mile lirnit, introduceci
certain regulations which were contrary to those of the Convention : for
instance the Convention directed that al1smalloysters should be throm
back into tIie Sea but the Law of1862 allowed them to be retained Hence
the English Government had, according to Mr Lefevre, only followed
that of France in introducingrules ~vithinthe three miles contrary to the
provisions of the Convention-
To this itwas easy to answer that I the replations it might at ;iny
time have been thought desirable to make for the fisheries within the
three mile limit, had never been in opposition to the provisions of the
Convention of 1839 and thatthe close time had been strictly enforced in
a11the rules made for the government of the Oyster fishery. The Law of
1862 allowed the srnall oysters to be retained insteadof being thrown
back into the Sea as directed by a the Article of the Convention of1839
in consequence of its having been discovered that their destruction was
ensured by a cornpliance with the provision of the Article referred to
besides which this was quitc a subsidiary question and did not really
affect the principles of the Convention of 1839, This convention recog-
nized the necessity for a close seaso= the English Commissioners wish
this restrictionto be removed-the French on the other hand cannot
agree witli them and there is even reason to doubt whether the feeling
on this hcad is unanirnous in England-a certain number of peopleon the
Coast of Ireland for example ~vishingit to be retained-
My Shaw Lefevre feared My de Champeaux had not quite understood
his observations relativeto the steps taken by the French Govem~nent
in its own waters in opposition to the provisions of the Convention-
He only wished to reply to the arguments made use of by the French
Commission under the head of No 4 in the annexed çtaîement. The
Convention was onIy binding on the two Nations in the open sea beyond
the three mile Iimitleaving it to each to make such reg~ilations as might
be considered desirablewivithiits own waters- The English and French
Governments were therefore quite justi6ed in making rcgulations witliin
thal followeby whatsverwhich is stmck through.]
as directeby inte~linedinconlraventioof stnick through.] U.K. ADUITIONAL ANNEXES (NO. A 172)
654
the three mile limit which werc in opposition to the provisions of the
Convention of 1839- Itloreover there was no difference of opinion as
regards the small Oysters- 13utthe question then lunder consicleration"
was the sea common to both- The English Commissioners thought
that the privilege of dredging al1the year round, which is now granted
within the three mile limit, should be extended to the common sea-the
more so as their fisherrnen were far more interested than the French in
the questions their numhers preponderating very largely perhaps even
as much as ten to one-
The President then stated that in his opinion the question ' under
discussion might be considered under two heads-~g as ageneral ques-
tion and zns in the relation it bore to the practice ,withinthe three mile
limit- In t,he first place as regards the ge~ieralquestion were not both
nations interested in preventing the destrirction of one of the gifts of
nature which was open to both of them ?- This question appears in
England to be lookcd at from two points of view. as a commercial
speculation which should be carried on to the greatest extent possible
and only in the a+ place in the light of one of nature's gift[sic] which
should be made the most of. It was in this light that the Engliçh legis-
lature looked upon the question of the Salmon fisherieswhen it made the
strict regulations which now exist-and France when it also subjected
the Salmon fishery to certain restrictions only followed in the steps of
the English Parliament. For oysters on thc other hand the commercial
question seerns entirely to have the upper hand- The question never-
theless is worthy of the most careful consideration The English Com-
missioners are of opinion that dredging al1the year round would not in
any ïvay diminish the supply- It is difficultto believe this and as there
is reason to think that many ofthe beds within the limits are replenished
from those without, one can onlysuppose thst the extinction of the latter
would lead to the impoverishment if not the ruin of the former- From
all sides complaints are made that oysters are getting scarce- 1s not
this occasioned by over-dredging ? The English maintain that fordredg-
ing the surnmer months are preferable to the winter-the beds are then
in a more favorable state and the constant use of the dredge prevents
the accumulation of any matter hurtful to the Oyster-and which might
destroy the young-and lastly that were clredging allowed al1the year
round no fears need be entertained of asufficient quantity not being left
to replenish the beds. as it has been estimated that ten per cent at least
remain- These arguments do not appear by any means conclusive and
it seelns to stand to reason that the use of the dredge just at the time of
spawning must cause a great commotion and thereby injure the young.
beçides whicli there does not appear to be any basis for the staternent
put fonvard by the English that at least ten per cent are left. We are
then of opinion that to allow unlimited dredging in the common sea
would be a most dangerous measure and this conviction is further
strengthened when we cal1to mind what took place on Ourown coasts
between 1786 and 1815- In the former year the beds of Cancale and
['lhen interlined.]
consideration followed blo-dayivhich isstruck through,]
[9the followed by ques(tion), which is struck through.]
[4question followed by then, whicli is struck through.]
p ioruiard altered from forth.] U.K. ADDITIOPI'AL AKKEXES (NO. A 172) 655
Granville were exhausted; the oyster fishery \vas thence from political
causes abandoned for many years and in 1815 w,hen it was resurned, the
supply on the beds was so large that it \vas considered inexhüustible-
1s it not a fair inference that the large supply %vas uwing to the rest the
beds had enjoyed ever since 1756 ?
hf?Cave replied that we did not, as M' Manceaux seemed to think,
take care of our obvnproperty inside tlie lirnits and in our rivers and at-
tack that which was tlie common property of the two nations-for the
beds outside were the common property of the whole urorld-and tvehad
moreover ~irovedour sincerity by abandoning the close time within our
own limits. It was only at first sight that the Salmon aiid Oyster fisheries
appeared to be similar- Parliament before legislating on the subject
was quite certain that unfair fishing was the cause of the decrease in the
quantity of Salmon but there is no such certainty as regards Oysters-
On the contrary there is every reason to believe that the decreaseshould
be attributed to natural causes sucli as the weather Ac. hl?Cave did not
, agree in the opinion entertained in France that the beds within the three
mile limit were replenished from those vith ho unor could he admit that
theuse of the dredge ali the year round was hurtful to the young Oysters
which were exposed to many more destructive enemies, some of wlïich
were removed by dredging. MLOzenne remarked that this fact Iiowerver
[sic]rernained and it was impossible to deny it as it was supported by
evidence- In 1786the Oyster beds of Cancale and Granville were ex-
hausted-in 18r5 the supply was su abundant that the fishermen, believ-
ing them to be inexhaustible, have dredged to such an extent that the
bedç are daily becoming poorer-This would seem to lead to the infer-
ence that the period of repose \vasessentially favorable to the reprocluc-
tion of the Oysters and that the continual dredging isto a like extent
hurtful- Can the English furnish us with as striking an instance on the
other side ?Can it be proved that the use of the dredge al1the year round
is favorable to the replenishment of the beds- Until this can shewrl to
[bel the case-the abolition of the close time cannot be looked upon
witliout apprehension-
ML Lefevre did not pretend to deny that if anoyster bed wasleft alone
for 20 years at the end of that period it would be found replenished but
the point under consideration \vas how to obtain the largest nn?tzral
supply- In the opinion of the English Commissioners the best way was
to dredge al1the year round- Moreover there was noscarcity of oysters
in the open sea they abounded in al1parts of the Channel andas he hacl
- already stated the English were much more interested in this question
than the French for the large deep-sea Oyster was almost unknown
in France certainly quite so in Paris-
IV de Champaux[sic] could not agree with the çtatements of hl:
Lefevre, the french[sic]fishermen were to be foundin the open sea as
well as the English and had thereforc similar interests atstake besideç
which Oysters were not as plentiful in the Channel as had been stated
none being to be found at greater depths than $0 or 60 fathoms- Mr
de Champeaux would feel extremely obliged if the English Commission-
[lto followedby the(in)which is struck through.]
[abe omitted in error.]
annual underlined.] ,
['deep-scainterlined.]656 U.K. A131>1TIONAL r\KNEXES (SO. A 172)
ers would answer the following question ?Was the quantity of oysters
on the E~lglislibeds within the three mile limit ever as small as at pre-
sent-?
Mr Lefevre replied that the cause of the Oysterç having diminished
was awant of spat. A period of 15 years had once elapsed vith ho utthere
being anyspat on the beds at the mouth of the Thames-and for the last
six years tl-ieliad been a.great want almost everywhere. Notwithstand-
ing this Oysters still continued to be exported from England to France.
hlr de Champeaux- Has the number of dredging boats ever been as
large as at present ?
hlr Lefevre- No decidedly not.
iilrde Champeaux-Might not some deduction be drawn from the
fact that at the time tlie ' boats ernployed indredging have increased
in number the Oysters on tlie English beds are continually dirninishing
more especially when we bear in mind that whilst Oysters in the Cha~iiiel
are daily becoming scarcer on the West Coast of France where dredging
is not carried on to thesaIne extent they still abound-
hl:Lefevre repeated that in his opinion the scarceness of oysters was
owing to the want of spat for several years in the Channel and that for
the sake of the beds theinselves it would be far better to dredge in the
sumrner than in the winter-
Mr de Champeaux-What isthe practice amongst the proprietors of
private oyster beds on tlie Coasts of England ?
RlrLefevre replied that private firms did not dredge for about three
weeks or a rnonth- For about four months Opsters were not sold by
the firms but they continued to dredge for the good of the beds only
leaving off when they saw signs of the spat-
Mr de Champeaux- They admit then the necessity of leaving off for
a certain time ?
MF Lefevre remarked that the casewas quite different in the open sea-
Mr de Champeaux. CZrhatis the price of oysters in England ? has it
increased lat terly ?
Mr Lefevre answered in the affirmative ohserving that the decrease in
nurnber occasioned by the want of spat on the beds has naturally in-
creased the price- "Natives" are now five times as dear açthey were
but the price of the large sea Oyster has remüined the same-
The President- It remains now for us to consider the question in a
particular point of view that is in connection with the territorial sea-
This is the dificulty which Ive should find- Ifthe English fishermenare
allowed to dredge al1 the year round in the comrnon sea how can we
refuse the same privilege to our fishermen-and if this is sünctionehow
prevent thern from dredging within the limits during the close time-
1sthere not reason to fear that they would soon destroy these beds which
it is somuch our interest to preserve- The case is different in England
for there the beds within the three mile limit belong for the rnost part to
private individuak whose interest it is to protect tl~eirown property
whilst in France the beds are public property-
fiIr Cave replied that it was perfectly true that the system in the two
countries was quite different- In England it was thought much better
that the oysters should corne from private beds where they were care-
[tthe followed bynuntber of,which is stmclr through.]
[tin the comtnonsea interliried.]fully protected from much more dangerous enemies than the dredge-
tlie quality of the oysters being thereby irnproved and the nurnber large-
ly increased- As it has already been said it has been found quite im-
possible to prevent dredging in the open sea aç the Convention was not
considered'to extend beyond a certain line from the North Foreland to
Dunkirk- The fisherinen from beyond this line continually came within
the limits and the fishermen on the South Coast complained bitterly that
they werc not allowed the same privilege- The Englis hruisers did
their best to prevent infractions of the regulations but the matter was
full ofdificulties and it uras therefore very desirable tliat some arrange-
inent shoiild be come to.
The Yresident- As it isevident that the Commission cannot ngree on
the principle would it not be possible to corne to soine understanding
by means of mutual concessioiis and therefore we should like to be
favored with your proposition-
Mi Cave replied that the English proposition had already been made
which was that the close time should be abandoneci-therefore it would
be better that the French Commissioners should submit a counter prop-
osition-
Mi de Cliampeaux remarked that a way out of the difficulty had oc-
curred to him Would it not be ~iossiblto fixon a zone of six rniles from
the Coast of France within which dredging should be forbidclen during
a certain season : the oyster fishery being perfectly unfettered every-
where else- There was however reason to fear that this plan would give
rise to rilmost ui~surinountabIe difficulties.
The Prcsident considered that an alteration in the close time ~night
perhaps be better- For instance to allow dredging in May and not ta
reopen the season till the middle of September-
hl: Cave waç quite of opinion that it was useless to discuss the general
question any more as the English and French Cominissioners had totally
opposite views on the matter-but as tlie President had very fairly re-
marked when a Commission differs on the principle sorne attempt should
be made to corne to a compromise the interests of both sides being re-
çpected- Two suggestions had just been made-the one to fixupon a
certain zone within which dredging should be forbidden during the close
season-the other to çhorten the duration of the same- The first plan
iç open to serious objections- How was the English Government to pre-
vent their fishermen from encroaching on the prohibited zone ?It would
be for the French Government to dothat- As matters now staricl fisher-
men from beyond the limits ofthe Convention are constantly encroaching
and breaking the regdations W Herbet remarked that it would be the
business of the French cruisers to prevent these violations of the Con-
vention-
MT Cave was inclined to think that çome understanding rnight be come
to on the second proposition and that tlie matter w:iswell worthy of
consideration. Wouid it not then be better to adjourn the question and
for the French Commissioners to make some proposa1 based upon theçe
suggestions or any other which they miglit consider desirable-
The President was of opinion tIiat it wouldbebetter to refer the mat-
ter back to the Sub-committee which had already considered the subject
[' on the seconprogosifiointerlined.] -it being ciearly understood that the Comtilissionwas not to be in any
way bound by their report-
hl! Cave does not see any objection to this plan and onlyrequests that
his name may be added tothe Committee-
The President quite concurs-
MF Cave reminded the Commission that there were two other impor-
tant points under consideration-the question ofthe sale of fish and that
of the tribunals. Had the President received someinformation he expect-
ed an the latter subject ?
The lPresident replied that he had received the information and that
he ~vouldcommunicate the same to the Commission when the question
was under discussion-besides which the dificulties whichhad bcenpoint-
ed out by the English Cornmissioners weri: not likely to occur again-
The law of the 30 May 1863"Sur les flagrants delis[sic]" having removed
many of the obstacles- As regards the sale of fish tlie French Cornmis-
sion was at that time engaged in inaking enquiries on tlie subject and it
uras impossible for them to corne to any decision until the termination
of these enquiries-
The Commission adjourned at a quartcr to two until Saturday the
19tFJanuary 1867at 11.30 a.m.
Jan. 1gti1.
Prosecution of Philippe Pinel, ~3rd July, 1881, for an Açsault upon
H. C. Bertram, Customs Officia1 of Jersey, when Discharging his duties
at Blancq [Blanc] Ile,one of the Ecréhos[Ecréhous]Islets, belonging to
the Parish of St. Martin, Jersey
[RGles de La Cgur Royale de Jersi:y,23 Juillet, 18811
1881 [ . . . . . . . . . . . . . . . . . . . . . -al
Juillet 23 Philippe Pinel saisi de fait par Ie Centenier Le Brun de la paroisse de
Sj,Martin et présentéen Justice par le Connétable de laditeparoisse ;
sous la prévention d'avoir le 23cjour de Juin 1881 ou vers ce temps-là
grossiérement insulté,sans la moindre provocation, Henry Charles Ber-
tram Ecg sous Agent des Impots 2,celui-ci étant sur les devoirs de sa
charge au Rlancq Ile, un des Ilots des Ecréhosappartenant et dépendant
de Ia paroisse de S4 Martin. Aprésque le Centenier Lc Brun, H. C. Ber-
tram Ecr et Joseph Cartwright, témoins, oiitétéentendus par serment,
la Cour a condamné le prévenu à une amende d'une livre Sterling et i
défautde paiement à un emprisonnement de quatre jours-
[' The rvrittenoverhlr.1
[2No attempt hasbeen made either to insert missing accents, or to correct
wrongaccents. in this Jersey French document.] U.K. ADDITIONAJ, ANNEXES (NO.A 174) %O
Article in La Gazette Géographiqile etI'Ex~lorationof the 4th February,
1886, pp. 93-4, dealing with the Question of Sovereignty over the Ecré-
hous Islets, and an aIleged proposalto erect a Fort thereon by the United
. Kingdom
NOUVELLES GÉOGRAPHIQUES
ILESECREHOUS. - La question des Ecrehouscontinue à occuper la
presse ; un point est désormaishors de cause :il n'y a pas de forts aux
Ecrehous. Reste la question de propriétéde ces îlots rocheux et de déli-
mitation de la zone des eaux neutres dans le passage de la Déroute.
Les députésde laManche, qui ont suivi cette affaire depuis le début,
ont eu la semaine dernière deux conférencesavec M. le présideiit du
conseil, ministre des affaires étrarig6res.
Des nkgociations vont êtreengagées avecl'Angleterre ; une cornrnis-
sion de jurisconsultes va êtresaisie. C'est pour ne pas troubler ces impor-
tantes négociations et faciliter l'Œuvrederéparation et de revendication
qu'il s'agit d'entreprendre, que, sur le désir exprimépar M.de Freycinet
et par une préoccupation toute patriotique, Ies députésde la Manche
n'ont pas déjàportéle débat à.la tribune.
Un rédacteur de la Jzlsticel,qui est allé visiter les îles, arrive, après
s'êtrelivrésur les lieux une enquêtesur l'importance éventuelle que
ces rochers ppurraient avoir et sur la question de la propriétk ;lux
conclusions suivantes :
"IO La question des Ecrehous est plus importante qu'on le croit ;il y
a longtemps déjà qu'elle est agitée, les circulaires le prouvent, comme
elles prouvent aussi que I'Angleterre a émis desprétentions sur ces îlots
et les a revendiqués ;que nos pêcheursont été avertisplusieurs fois
de n'avoir point ?is'y rendre, afin d'évitertout conflit avec les Anglais.
"Ces maladroites circulaires sont presque une reconnaissanceformelle
du gouvernement français des prétendus droits de l'Angleterre sur les
Ecrehous.
[' M. Sutter Laumann. See the extracts fromLa Justice of the 24th. 26th and
27th January, 1886, below.]
[' 1Vith the exception of the paragraphbeginning Purmi (where the inverted
Laumann's article in La Justicetoffthe 27th January,eq1886.The fquotationuis,r
however, seriously defective. Thus, two whole paragraphs betwcen thase beginning
B'abmd and Enfin are omittcd ; while the paragraph beginning D'abord isitseli
incomplete.]
[' La ,Justice has Ecrehous within inverted commas.]
r4 La Justice hasa comma.] 660 U.K. ADDIT~ONAL ASNEXES (NO. A 174)
"2O L'importance de ces rochers est réelte; rivant de les avoir vus,
je crois avoir dit qu'il me semblait difficile qu'un fort pût y êtreétabli.
Les ayant vus, mon avis a changé.
"Un fort anglais sur la Maîtresse-Ile des Ecrehous nous fermerait
en temps de guerre Ie passage de la Déroute 3,passage seulement indiqué
sur les cartes entre Jersey et Guernesey, mais qui s'étend le long de
note[sic] cate très avant dans le sud. Le fort nous fermerait d'autant
mieux la Déroute que c'est une passe dificile, seméed'écueils, de bancs
de sable où de gros navires ne peuvent passer qu'avec des pilotes du
littoral et par des marées exceptionnelles. On peut arguer que, dans ce
cas, l'inconvénient n'est pas trks grand, puisqu'il y a peu de navigation
dans ces parages. Mais il y a d'autres inconvénients de premier ordre.
"D'abord, en cas de guerre, avec une flottille de petits bateaux réquisi-
tionnésà jersey, les Anglais, appuyés par un fort aux Ecrehous 2,pour-
raient tenter et réussir un débarquement soit à Port-Bail, soit A Carteret,
surtout dans la prerniére de ces localités qui va devenir trés importante,
à cause des travaux qu'on va entreprendre pour améliorer et agrandir
le port, et du chemin de fer qui doit êtrelivréil la circulation d'ici deux
ans etqui reIiera Port-Bail et Carteret à la ligne de Cherbourg-Coutances,
"Enfin, la possession des Ecrehous assurerait aux Anglais un .pro-
longement de la limite de leurs eaux ; il n'y aurait plus pour ainsi dire
de zone neutre entre les eaux anglaises et françaises, par conséquent plus
de pêchepossible, non seulement sur les Ecrehous 2,mais presque dans
toute la Déroute Dejà les Anglais ravagent cette zone neutre. Ayant
de meilleurs bateaux que les nôtres, ils sortent presque par tous les
temps et font dc formidables rafles de poissons et d'huîtres dont il y a
plusieurs bancs.
"Parmi les documents que la Justice publie à la suitede la correspon-
dance de son rédacteur, nous relevons la dépécheministérielte suivante :
I'aris, I28 marsV884.
Monsieur le vice-amiral, j'ai l'honneur de vous remettre, ci-joint, copie
d'une lettre que AI.le président du conseil, ministre des affaires étran-
gères, m'a adressée le 26 de ce mois, relativement à l'csercice dc la
pEche autour des Ecrehous.
hl. le président du conseil pense que la convention du 2 aoUt 1839
autorise nos nationaus à pratiquer ln pêchedcs huîtres près des Ecre-
hous, mais que la revendication de propriété de ces rocliers 7,formée
par l'Angleterre, ne permet pas à nos marins d'y exercer d'autre genre
de pêche,à inoins qu'ils ne se tiennent à la distance de trois miIIes desdits
rocliers.
1'I.e.,MaEti-cIle. La Jirslichas ~Iloftvesse-iwhich it prints in italics.]
[= La Juslicchas Ecvehous within inverted commas.]
[Va Jlbslicehas Ddvoule in itaiics.]
C4?iotre.]
[sThe text reprinted from La Justice of the 27th January188G.as the second
duciiment in Annex A 46 to the United Kingdom àïemorial, ha? 26 mars ;but
* the first paragrapof this document suggcsts the 28th AIarch as bein:, the inore
likcly date.]
taSee Annex il 27 to the United Kingdom Mernorial.]
I7The textin Annex A 46 to the United Kingdom lllemorial has voches.] U.K. ADDITIONAL ANNEXES (NO.A 174) 66r
Ilconvient, par suite, conformémeiit au désirexprimé par le ministre
des affaires étrangères,de prévenir nos nationaux des risques auxquels
ilçs'exposent cn pêchant du poisson ou des crustacés près des Ecrehous.
Recevez, etc.
Le misnistre[sic]de la Marine.
PEY RON .
Two Articles of the ~3rd-25th January, 1886, by M. Sutter Laumann,
Special Correspondent of the French Newspaper, La Justice (which
appearedin the Issues of the zqth,26th and 27th January, r886), Describ-
ing a Visitto the Ecréhous Islets, to inquire into the Question of Sover-
eignty over the Islets, and an alleged proposa1 toerect a Fort thereon by
the United Kingdom
[Foreign O@ce Papers, 27136533
r. Article of the zyd January, 1886.
LA QUESTION DES ÉCREHOUS
(Correspo~zdanc epécialedela JUSTICE)
Port-Bail l,23 janvier.
Jc n'ai pas encore le plaisir de connaitre les "Ecrehous" autrement
que par l'intermédiaire d'une jumelle. Hier, il neigeait dansla matinée ;
l'après-midi, Ic vent venait du sud-ouest ; cematin, lamer était encore
trés mauvaise, et pour aller à la découverte de ces îlots qui ont tant
préoccupé Paris pendant quelques jours, il faut un temps clair et ilne
jolie brise; il faut encore profiter du jusant. Bref, quand toutes ces
conditions ne sont pas réunies, on ne trouverait que bien dificilement
sur la côte des marins décidésà tenter l'aventrire, d'autant que l'intérêt
ne coilçistepas -pour moi du moins - à longer lesEcrehous à distance
respectueuse, mais à y débarquer. Or, c'est toute une affaire. Aussi est-ce
la raison qui a déterminéles confrhes qui m'ont précédé ici à regarder
le royaume de Philippe Pinel du Iiaut du cap de Carteret.
Rlais depuis que j'ai mis le pied à Port-Bail, je n'entends parler que
des "Ecrehous." Chose curieuse, c'est nous, les Parisiens de Paris, qui
avons mis cette question h la mode, car sur tout lelittoraon s'crisouciait
autant que d'une chêtaignede mer. A Cherbourg, où j'étaishier,ayant
['Fo~tbail would appear to be tlieofficiaform; but Porf-Bniland Portbail
are indiscnminatelyused throughoutthesc articles.]662 U.K. ADDITIONAL ANNEXES (NO. -4174)
demandé A deux ou trois personnes ce qu'on pensait de cette affaire qui
devait si for;tintéresser votre grand port militaire, on me répondit :
Les "Ecrehous" qu'est-ce que c'est qu'ça !
Les journaux locaux ne faisaient que traduire les journaux de la capi-
tale. Pas un ne s'ètait[sic] avisédeaHerfaire enquête sur place.Du reste,
le préfet maritime de Cherbourg, qui télégraphiait au ministre de la
marine qu'on ne voyait pas traces de fortifications sur les îIots, mais
qu'en revanche on y voyait à l'ŒilnN circuler les habitants, n'était
guère mieux renseigné :de Carteret aux "Ecrehous" il y a trois lieues.
Quel Œil de lynx a donc celui qui, à cette distance, a vu circuler les
habita?tlsde cesroclaerinhabités si ce n'est par le solitaire Jersiais, dont
l'humble existence fut révélée A la littérature, iy a deux ans, par le
poète Charles Frémine l !
C'était pourtant bien simple: A Carterct et h Port-Bail, il y a les
pataches de la douane qui vont une fois par semaine aux "Ecrehous" -
11n'y avait qu'à interroger les douaniers et, du coup, on savait à.quoi
-~--- ----~-
Non, il n'y a pas de fort aux "Ecrehous". Le second correspondant du
Figavo est dans le vrai ; mais le premier, celui qui a lancé cet étonnant
ballon, est un fumiste ou un visionnaire qui prend des vessies pour des
lanternes, à moins ...à moins que seul il soit dans le vrai, à moins que
l'officier chargépar l'amiral du Petit-Thouars d'aller à Carteret pour
contempler les "Ecrehous" n'ait rien vu du tout, que les péniches de
la douane ne soient pas alléesdans ces parages depuis un temps immé-
morial, à moins que le second correspondant du Figaro n'ait pas eu la
perspicacité du premier.
Mais ce serait bien extraordinaire.
Quant aux prétendues défenses faites aux pêcheurs français d'aller
jeter le filet autour des Ecrehous, c'est encore une autre fable,B moins
que la prohibition ne soit touth fait récente. Cet étéencore, les riverains
un peu aisés du pays allaient aux Ecrehous en partie de plaisir et y
pechaient à volonté.Au fond, on n'y trouve que des homards, et bien peu.
Demain je vous communiquerai dcs renseignements précis, car ce soir
je verrai M. le maire de Port-Bail,leconseil muninicipal[sic],lecapitaine
des douanes, et demain j'aurai vu les "Ecrehous".
Quoiqu'il en soit, la question està étudier. Les Anglais n'ont pas de
forts sur ces rocliers, mais ils pourraient bien avoir l'intention d'en créer
un, et A Jersey on parle quelque peu de cela à mots couverts, parait-il.
Je ferme cette lettre écrite à.la hâte, car le courrier va partir, et il n'y
en a qu'un par jour.
Demain, donc, si je reviens de bonne heure des Ecrehous, vous recevrez
une.longue lettre.
Sutter Laumann.
[lLe Roi desgcrehou (Pans, 1886), anaccount ofa visit to Philippe Pinel,
the "solitaire Jersiais" mentionabove.] U.K. ADDITIONAI. ANNEXES (NO.A 174)
2. Artide of the 24th January, 1886.
LA QUESTIONDES ÉCREHOUS
[' According to the law of Jersey, given the "peacefuand iinintcrruptcpos-
sessioonver a period of forty years,the title to al1 real property situatc witliin
the limitsofthe jurisdiction of the Royal Court of the said Island [Jersey] liasses
by matter of record". See Annex A 156 to the Unitcd Kingdom Reply.]G64 U.K. ADDITIONAL ANNEXES (NO. A 174)
"Ecrehoiis". Aucun caboteur ne se fierait à les ranger, et les bateaux qui
vont de Portbail à Jersey s'en tiennent à la distance dc près de deux
milles, distance qui ne peut permettre, bien qu'un de mes confrères ait
prétendu le contraire, voir le p&rePinel aller et vcnir sur la gréveétroite
qui constitue le royaume dont il pourrait bien êtredéposséd4quelque
jour.
Mais à Carteret etPort-Bail principalement, on parle un peu plus des
"Ecrehous". Le maire de cette dernière localité, hl,Vardon, s'est beau-
coup occupé de la question, et les habitants, qui ont conservé la haine
vivace de l'Anglais - souvenirs des grandt:~ guerres d'autrefois- ver-
raient avec colère les "Ecrehous" devenir possession anglaise, d'autant
que pour eux le préjudice serait grand, puisqu'ils sont presque tous
pêcheurs.
Donc, si ridicule qu'ait été tout le tapage fait en ces temps derniers,
à propos des "Ecrehous", ce tapage n'a pas étécomplètement inutile,
puisqu'il a donné l'éveil,et que dorénavant, on n'aura plus nulle désa-
gréablesurprise à craindre.
J'étais ailétout d'abord à Cherbourg, la ville morose par cscellence,
supposant que j'aurais làdes renseignements de première main, et j'avais
en cela imité nos confrères. Nais voyant que là je ne serais pas plus
avancé que si j'étais resté au faubourg Montmartre, je partais quelques
heures après pour l'ortbail où j'arrivai veiidredi matin. Par malheur,
toutes les autorités21vingt lieues à la ronde, étaient parties polir assister
aux obsèques du sénateur Foubert, véritable évknement pour la contrée,
et je dusme contenter des racontars des marins et des gabelous, racontars
contradictoires, carles uns affirmaient qu'à Jersey il avaitét6 question
d'occuper les "Ecrehous" et d'y apporter, piéce à pièce, de tourelles
d'acier pour le fort à construire, et Ies autres disaient qii'il n'en était
rien. D'autres encore disaient qu'on ne pouvait plus aller pecher aux
"Ecrehous" qu'à ses risques et périls; d'autres disaient qu'on y pouvait
aller en toute sécurité.Et comme la plupart n'y étaient pas allésdepuis
la fin de l'été,ils finissaient par croire "qu'il pourrait bien y avoir
queuque[sic] chose."
A Carteret, on n'en savait pas davantage. Mais lh, où je m'étais rendu
à pied, en suivant la côte, malgré une bourrasque de neigequi me coupait
la figure, j'eus enfin le plaisir de voir, non pas à.l'Œilnu, mais avec une
bonne lorgnette, les fameux "Ecrehous". Seulement, j'avais beau frotter
les verresde la lorgnette, écarquiller les yeux, je n'apercevais à l'horizon,
très loin, qu'une mince bande de rochers que la brume masquait à tout
instant, et qui me paraissaient tout â[sic] fait insignifiants.
Unc voiture me ramena à Port-Bail, car je ne me souciais pas de refaire
la mêmeroute sur cette grève désolée,et ce n'est que le soir que j'eus
l'avantage d'être reçu par le maire du pays, iin notaire comme il en est
pcu, homme intelligent, plein d'affabilité,qui me mit au courantde toute
la question et qui s'offrit pour venirie Iendemain avec moi aux "Ecre-
hous" dans la pénichedela douane, mise fort obligeamment iima dispo-
sition par M. l'inspecteur des douanes résident h Valognes et de passage
i Yort-Bail, ainsi que par le capitaine de la douane.
Hier matin, à la pointe du jour, nous étions tous, hl. Vardon,
hI. Lemonnier, ex-commissaire de surveillance du port, et moi, au rendez-
LL ~2nd January (1886).]
[$ q~(elque.] U.K. A1)I)ITIONAL ANNEXES (NO. A 174) 665
vous pris la veille. Nous allions siir la digue, attendant l'heure de la marée,
inspecter le cicl pour voir si nous pourrions embarquer. Il aurait venté
en tempête que jc serais parti. Nais mes compagnons et les marins de la
douane, n'ayant pas les mêmesraisons et bien au courant des difficiilt6s
de l'entrcprise 11'Ctaieritpas de cet avis. J'avais très peur que ce fût
encore un espoir tronipé, car nutour de moi je voyais tout le monde
faire la grimace. La véritéest que le temps n'était pas rassuraiit.A tout
instant il y avait dc brusques sautes de vent, des rafales de neige tour-
billonnaient, la mer était houleuse, le ciel noir, et vers le nord-est on
apercevait un arc-en-ciel presque fermé, signe de très mauvais temps.
- V'la un "cul-(le-chien" qui pourrait bien nous donner d'la misère,
dit le patron du batcau. Erifin, taiit pis, si nounc pouvons accoster les
"Ecrclious" nous filerons jusqu'à Jersey. Einbarqiions.
La péniche l'lnvnortclle est un petit bateau non ponté, calant uii pied
et demi, portant un grand mAt, une misaine et un tape-cul, bordé, au
besoin, de sis avirons et monté par sept hommes d'équipage. Elle est
mouillée a l'extrémitéde la digue, dans la petite baie de Portbail, baie
très sûre, entourée qu'elle est de liautes dunes de sable où ne pousscnt
que quelques ajoiics rachitiques.
On embarque d'abord les provisioiis de bouche, car aus "JCcrchous"
on ne trouve rien i manger, si ce n'est des cocluillages, et oii ne sait ce
qui peut arriver : des bateaus ont étéforcésd'y relâcher trois ou quatre
jours. II faut donc avoir des vivres. Nous en emportons en coiisCquencc,
pain, cidre, vin, virinde, café t:t eau-de-vie. I'iiis, les passagers étant
embarqués à leur tour, tout étant paré,on largtie l'amarre, et cn route !
Dès que nous avons franchi la baie sabloririeuse cle Portbail, nous
commençons à danser effroyablcmcnt. Le vent souffle du nord-est, et
c'est un bon vent. Le patron nous affirme que s'il ne survient rien de
nouveau, nous toucherons aux "I<crehous" avant deux heures. Sur cette
prornzssc, nous 1ir)urronsnos pilies, tout en regnrtlant In mer houleuse,
qui ri r)ar placesdc vastes étendues blanciiâtres, scintillantcs commt: de
1argent, bien que le soleil, apparu un moment sur I'liorizoii, ct brillant
d'un éclat rouge très vif, aitcomplètement disparu derrière un rideau
de brouillards. Tout en échangeant nos observations sur les menus inci-
dents de route, RI. Vardon, aidb par l'ex-commissaire et lc patron de
l'Immortelle, me narre l'histoire de l'affaire des "Ecrchous". Elle a com-
meilci: d'une façoii tréssingrilièrcct drble.
La voici :
I>'aborcl,depuis longtemps, selon le rbcit trt?s véridique dc notre nmi
Charles Frémine, les Jersiais prétendent que les "Ecrehous" leur appar-
tiennent et qu'ils relèvent de la commune cle Saint-Nartin ; mais ce
n'était encore qu'une revendicatioti toute platonique, lorsque sur1.int
l'affaire du frauclcur Biriet.
Urijour, ce Binet, un mlrin estraordinaire clitisortpar tous Lestemps
et qui se ritde la tempête la pliisfurieuse, une espèce de Gilliat, peut-
être plus entreprenant encore (lue le héros cle Victor Hugo, embarquc
pour Jersey plusieurs tonneaus d'alcool. Son cliargcment est en règlc
et visépar la douane de Port-Rail, le voilj. parti. Qu'arriva-t-il cluelques
heures après ? Nul ne le sait qiic lui ;mais ce qui est certain, c'cst que
son côtrc[sic] relâclic aux "Ecrc~ious". Une barque dou;inièrc anglaise
qui le guettait et q~ii avait'été peut-etre prévcnuc en sous-main par
Uiiict lui-même,arrive aux "Ecrclious" en mêinetemps, met l'embargo
sur le côtre[sic] eIeconduit à Jersey. Binet proteste ;on n'a pas le droit,666 U.K. ADDIT~OSAL ANNEXES (NO. G 174)
dit-il, de lc saisir aux "Ecrehous", terrain neutre ; mais il se garde bien
d'exhiber sa patente d'embarquement. On arrive 1 Gorey ; les tonneaux
d'eau-de-vie sont débarqués; deux ou trois jours après on les met en
perce, et ...les douaniers jersiais ne trouveiit clcdans que de l'eau pure.
Binet, tout en riant sous cape, continue à protester ; ses barils conte-
naient bel et bien de l'eau-de-vie, et la preuve en est dans la patente
qu'il exhibe dors. Vous n'aviez pas le droit de me saisir, dit-il, parce
que j'étais sur terre neutre d'abord, ensuite parcc que j'étais en régle,
vous prétendez que vous n'avez saisi que de l'eau pure, ce n'est pas vrai,
vous m'avez volé,je veux mon eau-de-vie !
On plaide, et le procès n'est pas encore termine '.On a offert à Binet
de lui rendre son cbtre[sic] avec quelques clommages-intdréts, mais
13inettient bon: il réclame son eau-de-vie et une groçse indemnité. Le
curieux, c'est que le rusé Kormand est dans son ,droit. On sait bien
qu'il est parti avec de l'eau-de-vie et l'on suppose que, une fois au
large, il aura transbordé sa cargaison sur le bateau d'un confrère qui Iiii
aura donné en place des barils d'eau.
Mais comment le lui prouver ! C'est si difficile que les Jersiais furieux
cassent aux gages leur directeur des douanes, un nomme[sic] Bertrain *,
qui occupait cet emploi depuis trente ans. C'est ce Rertrain[sic] qui avait
mis en avant la question des "Ecrehous" dont il voulait êtrenommé
connétable, c'est-à-dire maire.
C'estde cette époque,il n'y a plus i en en douter, que datent les reveii-
dications de l'Angleterre sur les "Ecrehous". Car il y a eu bel et bien des
revendications tenues secrètes, il est vrai, rnais qui n'en ont pas rnoiiis
existé. Des circulaires émanant des préfets maritimes et du ministre de
l'intérieur, relativement à cette affaire existent, et demain, jeferai mon
possible pour me les procurer. Le 1;igaro en a reproduit une, mais non
pas textudlement et le teste même est bien plus significatif, dit-on. Ces
circulaires, basées sur des considérants, inforniaient les autorités de la
c6te d'avoir A prCvenir les pêcheurs qu'ils n'aillent pius aux roctiers
contestés.
Alescompagnons en étaient 1Ade leur nzirration, quand tout à coup
un grain violent nous tombe dessus par tribord ; des paquets de mer
sautent dans la barque et sans nos sztroitsnous serions tléjà trempés
jusqu'aux os.
- Prends un ris à la misaine dit le patron.
Le bateau se redresse un peu, mais il faut prendre jusqu'à troiç ris,
tant la brise est forte. On ne voit pas à une encâblure, c'est-à-dire &
deux cents mètres. C'est inquiétant. Le patron parle de mettre le cap
sur Gorey. Soudain, le vent passe dans une autre direction, il faut orienter
la voilure d'une autre façon. Nous marchiotis tout iil'heure "au plus
près" et nous pouvions compter êtrebientôt ailx "Ecrehous". Mais ;i
présent il faudra presque "doubler" les "Ecrehous".
Xous ne rions plus, le froid pince dur, on est tant soit peu mouillé et
nous sautons commedesmarrons dans une poèle[sic].Je suis parti malade
et je crains bien de "donner à manger aux poissons". Pourtant, je n'ai
jamais eu le mal de mer.
[' te~jninmisprintcd in the original with the n inverted.]
[zRccte Bertram. This !vas Henry Charles Bertram, who once owned a housc
at BlarmotiBre.one of the Ecri.hous Islets, rvhich he bougin1861. but wliich
he sold to theJersey Cuçtoms iluthorityin 1884. Sec Annexes A92 and A80 to
the United Kingdom hlciriorial.] U.K. AUDITIONAL ANNEXES (NO. A 174)
667
Et toutes les dix minutes il faut changerd'amures, 1:irguerlesris pour
les reprendre ensuite, mettre tout dehors ou conserver le moins de toile
possible. Ily a près dc deux heures que nous sommes partis et il n'y :L
que les hommes d'équipage qui ont une vue étonnamment perçant(:, qui
puissent distinguer de temps autre, dans une éclaircie, les îlotque
nous cherchons.
Mais la mer est aussi capricieuse qu'une joliefemme ; en un clind'rzil,
la brume disparaît,le vent semaintient au nord-est, et rious voyons eiifiii
émergerles "Ecrehous".
Je ne les vois que bien imparfaitement pour ma part.
- Tenez là !par tribord, me dit un vieux matelot tout tanné par le
hâle,là,par le travers du hauban.
Le cielest devenu plus clair et je vois très nettementles "Ecrehous",
à environ deux mille[sic] de nous.
Je ferme ici ma lettre, remettant la suite au courrier de demain, car
c'est l'heure de la poste, et je dois partir sur le champ, afide me pro-
curer, jene vous dirai pas où, je l'ai promis, les'circulaires dont je vous
ai parléet qui prouvent d'une façon péremptoire que la question des
"Ecrehous" n'est pas née d'tiieret que le ministère en avait certaine-
ment connaissance.
Bien Avous,
Sutter Laumann.
3. Conclusion of the Articleof the 24th January, 1886, and
Postscript of the 25th January, 1886.
LA QUESTION DES ÉCREHOUS
Port-Bail, dimanche 24 janvier.
J'aidû interrompre hier brusquement, ma lettre, le courrier partant
clcsuite et n'ayant pas une minute à perdre, puisclu'il a quatre lieues i
faire pour gagner la station de Saint-Sauveur-Ie-vicomte[sàc] ; de mon
cdté, j'avais àpartir imrnCdiatement pour arriver avant lagrande nuit
dans une localité fort éloignéed'ici où je pouvais me procurer les circu-
laires authentiques concernant les "Ecrehous". Vous trouverez copie
in extensode ces circulaires la finde ma lettre. Elles sont très explicitt:~,
comme vous le verrez.
Il ne me restequ'à vous achever le récitde ma visite :lux "Ecrehous"
et à vous donner mon impression généralesur l'affaire.
Quand on est bien en vue des "Ecrelious", on éprouve une véritable
surprise. De très loin ce qui n'apparaissait que comme une mince ligne
de brisants, devient un archipel d'îlots couvrant une grande étcncluede
mer. On les voit, couronnés d'écume, entourés d'une verte ceinturc de,
goëmons[sic], qui émergent de quelques métres au-dessus clel'eau, nffec-tant les formes les plus bizarres, cones droits, cônes tronqués, unis, lisses
ou bien rongés, creusés, fouillés par la latne. On dirait quelque ville
fantastique, une ville rlc rEve avec des tours, des dô~nes,des cloclietons,
de vieux remparts crénelés,et la buée dont ils sont enveloppés, estom-
pant les contours, confoiidaiit Ies lignes, surajoute cncore à leur aspect
Ctrangc et tourmenté. A la mer haute, on voit bien une centaine de ces
rocs arides toujours en lutte contre les vents et les Aots ; à la Iner basse
oii en voit plus de cinqou six cents qui tousont un nom. C'est la Bigorne l,
qui affecte Ia forme d'une énormedent de chat ; c'est Ic grand et le petit
Creviclzo?t,laPierre-aux-Femmes, les Ecreviéres,banc de sable couvert
i chaque marée, le Gros Galeta, les Busses de Taillepied, le Hattc fêté,
le Pain-de-szrcreet vers le nord-ouest, trcs loin, le groupe des Birozrilles.
Au centre se dressent les îlots principaux :la illaitre-Ile, la Marmot-
tière et Blrrlzqzre-Il3, le tout forme une vaste circonférence de plusieurs
lieues.
De très près, et avec le temps que nous avions, c'était réellement
effrayant. Je me demandaiscomment nous allions pouvoir pénétrerdans
ce labyrintlie de rochers. Une fois dedans, je me demandais commeiit et
par où en sortir. Ce fut avec les plus grandes précautions que nous entrâ-
mes dans l'étroit chenal qui cornmencc Ala Bigov~te et conduit au groupe
principal. Aprés avoir couru encore quelques bordées, toute la voilure
fut serrée et l'équipage se mit aux avirons. A tout instant on niouillait
A pic et on hâlait dessus, c'est-à-dire on jetait l'ancre droit et on tirait
sur la chaine, car les remous nous rejetaient tout de suite i quelques
brasses en nrriére. Mais sitôt qu'on fut entré clans une esyéce de petit
liâvre, à l'est de la maitrc-âle[sic] lc calme fut subit. L'eau était 13aussi
tranquille - la mer commeiiçait i baisser et nombre de gros rocliers
d&couverts i~ouçprotégeaient contre le ressac - aussi traiiquille que
dans le bassin des Tuileries. La pénichecontourne doucement la 77iaifre-
ile[sic], où le débarquement est très difficile, la roche étant 5 pic, et iious
accostons au bout de dis minutes ta lilarmottiérc2,dont nous pouvions
depuis longtemps déjh compter les maisonnettes, frileusement adossées
les unes contre les autres, sur le point culminant du rocher.
Il était une heure dc l'après-midi, nous avions mis trois heures et
demie pour faire ce court voyage.
Nous sautons à terre pour grimpcr sur le so~rimet de l'îlot ; niais cc
ii'cst pas s:ii~speine quc nous atteignons 1scrétc[sic] du galet ; les bas
rochers sont couverts de varech encore tout huinicle, de lh clesglissades
et des chutes. Nous voili enfin sur le terrain sec, battant la se~nellepour
nous réchauffer. En trois enjambées, nous sommes en plein cŒur du
liameau des "Ecrehous", composé de sis maisonnettes, très solidement
bâties, k toiture de tuiles ou d'ardoises, les murs blanchis 5 la chaux.
Groupées comme elles sont, elle forment une petite place iiitkieure,
grande comme une arriére-cour, où se trouve un réservoir d'eau de pluie
où on lit : Pro public0 bono. Toutes ces tnaisonnettes appartieiiiient à.
clesJersiais et portent une inscription relatant la date de la construction
avec le nom ciupropriétaire ; au dos (le l'une d'elles, on remarque encore,
mais imparfaitement, I'inscription relevée par Fréniine4:
il See the United Kingdom filernorial: p23. paragraph 7(c).]
[' I.e., JIarmotière.]
[3 I.B.Hlanc Ile.]
[* Freiiiineop.cil.,p. 14.3 U.K. ADDITIONAL ANNEXES (NO. A 174)
Au nom de
Dieu et ln Religion
Amen
L'aii mil huit . . . . . SI
. . . . . . . .
Bailli et
Lieutenant-génér Lothian-Vich . . . . .l
Le reste est effaci..
Un peu en contre-bas, sur une petitc plate-forme défendue par un
parapet naturel de rochers, deux mâts de pavillon sont dressés. Ici une
anecdote qui démontre bien que les Jersiais considèrent les "Ecrehous"
comme leur propriété.Un jour, M. F. vient sur l'îlot en partiede prome-
linde avec quelques amis - pendant l'été, s'entend. 11s veulent hisser
nos couleurs. Quelques Jcrsiais qui se trouvaient là ~~rotesteiit, disant
que les Frniiçais n'ont pas le droit d'arborer leur pavillon et qu'il faut
"l'amener."
- Eh bien ! venez-y, "amenez-le" vous-même ! répondent nos com-
patriotes, qui ne connaissaient peut-être pas la circu1;iire de M. Ferry.
Les Jersiais se le tinrent pour dit et laissèrent flotter notre drapeau
h cdtédu leur.
En face de nous, à l'autre extrémité de l'île, et 2ienviron deux portées
de pistolet, est situé le palais de Philippe Pinel, le roi des "Ecrehous" 2.
Nous nous y rendons en suivant une chaussée faite par la mer, qui y
apporte, de l'est comme dc l'ouest, de lourds galets - le reste etant
couvert d'eau h marée haute.
Nous entrons dans lacabane où Pinel couche, où il mange, où il cuit
son pain. Deux personnes y seraient mal A l'aise,et nous nous y tenons
tous les dix, serrés lesuns contre les autres.
- Bonjour meschieurs !
- Bonjour, père Pinel, répondent nos matelots au singulier type qui
est là, devant nous, regarclant tous ccs visiteurs avec des yeux bruns,
brillant d'uli éclat métallique, surplombés de sourcils en broussailles,
et très rapprochés d'un nez a la courbure accentuée, aux larges narines.
La moustache est coupée ras, au ciseau ; les joues sont garnies d'une
barbe touffue encore trés noire. De longues mèches de cheveux mal
peignésse tordent sous les bords déformésd'un petit chapeau d'étoffe,
comme en portent les Anglais en voyage. Le visage n'a rien de l'anglo-
saxon ;l'on (lirait plutbt qu'il appartient à un pâtre du versant italien
des Alpes. Impossible de lui donner un âge. De quarante à soixante ans,
c'est l'évaluation très vague qu'on peut faire. Malgréles rides, la che ve-
Iure et la barbe seméesdc filsd'argent, la têtede cc bonhomme n'est
pas celle d'un vieillard. Lc teint est si bruni si hâlépar le vent, que c'est
comme une espéce de fard qui masque Ies années, et le regard est si
perçant, si jeune, qu'on dcrncure interdit. Le père Pinel est cle petite
[' According to Frémine, lac.cil.,this line read "Lieutenaiit-génBra1 Lothian-
Nicholson". Lothian Kicholson, at tliattime (1881), was Lieutenant Governor
of Jersey. See the Unitcd Kingdom Mernorial, p. 80, paragraph 138(a).]
[- Philippe S'inel's huuswas on Rlanc Ilc which, at low water, is joined tri
X'Iarmotière bya shingle bank-the "chaussée" mentioncd in the next senterice,
above. The housc, which is now in ruins. bears the date 1820. See Arinexes 6
and C II to the United Kingdom Nernorial.]670 U.K. AUDITIONAL ANNEXES (NO. A 174)
taille, mais d'apparence vigoureuse, l'allure est leste, décidée.Il s'exprime
en français très couramment, mais avec un fort accent mélangéde nor-
mand et d'anglais. Mais il parle mieux anglais et s'exprime trés bien cn
espagnol, me dit un marin, car Pinel a navigue[sic] 'quinze ans au long
cours, avant de venir définitivement se fixer dans cette solitude où il
mourra.
La conversation s'engage.
- Quel rîge avez-vous, monsieur Pinel ?
- Quel âge me donnez-vous ?
- Dame ! quarante-cinq à cinquante ans.
- Oh !fait-il en riant, je voudrais bien avoir en "souverains" ce que
vous me donnez en moins !
- Vous allez déjeuner avec nous ?
- Mais oui, mossieu, inais oui.
Et comme la faim se fait trés vivement sentir, les jarins retournent
à la péniche pour y chercher les provisions.
Jusque-là je n'ai pas eu le loisir de remarquer le mobilier, tout entier
que j'étaisd l'homme. Une petite table poséecontre la fenêtre; un recoin
où, sur des rayons sont disposésdivers ustensiles :assiettes, bols, plats,
verres ; un grand coffre où est enferméela bibliothèque du "roi", coffre
servant de siège; une sorte d'alcbve en bois, juste de la profondeur d'un
lit ordinaire, où l'on voit un matelas de varech et deux ou trois vieilles
couvertures, voilà la couche ; en face, une cheminée dont le foyer est
surélevéde deux pieds et demi, environ ; cbté, une caisse en tble qui
sert de four pour cuire lc pain. Sur lemanteau de la cheminée,une petite
pendule, seul luxe de l'habitation ; accroché au mur, un miroir grand
comme la main, et c'est tout. Au-dessus du coffre en bois, une lucarne
donnant jour au nord-est, lucarne presque aussi superflue que lafenêtre,
la porte du logis restant presque toujours ouverte.
Un matelot revient avec les liquides,cidre, vin et eau-de-vie.A la vue
du cognac, les yeux du pére Pinel étincellent, ses lhvres font une moue
gourmande, iltend la main vers la bouteille ...
- Vous permettez que je fasse comme chez moi ?dit-il.
- Ne vous gênezpas.
Et ilse verse une vraie rasade, plein une tasse A café. Pour être roi et
anachorkte, on a ses petites faiblesses, tout de même,et la goutte est
une des cheres[sic] faiblesses du père Pinel. Il ne peut rester à cause de
cela à Jersey ; la bouteille le met à mal, et lui que lesplus terriblesvents
de mer ne font pas osciller, est alors forcé de se tenir aux murailles.
- A vous le premier, mossieu, fait-il poliment.
Sur mon refus, il avale d'un trait.
Je poursuis mon examen de la cahute. Point de plancher, la.terre bat-
tue ; pour plafond, les solives du toit ; les murs badigeonnés grossiére-
ment à la chaux. Je remarque encore deux fusils.
- Tiens, vous chassez ?
- Mais oui, monsieur ; il y a des lapins sur In Majtre-IEe, puis je tue
des canards et des houvettes.
Sans trop savoir pourquoi, je commence d Etre incommodé.
- C'est lafumée,me dit Pinel.
En effet, une odeur âcre, saline, ernpuante le réduit. Le seul chauffage
sur les "Ecrehous", c'est le varech. Ça flambe, ça pétille, ça donne de
['Rectc navigué.] U.K. AUDITIONAL ANNEXES (NO, A 174) 671
'la chaleur, et c'est gaA l'Œil,mais ça froisse fort l'odorat. Le pérePinel
brûle du varech pour en revendre les cendres comme engrais ; c'est, avec
la pêche, son second moyen d'existence. Je suis contraint de sortir pour
respirer un peu. A quelques pas, je vois M. le maire dc Yort-Bail en train
de prendre un croquis de la baraque. J'essaie de l'imiter. De chaque
cdté de la masure principale, il y crin une autre (le même dimension;
l'une sert pour remiser le varech, afin de le faire séclier; l'autre ahrite
quelques vieux barils et des poules.
A droite, contre le mur de soutien de la masrirc, un vieux bateau
goudronné l.Un peu plus loin la tourelle édifiéepar lc roi des mers, avec
de si grosses pierres qu'on se demande comment un homme a pu non
seulement les soulever, mais les monter si haut, avec la seule forcede ses
bras. La tourelleest en partie écrouléc.Devantla masure quelques choux
assez beaux étalent leurs vertes rondeurs auprés de maigres mauves,
c'est avec le varech la seule végétationcle ce rocher. A zoo mètre!; ail
sud, séparéepar un étroit mais profond canal, lelsic] MaFfre-Ile sur
laquelle on aperçoit les débris d'une vieille construction, ancien fortin,
me dit-on, depuis longtemps tombé en ruine. C'est là que les Anglais
pourraient établir un fort. L'espace est suffisant, quoiqu'on ait dit,
puisqu'il y a environ 18 à.zo ares * de rocs toujours à découvert même
aux grandes marées d'équinoxe. Avec quelques trrtvaiix, murs de quai,
amoncelIement de rochers comme brisc-lame, on gagnerait encore du
terrain.
- A table !
C'est le patron de la péniche, maître David, un fier rnarin, qui revient
avec ses hommes rapportant les dernières provisions.
Nous rentrons dans 1:icabane. On essaye de secaser comme on peut et,
à force de se tasser, ony parvient.
Deux verres, deux tasses et un bol pour onze personnes, point d'assiet-
tes ni de fourchettes - sur le pouce. Mais quel appétit ! Le roi des
"Ecrehous" donne l'exemple, il mange fort, mais il boit encore mieux, si
bien qu'il est fort gai. Il nous exprime son grand désir, leseul qu'il ait:
avant de mourir, il voudrait voir Paris. Quellc brusque transition, (luel
contraste pour ce solitaire, si,-en quelques heures, il passaitdc son llot
désert en plein boulevard Montmartre ! Il est ravi d'avoir autant de
société,il parle lentement, sur un ton traînard maiscontinu. Nous sommes
aussi gais que lui et I'on plaisante.
- Venez à Paris, sire, et vous verrez!on vous présentera au président
<lela République ; n'êtes-vouspas aussi chef d'Etat ?lui dit quelqu'un.
- C'est là que vous verrez de jolies filles, pèrePinel, vous n'aurque
l'embarras du choix pour remplacer votre femme quiest repartie h Jersey.
Et le phre Pinel, de plus en plus joyeux, m'offre un cigare et une pincée
de tabac anglais ; il me donne comme souvenir un baréme de poche, pour
compter la monnaie britannique ; il promet de m'envoyer, au printemps,
deux homards, trésabondants sur les îlots, un mâle et une femelle.
Une fois fait à l'odeur de la fuméede varech, on se trouve trésà l'aise
dans cette cassine, d'autant mieux qu'on a eu mauvais temps pour
[' Philippe Finel's fishing-boat, Jolrn, of Rozel, Jwasefirst registered in
the Portof Jerseyon the ~3rd April. 1872:but the licencwas cancelled on the
27th February.1882.as the boatwas no longer "used for Fishiiig".XnnexA 87
to the United ICingdom Mernorial.]
['About hall an acre:] U.K. ADDITIOHAL rlh'h'HXES (NO.A 174)
672
venir et qu'on ne s'attend pas quelque chose de meilleur pour leretour.
On boit du caféavec la rincette et la surincette, h la mode normande,
cn toastant :
- Au roi des "Ecrehous" !
hl.\7artlo~ifikitle portrait de facedu pérePinel ; je le croque, pas trop
mal, de profil. Puis chacun "s'égaye" sa fantaisie dans les excavations
des roches, pour y chercher des crabes et des coquiilages.
Ciriq heures. - La mer ~nontc. Le moment du départ est arrivé.
Nous regagnons l'embarcation, après avoir serré mainte fois la main au
phre Pinel. La nuit vicnt, cie gros nuages sombres courent sur tout
l'horizon ; les écueils dimiiiuent peu B peii de hauteur, disparaissant
sous les vagues qui leur livrent un éternel assaut et qui s'y éparpillent
en gerbes tumultueuses ; chaque poussée de lame fait roufler[sic] 'les
galets, bruit rauque incessant, sinistre. Une grande tristesse tombe,
ct c'est prescluc avec uii serrement de cŒur que je vois une dernière
fois, déjà dans la pénombre, la silhouette du père Pinel qui se clétnche
sur le mur blanc de la cabane. Il est resté là sur le seuil, et nous crivoie de
la rnain lin signe d'adieu. '
Nous embarquons. On relcve l'ancre ; oii largue les voiles,désque nous
sommes sortis de la passc principale, et "I'Immortelle" ayant vent
arrière a bientôt perdu tle vue les "Ecrehous". Tout autour de nous, la
mer frise. La barque glisse sur des brisants ; nous rangeons la Pierre-
atrx-Femmes, nous passons sur le banc de sable 1'Ecrcvie're[sic].
- Maintenant, dit le patron, vente comme il voudra ! c'est pas bé
gênant; nous n'avons plus rien à craindre et, avant deux heures, nous
serons à Port-Bail, s'il y a de I'eau : sans çà[sic], faudrait mciuillcr en
attendant. Voici le feu cleCarteret au vcnt, rious sommes bons.
Et, pour passer le temps, on fume pipes sur pipes et on raconte des
histoires de fraudeurs. Pendant une bonne heure, nous sommes tranquil-
les ; mais çh[sic] ne pouvait pas durer. De fortes vagues s'escaladent
les unes les autres. Mousroulons bord sur bord, et des ~iaqucts d'eau nous
cinglent levisagc ;j'en reçois dans le dos, sus la poitrine ; j'en ai partout,
sur les genoux, dans le cou, jusque dans mes poches. Tabac et rilliiniettes
sont à détrempe. De temps à autre, le patron commande :
- Un ris A la misaine, garçons !
Puis ce sont des discussions sur le plus ou moiris de proximité de la
côte. On voit les feux de position de Port-Bail. Lc patron met le cap
clessus, en les prenant "l'un par l'autre", ct, à présent, la route est belle,
dit-il.
Pas si belle que ça ! 11fait bigrement froid et le vent est si vif qu'on
est geléjusqu'aux moelles. Puis le vent sarite. Il faut tirerdes bordées,
ce qui railongera. de beaucoup le chemin. Les passagers ne rient plus.
Enfin, vers neuf heures du soir, nous entrions dans la baie rle l'ort-
Bail ; la pénicheétait amarrée à la "Cailloiirie" roclier situé à la pointe
de la digue. C'est avec uii grand plaisir qiie nous noris retrouvons sur
la terre ferme, avec les jambes et les nains gourdes, un peu ri ou il lés,
mais satisfaits tout de mêmed'avoir tenté l'aventure.
On trinque une fois encore, avant de se séparer, dans un petit débit
dc boissons sis au pied du sémaphore, avec ces marins, rudes et bons
[lronfler.]
[¶hIisprintedserrrment in the original.]
[*main misprinted in the originalivith the 11inverth.] U.K. ADDIT~ONAL ANSEXES (NO. A 174) 673
compagnons avec lesquels on irait confiant jusqu'au bout du monde, et
1'011regagne le bourg, distant d'un kilomhtre.
A neuf heures et demie, je suis à l'hbtcl des Voyageiirs, tenu par Mme
veuve Robert, une maman pour ses clients. Je n'ai plus qu'à dîner et à
me coucher ensuite :Ce n'est pas ce soir que j'écrirai ma relatio~i de
voyage aux "Ecrehous"
S. L.
Lundi, 25 janvier.
Me voici de retour d'un petit village de la côte où un brave hahitant
m'a remis les circulaires relatives aux "Ecrehous", circulaires qu'il
avait conservécs. Vous les trouverez plus loin l.Je ne puis vous dire le
nom de cet homme ni le nom du village, car j'ai juré d'étre discret. On
redoute ici de se mettre mal avec les autorités grandes ou petites, car ce
pourrait êtreune suite de tracasseries sans fin. Ce n'est pas en province,
et surtout à la campagne, que Ics gens ont leur franc-parler.
Eh bien !pour conclure, après m'êtrelivré à une veritable[sic] enquéte,
ayant questionné à droite et à gauche des pêcheurs,des douaniers, les
autorités municipales di1 pays, et méme des Jersiais de passage, ayant
consulté les documents ci-joints et vu les "Ecrehous" je puis affirmer
Y----.
I" 1-a question des "Ecrchous" est plus importante qu'on le croit ; il
y a longtemps déjA qu'elle est agitée,les circulairle prouvent, conime
elles prouvent aussi que l'Angleterre a émis desprétentions sur ces îlots
et les a revendiqués, que nos pecheurs ont été avertis plusiers fois de
n'avoir point à s'y rendre afind'évitertout conflit avec les Anglais.
Ces maladroites .circuIaires sont presque une reconnaissance formelle
du gouvernement français des pétendus droits de l'Angleterre sur les
"Ecrehous".
2" L'importance de ces rochers est réelle, avant de les avoir vus, je
crois vous avoir dit qu'ilme semblait difficilequ'un fort pût y êtreéta.bli.
Les ayant vus, mon avis a cIiaiigé.
Un fort anglais sur la Maitresse-Qe des "Ecrehoiis" nous fermerait en
temps de guerre le passage dc la Déroute, passage seulement indiqué sur
les cartes entre Jersey et Guernesey, mais qui s'étend le long de notre
côte très avant dans le sud. Le fort nous fermerait d'autant mieux la
Déroute,que c'est ilne passe difficile, semée d'écueils,de bancs de sable
ou de gros navires ne peuvent passer qu'avec des pilotes du littoral et par
des marées exceptionnelles. On peut arguer que, dans ce cas, l'incon-
vénient n'est pas très grand, puisqu'il y a peu de navigation dans ces
parages. Mais il y a d'autres inconvénients de premier ordre.
D'abord, en cas de guerre, avec une flottille de petits bateaux réquisi-
tionnés à Jersey, les Anglais, appuyés par un fort aux "Ecrehous",
pourraient tenter et réussir un debarqiiement[sic] soit à Port-Bail, soit
à Carteret, surtout dans la premiére de ces localités qui va devenir
très importante, iicause des travaux qu'on va entreprendre pour arné-
liorer et agrandir le port, et du chemin de fer qui doit être livré à la
circulation d'ici deux ans etqui reliera Port-Bail et Carteret àlaligne de
Cherbourg-Coutanccs. Bien sûr quc les AngIais trouveraient à. qui parler,
['They are printcdas Annex A46 to the United Kingdoin 3Iernorial.]674 U.R. ADDITIOKAL ASNEIIES (ND. A 174)
et rien que les paysans leur donneraient une jolie tablature. Mais tout
dépend des circonstances. Supposez que nous soyons engagésdans une
grande guerre européenne, et que les Anglais soient contre nous+'est
peu probable, mais il faut tout prévoir-guerre malheureuse,comme celle
de 1870 o,ù toutes nos ressources soient engagées.N'y aurait-il pas alors
un véritable danger ?
Remarquez que la cBten'est nullement protégée.On a parléde batte-
ries. Elles sont bien indiquées sur les cartes, mais ce sont les vieilles
batteries dressees sur la cbte par ordre de Napoléon Icret qui devaient
êtreservies par les vétérans.Depuis 1828elles sont abandonnées, quel-
ques-unes ont servi dc corps-de-garde aux douaniers, la plupart tombent
en ruine et, en admettant qu'on les répare, elles ne seraient que d'un
pauvre secours, avec l'artillerie actuelle.
Un fort aux "Ecrehous" exigerait [u]n fort à Carteret, et peut-être
à Port-Bail, pour le contre-battre. TBt 011tard iI faudra en venir 11
pour défendrece point de la côte ;mais pour l'instant on peut attendre
encore. Puis rien ne dit que cefortdeCarteret pourrait, commeonl'affirme,
détruire en quelques coups de canons le fort des "Ecrehous", qui ne
peut etre qu'un fort blindé, à tourelles. Carteret le dominerait de très
haut, mais ce n'est point toujours l'élévationd'un fort qui fait sa puis-
sance et des boulets peuvent bien atteindresans peine une altitude d'une
soixantaine de métres.
Enfin, la possession des "Ecrehous" assurerait aux Anglais un prolonge-
ment de la limite de leurs eaux ; il n'y aurait plus pour ainsi dire de
zone neutre entre les eaux anglaises et françaises, par conséquent, plus
de pêche possible,non seulement sur les "Ecrehous", mais presque dans
toute la Dé70uteD . éjà lesAnglais ravagent cette zône[sic] neutre. Ayant
de meilleurs bateaux que lesnôtres, ils sortent presque par tous lestemps
et font de formidable rafles de poissons et d'huîtres dont il y a plusieurs
bancs.
A tous les points de vue, il est dont indispensable que les "Ecrehous"
restent ce qu'ils sont encore, c'est à dire[sic] neutres, et non pas terre
jersiaise. Si l'Angleterre renouvelait ses prétentions, il faudrait lui
répondre par un obstiné refus. Et elle pourrait tr&sbien les renouveler
le jour où, comme je le disais dans ma lettre précédente ',les Jersiais
ayant encore établi sur ces îlots quelques maisonnettes, l'Angleterre
pourrait dire :
II y a là des sujets anglais, des propriétésanglaises, régispar nos
lois2, ceci nous appartient. C'est ainsi qu'ils pratiquent sur tous les
points du globe où leur orgueilleux pavillon flotte souvent sur d'arides
rochers qui n'ont aucune importance conimerciale mais qui ont une
grande importance stratégique. Voilà la vérité.
Sutter Laumann.
[' 24th January (1886). Sec p. 663, above.]
See the real property cantracts relattoetlie Ecréhous Isletç. mhich have
been registered beforethe Royal Court of Jersey, in Annexesh gi (1863)A .92
(1881).A 86 (1884).A 89 (1923)~ A 93 (August1,047) and A go (Xoveinber, 1947)
to the United Kingdom hlemorial ;alsothe rating schedules of 1889 and 1950
in Annexes A 82 and A 83 to the same hfernorial.] U.K. ADDITIONAL AXNEXES (NO. A 174) 6?5
III
Article by M. Pierre Giffard, a French Journalist, in La CIzroniqwe de
Jersey of the 30thJanuary, 1886,recording a visit to the EcréhousIslets,
to inquire into an alleged proposal of the United Kingdom to erect a
Fort thereon
[Original irz the Public Library of Jersey]
L'AFFAIREDES ECREHOUS.
CARTERET 18Janvier.
Je viens de relever (-en touriste, bien entendu, et sans aricun
compas -) la position géographique, la faune(?)et la flore(!) de cette
chaîne d'îlots qu'on dénomme l'archipel des Ecrehouç. En vérité,je
vous le jure, devant Dieu et devant les hommes, bien qu'il m'en coûte
de contredire un correspondant zélé du Figaro, iln'y a pas l'ombre d'un
êtrehumain dans tout cet archipel microscopique, hormis le pèrePinel l,
vieux pêcheurjersiais, établilà depuis plus de quinze années 2,et posses-
seur d'un jardin qu'il a plantésur une tour de trois métres, construite
en pierre par ses mains, tour sémiramidesque ou babylonienne, si
voiis aimez mieux, qu'un voyageur timoré aura prise pour la tourelle
menaçante d'un fort blindé. Les myopes sont terribles !
Tout ce que je vous raconterai des Ecrehous vous fera rire, j'en suis
sûr, sauf la fin de mon petit compte-rendu. Cette fin est triste.a fiiute
en est encoreiil'éminentM.Ferry, quise tient coi, mais dont la responsa-
bilité est engagéelà aussi, comme dans maints autres endroits. Rions
d'abord, si vous le voulez bien, nous objurguerons ensuite.
Pour se rendre compte de ce qui se passe aux Ecrehous, ii y a trois
moyens A employer :le premier consisteà mettre l'=il derrièrela longue
vue du guetteur, au séniaphore du cap Carteret. C'est le moyen clont
s'est servi l'autre jour l'amiral Bergasse Dupetit-Thouars, préfet mari-
time de Cherbourg, pour répondre A l'amiral Aube que les Ecrehous
étaient tranquilles, qu'on n'y voyait que quelques pêcheurs et que nul
maçon anglais n'y édifiaitaucune batterie menaçante.
Muni de cette déclaration, l'amiral Aube a rCpondu à son tour aux
députés de la Manche, qui l'avaient questionné,que l'archipeldonnait
dans un profond sommeil et que rien de militaire ne s'y produisait
depuis de longues années.
Ce premier moyen pourrait, Ala rigueur, suffire A éclairerla religion
du peuple français sur la question des fortifications irnagiiiaires des
Ecrehous, car de la tour du sémaphorede Carteret, on voit lesEcrehous
tout comme si on était dessus. Ils émergentAtrois milles dans l'ouest
comme autant de rochers dangereux, bas sur la haute mer, noirs, inhabi-
tables. Au fond du tableau, à une distance double, sedétachemajestueu-
sement lagrande et beIle !lede Jersey. C'estun créve-cmurde la regarder,
[lSee II, pp. 661,669-671, above.]
[%See the United Kingdom Mernorial. p. 87, paragraph 150, where, however.
itisstated that Pinel firwent to iiveat the Ecrehous Islein May. 1850.1 676 U.K. ADDITTOSI\L ASXEXES (NO.A 174)
mêmeA l'Œil nu, du cap Carteret. Elle est A huit milles de la pointe
française ; elle se profile sur le ciel, avec son étendue énorme; on sait
qu'elle tenait à.notre sol,àce village mêmc (leCarteret, par des forêtset
des plaines qu'unc catastrophe épouvantable a submergés et enfouis
sous la mer. Et on regrette dc ne pas l'avoir, à présent, ou de n'avoir
pu la conserver h la France. TaesEcrehous vus a l'Œil nu, du haut du
cap qui compte aii moins 75 inétres d'altitude, ont !'air de vieux petits
rocs noircis par les lames, cc qu'ils sont bien en réalité.
Le deuxième moyen consistc à s'embarquer dans un cÔtre[sic] quel-
conque, à Cartcret, pour aller rl Jersey en rangeant les îles principales
de l'archipel ;ilfaiit, pour l'employer avoir beau temps, bon vent et des
+ratigues de la Déroute sous la main, c'est-5-dire des marins jersiais ou
français, bien au courant dii passage de la Déroute et des tourbillons
qui s'engouffrent entre les rochers des Ecrchous. Toutes ces conditions
sont difficiles h rhinir en cctte saison, où la navigation cst incertaine,
les vents contraires, la pluie et la neigc fréquentes, te débarquement
périlleiix.
Le troisième moyen est le plus simple à employer : iconsiste à s'embar-
quer à Portbail I,près de Carterct, pour Gorey, et à revenir de Gorey à
PortbaiI par Ic mêmechemin. Le fait se111d'opérer ce trajet entre la
. France et le petit port jersiais en apprend plus sur les Ecrehous que
cent cinquante articles de joiimaux. 011 fait routeB1'0. N.-O. en passant
à qiielques portées de fusil des deux iles principales de l'archipc1; on
découvre les rocs, les plantes, les varechs, les pierres, toiis les moindres
détails de ces deux solitudes, et le père Pinel qui circulc sur Iagrève,
attachant ses lignes et prenant cleshomards en quantité, pour les revendre
aiix rares pecheurs qui vieniicnt se reposer daris sa robinsonnerie.
Que vous preniez ces troismoyens successivement, ou que vous vous
coiitentiez d'en employer deiix sur trois, cc que j'ai fait par acquit de
conscience, vous acquerrez bien vite une conviction féroce, c'est l'his-
toire des fortificationsdes Ecrehoris, lancéeil y a quelques dix-huit mois,
nori par le Figaro, mais par plusieurs de nos confrères, est sortie de la
cervelle d'un fumiste ou d'un touriste qui avait bien dîné A St. Hélier.
Voici ce que je viens de voir aux Ecrchous :
i0 Un second rocher, Ie pliis au sud, dSnoiné[sic]I'Ecrevière,couvert
entièrement par les grandes mers ;
2O Un second rocher, le plus important du lot, dénomméla Maiire-
Ile. Aucun étre vivant, aucune habitation 2.Du roc et des pierres ;du
varech oirgoëmon[sic], comme on voudra ; des herbes sauvages et une
sorte de plante en forme de chou assez bizarre presque décorative,
inodore, non con~estible, et désigriée A Carteret sous Ic nom de "mauve
d'EcrehouH. CJcst la Rlaîlre-Ife qui devait recéler les mystérieux
constructeurs de forteresses. ITile est assez large aux basses-eaux mais
le plein de équinoxes n'en laisse pas ernerger[sic) plus d'une vergée,soit
[' This would appcar to be the officiform ; but both Portbnil and Port-Bail
arc indiscriminatclyused througliciiit this srticlc.]
It is norv the propcrty ofLordTreiitofNottingliatn.SeeAnnexesilh 89, .go ancly.
C I to the United Kingdom hIemorial.1 U.K. ADDITIONAL ANNEXES (No. A 174) 677
2o ares environ l,qui échappent aux grandes marées de Mars et de Sep-
tembre. Inutile de vous dire que je n'y vois âme qui vive, ni béte à
quatre pattes ni bêtes à deux pattes, ni chantier, ni hutte, ni ca~nliuse,
ni rien, enfin rien que du sable, des pierres, du roc, et des mauves. Les
gens du pays me rient au nez et ils ont ma foi raison, car pour un peu
l'on publierait le pIan teinté et à I'échellede ces bastions imaginaires.
Que dis je[sic] ?Un de nos confrères du soir (je l'ai vu plus consciencieux
dans les enquêtes de ce genre, et il manque à sa tradirtion] d'organe
archi sérieux[sic]), a vu quelque part les plaques d'acier destinées à
cuirasser ces chateaux cn Espagne, ct il les évalue,ce qui estplus raide[.]
11en estime le prix à cinquante mille francs l'une dans l'atitre. Clus
qu'est mon blindage ?
3' Troisiémc rocher : la Marnzotfière 4. Autre mouchoir de poche
étendu sur les hautes mers. Celui-là n'a pas dix ares "11-dessus de l'eau
du plein de mars. Mais iln sept maisons. Et quelles niaisons ! De vraies
cabanes, groupées.en haut, le plus haut possible, dans la craintc d'une
maréemonstre qui dépassetoutes les prévisions du Bureau des longitudes.
Sur cesselit maisons, sis sont fermées. Cc sont des pêcheursde homards,
Jersiais tous, qui en ont lesclefs. Suivant la saison, ilsviennent pêcher
là et s'installent pour dcux ou trois jours cn relâche dans le petit havre, -
un trou dnrigereux - qui sert de rioi-t jcet îlot désolé.Ils apportent
avec eux leur fricot et lc font cuire daris leur maisorinettc. L'été,ils
exploitent à l'occasion le touriste, qui se fait amener de Carteret ou de
Port-Bail par un beau temps, et qui déjeune avec eux, heureux comme
un Parisien seul peut I'étrc, d'avoir déjeûne[sic] dam urze ile (léserte.
La seule tnaisori ouverte cst celledu pèrc Pinel 5 déji iiommé '.Cc vieux
vivait li, jiisqu'à l'an dernier, avec sa fctnme 5 en vcritable anachorète.
Mais c'etait un anachorète marié. La femme est tombée malade, ori l'a
emmenée à I1h6pital de Jersey, et le vieux pêcheurest plus que jarnais
l'ermite de l'archipel. On l'aperçoit siirson île ; la vuc de sa silhoiiette
cocasse sur ce rocher m'a rappelé le solitaire du cap RIntapon[sic] *,qu'on
montre aux voyageurs quand ils passent entre la Grèce continentale et
Cythère.
Le no 4 du déno~nbrement comprendra des pctits
4' C'est tout.
rochers sans iiom que toutes les marées recouvreiit, à grarid renfort
d'écumeet de tourbillons, redoutables ailx pilotes.
s'Les Uiroailles, très au nord, comprennent plusieurs îlots dont une
sculc tête sort de l'eau àla pleine mer.
[' About hall an acre.)
In the original, lradition is divided by a hyphenbut the printer forgot to
print the suffix -tiein thc succeeding line.]
[3 Recle OBS. lneaning "Où est-ce".]
I.E.,Arcrviitotière.]
[j About a quarter of an acre.]
[Vinel's house %vas.harvcvcr. on Blanc Ile ivhich, atlorr\vater.is joined to
Alarmotière by a shingle bank. Sec Annexes C 6 and C I ito the United Kirigdorn
Alernorial.]
[' The original, in error, lias a corntria afrzo!?tmE.]
["ce the United Kingdorn AIcaorial. p.45, paragrapki 150. wher~:, Iiowcver,
it is stated tliat Pinelwifc left the lCcr6housIsIets"iii or iibout188z".] '
[* Recfe Matapan.] U.K. ADDITIONAI, ANNEXES (NO. A 174)
678
6' Les Pater Noster l,groupe de roches dans le nord 'de Jersey, font
encore partie des écueilsdangereux connus sous le nom dlEcrehous.
D'où 'vient ce nom dJEcrehou ? De la côte française, natureliement,
qui allait autrefois jusqu'h Jersey. On connait la Ikgende des marins
de ces parages, celle de la villed'Ks 2,la cité engloutie dont les cloches
sonnent au fond de lamer. C'est une légende baséesurun fait gkologique
indiscuté ;l'engloutissement de la foret de Coutances.
.Au pied du cap de Carteret, j'ai visité la vieille église de la ville ;
autrefois elle était le centre di1pays. Aujourd'hui, elle borde la mer, etles
iiabitations modernes se sont retirées bien plus loin. Elle est d'ailleurs
en ruines, dClabréeau dernier point ; chaque touriste qui vient la voir
en emporte un morceau Singulier aspect que celui de cette côte de la
Manche, du Mont Saint-Michel à Flamanville, où la mer entasse sables
sur sables, dunes sur dunes, après avoir violemment séparé les îles
actuelles de la côte, ily a mille ans ! On dirait que la hlanche va recons-
tituer un continent 1hoù elle a jadis crééun bras de mer, et refaire, d'ici
quelques siécles,ce qu'elle a défaitaux siéclesprécédents.
Au surplus, le nom d'Ecrehou appartient toujours en propre à une
partie de Carteret, côté nord-est. On dit d'un homme qu'il demeure à
Carteret dans Ecrehou, c'est-à-dire dans une section de Carteret qui
formait autrefois le village d'Ecrehou. C'est ce qui explique une autre
affirmation fantastique de notre confrére archi-sérieux déjA cité.II a
donné trois cents Itabita?ztà la Marmottière ',où l'homme, "primate
bimane," est représenté par le pére Pinel tout seul. Notre confrére a
confondu l'ilot Ecrehou avec le village d'Ecrehou sur Carteret. Ajouterai-
je encore un trait qui achévera sous les coups rectificatoires notre
confrère archi-sérieux ? Je l'achèverai, car il faut rire encore. 11a parlé
dans une étitde puissamment longue, de Ia batterie d,e Carteret qui
surplombe la mer immense. 0ùs qu'est mon canon Krupp ? répéterai-je.
Il n'y a au cap Carteret qu'un pierrier d'alarme pour faire$an, dans
les cas exceptionnels, orages, tempêtes, sinistres au large, passages des
vaisseaux de guerre, etc.
Certes,-et ce sera la conclusion de ma première partie,-il se dégage
de cette affaire des forts blindésaux Ecrehous, à part la formule beaucoup
de bruit pour rien, une démonstration péremptoire de notre faiblesse
réellequant à la défensede nos cdtes. Ainsi, le cap Carteret est une belle
position. Il a, je l'ai dit, 75 mètres d'altitude, au moins. Il domine
les Ecrehoiis comme le pont le plus élevéde Dinard domine Cézembre,
où l'îlotdu Jardin. C'est-à-dire que mêmeen supposant qu'on fasse un
fort aux Ecrehous, qui sont tr&sbas, il serait en contrebas de GOmhtres
par rapport au fort de Carteret, qu'on élèverait incontinent pour lui
répondre, et qui l'éteindrait avec une certitude mathématique.
Ce fort l'amiral Dupetit-Thouars l'a demandé parait-il, en Octobre
dernier &.Le construira-t-on ? 11faut qu'on l'édifiesans retard car il y a
lAun trou fâcheux. On a dit que les Ecrehous commandent le passage
[lAlso Patemosfcrs, or Pierres des Leq.]
[aRecte Ys.]
[= The original, ierror,has a comma after morceau.]
['I.e.. ~Warnlofidre.]
['1.e.. 1885.1 U.K. ADDITIONAL ANNEXES (NO.A 174) 679
de la Déroute. C'est une erreur. La Déroute est commandée par le cap
de Carteret, et plus loin par celui de Flamanville. De ces deux hauteurs,
I'artiIlerie française peut balayer toute la mer, et I'édification d'iine
batterie aux Ecrehous, sur 20 ares de superficie, serait un acte d'insen-
séisme. Les Anglais ne le commettront pas, ils sont trop malins pour
s'y laisser entraîner.
Mais, A présent que la question iroquoise dc ces forts fantastiques est
vidée, occupons-nous d'une autre face du problème qui, pour êtremoins
brillante, n'en a pas moins une grande importance. C'est mSme la seule
qui soit à considérer.
De tout temps les Ecréhous ont éténeîltres, et leurs eaux étaient des
eaux neutres. En vertu d'une convention internationale signée par
diverses puissances, la France et l'Angleterre, entre autres. le 2 Août
1839 l,la grande pêche estinterdite, pour restreindre autant que possible
la dépopulation des rivages, européens, dans iinpérimétre de 3 milles
marins, à compter de la laisse des basses-mers. C'est-à-dire que le jour
où la hlanche est la plus basse,- : I'éqiiinoxedu printemps, par exemple,
- on compte trois inilles de plaine liquide vers le large, et que c'est seiile-
ment au bout de ces trois milles que les ~iêcheurdse chalut, entre autres,
ont le droit de jeter leurs énormes filets dans la mer. Cette disposition,
que les gardes-côtes et les gardes-péches de I'Etat font observer le long
de la cDte française, est surveilléedans son exécution réciproque par les
gardes-pêches et les gardes-côtes anglais.
Or, entre Jersey et Carteret, Port-Bail, et autres points de la chte
fran~aise, la distance est de huit milles environ. Eii réservant trois milles
sur Jersey, côtc anglaise, et trois milles sur la côte française, on troiive
dans Ia passe de la Déroute une sorte de chenal neutre, Iarge de deux
milles environ, dans lequel tout pêcheur a le droit de tendre ses filets.
Les Ecrehous sont juste au bord de ce chenal, par rapport A la France,
mais enfin ils sont dedans, et de tout temps ils ont étéconsidérés comme
des îlots neutres, situés entre des eaux ~zeulres,dans les criques desquels
ct autour desquels il a toujours étb péché des quantités ciepoisson par les
marins des deux nationalités, Jersiaise et Française.
Quel ne fut pas l'étonnement de la population de Carteret et
de Portbail, lorsqu'il y a deux ans vers Psques, on leur si nifia,par
ordre du gouvernement français, de ne plus pêcher aux f irehous '.
Les bonnes gens se plaignirent, mais on les envoya promener. Quelqiies
uns[sic] essayèrent d'enfreindrc la défense inexplicable qui leur était
faite. L'aviso de l'Etat fraqaiç leur notifia d'avoir à se tenitranquilles !
Et depuis deux ans, les pêcheurs deCarterct et de Port-Rail se deman-
dent si le gouvernement français a vendu, ou cédé,d'une facon quel-
conque con droit de pêche et par suite tous ses droits sur les Ecrehous à
la perfide Albion. J'ai découvertle pot aux roses. Inutilede direcommeiit,
[' Only the United Kingdom and France were parties to the 1839 Pis1ii:ry
Convention. See Annex A 27 to the United Kingdom hleiiioria1.J
["ce extracts fromtheofliciacorrespandencerelntinto this subjec(hlarcliaritl
April.1884) in 1 and III, ppGGo,abovc, and 680,beloivOther extracts, including
that in 1,abovc. are printed as hnnex A46 to the United Kingdoru Mernorial.]68 O U.K. ADQITIONAL ANNEXES (NO. A 174)
mais je puis vous dire où. C'est à Jersey chez un Français qui a des
papiers bien interressants[sic].
Qu'est-ce que hl. J. Ferry, ministres des affaires étrangères d'alors,
pouvait bien avoir a faire avec l'Angleterre 7 Je n'en sais rien. Quelle
nécessitééprouvait-iI de faire une platitudc aux Anglais ? alystkre.
Ce qu'il ya de certain, c'estque le 29 hlars 1884, il écrivitau ministre
de Ia marine (l'amiral Pepron) une circulaire dont voici le sens général,
sinon les termes exacts l.(Je n'ai paseu le temps de copier le document).
J'ail'honneur de vous informer, qu'en présence des représentations
récentes de l'Angleterre et de ses prétentionsdéjh anciennes sur cegroupe
d'îles, j'ai décidé,pour éviter tout conflit, d'interdianos mariiis l'exer-
cice de leur industrie autour de ces îles. Veuillez, je irprie,informer de
cette décision les officiers placés sous vos ordres et les prier de faire
comprendre aux pêcheurs qui enfreindraient cette demande, Q quels
risques ils s'exposeraient.
Veuillez agréer, etc.,
Sigize',pour le ministre des affaires étrangères empêché:
Rillot,
Directeur des Affaires politiques.
Le ministre dc la marine, docile comme un inouton, s'inclinait immé-
diatement, et au lieu d'espliquer i l'avocat de Saint Diéz que cette
lettreétait l'aveu d'une cession pure et simple des Ecrehous aux Anglais,
ce faux loup de mer prenait sa hoiine plurne et adressait aux autorités
maritimes de Chcrbourg, Carteret, Portbail, Diélette, etc., une bonne
circiilaire reproduisant la lettre ci-dessus, et faisant elle aussi défense
d'aller désormaispéclier aux Ecrehous, sous peine des risques srisénoncés.
Personne ne soupçonnait l'existence de ces deux lettres ; mais on voit
que tout se décoiivre. Si la pêclieest interdite aux Français dans les
eaus des Ecrehous, jusqu'ici réputéesnerrtves,c'est que les Ecrehous
sont abandonnés i l'Angleterre, en fait. .
Or, comme ce fail est la négation du droit, nous demandons qu'on
veuille bien mettre de cotéla question deveriue oiseuse des fortifications
imaginaires, kt nous répondre sur les points suivants :,
I"1-alettre de M. Jules Ferry est-elle oui ou non conforinc i cequi est
imprimé plus harit ?
z0 La circulaire de M. l'amiral Peyron est-elle conforme à l'esprit de
cette lettre, et en recommande-t-elle énergiquement l'observation ?
3' Ces mesures d'interdictions, avilissantes pour la France, ont-elles
étérapportées depuis 1884 ?
4" Sous quel régime sont placés en cemoment les Ecrelious ?Ces îlots
sont-ils toujours dans les eaux neutres, ou, en vertu d'une concession
il'iïiis documentis not among those printed as Annex A 46 to tiic United
Kingdom Meinorial,ivhereho\\-ever. theisto be found a letsigncdhy 31.Billot,
dated the 26th Alarch,1884.1
[2 I.c.M,. Jules Fcrrywho was borii at Saint-DiB.] U.K. ADDITIONAL ANNEXES (go. A 175) 681
faite parM, Ferry, appartiennent-ilsipso facto,à l'Angleterre, ferniant
ainsi à l'industrie de notre pêcheun champ exploité depuis des siècles
en toute sécurité?
5"Les pêcheursde Carteret et de Portbail, qui retournent parfois aux
Ecrehous, y retournent-ils en vertu de leur droit, ou par une simple
tolérance de l'autorité anglaise ?
OPL à,qui nous adressons ces ciliciquestions, c'eM. le ministre actuel
des affaires étrangéresEt nous serions heureux, au Figaroq, u'ilne fî~t
pas embarrassé pour répondre. Nous attendrons curieusement les éclair-
cissements qu'il voudra bien conimuniquer aux journaux officieux.
PIERREGIFFARD.
Prosecution by the Jersey Authorities in the Royal Court of Jersey,
3rd March, 1913, of a Jerseyman, F. Billot,for having Broken and
Enteredthe House of R. R. Lemprièreon Blanc Ile, one ofthe EcrChos
[Ecréhous] Islets,Dependenciesof theJersey Parish of St.Martin, and
Stolen Provisions and other Articles
[RGlesde Lu Cozir Royalede Jersey, 3 Ililtrrgr3J
.4ssiseCriminelle
L'An mil neuf cent treize, le troisié~ncjour de Mars. Mars 3.
Par devant Messire William Henry Venables Vernon Chevalier,
Bailli de Jersey, assisté dtEdouard Charles M:ilet de Carteret,
Charles Fraiiçois Dorey,Thomas Payn, Thomas Blainpied, Philippe
Aubin, Charles Jean Benest, Henry Nicolle Godfray et Herbert
Ernest Pinel, Ecuiers,Jurés,
Frank Billot sous accusation d'avoir pendant le ~nois de Janvier
1913 ou vers ce temps-là, pénétré avec effractions dans la maison ot:cu-
pée par Regiiiald Raoul Lemprihe Ecr située sur le Blanc Ile, iin des
Ilots des Ecréhos, dépendances de la paroisse de St Martin, et d'y avoir
volé leseffets suivants, savoir : Une bouteille de vinaigre, deux bouteilles
d'huile, un pot contenant du lait "Ideal Milk", deus pots de confitures,
un pot de moutarde, une boîte de viande conservée, une boite de
sardines, cinq boites de conserves deux morceaus de savon, deux
couvertures en laine avec bordure en couleur, deux draps de lit,delm
taies d'oreiller, cinq serviettesdes serviettes en papier, quatre ballots
de ficelle, quatre lignes de pêclie,et trois brosses, le totit appartenant
audit Reginald Raoul Lempriére Ecy et ce au préjudice de ce dernier.
Ou d'avoir ledit Frank Billot aidé, assisté ou participé audit vol, ou
d'avoir reçu caché ou recélélesdits effets voléssachant qu'ils provenaient
de vol '.
['pruvsi~aient Se ziol interlined.] 682 4 U.K. ADDITIONAI. ANNISXES (NO. A 175) '
convenu à l'instance du Procureur Généraldu Roi ; pour ouïr dépdtde
Témoinsur ladite accusatio~iet ensuite lerapport des Hommes de l'En-
quête suivant l'Acte de la Cour du 22 Février 1913 et ce en conformité
de la Loi surla ProcédureCriminelle- Mons!Charles Perchard, Reginnld
Raoul LemprièreEcget Madame la Baronne Clementine Justine Fanny
Voii Gütlingen sa femme, Mess: Archelaus Trout Sprinate, Charles
Alexandre Robins & Charles Maingay Robin ECE àla cause à témoigner.
Et ouïr record d'officier.
i913 Rlessg Edward Martin Payn Thomas James Renouf
Mars 3. AdoIphus Frederick Neel Ph. Clarence 1,'Amy
Charles Thomas Pallot Ph. Benest.
John Guillaume Laurens Frederick George Roy
Francis John Le Brun Tkiomas Ph. hlarett
Ph. Bichard John George Coutanche
Charles Ph. Syvret Charles Edgar Wqi Ahier
John Le Couteur Arthur Henry John hlauger Berry
i'ilired Jeune Pallot Ernile Benest
Carlyle Le Gaiiais George Auguçtuç Meçservy
Edward George Le Boutillier Reginald Holt
Raymond Ernest Drelaud Thomas George Haudains
appelés à passer comme hommes d'Enquête à la charge ou décharge
dudit Frank Billot sur ladite accusation ont pris le serment requis et
Monsieur le Bailli a désignépour leur Chef ledit Rlonsf Edward Martin
Payn.
L'Acte d'accusation a étélu et l'accusé a énoncéderechef son plaid
savoir : Qu'il n'est pas coupable.
Lesdits témoins ont déposepar serment. L'Avocat Généraldu Roi, a
étéouï et l'accuséa &téentendu en sa défensepar le moyen de son Avocat.
Lesdits hommes se sont retiréspour considérerleur verdict et étant de
retour età un accord ils ont fait leur rapporà la Justice par le moyen de
leur dit Chef savoir:Qu'ils croient eiileurs conscierices que ledit Frank
Biiiot est coupable du crime dont il a étéaccusé.Partarit il en demeure
dûment atteint et convaincu.
Ensuite de quoi, aprésque ledit Frank Billot a étéenteridu en initiga-
tion parle moyen de son Avocat, la Cour d'opinion uniforme, conforiné-
ment aux conclusions dudit Sieur Avocat Général, l'acondamné pour
punition de son crime à un emprisonnement avec travail forcéde six
mois. Et ilest ordonné que les effets séquestrésseront rendus à leur
propriétaire.Prosecution by the Jersey Authonties in the Royal Court of Jersey,
8th October, 1g21, of two Jerseymen, G. F. Levée,alias G. Huelin, and
C.H. Miller, for having Stolen a Boat, and for having Broken and Entered
a Building belonging to the Jersey Customs Authority at the Ecréhos
[Ecréhous]Islets, and Stolen I'rovisions
[RGEes deLa CozirRoyale de Jersey,8 Octobre , 9211
L'An mil neuf cent vingt-et-un, le huitième jour d'Octobre. Octobre S
Par devant Messire IVilliam Henry Venables Vernon Chevalier
K.B.E., Bailli de 1'Ilede Jersey, assisté [delThomas Payn Ecr[sic]
O.B.E[sic] et John Edward Le Boutillier Ecuiers Jurés.
George Francis Levée alias George HueIin et Charles Heiiry 3liller
saisi de fait par le Centenier Gallichan de la paroisse de la TrinitC et
présentésen Justice par le Connétablede ladite paroisse, ont étéaccusés
par l'Avocat Généraldu Roi, stipulant l'Officede Procureur Généraitiu
Roi, d'avoir de concert dans la nuit de Jeudi, le 8 à Vendredi leg Sep-
tembre r92 Iou vers ce te~rips-lhvolé,en coupeant[sic],la corde d'attaclie,
le bateau "Dainty" portant le numéro 341, lequel bateau appartenant
à MF Francis Philip ITereyétait amarré daiis la 13niede Boulay en ladite
paroisse, ledit vol fait au préjudice dudit Sieiir Ferey. Item, d'avoir de ,
concert lesdits George Francis Leveé[sbc]alias George Huelin et Cliarles
Henry Miller, pendant la nuit de Vendredi le 9BSamedi le IO Septembre
1921 ou vers ce temps-là pénétré avec effraction dans certaine maison
appartenant à l'Admi~iistration des I~npôts de cette Ile 2,et située aux
Ecréhos, et d'y avoir volé une certaine quantité de provisions qui s'y
trouvaient appartenant à ladite Administration et ce au préjudice de
ladite Administration 3.Ou d'avoir, lesdits George Francis Leveé[sic]
alias George Huelin et Charles Henry Miller, aidé, assisté ou participé
auxdits actes criminels.
Les nccusés ayant pIaidS coupable à ladite accusation,la Cour confor-
mément aux conclusions de l'Avocat Généraldi1 Roi, stipulant l'Office
de Procureur Généraldu Roi, a condamné ledit George Francis Levée,
alias George Huelin, à un emprisonnement avec travail forcé de neuf
mois, et ledit Charles Henry Miller, à un emprisonnement avec travail
forcéde cinq mois.
Tlde omitted in error.1
[a 1.e.Jersey.]
[3Adma~iis1ratio~ followby etceattprPjudicedeladitAdn?i?zistraliorcpeated
in error.] U.K. ADDITIONAL ANNEXES (NO. A 177)
Affidavitof A+ E. Mourant, M.A., D. Phil.,D.M., F.G.S., 17th August,
1953 ,estifying thaStone from theEcréhous Isletswas used in 17th and
18th CenturyBuildings inthe Parishes of St. Martin andTrinity, Jersey
1, Arthur Ernest Mourant, M.A., D.Phil., D.hl.F.G.S., of the Lis-
ter Institute,Chelsea Hridbe Road, London, S.W. I, and of Maison
de Haut, Longueville, in the Parish of St. Saviour, Jersey,make oath
and Say as follows :-
1. 1 hold the degree of Doctor of Philosophy of the University of Ox-
ford. This degree was awarded for a Thesis on "The Geology of the
Channel Islands". 1was fortwo years engaged as a geologist on the
Geological Survey of Great Britain. 1 have eramined personally and
in considerable detail the rocks of al1tlie main islands and of many of
the smaller islands and reefs of the Channel Islands.1have alsostud-
ied the rocks of the coasts of the Cotentin Peninsula and northern
Brittnny. 1am thus familiar with the appearance of most of the types
of granite and gneiss founcl in these three areas and as a result of my
knowledge and experience 1 am able to identify the source of nearly
al1of the building materials used in Jersey.
z. The Ecréhous reef consists of pale coloured granite-gneiss contain-
ing white mica (a mineral very rare iii Jersey rocks). It is similar to
the rock forming the Paternosters and tlie Dirouilles.1have not my-
self examined the Dirouilles, but 1 base my observations regarding
this reef on the report of Ch. Noury, S.J.,on the "Roclics des Ecré-
hou, des Dirouilles etdes Pierres deLecq ou Pater Noster", yublished
in the 17th Bulletin(1892) of the SociktéJersiaise.
To the best of my knowledge, there are no rocks inthe Cotentin,
in the northern coast of Brittany or in any other partof the Channel
Islands which cannot be distinguished from those of the Ecréhous, the
Paternosters and the Dirouilles.
Stones consisting of inaterial indistinguishable from that of the
3. Ecrélious are found i~iniimerous buildings in the parisl-iof St. Mar-
tin and Trinity, Jersey, but I have not found any such material in
any buildings in other parts of Jersey.
Three houses in the district of La Palloterie in the Parish of
St. Martin, for exarnple, contain stones of this Ecréhoiis type of
gneiss. One of these three houses has a gate post dated 1623, and
contains large blocks of the materialinquestion.
The secondis a very fine farm building with thedate stone1731 and,
in this building, most of the smaller stones forming the main part of
the South wall (the wall with the date stone) are of Ecréhous type
gneiss.
Attached to the south-west of this house is an outbuilding of simi-
lar composition.
The southern wall of the thirdhouse, which bears the date1715, also
contains much Ecréhous type gneiss. Stones of this Ecréhous type of gneiss are also found in the pier of
Rozel Harbour, in the Parish of St.Martin, and in most of the build-
ings with exposed stonework surrounding the Harbour, inclucling
Whipple Cottage, which is said to be the oldest building in Iiozel.
In my opinion, most and probably al1of the stones of Ecréhoustype
4.gneiss in Jersey buildings came fro~nthe Ecréhousreef itself. The Pa-
ternosters gneiss is slightly different in being inore greyish and les~
foliated. The gneiss of the Dirouilles (describeby Noury, but ~vhich
1have not examined) rnay wel be indistinguishnble from that of the
Ecréhous, but it is uniikely that any large amount of stone was qtiar-
ried from these relativeIy small rock heads, whereas on the Ecréhous
the quantities of stone available above high tide level are great and
above Iow tide level almost unlirnited.
The attached photograph, marked "A" l,taken by myself, shem a
typical quarryman's cut about two feet long and two inclies deep,
which is to be foundnear the sunitnit of the high rock about 50 yards
south of the southern end of Maître Ile,Ecréhous.
5. My personal findings in this matter accord witli the following para-
graph taken from the report of Ch. Noury to which I have referrcd
above :-
"A Rozel beaucoup de murs des maisons ou des clôtures contien-
nent avec le conglomérat local, le gneiss granulitique. Sa couleur
plus claireet ses petites strieparallèles,dues h la disparition du
mica, le font aisément distinguer. On en a porté jusque sur lahau-
teur près de l'ancien moulin de Rozel, comme on peut Ie constater
dans la muraille bâtie à l'extrérnit6 de vallée.Il n'y a paç que des
blocs amenés par les courants, et il est évident que lesbateaux en
ont apporté du large à une époque où, les chemins de Jersey étant
moins practicableç qu'aujourd'hui, on ne se procurait pas aussi
aisément, dans toute l'Ile, les pierres des belles carrières de la Afoye,
de la Perruque et surtout du Mont-Mado. La tradition du reste sur
cette provenance du gneiss se conserve parmi les habitants de
Rozel".
Al1 of which 1 declare to be true to the best of rny knowledge,
information and belief.
[Siped] A. E. MOURANT.
Sworn by the above-narned Arthur
Ernest Mourant, in the Island
of Jersey, this17% day of
August, One thousand nine hundred
and fifty-three, before me :
[Signed] HEDLEYG. LUCE
Notary Public
Jersey
[' Not reproduccd.]
Reply submitted by the Government of the United Kingdom of Great Britain and Northern Ireland