Professor Holdsworth in Essays in Law and History (p. 267) wrote, on the topic "The Relation of English Law to International Law" the following:
"In each case in which the question arises the court must consider whether the particular rule of international law has been received into, and so become, a source of, English law. The Territorial Waters Jurisdiction Act 1878 gave the courts the jurisdiction which the minority of judges in this case had held that they possessed; and its declaratory form is some evidence that the legislature considered that their views were correct. Nevertheless, I think that the opinion of Cockburn C.J. and the majority of the judges had come to be more in accord with the principles of modern English law than the opinion of the minority which represents the older view that international law is per se part of the law of England." (at p379)
In Wheaton's Elements of International Law on maritime territorial jurisdiction which reads as follows:
"The maritime territory of every State extends to the ports, harbours, bays, mouths of rivers, and adjacent parts of the sea enclosed by headlands belonging to the same State. The general usage of nations super-adds to this extent of territorial jurisdiction a distance of a marine league, or as far as a cannon shot will reach from the shore along all the coasts of the State. Within these limits, its rights of property and territorial jurisdiction are absolute, and exclude those of every other nation".
The English edition published 1878 adds the following (pp. 237-239): "This statement requires some qualification. It has now been decided in England by the celebrated case of The Franconia (1877) 2 CPD 173 , that the courts of this country have no jurisdiction over a criminal offence committed on board a foreign ship while that ship is on the open sea, but within three miles of the shore of England. That the question is one of great difficulty and doubt, is shown by the fact that of the fourteen judges who attended during the arguments in The Franconia, seven pronounced against the jurisdiction, while six claimed it. One who agreed with the majority died before judgment was delivered. This case decides that by English law as at present administered, no jurisdiction is claimed over criminal offences committed beyond low water mark, unless they have taken place on board a British ship, or within waters admitted on all hands to be territorial, such as ports, harbours, bays, &c. But it still remains a doubtful question, whether any portion of the open sea may be claimed as part of the territory, and if so to what extent, and for what purposes, it may be so claimed. No precise rule can be derived from the writings of publicists.
The suggestion of Bynkershoek given in the text, that the sea, as far as a cannon shot will reach from the shore, should belong to the State it borders, has been adopted by many writers, and has generally been assumed to be a distance of three miles. It is evident, however, that on this assumption, consistency requires the limit to be increased in proportion to the increased range of modern artillery. But in the practical application of the rule, in respect of the particular distance, and in the still more essential particular of the character and degree of sovereignty and dominion to be exercised, a great difference of opinion is to be found. The only point upon which publicists are more or less unanimous, is that some zone of sea (most of them fix it at three miles), is for some purposes subject to the dominions of the local State. 'Even if entire unanimity had existed,' said Lord Chief Justice Cockburn, 'the question would still remain how far the law, as stated by the publicists, had received the assent of the civilised nations of the world.... The question is not one of theoretical opinion, but of fact, and fortunately, the writers upon whose statements we are called upon to act, have afforded us the means of testing those statements by a reference to facts. They refer us to two things, and to these alone - treaties and usage. Let us look a little more closely into both. First, then, let us see how the matter stands as regards treaties. It may be asserted, without fear of contradiction, that the rule that the sea surrounding the coast is to be treated as a part of the adjacent territory, so that the State shall have exclusive dominion over it, and that the law of the latter shall be generally applicable to those passing over it in ships of other nations, has never been made the subject-matter of any treaty, or, as matter of acknowledged right, has formed the basis of any treaty, or has even been the subject of diplomatic discussion .... When the treaties referred to by text writers are looked at, they will be found to relate to two subjects only, - the observance of the rights and obligations of neutrality, and the exclusive right of fishing."
In these respects nations have followed text writers, and adopted three miles as a convenient distance, not as matter of existing right, but as matter of mutual concession and convention. Such treaties would be superfluous, if the general assent of nations had given to each a three-mile belt of the sea surrounding its shores. As regards usage, 'the only usage found to exist, is such as is connected with navigation, or with revenue, local fisheries, or neutrality, and it is to these alone that the usage relied on is confined.
'His Lordship comes to the conclusion that 'it may not be too much to say that, independently of treaty, the three-mile belt of sea might at this day be taken as belonging for these purposes, to the local State,' and that 'a nation which should now deal with this portion of the sea as its own, so as to make foreigners within it subject to its law, for the prevention and punishment of offences, would not be considered as infringing the rights of other States. But I apprehend that as the ability so to deal with these waters would result, not from any original or inherent right, but from the acquiescence of other States, some outward manifestation of the national will, in the shape of open practice, or municipal legislation, so as to amount, at least constructively, to an occupation of that which was before unappropriated, would be necessary to render the foreigner, not previously amenable to our general law, subject to its control.' [1]"
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