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its professed object, since both Governments had it in their power, without it, to negotiate upon these subjeccts, if they pleased. We rejected it, although its adoption would have secured the boundary of the forty-ninth degree of latitude west of the Lake of the Woods, because it would have been a formal abandonment on our part of our claim to the liberty as to the fisheries recognized by the treaty of 1783.

"You will perceive by the correspondence that the ninth article was offered us as a sine qua non and an ultimatum. We accepted it, not without much hesitation, as the only alternative to a rupture of the negotiation, and with a perfect understanding that our Government was free to reject it, as we were not authorized to subscribe to it.” Letter of the Am. plenip. to Sec. of State, Ghent, Dec. 25, 1814, given in The Fisheries and the Mississippi, 54 ff.

"The principle (that of the continuous right of the United States to the northeastern fisheries and the non-abrogation of these rights by the war of 1812) asserted by the American plenipotentiaries at Ghent has been still asserted and maintained through two long and arduous negotiations with Great Britain, and has passed the ordeal of minds of no inferior ability. It has terminated in a new and satisfactory arrangement of the great interest connected with it, and in a substantial ad ission of the principle asserted by the American plenipotentiaries at Ghent."

Mr. J. Q. Adams, The Fisheries and the Mississippi, 97, 98.

"In that instrument (the treaty of 1818) the United States have renounced forever that part of the fishing liberties which they had enjoyed or claimed in certain parts of the exclusive jurisdiction of the British provinces, and within three marine miles from the shore. This privilege, without being of much use to our fishermen, had been found very inconvenient to the British, and in return we have acquired an enlarged liberty, both of fishing and of drying fish, within the other parts of the British jurisdiction forever. The first article of the convention affords a signal testimonial of the correctness of the principle assumed by the American plenipotentiaries at Ghent; for, by accepting the express renunciation of the United States of a small portion of the privilege in question, and by confirming and enlarging all the remainder of the privilege forever, the British Government have implicitly acknowledged that the liberties of the third article of the treaty of 1783 had not been abrogated by the war. It is not the word forever in this convention which will secure to our fishermen for all time the liberties stipulated and recognized in it, but it was introduced by our negotiators and admitted by those of Great Britain as a warning that we shall never consider the liberties secured to us by it as abrogated by They and we are aware forever that nothing but our own renunciation can deprive us of this right."

mere war.

* *

Ibid, 109.

"The nature of the rights and liberties consisted in the free participation in a fishery. That fishery, covering the bottom of the banks which surround the island of Newfoundland, the coasts of New England, Nova Scotia, the Gulf of Saint Lawrence, and Labrador, furnishes the richest treasure and the most beneficent tribute that ocean pays to earth on this terraqueous globe. By the pleasure of the Creator of earth and seas, it had been constituted in its physical nature one fishery, extending in the open seas around that island, to little less than five degrees of latitude from the coast, spreading along the whole northern coast of this continent and insinuating itself into all the bays, creeks, and harbors to the very borders of the shores. For the full enjoyment of an equal share in this fishery it was necessary to have a nearly general access to every part of it, the habits of the game which it pursues being so far migratory that they were found at different periods most abundant in different places, sometimes populating the banks and at others swarming close upon the shores. The latter portion of the fishery had, however, always been considered as the most

valuable, inasmuch as it afforded the means of drying and curing the fish immediately after they were caught, which could not be effected upon the banks.

"By the law of nature this fishery belonged to the inhabitants of the regions in the neighborhood of which it was situated. By the conventional law of Europe it belonged to the European nations which had formed settlements in those regions. France, as the first principal settler in them, had long claimed the exclusive right to it. Great Britain, moved in no small degree by the value of the fishery itself, had made the conquest of all those regions upon France, and had limited by treaty, within a narrow compass, the right of France to any share in the fishery. Spain, upon some claim of prior discovery, had for some time enjoyed a share of the fishery on the banks, but at the last treaty of peace prior to the American Revolution had expressly renounced it.

"At the commencement of the American Revolution, therefore, this fishery belonged exclusively to the British nation, subject to a certain limited participation in it reserved by treaty stipulations to France."

Ibid., 184.

"The most important matter adjusted at this negotiation (that of 1818) was the fisheries. The position assumed at Ghent, that the fishery rights and liberties were not abrogated by war, was again insisted on, and those portions of the coast fisheries relinquished on this occasion were renounced by express provision, fully implying that the whole right was not considered a new grant."

2 Lyman's Diplomacy of the U. S., 88.

"During the conferences which preceded the negotiation of the convention of 1818, the British commissioners proposed to expressly exclude the fishermen of the United States from the privilege of carrying on trade with any of his Britannic Majesty's subjects residing within the limits assigned for their use ;' and also that it should not be lawful for the vessels of the United States engaged in said fishery to have on board any goods, wares, or merchandise whatever, except such as may be necessary for the prosecution of their voyages to and from the said fishing grounds; and any vessel of the United States which shall contravene this regulation may be seized, condemned, and confiscated with his cargo.'

"This proposition, which is identical with the construction now put upon the language of the convention, was emphatically rejected by the American commissioners, and thereupon was abandoned by the British plenipotentiaries, and Article I, as it stands in the convention, was substituted."

President Grant, Second Annual Message, 1870.

On the subject of the Northeastern fisheries generally see the following Congres

sional documents:

Articles of the treaty of 1871 with Great Britain. Resolution of Massachusetts favoring their abrogation. Feb. 28, 1879. Senate Mis. Doc., 80, 45th Cong., 3d sess.

Abrogation of the fishery articles of the treaty of May 8, 1871, with Great Britain recommended. Apr. 28, 1880. House Rep. 1275, 46th Cong., 2d sess. Recommendation that duties be reimposed upon fish and fish oil, the product of Canada, as British Government insists that local laws are superior to stipulation of treaty of 1871. President's message. May 17, 1880. Senate Ex. Doc. 180, 46th Cong., 2d sess.

Provisions of the treaty of May 8, 1871, with Great Britain. Report in favor of paying damages sustained by American fishermen on account of the acts of

the people of Newfoundland and the abrogation of the treaty. June 9, 1880. House Rep. 1746, 46th Cong., 2d sess.

Certain provisions of the treaty of Washington on. Report that they be terminated. Feb. 4, 1882. House Rep. 235, 47th Cong., 1st sess.

Protection of, in waters of United States and Canada. Resolution of Vermont favoring legislation for that purpose. Jan. 15, 1877. Senate Mis. Doc. 28, 44th Cong., 2d sess.

Protection of, on Atlantic coast. Proposed legislation not antagonistic with treaty obligations with Great Britain. Mar, 24, 1884. Senate Rep. 365,

48th Cong., 1st sess.

As to Canada fisheries in general, see Senate Ex. Doc. No. 100, 32d Cong., 1st sess.
On Sir E. Thornton's proposal of a fisheries commission, and in relation to the
Alabama claims, see Mr. Fish, Sec. of State, to Mr. Thornton, Jan. 30,
1871. For. Rel., 1871, 497.

On the subject of the negotiations attending the treaty of 1818, the following documents may be consulted:

Message of President Monroe, Feb. 18, 1825, with papers as to "the capture and detention of American fishermen during the last season." House Doc. 405, 18th Cong., 2d sess. 5 Am. St. Pap. (For. Rel.), 675.

Letter of Mr. Rush to Mr. Monroe, Oct. 22, 1818, Monroe Pap. See also in same, important argument of Mr. Rodney, Nov. 4, 1818, in same collection.

Mr. Rush's dispatch to Mr. J. Q. Adams, Sec. of State, of July 28, 1823, narrating the incidents of the then closing negotiations with the British ministry, is given in Senate. Ex. Doc. No. 396, 18th Cong., 2d sess: 5 Am. St. Pap. (For. Rel.), 529. See ibid., 548, 580, as to passages in respect to Newfoundland fisheries.

Mr. Gallatin's dispatch to Mr. J. Q. Adams, Nov. 6, 1818. 2 Gallatin's Writings, 82. As to course of commissioners at Ghent, in respect to the fisheries, see Mr. Gallatin to Mr. Monroe, Dec. 25, 1814. 1 Gallatin's Writings, 345. See further, 1 Philli. Int. Law (3d ed.), 270.

In the British and Foreign State Papers for 1818–'19, vol. 6, p. 69 ff., will be found the proceedings of the commissioners by whom the treaty of 1818 was negotiated.

(5) UNDER THE TREATIES OF 1783 AND 1812 THE THREE MILES BELT FOLLOWS THE

SINUOSITIES AND INDENTATIONS OF THE COAST.

§ 305.

The general doctrine of the law of nations as to marginal seas has been already discussed (supra, § 32). That territorial jurisdiction over the North East Atlantic is limited to three miles, following the sinuosities and indentations of the coast, is shown by the action of the British and United States Governments under the treaties of 1783 and of 1818. As in some aspects this question may become the matter of future negotiations, the publication in the present shape of a summary of the corre spondence in this relation is deferred.

(6) Bay of FuNDY AND OTHER LARGE BAYS ARE OPEN SEAS.

§ 305a.

On November 30, 1845, Lord Stanley, then British Colonial Secretary, after saying that "Her Majesty's Government feel satisfied that the Bay of Fundy has been rightly claimed by Great Britain as a bay within

the treaty of 1818," but that the "relaxation of this claim would be attended with benefits," etc., declares that "it has accordingly been announced to the United States Government that American citizens would henceforward be allowed to fish in any part of the Bay of Fundy, provided they do not approach, except in cases specified in the treaty of 1818, within three miles of the entrance of any bay on the coast of Nova Scotia or New Brunswick."

As to meaning of the word "bay," in the convention of 1818, Mr. Cass, in his speech in the Senate on August 3, 1852, after showing that there are "bays" (e. g., Bay of Biscay, Baffin's Bay, etc.) which are really open seas, proceeds to notice that the "bays" specified in the convention are of another class, being grouped with "harbors and creeks," and are convertible, not with such seas as the Bay of Biscay or the Bay of Fundy, but simply with indentations of the coast into which fishing vessels are accustomed to run. "That such was the understanding of our negotiators is rendered clear by the terms they employ in their report upon this subject. They say: 'It is in that point of view that the privilege of entering the ports for shelter is useful,' etc. Here the word 'ports' is used as a descriptive word, embracing both the bays and harbors within which shelter may be legally sought, and shows the kind of bays contemplated by our framers of the treaty. And it is not a little curious that the legislature of Nova Scotia have applied the same meaning to a similar term. An act of that, province was passed March 12, 1836, with this title: 'An act relating to the fisheries in the province of Nova Scotia and the coasts and harbors thereof,' which act recognizes the convention, and provides for its execution under the authority of an imperial statute. It declares that harbors shall include bays, ports, and creeks. Nothing can show more clearly their opinion of the nature of the shelter secured to the American fishermen." Congressional Globe (Appendix), vol. 25, 895.

In a speech of the same date Mr. Hamlin said: "The bays and harbors which are surrendered up by the Americans are the bays and harbors into which the American fishermen may go to find a shelter, repair damages, purchase wood, and obtain water. All these things could only be done in the small harbors, which would afford shelter, and where damage could be repaired. But to allow fishermen to go into the Gulf of St. Lawrence or the Bay of Fundy for repair or shelter! They might with far greater propriety seek the open sea for shelter, for with sufficient sea room they might be safe, while in such bays as the Bay of Fundy they would be sure of destruction upon a lee shore. Better, far better, to seek the broad and trackless ocean for a shelter, to repair, for wood, or water. The very uses to which these bays and harbors are to be appropriated must show what was intended-such barbors and bays as could be used for the purposes named. The same interpretation of the word bay in the treaty, when applied to Fundy, Chaleur, or St. Lawrence, should be understood as when applied to the Bay of Biscay or the Gulf of Mexico."

Ibid, 900.

The right of United States fishermen to enter and fish in the Bay of Fundy was "decided by arbitration in the case of the schooner Washington, and Her Majesty's Government have uniformly acquiesced in that decision."

Mr. Foster, Halifax Com., 1590.

As to the Bay of Chaleur, in its proper sense, conflicts as to fishing, judging from the evidence before the Halifax tribunal, are not likely to arise. In the old popular use of the title it is not, outside of the three-mile band, territorial water. "A good deal of factitious importance has been given to the Bay of Chaleur from the custom among fishermen, and almost universal a generation ago, of which we have heard so much, to speak of the whole of the Gulf of Saint Lawrence by that term."

Ibid.

What men on the face of the earth have a better right to plow with their keels the waters of the Gulf of Saint Lawrence than the descendants of the fishermen of New England, to whose energy and bravery, a century and a quarter ago, it is chiefly owing that there is any Nova Scotia to-day under the British flag?”

Ibid., 1591.

A construction of the terms "coasts, bays, creeks, or harbors," in the treaty of 1818, was given by the mixed commission under the convention of 1853, in the case of the United States fishing schooner Washington, which was seized while fishing in the Bay of Fundy, ten miles from shore, taken to Yarmouth, Nova Scotia, and adjudged forfeited, on the charge of violating the treaty of 1318 by fishing in waters in which the United States had, by that convention, renounced the right of its citizens to take fish. A claim of the owners of the Washington for compensation came before the commission above mentioned, and, the commissioners differing, the case was referred to Mr. Joshua Bates, the umpire, who, referring to the theory that "bays and coasts" were to be defined by "an imaginary line drawn along the coast from headland to headland, and that the jurisdiction of Her Majesty extends three marine miles outside of this line, thus closing all the bays on the coast or shore and that great body of water called the Bay of Fundy," pronounced it a "new doctrine," and, repudiating the decision of the provincial court based thereon, awarded the owners of the vessel compensation for an illegal condemnation. The umpire also decided that as the Bay of Fundy is from sixty-five to seventy-five miles wide, and from one hundred and thirty to one hundred and forty miles long, with several "bays" on its coasts, and has one of its headlands in the United States, and must be traversed for a long distance by vessels bound to Passamaquoddy Bay, and contains one United States island, Little Menan, on the line between headlands, the Bay of Fundy could not be considered as an exclusively British bay. (See President's message communicating proceedings of commission to Senate; also Dana's Wheaton, § 274, note 142.), The "headland" theory was again rejected by the umpire in the case of the schooner Argus, which was seized while fishing on Saint Ann's Bank, twenty-eight miles from Cape Smoke, the nearest land, taken to Sydney, and sold for violation of the treaty of 1818 by fishing within headlands. The owners were awarded full compensation. Mr. Dana, in this connection, quotes (Dana's Wheat., § 274, note 142) from the treaty between Great Britain and France of 1839 the following provisions: "It is agreed that the distance of three miles, fixed as the general limit of the exclusive right of fishing upon the coasts of the two countries, shall, with respect to bays, the mouths of which do not exceed ten miles in width, be measured from a straight line drawn from headland to headland."

As to British concession that the Bay of Fundy is an open sea, see papers connected with message of President Fillmore, Feb. 28, 1853, with Senate Confid. Doc. No. 4, special session, 1853, and see particularly Mr. Everett, Sec. of State, to Mr. Ingersoll, Dec. 4, 1852, MSS. Inst. Gr. Brit., appended to message aforesaid.

As to detention of fishermen in the Bay of Fundy, see President Monroe's message of Feb. 26, 1825; House Doc. No. 408; 18th Cong., 2d sess.; 5 Am. St. Pap. (For. Rel.), 735.

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Mr. Rush's notes of negotiation, Monroe papers, Dept. of State.

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