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land and the islands referred to, including the entire circuit of Nova Scotia on the Bay of Fundy.

These expressions are continued in the same manner in the treaty of 1783. The United States are there allowed to take fish in the Gulf of St. Lawrence, "on the coast of Newfoundland," and also "on the coasts, bays, and creeks of all other of his Britannic Majesty's dominions in America."

Again, in the preamble to the treaty of 1818, which we are now considering, it is said to have been caused by differences as to the liberty claimed to take fish on certain coasts, bays, harbors, and creeks of his Britannic Majesty's dominions in America, and by the treaty provision is made as to the fisheries on the coasts of Newfoundland, and on "the coasts, bays, harbors, and creeks from Mount Joly, on the southern coast of Labrador, to and through the straits of Belle Isle, and thence northwardly indefinitely along the coast; " and then follows the renunciation of the right before enjoyed by the United States "to take, dry, or cure fish on or within three marine miles of any of the coasts,' bays, creeks, or harbors of his Majesty's dominions in America."

It seems to me undeniable that the term coasts in all these treaties was well defined and known. The outlet of the St. Lawrence is equally well known by the term Bay or Gulf. The shores on that bay or gulf, and on the islands within it, are uniformly spoken of as "coasts"; and the same mode of designating the shores along this entire country is used in all these treaties in reference to the various waters where fisheries were carried on.

"The coasts" named in these treaties were not only the coasts of the Bay or Gulf of St. Lawrence, and of the island of Cape Breton, but extended from the head of the Bay of Fundy along the bay entirely around Nova Scotia to the Gulf or Bay of St. Lawrence.

There never had been any misunderstanding as to the application of this term, or denial of the right to fish on these coasts, as I have named them, under all these treaties down to 1818. The term "coasts," as applied to Nova Scotia during this long period, was as well known and understood as the term "coasts" applied to England or Ireland, and it included the coasts on the Bay of Fundy as fully and certainly as the term coasts of England applies to the coasts of the English Channel. It was a fixed locality, known and established, and the right of taking fish had always been "enjoyed there."

When, therefore, the treaty of 1818" renounced the liberty, heretofore enjoyed,' of taking fish within three marine miles of any of the coasts, bays, creeks, &c., of his Britannic Majesty's dominions," the renunciation was, for this distance from a fixed locality, as fully settled and established as language, accompanied by a long and uninterrupted usage, could make it.

"The coasts named are those of 1783, and of prior treaties, and the renunciation of three miles was to be reckoned from these coasts. The Bay of Fundy was therefore not excluded from the fishing grounds of the United States. I am not aware of any reply to the points here taken that I think can at all invalidate them.

From the papers filed in the case, it appears that in 1841 the province of Nova Scotia caused a case stated to be drawn up and forwarded to England, with certain questions to be proposed to the law officers of the crown.

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One inquiry was, whether the fishermen of the United States have any authority to enter any of the bays of that province to take fish. These officers, Messrs. Dodson and Wilde, reply that no right exists to enter the bays of Nova Scotia to take fish, as they are of opinion the term headland is used in the treaty to express the part of the land excluding the interior of the bays and inlets of the coasts. 216 Now it so happens that no such term is used in the treaty, and their decision based on its falls to the ground.

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They were also specifically asked to define what is to be considered a headland. This they did not attempt to do. The headlands of the Bay of Fundy have never been defined or located, and from the contour of the bay no such headlands properly exist.

These officers held that the American fishermen, for the reason named, could not enter the bays and harbors of Nova Scotia. But the Bay of Fundy is not a bay or harbor of the province of Nova Scotia, and was never included in its limits. The Bay of Fundy is bounded on one side by Nova Scotia, and on the other by New Brunswick, and it is not clear that either the question proposed, or the answer given, was designed to include this large arm of the sea.

It is also said that Mr. Webster has conceded the point in issue in a notice given to American fishermen. The claims now asserted were not put forth till many years after the treaty of 1818; and it was not till 1852 the British government gave notice that seizures would be made of fishermen taking fish in violation of the construction of the treaty of 1818, as then claimed by them, when Mr. Webster, to avoid the collisions that might arise, issued a notice setting forth the claims put forth by England.

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In one part of his notice he says: It was an oversight to make so large a concession to England; "but closes by saying: "Not agreeing that the construction put upon the treaty by the English government is conformable to the intentions of the contracting parties, this information is given that those concerned in the fisheries may understand how the concern stands at present, and be upon their guard."

Mr. Webster subsequently denied relinquishing, in any manner, by this notice, the rights of the United States, as claimed under this treaty.

Detached expressions quoted from it, to sustain a different opinion, can hardly be regarded, under such circumstances, as an authority. I have seen no other argument or suggestions tending, as I think, to sustain the grounds taken by the British government.

On the other hand, I have adverted, briefly, as I proposed, to the history of the fisheries: the views expressed by the negotiators of the treaty of 1818, as to the object to be effected by it; the subsequent practical construction of it for many years; the construction given to a similar article in the treaty of 1783; the evident meaning to be gained from the entire article of the treaty taken together, and from the term "coasts" as used in the treaty of 1818, and other treaties in reference to this subject; and the whole combine, as I believe, to sustain the construction contended for by the United States.

I am therefore of opinion, the owners of the Washington should receive compensation for the unlawful seizure of that vessel by the British government, when fishing more than three miles from the shore or coast of the Bay of Fundy.

Hornby, British Commissioner: "

An opinion was delivered by Hornby, conflicting with the views and conclusion of the United States Commissioner, and sustaining the position taken by his government, on the ground that Great Britain, by virtue of her ownership of both shores of the Bay of Fundy, had exclusive jurisdiction over the waters of the bay, by virtue of the law of nations, applicable to such sheets of water, and cited various claims. that had been put forth to a similar jurisdiction.

He also held that the provision in the treaty by which the United States "renounced the liberty previously enjoyed, to take, dry or cure fish on, or within three marine miles of any of the coasts, bays, creeks or harbors of his Britannic Majesty's dominions in North America," excluded by its terms, and by a just construction of the treaty, fisheries of the United States citizens in the Bay of Fundy.

Bates, Umpire:

The schooner Washington was seized by the revenue schooner Julia, Captain Darby, while fishing in the Bay of Fundy, ten miles from the shore, on the 10th of May, 1843, on the charge of violating the treaty of 1818. She was carried to Yarmouth, Nova Scotia, and there decreed to be forfeited to the crown by the judge of the viceadmiralty court, and, with her stores, ordered to be sold. The owners of the Washington claim for the value of the vessel and appurtenances, outfits and damages, $2,483, and for eleven years' interest, $1,638, amounting together to $4,121. By the recent reciprocity treaty, happily concluded between the United States and Great Britain, there seems no chance for any future disputes in regard to the fisheries. It is to be regretted that, in that treaty, provision was not made for settling a few small claims of no importance in a pecuniary sense, which were then existing; but as they have not been settled, they are now brought before this commission.

The Washington fishing schooner was seized, as before stated, in the Bay of Fundy, ten miles from the shore, off Annapolis, Nova Scotia.

It will be seen by the treaty of 1783 between Great Britain and the United States, that the citizens of the latter, in common with the subjects of the former, enjoyed the right to take and cure fish on the shores of all parts of her Majesty's dominions in America, used by British fishermen; but not to dry fish on the island of Newfoundland, which latter privilege was confined to the shores of Nova

Scotia, in the following words: "And American fishermen 217 shall have liberty to dry and cure fish on any of the unsettled

bays, harbors, and creeks of Nova Scotia; but as soon as said shores shall become settled, it shall not be lawful 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 treaty of 1818 contains the following stipulations in relation to the fishery: "Whereas differences have arisen respecting the liberty claimed by the United States to take, dry, and cure fish on certain

The opinion of the British commissioner in this, and some other cases, was to have been drawn up at length, and furnished, to be placed on file. It is to be regretted that these opinions have not been received, and that, after this length of time, they probably will not be.

coasts, bays, harbors, and creeks of his Britannic Majesty's dominions in America, it is agreed that the inhabitants of the United States shall have, in common with the subjects of his Britannic Majesty, the right to fish on certain portions of the southern, western, and northern coast of Newfoundland; and, also, on the coasts, bays, harbors, and creeks from Mount Joly, on the southern coast of Labrador, to and through the straits of Belle Isle; and thence northwardly indefinitely along the coast, and that American fishermen shall have liberty to dry and cure fish in any of the unsettled bays, harbors, and creeks of said described coasts, until the same become settled, and the United States renounce the liberty heretofore enjoyed or claimed by the inhabitants thereof, to take, dry, or cure fish on or within three marine miles of any of the coasts, bays, creeks, or harbors of his Britannic Majesty's dominions in America not included in the above-mentioned limits: Provided, however, that the American fishermen shall be admitted to enter such bays or harbors, for the purpose of shelter, and of repairing damages therein, of purchasing wood, and of obtaining water, and for no other purpose whatever. But they shall be under such restrictions as may be necessary to prevent their taking, drying, or curing fish therein, or in any other manner whatever abusing the privileges hereby reserved for them."

The question turns, so far as relates to the treaty stipulations, on the meaning given to the word "bays," in the treaty of 1783. By that treaty the Americans had no right to dry and cure fish on the shores and bays of Newfoundland; but they had that right on the coasts, bays, harbors, and creeks of Nova Scotia; and as they must land to cure fish on the shores, bays, and creeks, they were evidently admitted to the shores of the bays, &c. By the treaty of 1818 the same right is granted to cure fish on the coasts, bays, &c., of Newfoundland; but the Americans relinquished that right, and the right to fish within three miles of the coasts, bays, &c., of Nova Scotia. Taking it for granted that the framers of the treaty intended that the words "bay or bays" should have the same meaning in all cases, and no mention being made of headlands, there appears no doubt that the Washington, in fishing ten miles from the shore, violated no stipulations of the treaty.

It was urged on behalf of the British government, that by coasts, bays, &c., is understood 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 against Americans and others, making the latter a British bay. This doctrine of the headlands is new, and has received a proper limit in the convention between France and Great Britain of 2d of August, 1839, in which "it is agreed that the distance of three. miles fixed as the general limit for the exclusive right of fishery 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."

The Bay of Fundy is from 65 to 75 miles wide, and 130 to 140 miles long; it has several bays on its coast; thus the word bay, as applied to this great body of water, has the same meaning as that applied to the Bay of Biscay, the Bay of Bengal, over which no nation can have the right to assume sovereignty. One of the headlands of the Bay of

Fundy is in the United States, and ships bound to Passamaquoddy must sail through a large space of it. The islands of Grand Menan (British) and Little Menan (American) are situated nearly on a line from headland to headland. These islands, as represented in all geographies, are situated in the Atlantic ocean. The conclusion is, therefore, in my mind irresistible, that the Bay of Fundy is not a British bay, nor a bay within the meaning of the word, as used in treaties of 1783 and 1818.

The owners of the Washington, or their legal representatives, are therefore entitled to compensation, and are hereby awarded not the amount of their claim, which is excessive, but the sum of three thousand dollars, due on the 15th of January, 1855.

No. 134.-1858, April 8: Extract from Awards of Mr. Gray appointed in pursuance of the Treaty of 5 June, 1854.a

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I come now to the second division, namely:-The Miramichi and Buctouche, being admitted to be rivers, which of the lines pointed out by the Commissioners shall respectively designate the mouths of those rivers?

THE MIRAMICHI.

I, the Undersigned, Arbitrator, or Umpire, under the Reciprocity Treaty, concluded and signed at Washington, on the 5th day of

June, 1854, have proceeded to, and examined, the mouth 218 of the Miramichi, in the Province of New Brunswick, concern

ing which a difference of opinion had arisen between Her Britannic Majesty's Commissioner, and the Commissioner of the United States, as disclosed in Record, No. 2, of their proceedings, declare as follows.

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With reference to the Miramichi, it will be seen by Record, No. 2:-" Her Majesty's Commissioner claims, that a line connecting Fox and Portage Islands, (marked in red, plan No. 2, Record Book No. 2), designates the mouth of the Miramichi River. The United States Commissioner claims, that a line from Spit Point to Moody Point, (marked in blue, plan No. 2, Record Book No. 2), designates the mouth of said river."

By the Treaty it is provided, that " the above mentioned liberty applies solely to the sea fishery; and that the salmon, and shad fisheries, and all fisheries in rivers, and the mouths of rivers, are reserved exclusively," &c., &c.

The preceding portion of Article 1st, gives the right to fish"on the sea coasts and shores, and in the bays, harbours and creeks." The inner Bay of the Miramichi, and the Harbour of Buctouche, are, among other grounds, claimed as coming within the definition of "bays and harbours," and it has been urged, that the clause just referred to, is conclusive in favour of that claim, whether such bay or harbour, does, or does not, constitute the mouth of a river.

a Mr. Perley was the British Commissioner, Mr. Hubbard was the United States Commissioner, and Mr. Gray was the Umpire.

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