APPENDIX K.

BRIEF ON BEHALF OF HER MAJESTY'S GOVERNMENT IN REPLY TO THE BRIEF ON BEHALF OF THE UNITED STATES.

The extent to which the dominion and jurisdiction of a maritime state extends on its external sea-coast has not always or by different nations been treated with unanimity. After the introduction of fire-arms (see "Anna," 5 Rob., 385) that extent or distance, upon the then reason of the thing "terræ dominium finitur ubi finitur armorum vis, as cited by Lord Stowell-was said to be usually recognized to be about three miles from the shore, but now that the range of modern artillery has been so largely increased, if not upon other grounds, it is probable that a greater dis tance would be claimed by many nations, including the United States of America. The practical, and therefore real and true reason of the rule is stated by Kent ("Commentaries" I, p. 32), where after commenting on a citation of Azuni, he says: "All that can reasonably be asserted is that the dominion of the sovereign of the shore over the contiguous sea extends as far as is requisite for his safety and for some lawful end." No dispute has arisen touching the distance from the external line of coast from which American fishermen have been excluded from taking fish, and therefore that subject may be rejected from the present discussion.

It is admitted by all authorities, whether writers on international law, judges who have interpreted that law, or statesmen who have negotiated upon or carried it into effect in treaties or conventions, that every nation has the right of exclusive dominion and jurisdiction over those portions of its adjacent waters which are included by promontories or headlands within its territories. The rule is thus stated in Wheaton's International Law (second edition by Mr. Lawrence, p. 320): "The maritime territory of every state extends to the ports, harbors, bays, mouths of rivers, and adjacent parts of the sea inclosed by headlands belonging to the same state."

Upon examination of Article I of the Convention of 1818, mentioned in the eighteenth article of the Treaty of Washington, it will be ascertained how far the privilege has been conceded by the latter article to the United States fishermen to use bays in British North America. The following is Article XVIII of the Treaty of Washington:

It is agreed by the High Contracting Parties that, in addition to the liberty secured to the United States fishermen by the Convention between Great Britain and the United States, signed at London on the 20th day of October, 1818, of taking, curing, and drying fish on certain coasts of the British North American Colonies therein defined, the inhabitants of the United States shall have, in common with the subjects of Her Britannic Majesty, the liberty, for the term of years mentioned in Article XXXIII of this treaty, to take fish of every kind except shell-fish on the sea coasts and shores, and in the bays, harbors, and creeks of the provinces of Quebec, Nova Scotia, and New Brunswick, and the colony of Prince Edward Island, and of the several islands thereunto adjacent, without being restricted to any distance from the shore, with permission to land upon the said coasts and shores and islands, and also upon the Magdalen Islands, for the purpose of drying their nets and curing their fish: Provided, That in so doing they do not interfere with the rights of private property or with British fish

ermen in the peaceable use of any part of the said coasts in their occupancy for the same purpose.

It is understood that the above-mentioned liberty applies solely to the sea fishery, and that the salmon and shad fisheries, and all other fisheries in rivers and in the mouths of rivers, are hereby reserved exclusively for British fishermen.

Article I of the Convention of 1818 is as follows:

Whereas differences have arisen respecting the liberty claimed by the United States for the inhabitants thereof to take, dry, and cure fish on certain coasts, bays, harbors, and creeks of His Britannic Majesty's dominions in America, it is agreed between the High Contracting Parties that the inhabitants of the said United States shall have,. forever, in common with the subjects of His Britannic Majesty, the liberty to take fish of every kind on that part of the southern coast of Newfoundland which extends from Cape Ray to the Rameau Islands, on the western and northern coast of Newfoundland, from the said Cape Ray to the Quirpon Islands, on the shores of the Magdalen Islands, 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, without prejudice, however, to any of the exclusive rights of the Hudson Bay Company; and that the American fishermen shall also have liberty, forever, to dry and cure fish in any of the unsettled bays, harbors, and creeks of the southern part of the coast of Newfoundland, hereabove described, and of the coast of Labrador; but so soon as the same or any portion thereof shall be settled, it shall not be lawful for the said fishermen to dry or cure fish at such portion so settled, without previous agreement for such purpose with the inhabitants, proprietors, or possessors of the ground. And the United States hereby renounce forever any 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 within 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 shall be necessary to prevent their taking, drying, or curing fish therein, or in any other manner whatever abusing the privileges hereby reserved to them.

The controversy turns upon the true effect of the reuunciation on the part of the United States "of any 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 within certain above-mentioned limits.

On the part of Great Britain it is maintained that the United States fishermen were prohibited from fishing within three marine miles of the entrance of any of such bays, creeks, or harbors of His Britannic Majesty's dominions in America, while the United States Government contend that the United States fishermen were permitted by that article to fish in the said bays, creeks, or harbors, provided they did not approach within three miles of the shore in the pursuit of their calling.

The correspondence between the Government of Great Britain and that of the United States, a portion of which is set out in the United States brief, shows that with the exception of the Bay of Fundy, which, for exceptional reasons, and by the indulgence of Great Britain, was differently treated, Her Majesty's Government has uniformly contended for the construction now relied on.

This correspondence as well as the utterances of American statesmen, support the construction contended for by Great Britain.

Mr. Stevenson, United States minister in London, in 1841, March 27, writing to Lord Palmerston, then foreign secretary, puts the two views very clearly, "The provincial authorities," he says, "assume a right to exclude the vessels of the United States from all their bays (even including those of Fundy and Chaleurs), and likewise to prohibit their approach within the three miles of a line drawn from headland to head. land, instead of from the indents of the shores of the provinces. The

fishermen of the United States believe that they can with propriety take fish anywhere on the coasts of the British provinces if not nearer than three miles to land."

But Mr. Everett, also United States minister in London, in 1844, May 25, puts a different construction upon the Treaty of 1818. In his letter to Lord Aberdeen of May 25, 1844, quoted in the United States Brief (pp. 15, 16, 17, and 18), he says:

It was notoriously the object of the article of the treaty in question to put an end to the difficulties which had grown out of the operations of the fishermen from the United States along the coasts and upon the shores of the settled portions of the country, and for that purpose to remove their vessels to a distance not exceeding three miles from the same. In estimating this distance the undersigned admits it to be the intent of the treaty as it is in itself reasonable to have regard to the general line of the coast, and to consider its bays, creeks, and harbors—that is, the indentations usually 80 accountedas included within that line. But the undersigned cannot admit it to be reasonable, instead of thus following the general directions of the coast, to draw a line from the southwesternmost point of Nova Scotia to the termination of the northeastern boundary between the United States and New Brunswick, and to consider the arms of the sea which will thus be cut off, and which cannot, on that line, be less than sixty miles wide, as one of the bays on the coast from which American vessels are excluded. By this interpretation the fishermen of the United States would be shut out from the waters distant, not three but thirty miles, from any part of the colonial coast. The undersigned cannot perceive that any assignable object of the restriction imposed by the Convention of 1818, on the fishing privilege accorded to the citizens of the United States by the Treaty of 1783, requires such a latitude of construction. It is obvious that by the terms of the treaty the farthest distance to which fishing vessels of the United States are obliged to hold themselves from the colonial coasts and bays is three miles. But owing to the peculiar configuration of these coasts, there is a succession of bays indenting the shores both of New Brunswick and Nova Scotia, within any distance not less than three miles-a privilege from the enjoyment of which they will be wholly excluded-in this part of the coast, if the broad arm of the sea which flows up between New Brunswick and Nova Scotia is itself to be considered one of the forbidden bays.

Here, in plain, unambiguous language, Mr. Everett represents to Lord Aberdeen that the Bay of Fundy ought not to be treated as a bay from which United States fishermen were to be excluded, under the Convention of 1818, because the headlands were not only 60 miles apart, but one of them was not British. Moreover, he points out that owing to the peculiar configuration of these coasts" (i. e., the coasts of the Bay of Fundy itself), there is a succession of bays indenting the shores both of New Brunswick and Nova Scotia (i. e., the two shores of the Bay of Fundy), within any distance not less than three miles," from which lastnamed bays the American fishermen had a right to approach, and from which privilege they were necessarily excluded by holding the whole body of the Bay of Fundy to be British territorial water.

It is by no means conceded that because on both coasts of the great Bay of Fundy large bays exist which, according to the British contention, American fishermen are forbidden to approach, Mr. Everett was right in his argument that the Bay of Fundy is really open sea, yet there is at all events a plausibility about the reasoning which cannot attach to the contention of the United States in reference to any other bay on the British American coasts.

Not a word is to be found in this letter affording the slightest countenance to the doctrine contended for in the answer and brief of the United States, viz, that no bay was intended to be included in the Convention of 1818, except bays of no greater width at the mouths than 6 miles. Had such a doctrine been in the mind of Mr. Everett when he wrote this letter, it may be assumed that he would not have refrained from bringing it under Lord Aberdeen's notice. But so far from setting up such a doctrine, he says that he "admits it to be the intent of the

treaty, as it is in itself reasonable, to have regard to the general line of the coast, and to consider its bays, creeks, and harbors, that is, indentations usually so accounted, as included within that line." What line? Clearly the line within three miles from which all American fishing-vessels are excluded under the convention. Mr. Everett never ventured to hint that the bay of Miramichi or the bay of Chaleurs did not fall within the words of the Convention of 1818. He argues that if the United States fishermen are to be excluded from the Bay of Fundy, "two entirely different limitations would exist in reference to the right of shelter reserved to American vessels on the shores of Her Majesty's colonial possessions. They would be allowed to fish within three miles of the place of shelter along the greater part of the coast, while in reference to the entire extent of shore within the Bay of Fundy they would be wholly prohibited from fishing along the coast, and would be kept at a distance of twenty or thirty miles from any place of refuge in case of extremity.

This argument impliedly admits that, whatever may be the case as to the Bay of Fundy, United States fishermen were, by the Treaty of 1818, excluded, except for purposes of necessity, from other bays along the coast of Her Majesty's colonial possessions and from fishing within three miles of those bays.

The British Government, however, in 1845, whilst maintaining as a matter of strict construction that the Bay of Fundy was rightfully claimed by Great Britain as a bay within the meaning of the Convention of 1818, relaxed the application of this construction to that bay, and allowed the United States fishermen to pursue their avocations in any part of it, provided they should 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.

This proviso shows clearly the construction put at that time (1845) and before by the British Government upon the word "bay" in the Convention of 1818 on both points, that the dimensions of the bay were immaterial, and that no approach was permissible within three miles of the entrance of a bay.

In a state paper dated July 6, 1852, Mr. Webster, Secretary of State, although contending that the wording of tue Convention of 1818 was not conformable to the intentions of the United States, as one of the contracting parties, says:

It would appear that by a strict and rigid construction of this article (Article I of Convention of 1818) fishing vessels of the United States are precluded from entering into the bays or harbors of the British provinces except for the purposes of shelter, repairing damages, and obtaining wood and water. A bay, as is usually understood. is an arm or recess of the sea entering from the ocean between capes or headlands; and the term is applied equally to small and large tracts of water thus situated. It is common to speak of Hudson's Bay or the Bay of Biscay, although they are very large tracts of

water.

The British authorities insist that England has a right to draw a line from headland to headland and to capture all American fishermen who may follow their pursuits inside of that line. It was undoubtedly an oversight in the Convention of 1818 to make so large a concession to England, since the United States had usually considered that those vast inlets or recesses of the ocean ought to be open to American fishermen as freely as the sea itself, to within three miles of the shore.

Had this language been used by so great and experienced a statesman as Mr. Webster in any ordinary debate, it would be testimony of the most weighty character against the views put forth on this subject in the answer of the United States. But when it is borne in mind that Mr. Webster used these words in his official capacity as Secretary of State they must be considered as conclusive.

Mr. Rush, who negotiated the Treaty of 1818, in a letter to Secretary Marcy, dated 18th July, 1853, says:

These are the decisive words in our favor. They mean no more than that our fishermen, whilst fishing in the waters of the Bay of Fundy, should not go nearer than three miles to any of those small inner bays, creeks, or harbors which are known to indent the coasts of Nova Scotia and New Brunswick. To suppose they were bound to keep three miles off from a line drawn from headland to headland on the extreme outside limits of that bay-a line which might measure fifty miles or more, according to the manner of drawing or imagining it—would be a most unnatural supposition. Similar reasons apply to all other large bays and gulfs. In signing the treaty we believed that we retained the right of fishing in the sea whether called a bay, gulf, or by whatever name designated. Our fishermen were waiting for the word not of exclusion but of admission to these large outer bays or gulfs.

This reasoning of Mr. Rush evades the question. He admits the right of exclusion from some bays, but can only say as to larger bays (not defining or even describing what he means by larger bays) that it is not to be supposed the right of fishing in them would be signed away by the American negotiators, a supposition, however, which, it appears, Mr. Webster and other American statesmen did entertain and express. Senator Soulé, in the Senate, August 5, 1852, referring to the words of Mr. Webster, already cited, said:

Is England right? If we trust the Secretary of State, in the view which he takes of her claims, it would seem as if the terms of the letter of the treaty were on her side. This Mr. Webster peremptorily admits, while others but debate it upon mere technicalities of language.

After quoting from Webster, Senator Soulé continued:

Here the whole is surrendered; there is no escape from the admission. It was an oversight to make so large a concession to England. The concession was then made, was it not? If so, the dispute is at an end; and yet it were a hard task to justify the summary process through which England has sought to compel us to compliance with the concession, particularly as she had, to say the least of it, suffered our fishermen to haunt the Bay of Fundy, by express allowance in 1844.

On August 12, 1852, Senator Butler, though expressing a desire to make further inquiries into the subject, said:

We cannot go beyond the Treaty of 1818; and that What is a British bay? What is one of the bays and harbors of Great Britain?

And after speaking of the clear concessions to American fishermen on some of the coasts, bays, &c., of Newfoundland, Senator Butler adds:

But so far as regards the Bays of Nova Scotia and New Brunswick, we have no right under the terms of the treaty to fish in them if they can be regarded as British bays. On August 14, 1852, Senator Seward, answering the members of the Senate who had criticised the passage above quoted from Mr. Webster, said:

I cannot assent to the force of the argument of the honorable Senator from Louisana. I am the more inclined to go against it, because I think it is getting pretty late in the day to find the Secretary of State wrong in the technical and legal construction of an instrument. Let us test the argument. The honorable Senator says that where the government occupies both sides of the coast, and where the strait through which the waters of the bay flow into the ocean is not more than six miles wide, then there is dominion over it.

Now, then, the Gut of Canso is a most indispensable communication for our fishermen from the Atlantic Ocean to the Northumberland Straits and to the Gulf of Saint Lawrence, for a reason which any one will very readily see by referring to the map; yet the Gut of Canso is only three-quarters of a mile wide. I should be sorry to adopt an argument which Great Britain might turn against us, to exclude us from that important passage.

Again I recall the honorable Senator's argument, viz:

Two things unite to give a country dominion over an inland sea. The first is, that