Boston Courier on the 19th of the same month, Mr. Webster, who was then Secretary of State, remarked, with reference to the use of the term “bays," that " it was undoubtedly an oversight in the convention of 1818 to make so large a concession to England;" but he added that he did not agree that the British construction of the term was "conformable to the intentions of the contracting parties. Iater in the same year Lord Malmesbury stated that the British Government were prepared to maintain that the "relaxation" granted in 1845, with reference to the Bay of Fundy, was reasonable and just, but he abstained from entering into any discussion as to the interpretation of the term "bay," declaring that it was his intention. to leave the matter where it was left in 1845, any further discussion of the question being a matter of negotiation between the two Governments. The difference between the two Governments was that the United States claimed the right to enter the Bay of Fundy under the convention, while Great Britain admitted it under the "concession" of 1845. As has been seen, the renunciation in the convention of 1818 of the right to take, dry, or cure fish within three marine miles of the "coasts, bays, creeks, or harbors," is followed by the proviso that the American fishermen may enter “such bays or harbors" for the purposes of shelter, repairing damages, purchasing wood, and obtaining water. In the debates in the Senate in the summer of 1852, Mr. Cass, in a speech of the 3d of August, after commenting upon the fact that there are "bays." such as the Bay of Biscay and Baffins Bay. which are in reality open seas, proceeded to maintain that the " bays" of the convention, as shown by the association of the word "harbors," in connection with shelter and repair of damages, were the small bodies of water into which fishing vessels were accustomed to run for those purposes. "That such was the understanding of our negotiators is," said Mr. Cass, "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 Sabine's Fisheries, 263–265. Lord Malmesbury, For. Sec., to Mr. Crampton, Min. to United States, Aug. 10, 1845, Sen. Confid. No. 4. Feb. 28. 1853, special session, 6-7. e Mr. Everett, Sec. of State, to Mr. Ingersoll, min. to England, Dec. 4, 1852, message of Pres. Fillmore, Feb. 28, 1853, Sen. Confid. No. 4, special session, 12, 15. 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." " a The same view was expounded by Mr. Hamlin." The "headland" It seems that it formerly was the custom among fishermen to speak of the whole of the Gulf of St. Lawrence as the Bay of Chaleur. Related to the question as to bays, but not identical with it, was the "headland" theory, by which name was designated theory. the pretension that the three marine miles from the “coasts, bays, creeks, or harbors" should, not only in the case of bodies of water known as bays, but also along other parts of the coast, be measured from a line drawn from headland to headland. In an opinion given to Lord Palmerston in 1841, and afterwards published at Halifax, the law officers of the Crown, Messrs. Dodson and Wilde, held that the American fishermen had no right to fish in the bays of Nova Scotia; and they stated that they based this opinion on the fact that the term "headland was used in the treaty" for the purpose of "excluding the interior of the bays of the coast." As the term "headland" is not used in the convention of 1818, the law officers seem to have mistaken a sentence in the ex parte case made up at Halifax, in which the word "headland" appears, for an extract from the treaty." "The schooner Washington was seized by the revenue schooner Case of the Julia, Captain Darby, while fishing in the Bay of "Washington." 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 vice-admiralty 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 a Cong. Globe, 32 Cong. 1 sess., Appendix, p. 895. b Id. 900. C Mr. Foster, United States agent, Documents and Proceedings of the Halifax Commission, II. 1590. & Mr. Everett, Sec. of State, to Mr. Ingersoll, min. to England, Dec. 4, 1852, Sen. Confid. No. 4, Feb. 28, 1853, special session, 16-17. H. Doc. 551—50 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. "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, etc. By the treaty of 1818 the same right is granted to cure fish on the coasts, bays, etc., of Newfoundland, but the Americans relinquished that right and the right to fish within three miles of the coasts, bays, etc., of Nova Scotia. Taking it for granted that the framers of the treaty intended that the word 'bayor' 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, etc., 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 headlands is new, and has received a proper limit in the convention between France and Great Britain of 2d 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 coasts. 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 the 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 island 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 situate 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 the 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 January 1855." Bates, umpire, convention between the United States and Great Britain Upham, the American commissioner, denied both these contentions, citing "The umpire, appointed agreeably to the provisions of the conCase of the "Ar- vention entered into between Great Britain and the gus." United States on the 8th of February 1853 for the adjustment of claims by a mixed commission, having been duly notified by the commissioners under the said convention that they had been unable to agree upon the decision to be given with reference to the claim of the owners of the schooner Argus, of Portland, United States, Doughty, master, against the British Government; and having carefully examined and considered the papers and evidence produced on the hearing of the said claim and having conferred with the said commissioners thereon, hereby reports that the schooner Argus, 55 tons burden, was captured on the 4th August 1844, while fishing on St. Ann's Bank, by the revenue cruiser Sylph, of Lunenburg, Nova Scotia, commanded by William Carr-Phillip Dod, seizing master-carried to Sydney, where she was stripped and everything belonging to her sold at auction. At the time of the capture the Argus was stated on oath to have been 28 miles from the nearest land-Cape Smoke. There was therefore in this case no violation of the treaty of 1818. I therefore award to the owners of the Argus, or their legal representatives, for the loss of their vessel, outfits, stores, and fish, the sum of two thousand dollars on the 15th January 1855." Bates, umpire, December 23, 1854, commission under the convention between the United States and Great Britain of February 8, 1853, Moore, Int. Arbitrations, IV. 4344. The Argus was seized because found fishing within a line drawn from headland to headland, from Cow Bay to Cape North, on the northeast side of the island of Cape Breton. (S. Ex. Doc. 113, 50 Cong. 1 sess. 59.) In another case submitted to Mr. Bates as umpire-the case of the Pallas-it was alleged that the vessel was chased by a revenue cruiser from off Chittican Bay, Aug. 4, 1840, for forty or fifty miles, captured, and sent to Sydney, where she was detained six weeks, and then released. The case was dismissed by Mr. Bates for want of evidence, and the nature of the seizure is not stated. (Moore, Int. Arbitrations, IV. 4345.) On May 14, 1870, the "headland" doctrine having been reasserted by Mr. Peter Mitchell, provincial minister of marine and fisheries, Lord Granville, British foreign secretary, on June 6, 1870, telegraphed to the governor-general as follows: "Her Majesty's Government hopes that the United States fishermen will not be, for the present, prevented from fishing, except within three miles of land or in bays which are less than six miles broad at the mouth." (Proceedings of Halifax Comm. I. 155.) Replying, on July 23, 1886, to a protest by Mr. Bayard of June 14, 1886, against a warning alleged to have been given to United States fishing vessels by a Canadian customs official not to fish within lines drawn from headland to headland from Cape Canso to St Esprit, and from North Cape to East Point of Prince Edward Island, Lord Rosebery stated that no instruction to that effect had been issued by the Canadian government. It appeared, said Lord Rosebery, that the collector of Canso had, in conversation with the master of a fishing vessel, "expressed the opinion that the headland line ran from Cranberry Island to St. Esprit, but this was wholly unauthorized." (For. Rel. 1886, 408.) In September, 1896, some American fishing vessels were warned not to fish on a shoal known as Fisherman's Bank, in the Gulf of St. Lawrence, near the entrance to Northumberland Strait, between the eastern part of Prince Edward Island and the northern part of Nova Scotia, at a distance of nearly 7 miles from Cape Bear, the nearest land. In reply to an inquiry of the United States consul at Charlottetown, the Canadian minister of marine and fisheries stated, Oct. 2, 1896, that Fisherman's Bank had always been claimed as Canadian waters, but that no new orders had been given in relation to it. Referring to this statement, Mr. Olney said that the claim of jurisdiction over Fisherman's Bank seemed to be based on the “ headlands" contention, since the place could be included within the Canadian jurisdiction only by drawing a line across the open approaches to the Strait of Northumberland from East Point, on Prince Edward Island, to Cape St. George, in Nova Scotia, a distance of 35 miles. Referring to the correspondence of 1886, Mr. Olney said that he desired to renew the request then presented by Mr. Bayard and acquiesced in by the British Government that if any such orders as were alleged had been issued they should be revoked; and he added that if it should appear that the claim put forth rested on an assumption that the open waters of the Gulf of St. Lawrence were “bays, creeks, or harbors" in the sense of the convention of 1818, he must be permitted to renew Mr. Bayard's expression of regret “at any such unfortunate revival of a question which has long since been settled between the United States and Great Britain." (Mr. Olney, Sec. of State, to Sir J. Pauncefote, Brit. amb., Dec. 17, 1896, MS. notes to Gr. Br. XXIII, 516.) |