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To the British assertion of supremacy over the 66 narrow seas" which surround the British Isles (and in consequence of a right of search there), the United States objected that the time in which such pretension could be sustained had passed. The Secretary of State said (App., p. 58):
The progress of civilisation and information has produced a change in all those respects; and no principle in the code of public law is at present better established than the common freedom of the seas beyond a very limited distance from the territories washed by them. This distance is not, indeed, fixed with absolute precision.
The Secretary further said that
the only instances in which these seas (the narrow seas) are distinguished from other seas, or in which Great Britain enjoys within them any distinction over other nations, are: first, the compliment paid by other flags to hers; secondly, the extension of her territorial jurisdiction in certain cases to the distance of four leagues from the coast. The first is a relic of ancient usurpation, which has thus long escaped the correction, which modern and more enlightened times have applied to other usurpations.
The second instance is the extension of the territorial jurisdiction to four leagues from the shore. This, too, as far as the distance may exceed that which is generally allowed, rests on a like foundation, strengthened, perhaps, by the local facility of smuggling, and the peculiar interest which Great Britain has in preventing a practice affecting so deeply her whole system of revenue, commerce, and manufactures: whilst the limitation itself to four leagues necessarily implies that beyond that distance no territorial jurisdiction is assumed.
In the same year Mr. Jefferson (the President of the United States) wrote to the United States Secretary of State (8th September) defining the position of the United States in respect of bays as follows (App., p. 59):
As we shall have to lay before Congress the proceedings of the British vessels at New York, it will be necessary for us to say to them, with certainty, which specific aggressions were committed within the common law, which within the Admiralty jurisdiction, and which on the high seas. The rule of the common law is that wherever you can see from land to land, all the water within the line of sight is in the body of the adjacent county, and within common law jurisdiction. Thus, if in this curvature, b you can see from a to b, all the water within the line of sight is within common law jurisdiction, and a murder committed at c is to be tried as at common law. Our coast is generally visible, I believe, by the time you get within about twenty-five miles. I suppose that at New York you must be some miles out of the Hook before the opposite shores recede twenty-five miles from each other. The three miles of maritime jurisdiction is always to be counted from this line of sight.
CONVENTION OF 1806.
1806.-During the negotiations with reference to freedom of United States vessels from British seizure, an attempt was made to fix by agreement the limit of United States jurisdiction upon its coasts; and the United States, suggesting that a fair distance would be as far out as (App., p. 60)—" the well-defined path of the gulf stream," asked that the following might be agreed to:
It is agreed that all armed vessels belonging to either of the parties engaged in war shall be effectually restrained by positive orders, and penal provisions, from seizing, searching, or otherwise interrupting or disturbing vessels to whomsoever belonging, whether outward or inward bound, within the harbours or the chambers formed by headlands, or anywhere at sea, within the distance of four leagues from the shore, or from a right line from one headland to another.
After negotiations, the limit was fixed at "5 marine miles from the shore," but the convention never became effective.
It is clear from these facts that the United States did not at this time claim that the jurisdiction of Great Britain over her territorial waters was limited to the extent that is now suggested.
PRACTICE OF UNITED STATES FISHERMEN, 1818.
In the early years after 1818, the defence always offered by the United States fishermen, when challenged for entering bays on the non-treaty coasts was, not that the bays were open ocean, but that they had entered for one of the four purposes mentioned in the treaty, namely, shelter, repairs, wood, or water. Taking advantage of the absence of a sufficient naval police force, they very frequently entered the bays in order to procure supplies of forbidden sorts; but they always protested their innocence of intention to exceed their treaty right. They never contended that they had a right to enter the larger bays for all purposes.
MR. LYMAN, 1828.
1828.-It was during this first period that Mr. Theodore Lyman published his valuable work on "Diplomacy of the United States." The second edition (1828), dealing with the treaty of 1818, summarized its effects and concluded as follows:
We have lost the Bay of Chaleurs fishing, so important formerly as to confer a name on a particular description of fish as well as vessels."
The only reason for the loss was that the Bay of Chaleurs was a "bay," and that the United States had renounced "bays"; for the
• Vol. 2, p. 100.
width between the headlands of the Bay of Chaleurs is 16, and not merely 6, miles. And Mr. Lyman must be taken as having expressed not his own opinion simply, but the general United States conviction. For he does not refer to the existence of any contrary interpretation. He combats no other theory. He merely states that which to him, and his contemporaries, appeared to be an indisputable fact.
MEASUREMENT FROM SHORES OF BAY, 1839.
1839. At this time is first met the suggestion that the 3 miles of the treaty must run from the shore of the bays, and not from the bay itself. This construction makes nonsense of the article which provided that the United States renounced the liberty theretofore enjoyed or claimed within 3 marine miles of any of the coasts, bays, creeks, or harbours. It is obvious that the 3 marine miles must be measured not from the shores, but from the limits of the bay.
To Lord Falkland, Governor of Nova Scotia, this idea was, in 1841, quite new. Combating it, in a despatch (8th May) to Lord John Russell (Colonial Secretary), Lord Falkland quoted the language of the treaty and said (App., p. 128) :—
Indeed, the claim now set up, there is reason to believe, is new, as, in point of practice, the American fishermen when questioned for being within the waters of the province, have uniformly resorted to the pretexts afforded by the convention, viz., the want of shelter, repairs or wood and water, and never, it is believed, have asserted the right to fish within the bays or harbours of the coast.
Although Lord Falkland had not heard of the idea until 1841, it had evidently been broached some few years before. In 1836, Nova Scotia had succeeded in inducing the British Government to exert greater activity in patrolling the fisheries; many seizures had been made; the question had become one of serious consideration by the United States; and, in 1839, Lieutenant-Commanding Paine was sent to inspect the situation. In his report (29th December, 1839), he said (App., p. 121) :—
In my late cruise on the coasts of Her Britannic Majesty's provinces, I found the convention of 1818, on the subject of fisheries. so variously construed, that I deemed it proper to address the Navy Department on the subject—the letters to which I alluded in conversation with you.
And he mentioned as one of "the questions on which dispute may arise":
The meaning of the word "bay," in the convention of 1818, where the Americans relinquished the rights before claimed or exercised, of fishing in or upon any of the coasts, bays, &c., of Her Britannic Majesty's provinces not before described, nearer than three miles.
The authorities of Nova Scotia seem to claim a right to exclude Americans from all bays, including those large seas such as the Bay of Fundy and the Bay of Chaleurs; and also to draw a line from
headland to headland; the Americans not to approach within three miles of this line.
The fishermen, on the contrary, believe they have a right to work anywhere, if not nearer than three miles to the land.
And he added (App., p. 122):—
If the grounds assumed by the British provincial authorities be carried out, it will be in their power to drive the Americans from those parts of the coast where are some of the most valuable fisheries: whereas, if the ground maintained by the Americans be admitted, it will be difficult to prevent their procuring articles of convenience, and particularly bait; from which they are precluded by the convention, and which a party in the provinces seems resolved to prevent.
DIPLOMATIC CORRESPONDENCE, 1836-1841.
No suggestion of this new claim is to be found in the correspondence that passed between the two Governments until after LieutenantCommanding Paine had made his report.
In 1836, the British Government made formal complaint to the United States, as stated in the report of the United States acting Secretary of State (14th August, 1839):—
Its Chargé d'Affaires at Washington (App., p. 119) remonstrated against the encroachments of American citizens upon the fishing grounds secured exclusively to British fishermen by the convention of 1818. The result of this complaint was a circular letter (App., p. 115) addressed by the Secretary of the Treasury to the officers of Customs in districts where vessels are licensed for the fisheries, directing them to impress the crews of fishing vessels with a sense of the treaty obligations of their Government, and of the dangers to which they exposed themselves by encroaching upon British rights."
This circular letter had not the desired effect, and it became necessary for the British Government to adopt stronger measures for protective purposes. Lord Palmerston afterwards (6th October, 1838) instructed Mr. Fox (British Minister at Washington) to give notice to the United States Government of the intention to take the necessary steps, and in doing so to say that (App., p. 117)
the chief matter of complaint is that American citizens, in violation of the convention of 1818, enter the gulfs, bays, harbours, creeks, narrow seas, and waters of the colonies, and that they land on the shores of Prince Edward and the Magdalen Islands, and by force, aided by superior numbers, drive British fishermen from banks and fishing grounds solely and exclusively British.
Many seizures were made, and Lieutenant-Commanding Paine reported that (App., p. 122) —
the injustice and annoyance suffered by the fishermen have so irritated them that there is ground to believe that violence will be resorted to, unless some understanding be had before the next season.
a The remonstrance was contained in a letter from Mr. Bankhead to Mr. Forsyth, January 6, 1836.
But the only official objection made at the time was that by the United States Secretary of State on the 14th August, 1839, as follows (App., p. 120) :—
In the absence of information of a character sufficiently precise to ascertain either, on the one side, the real motives which carried the American vessels into British harbors, or, on the other, the reasons which induced their seizure by British authorities, the department is unable to state whether, in the cases under consideration, there has been any flagrant infraction of the existing treaty stipulations. The presumption is that if, on the part of citizens of the United States, there has been a want of caution or care in the strict observance of those stipulations, there has been, on the other hand, an equal disregard of their spirit, and of the friendly relations which they were intended to promote and perpetuate, in the haste and indiscrimi nate rigour with which the British authorities have acted.
And two years afterwards (20th February, 1841), the United States Secretary of State, Mr. Forsyth, wrote to Mr. Stevenson (American Minister at London) acknowledging that no specific complaint could be made against the conduct of the local authorities. He said (App., p. 124) :—
At the time of addressing you the instructions numbered 71, of 17th of April last, relating to the interruptions experienced by the vessels of our citizens employed in intercourse with the ports of Nova Scotia, and in the prosecution of the fisheries on the neighbouring coasts, it was deemed expedient, before presenting through you the latter branch of the subject to Her Majesty's Government in a formal manner, to await the communication to this department of a case in which the details of the seizure-the grounds on which it was made, and the consequent judicial and other proceedings should be fully set forth. Several cases of seizures and detention have, as was apprehended, occurred since the date of my letter, but none of those reported to the department have been presented in a form to fulfil the expectation entertained that the Government would be enabled to found upon it a specific complaint against the conduct of the local authorities, whilst protesting against the injurious operation of provincial law upon American interests brought involuntarily and unjustly within its jurisdiction.
In this letter, the United States for the first time adopted the argument suggested by Lieutenant-Commanding Paine. Mr. Forsyth said (App., p. 124):
From the information in the possession of the department, it appears that the provincial authorities assume a right to exclude American vessels from all their bays, even including those of Fundy and Chaleurs, and to prohibit their approach within three miles of a line drawn from headland to headland.
Our fishermen believe, and they are obviously right in their opinion, if uniform practice is any evidence of correct construction, that they can with propriety take fish anywhere on the coasts of the British provinces, if not nearer than three miles to land, and resort to their ports for shelter, wood, water, &c.