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issued a notice, in which. admitting that the term "bays," as " usually understood," was "applied equally to small and large tracts of water thus situated," he informed United States fishermen how the case then stood. In his notice he said (App., p. 153) :—
It would appear that, by a strict and rigid construction of this article, fishing vessels of the United States are precluded from entering into the bays or harbours 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 marine miles of the shore.
Attempt has been made to minimise the effect of Mr. Webster's declaration, and it is sometimes said that Mr. Webster indicated in his notice that the "strict and rigid construction" was not the true construction. But Mr. Webster said nothing to that effect. His language was (App., p. 153) :—
Not agreeing that the construction thus put upon the treaty is conformable to the intentions of the contracting parties, this information is, however, made public to the end that those concerned in the American fisheries may perceive how the case at present stands, and be upon
In Mr. Webster's view, the British interpretation of the language of the treaty appears to be conceded; but he suggested that possibly the language had not properly expressed that which its authors had intended.
That Mr. Webster meant, by the language of his circular, precisely what he said, is shown (if that be necessary) by a despatch from Mr. Crampton (British Minister at Washington) to Lord Malmesbury (2nd August, 1852) (App., p. 157) :—
I observe with satisfaction that Mr. Webster now clearly perceives, and fairly admits, the correctness of the construction of the convention of 1818 maintained by Her Majesty's Government. The opinion of the Queen's Advocate and of the Attorney-General is, Mr. Webster said, "undoubtedly right ":-and he afterwards informed me that the President, from whom he had just received a letter on the subject, now concurred in that opinion.
92909-S. Doc. 870, 61-3, vol 4-7
DEBATES IN CONGRESS, 1852.
The action of Mr. Webster was the subject of debates in Congress, and some of the speeches are material as showing the real cause of the difficulty. The speakers pointed out that the fisheries had changed since 1818, and that the mackerel fishery, an inshore fishery, which was then of no account, had since become important. Representative Tuck, for example, said:
From the September to the close of the season the mackerel run near the shore, and it is next to impossible for our vessels to obtain fares without taking fish within the prohibited limits. We differ with England in regard to the measurement of these "limits," they claiming to run from "headland to headland" and we to follow the indentations of the coast. But the real difficulty is not here. I do not think it generally known that the whole difficulty about the fisheries is about our right to take mackerel. The cod-fishing privileges are adequate already, and no vessel in that business has ever been seized or interfered with.
I think it is proper to go still further, and to state frankly what, patient investigation of every source of authentic information within my reach, I believe to be the real difficulty. The truth is, our fishermen need absolutely, and must have, the thousands of miles of shore fishery which have been renounced, or they must always do an uncertain business. If our mackerel men are prohibited from going within three miles of the shore, and are forcibly kept away (and nothing but force will do it), then they may as well give up their business first as last. It will be always uncertain and generally unsuccessful, however well pursued.
Perhaps I shall be thought to charge the commissioners of 98 1818 with overlooking our interests. They did so in the important renunciation which I have quoted; but they are obnoxious to no complaints for so doing. In 1818 we took no mackerel on the coasts of the British possessions, and there was no reason to anticipate that we should ever have occasion to do so. Mackerel were then found as abundantly on the coast of New England as anywhere in the world, and it was not till years after this that this beautiful fish, in a great degree, left our waters. The mackerel on the provincial coasts has principally grown up since 1838, and no vessel was ever licensed for that business in the United States since 1838. The commissioners of 1818 had no other business but to protect the cod fishery; and this they did in a manner generally satisfactory to those most interested."
During the debate in the Senate the present contention of the United States was formulated for the first time. Senator Soulé said (App., p. 178):
"Such bay," says an eminent writer, "must communicate with the ocean only by a strait so narrow that it must be reputed as being a part of the maritime domain of the State to which the coast belongs;
• Appendix to Congressional Globe, 1852, 32nd Congress, 1st Session, vol. xxV, p. 1186.
so that you cannot enter it without going through the territorial sea of that State, which means twice the distance of a gun-shot, or six miles. It is required besides that all the coasts bordering on such bay be subject to the State claiming such strait. The two conditions must unite to give to any part of the ocean the character of an internal sea, or a mare clausum."
The convention of 1818, therefore, excludes us from no part of the littoral seas washing Her Majesty's dominions, without three marine miles of the coast of such littoral seas, be they bays, gulfs, or other inlets, unless the coast bordering the same be all under her sovereignty, and unless the strait formed by the headlands at their entrance exceeds six miles in length. The question is here entirely solved and put to rest. It only remains to be ascertained how distant be the headlands at the entrance of the Bays of Fundy, of Chaleurs, and elsewhere. Are they more widely apart than six miles? Then the bays are as open and free as the main ocean itself. Are they within the line of six miles? Then they are private bays, bays shut up from the commerce of the rest of mankind, at the will of the riparious sovereign, provided he be the lord of the whole coast surrounding them, and not otherwise. Now we know that is not the case with the bays just named. Both have an entrance too wide to be claimed as private seas; and, independent of this, the Bay of Fundy is bounded in part by the State of Maine, a circumstance which alone would preclude all pretensions on the part of England to make it hers.
I am done with this part of my subject.
In reply, Senator Seward said as follows (App., p. 187) :—
Now, sir, this argument seems to me to prove too much. I think it would divest the United States of the harbour of Boston, all the land around which belongs to Massachusetts or the United States, while the mouth of the bay is six miles wide. It would surrender our dominion over Long Island Sound-a dominion which I think the State of New York and the United States would not willingly give up. It would surrender Delaware Bay; it would surrender, I think, Albemarle Sound, and the Chesapeake Bay; and I believe it would surrender the Bay of Monterey, and, perhaps, the Bay of San Francisco, on the Pacific coast.
BAY OF FUNDY, 1856.
1856.-In this year, arbitration proceedings between the two countries took place, the legality of the seizure of the "Washington" in the Bay of Fundy being one of the questions involved. A majority of the arbitrators decided in favour of the United States claim. Mr. Upham (appointed by the United States) delivered a long opinion, holding that the Bay of Fundy was not a bay within the meaning of the treaty. Mr. Hornby (appointed by the United Kingdom) held otherwise. Mr. Bates (the umpire) agreed with the United States arbitrator, saying as follows (App., p. 217) :—
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, harbours, 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 word "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 2nd 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 the treaties of 1783 and 1818.
Mr. Bates was a banker, and not a lawyer, and it is not thought necessary to discuss the legal points on which he expressed an opinion. The doctrine of headlands on which he lays stress was, of course, not new. It is the same question as that of bays, for if bays are territorial waters then there is a right of sovereignty over the whole of them, that is, over all the space within the line drawn from headland to headland. On the question of fact he spoke with greater authority, and on that, he found that the headlands of the Bay of Fundy were not both British. It followed, in his opinion, from that finding, that the bay was not a bay of His Majesty's dominions within the meaning of the Convention.
1854-66.-All debate ceased during this period. The reciprocity treaty was then in operation.
PROPOSALS FOR RENEWAL 1866.
1866-71.-The reciprocity treaty having been terminated by the United States, the question again became the subject of diplomatic correspondence, and Mr. Seward (United States Secretary of State) in 1866 proposed to the Earl of Clarendon the appointment of commissioners to settle the difficulties. Pending negotiations little effort was made by the United Kingdom to enforce the provisions of the convention. The instructions of the Colonial Secretary (Mr. Cardwell) were as follows:
COLONIAL SECRETARY'S INSTRUCTIONS, 1866.
It is, therefore, at present, the wish of Her Majesty's Government neither to concede, nor, for the present, to enforce any rights in this respect which are in their nature open to any serious question. Even before the conclusion of the Reciprocity Treaty, Her Majesty's Government had consented to forgo the exercise of its strict right to exclude American fishermen from the Bay of Fundy; and they are of opinion that during the present season that right should not be exercised in the body of the Bay of Fundy, and that American fishermen may not be interfered with, either by notice or otherwise, unless they are found within three miles of the shore, or within three miles of a line drawn across the mouth of a bay or creek, which is less than ten geographical miles in width, in conformity with the arrangement made with France in 1839.
American vessels found within these limits should be warned that by engaging or preparing to engage in fishing they will be liable to forfeiture, and should receive the notice to depart which is contemplated by the laws of Nova Scotia, New Brunswick, and Prince Edward Island, if within the waters of one of these colonies under circumstances of suspicion. But they should not be carried into port except after wilful and persevering neglect of the warnings which they may have received; and in case it should become necessary to proceed to forfeiture, cases should, if possible, be selected for that extreme step in which the offense of fishing has been committed within three miles of land.
Her Majesty's Government do not desire that the prohibition to enter British bays should be generally insisted on, except when there is reason to apprehend some substantial invasion of British rights. And in particular they do not desire American vessels to be prevented from navigating the Gut of Canso (from which Her Majesty's Government are advised they might be lawfully excluded), unless it shall appear that this permission is used to the injury of colonial fishermen, or for other improper objects.
I have it in command to make this communication to your Lordships as conveying the decision of Her Majesty's Government on this subject. (App., p. 222.)
This letter was embodied in instructions issued by the Dominion Government to its fishery officers in 1868.