sanction of long practical acquiescence on the part of the United States, and, we may also add, the full and cordial approval of so distinguished an American law writer as Professor Pomeroy. On the 12th of March, 1836, nearly one year before President Jackson went out of office, there was passed the Act of Nova Scotia, the model of all the legislation since enacted, at which is aimed the thirteenth article of the treaty just negotiated. This act was specially validated by royal orders in council, and provided that local officers might seize and bring into port vessels hovering on the coasts of Nova Scotia, and repeated the penalty of forfeiture for those fishing or "preparing to fish" within the prescribed waters. It also provided that no person should be admitted to claim the vessel seized without first giving security for costs not exceeding 60 pounds. It also threw on the owner the burden of proof in any suit touching the illegality of seizure. It so hampered the right of action for unjustifiable arrests of vessels as to render it substantially worthless; and it was so extreme in its provisions that the vessel could not be bailed without the consent of the person seizing her. All these provisions have been continued in every statute of the Dominion from that time to the present.

In A. D. 1838, 1839, and 1840, during the administration of Mr. Van Buren, and while John Forsyth was Secretary of State and Levi Woodbury Secretary of the Treasury, sixteen of our vessels were proceeded against at Halifax and all confiscated except one. During the first year of the next administration, and while Webster was Secretary of State, seven were seized and proceeded against, only two of which were restored. These prosecutions were under this statute of 1836. It is not certain that Mr. Forsyth knew of its existence until near the close of his term of office, which he made an earnest remonstrance against it. The records also fail to show that Webster in any way took notice of it; although after Webster retired from the Cabinet, Mr. Everett, while minister at London, under instructions from Mr. Upshur, then Secretary of State, reiterated the complaints of Mr. Forsyth. When Webster again became Secretary of State, and not long before he died, he made the famous speech at Marshfield, in which he said:

It is not to be expected the United States would submit their rights to be adjudicated in the petty tribunals of the provinces, or that we shall allow our own vessels to be seized by constables or other petty officials, and condemned by the municipal courts of Quebec, Newfoundland, New Brunswick, or Canada.

Notwithstanding this, from the time the statute was enacted in A. D. 1836 till the present negotiations, not only was its repeal or modification not secured by the United States, and not only contrary to the phrases of Webster did the United States submit the rights of their vessels to be adjudicated in the tribunals of the provinces and allow them to be seized by provincial constables and other provincial petty officers, but in A. D. 1868, and afterwards in A. D. 1870, the Dominion, without protest from us, re-enacted and intensified the law of 1836 by statutes ever since in force.

The disputes covering this first period from A. D. 1836 to A. D. 1854 were confined mainly to four questions:

(1) Whether great bays, like those of Chaleur and Fundy, were bays of the British dominions.

(2) Whether and this was a broader question, though not perhaps wholly distinct-Great Britain could lawfully run a line from headland to headland, so as to shut in great bends like that of Prince Edward Island and that on the east coast of Cape Breton.

(3) Whether the provincial officers could drive out our vessels from provincial bays and harbors when, in the judgment of the authorities, they did not in fact need shelter or repairs; and

(4) The legislation already referred to.

These questions were not in all respects analogous to those which arose between A. D. 1866 and A. D. 1870, and which have again arisen in the last two years; but whatever they were, none 429 of them were settled and all were postponed, and for the time

being submerged in the reciprocity treaty of 1854. In A. D. 1866, at the expiration by notice from the United States of the treaty of 1854, the difficulties touching the fisheries were renewed, and they continued until suspended by the treaty of Washington of 1871.

During this period substantially every question arose which has been in dispute within the last two years; yet not one of them was permanently settled by Congress, the Executive of the United States, or by the Treaty of Washington. The Consular correspondence in the summer of A. D. 1870 shows that our vessels were then forbidden obtaining bait and all other supplies in Canada, and were excluded from Dominion ports except when putting in for the purposes expressly named in the Convention of 1818. Numerous seizures were made at that time, followed by forfeitures, one of which was the well known case of the J. II. Nickerson, a vessel proceeded against at Halifax for purchasing bait, while the United States took no action whatever concerning her and made no reclamation, so that she became a total loss to her owners. This period ended in the treaty of 1871, as did that which closed in A. D. 1854, without the United States securing favorable interpretation of any right in dispute.

The references to the treaties of 1854 and 1871 are merely for the necessary purpose of showing their bearing on the present status. Those negotiations were on a much broader scale, and may be said to have involved larger questions than those now under consideration; although everything which endangers in the least the harmony of nations must be regarded as touching the possibilities of great consequences. The nation would not brook that the high motives and great skill and experience of the gentlemen concerned in the formation of those treaties should not be at all times declared. The treaty of 1854 was a beneficent production of broad statesmanship, a blessing to the country, and its good results have come down to this date in the enlargement of commercial relations with Canada, which is among its legitimate issue, and has already long survived its own existence.

The negotiations of 1871, as well as the consequent proceedings at Geneva, were in the hands of practiced statesmen and jurists, led by a Secretary of State eminent alike for his private and public virtues. These citizens had been honored by the people with many trusts; but for their diplomatic accomplishments at Washington and the verdict at Geneva they will also be honored by history. While the purely accidental result of the Halifax commission must, in comparison, be regarded as the spluttering and flickering of a farthing candle, the exact cost of which is known but will soon be forgotten, the moral

spectacles of the grander arbitration between the United States and Great Britain, and of the treaty which led to it, have given out a light which will shine on and on for the illumining of civilization. so long as the English tongue shall be spoken. Considering all the great interests which those negotiators had in hand, it was not surprising that it was deemed by them sufficient to give the fisheries a temporary peace, which also they had reason to expect would become permanent. It is in no sense, therefore, in a depreciatory spirit that we refer to these events; but only because dry truth requires that their incidental effect on the issues with which we now have to deal should be clearly stated. The protocol of the conference of the commissioners held May 4, A. D. 1871, is as follows:

The British commissioners stated that they were prepared to discuss the question of the fisheries, either in detail or generally, either to enter into an examination of the respective rights of the two countries under the treaty of 1818 and the general law of nations, or to approach at once the settlement of the question on a comprehensive basis.

Our commissioners selected the latter. The result was no issues in controversy concerning the fisheries were decided, and all were postponed; and a rule of negotiation was adopted for that topic, which has since, justly or unjustly, given great dissatisfaction to the interests involved.

It thus appears that this controversy commenced more than a half century since, and during that period nothing has been determined. After questions have continued so long unsettled and have been twice. formally postponed, it necessarily remains that it is difficult for either party to press its full rights to a complete conclusion in all particufars. Traditions become fixed on one side or the other, systems of legislation accumulate which become inextricably involved with the general mass and the cotemporary facts and understandings are lost or assume new phases. Claims made by Great Britain, or by Nova Scotia or Canada in her name, have stood so long without definitive reversal that they gained such strength as to be in some particulars quite as difficult of disturbance as though originally based on sound principles and correct rules of construction.

This was the status of these questions when the present negotiations commenced; yet former administrations had not failed to give some indications of the suitable methods of meeting them. In the dispatch of Mr. Seward, then Secretary of State, to Mr. Adams, then our minister at London, of April 10, A. D. 1866, Mr. Seward suggested a mixed commission for the following purposes:

(1) To agree upon and define by a series of lines the limits which shall separate the exclusive from the common right of fishing on the coasts, and in the seas adjacent, of the British North American colonies, in conformity with the first article of the convention of 1818; the said lines to be regularly numbered, duly described, and also clearly marked on charts prepared in duplicate for the purpose.

(2) To agree upon and establish such regulations as may be necessary and proper to secure to the fishermen of the United Sates the privilege of entering bays and harbors for the purpose of shelter and of repairing damages 430 therein, of purchasing wood and of obtaining water, and to agree upon and establish such restrictions as may be necessary to prevent the abuse of the privilege reserved by said convention to the fishermen of the United States.

(3) To agree upon and recommend the penalties to be adjudged, and such proceedings and jurisdiction as may be necessary to secure a speedy trial and judgment with as little expense as possible for the violators of rights and the transgressors of the limits and restrictions which may be hereby adopted.

The "memorandum" prepared by the Department of State for the information of the commissioners who, on the part of the United States, assisted in negotiating the treaty of Washington of 1871, contained suggestions for adjustment in the following language:

(1) By agreeing upon the terms upon which the whole of the reserved fishing-grounds may be thrown open to American fishermen, which might be accompanied with a repeal of the obnoxious laws and the abrogation of the disputed reservation as to ports, harbors, etc.; or, failing that,

(2) By agreeing upon the construction of the disputed renunciation, upon the principles upon which a line should be run by a joint commission to exhibit the territory from which the American fisherman are to be excluded, and by repealing the obnoxious laws, and agreeing upon the measures to be taken for enforcing the colonial rights, the penalties to be inflicted for a forfeiture of the same, and a mixed tribunal to enforce the same. It may also be well to consider whether it should be further agreed that the fish taken in the waters open to both nations shall be admitted free of duty into the United States and the British North American colonies.

It will be observed that the suggestions of Mr. Seward were substantially repeated in the instructions of A. D. 1871, and were also embraced almost in terms in the proposals accompanying the dispatch of Mr. Bayard to Mr. Phelps of November 15, 1886; and the treaty just negotiated, it is believed, accomplishes all which was contemplated by them.

The words of delimitation of the convention of 1818 are as follows: "On or within 3 marine miles of any of the coasts, bays, creeks, or harbors of His Britannic Majesty's dominions in America.' The prohibition of 1818 covered in terms not only the coasts, but also the bays of the British dominion; so that a fair construction of the language could not be met by running a line which at all points followed the windings of the shore. Such was apparently the theory of Edward Bates, the umpire, in his opinion given in the case of the Washington, decided under the convention of 1853, wherein he used the following language: "The conclusion is therefore irresistible that the Bay of Fundy is not a British bay within the meaning of the word as used in the treaties of 1783 and 1818." So also Mr. Everett in his note of May 25, A. D. 1844, said "The vessels of the United States have a general right to approach all the bays in Her Majesty's colonial dominions within any distance not less than 3 miles." It is not, however, to be understood by this suggestion that the "headland" theory is at all accepted. That assumed to run a line shutting in all sinuosities of the coast, without considering whether or not particular headlands marked jurisdictional bays, or, in other words, bays which were properly parts of the British dominions, and it is now approved.

That there may be no misunderstanding, let us follow this distinction a little further. The Washington was seized in the Bay of Fundy in A. D. 1843, and that raised a question of the "bays," that is, whether the whole of Fundy was a part of the British dominions. The Argus was seized at nearly the same time in the great bend of Cape Breton. As the affidavits on file at Halifax show, she was captured less than 2 miles within a line from Cape North to Cow Bay; and that capture marked the "headland" disputes.

The opinion of the law officers of the Crown of 1841, in answer to the second and third queries, said, erroneously, of course: "The term 'headland' is used in the treaty to express the part of land we have before mentioned, including the interior of the bays and the

indents of the coast." It may here be said that the same opinion in answer to the fourth query denied the free right of navigating the Gut of Canso. Mr. Stephenson, our minister at London, recognized the distinction in his note to Lord Palmerston of March 27, A. D. 1839, where he said: "The provincial authorities assume a right to exclude the vessels of the United States from all their bays, including those of Fundy and Chaleur, and likewise to prohibit their approach within 3 miles of a line drawn from headland to headland," &c. So Mr. Everett, in his note to Earl Aberdeen of May 25, A. D. 1844, admitted that it was "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 harbours, that is, the indentations usually so accounted, as included within that line."

Now, the present treaty apparently holds to the rule stated by Mr. Everett, except that it defines what has heretofore been undefined. This, of course, is subject to the qualification that, except in special cases, in A. D. 1818 jurisdiction bays were limited to those not exceeding 6 miles in width between their headlands, or even to narrower ones; while the present treaty has adopted the more modern rule of the 10 miles opening as a practical and not injurious solution of this whole dispute concerning bays and headlands.

Therefore, under the convention of 1818 the question arises in every case: What is a jurisdictional bay, that is, a British bay, or, in other words, a bay which was then a part bay which was then a part "of His Britannic Majesty's dominions in America ?" This having been ascertained, another question arises, whether any bay which was not jurisdictional in A. D. 1818 has since become so inclosed by the growth of population that, on the principles by which we claim as our exclusive waters Chesapeake and Delaware bays and Long Island Sound, we may properly concede it to Great Britain according to its existing cir

cumstances, as an inducement to a suitable and just arrange431 ment of all questions of delimitation? With reference to this question, and indeed with reference to all this branch of the case, the United States, with its extensive coasts, its numerous bays, its rapidly increasing population and commercial interests can not wisely permit a narrow precedent.

The bay of Chaleur, the shores of which in A. D. 1818 were uninhabited, has by the advance of population become a part of the adjacent territory for all jurisdictional purposes; and it has ceased to be of special value to our vessels except for shelter or supplies. The same observations apply with greater force to the bay of Miramichi. The bays of Egmont and St. Ann's are hardly more than mere sinuosities of the coast; but they and the excluded parts of the Newfoundland bays are of no value to our vessels for fishing. It is not unreasonable to grant the release of all of them, in view of the fact that as to all other water we remove long standing disputes. It is not to be overlooked that all these bays have long been claimed by Great Britain as of right.

At the mouths of all the bays designated in the treaty by name, the fourth article makes special lines of delimination. There seems to be an impression with some that the exclusion is 3 miles seaward therefrom; but this is plainly erroneous. Each of these lines is run from one powerful light to another, except one terminus at Cape Smoke, which is a promontory over 700 feet in height. The external