the people of Newfoundland and the abrogation of the treaty. June 9, 1880. House Rep. 1746, 46th Cong., 2d sess. Certain provisions of the treaty of Washington on. Report that they be terminated. Feb. 4, 1882. House Rep. 235, 47th Cong., 1st sess. Protection of, in waters of United States and Canada. Resolution of Vermont Protection of, on Atlantic coast. Proposed legislation not antagonistic with Senate Rep. 365, As to Canada fisheries in general, see Senate Ex. Doc. No. 100, 32d Cong., 1st sess. On the subject of the negotiations attending the treaty of 1818, the following documents may be consulted: Message of President Monroe, Feb. 18, 1825, with papers as to "the capture and detention of American fishermen during the last season." H use Doc. 405, 18th Cong., 2d sess. 5 Am. St. Pap. (For. Rel.), 675, Letter of Mr. Rush to Mr. Monroe, Oct. 22, 1818, Monroe Pap. See also in same, important argument of Mr. Rodney, Nov. 4, 1818, in same collection. Mr. Rush's dispatch to Mr. J. Q. Adams, Sec. of State, of July 28, 1823, narrating the incidents of the then closing negotiations with the British ministry, is given in Senate. Ex. Doc. No. 396, 18th Cong., 2d sess. 5 Am. St. Pap. (For. Rel.), 529. See ibid., 548, 580, as to passages in respect to Newfoundland fisheries. Mr. Gallatin's dispatch to Mr. J. Q. Adams, Nov. 6, 1818. 2 Gallatin's Writings, 82. As to course of commissioners at Ghent, in respect to the fisheries, see Mr. Gallatin to Mr. Monroe, Dec. 25, 1814. 1 Gallatin's Writings, 345. See further, 1 Philli. Int. Law (3d ed.), 270. In the British and Foreign State Papers for 1818–’19, vol. 6, p. 69 ff., will be found the proceedings of the commissioners by whom the treaty of 1818 was negotiated. (5) UNDER THE TREATIES OF 1783 AND 1812 THE THREE MILES BELT FOLLOWS THE SINUOSITIES AND INDENTATIONS OF THE COAST. § 305. The general doctrine of the law of nations as to marginal seas has been already discussed (supra, § 32). That territorial jurisdiction over the North East Atlantic is limited to three miles, following the sinuosities and indentations of the coast, is shown by the action of the British and United States Governments under the treaties of 1783 and of 1818. As in some aspects this question may become the matter of future negotiations, the publication in the present shape of a summary of the corre spondence in this relation is deferred. (6) BAY OF FUNDY AND OTHER LARGE BAYS ARE OPEN SEAS. §395a. On November 30, 1845, Lord Stanley, then British Colonial Secretary, after saying that "Her Majesty's Government fcel satisfied that the Bay of Fundy has been rightly claimed by Great Britain as a bay within the treaty of 1818," but that the "relaxation of this claim would be attended with benefits," etc., declares that "it has accordingly been announced to the United States Government that American citizens would henceforward be allowed to fish in any part of the Bay of Fundy, provided they do 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." As to meaning of the word "bay," in the convention of 1818, Mr. Cass, in his speech in the Senate on August 3, 1852, after showing that there are "bays" (e. g., Bay of Biscay, Baffin's Bay, etc.) which are really open scas, proceeds to notice that the "bays" specified in the convention are of another class, being grouped with "harbors and creeks," and are convertible, not with such seas as the Bay of Biscay or the Bay of Fundy, but simply with indentations of the coast into which fishing vessels are accustomed to run. "That such was the understanding of our negotiators is 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 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.” Congressional Globe (Appendix), vol. 25, 895. In a speech of the same date Mr. Hamlin said: "The bays and harbors which are surrendered up by the Americans are the bays and harbors into which the American fishermen may go to find a shelter, repair damages, purchase wood, and obtain water. All these things could only be done in the small harbors, which would afford shelter, and where damage could be repaired. But to allow fishermen to go into the Gulf of St. Lawrence or the Bay of Fundy for repair or shelter! They might with far greater propriety seek the open sea for shelter, for with sufficient sea room they might be safe, while in such bays as the Bay of Fundy they would be sure of destruction upon a lee shore. Better, far better, to seek the broad and trackless ocean for a shelter, to repair, for wood, or water. The very uses to which these bays and harbors are to be appropriated must show what was intended-such barbors and bays as could be used for the purposes named. The same interpretation of the word bay in the treaty, when applied to Fundy, Chaleur, or St. Lawrence, should be understood as when applied to the Bay of Biscay or the Gulf of Mexico." Ibid, 900. The right of United States fishermen to enter and fish in the Bay of Fundy was "decided by arbitration in the case of the schooner Washington, and Her Majesty's Government have uniformly acquiesced in that decision." Mr. Foster, Halifax Com., 1590. As to the Bay of Chaleur, in its proper sense, conflicts as to fishing, judging from the evidence before the Halifax tribunal, are not likely to arise. In the old popular use of the title it is not, outside of the three-mile band, territorial water. "A good deal of factitious importance has been given to the Bay of Chaleur from the custom among fishermen, and almost universal a generation ago, of which we have heard so much, to speak of the whole of the Gulf of Saint Lawrence by that term." Ibid. "What men on the face of the earth have a better right to plow with their keels the waters of the Gulf of Saint Lawrence than the descendants of the fishermen of New England, to whose energy and bravery, a century and a quarter ago, it is chiefly owing that there is any Nova Scotia to-day under the British flag?" Ibid., 1591. A construction of the terms "coasts, bays, creeks, or harbors," in the treaty of 1818, was given by the mixed commission under the convention of 1853, in the case of the United States fishing schooner Washington, which was seized while fishing in the Bay of Fundy, ten miles from shore, taken to Yarmouth, Nova Scotia, and adjudged forfeited, on the charge of violating the treaty of 1818 by fishing in waters in which the United States had, by that convention, renounced the right of its citizens to take fish. A claim of the owners of the Washington for compensation came before the commission above mentioned, and, the commissioners differing, the case was referred to Mr. Joshua Bates, the umpire, who, referring to the theory that "bays and coasts" were to be defined by "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," pronounced it a "new doctrine," and, repudiating the decision of the provincial court based thereon, awarded the owners of the vessel compensation for an illegal condemnation. The umpire also decided that as the Bay of Fundy is from sixty-five to seventy-five miles wide, and from one hundred and thirty to one hundred and forty miles long, with several "bays" on its coasts, and has one of its headlands in the United States, and must be traversed for a long distance by vessels bound to Passamaquoddy Bay, and contains one United States island, Little Menan, on the line between headlands, the Bay of Fundy could not be considered as an exclusively British bay. (See President's message communicating proceedings of commission to Senate; also Dana's Wheaton, § 274, note 142.) The "headland" theory was again rejected by the umpire in the case of the schooner Argus, which was seized while fishing on Saint Ann's Bank, twenty-eight miles from Cape Smoke, the nearest land, taken to Sydney, and sold for violation of the treaty of 1818 by fishing within headlands. The owners were awarded full compensation. Mr. Dana, in this connection, quotes (Dana's Wheat., § 274, note 142) from the treaty between Great Britain and France of 1839 the following provisions: "It is agreed that the distance of three miles, fixed as the general limit of the exclusive right of fishing 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." As to British concession that the Bay of Fundy is an open sea, see papers connected with message of President Fillmore, Feb. 28, 1853, with Senate Confid. Doc. No. 4, special session, 1853, and see particularly Mr. Everett, Sec. of State, to Mr. Ingersoll, Dec. 4, 1852, MSS. Inst. Gr. Brit., appended to message aforesaid. As to detention of fishermen in the Bay of Fundy, see President Monroe's message of Feb. 26, 1825; House Doc. No. 408; 18th Cong., 2d sess.; 5 Am. St. Pap. (For. Rel.), 735. Mr. Rush's notes of negotiation, Monroe papers, Dept. of State. "To the clause about Hudson's Bay we did not object, as, on examining the charter to that company, which we did, it was clear that we should still fish as before the Revolution." Mr. Rush's notes of negotiation, Monroe papers, Dept. of State, conference of (7) PORTS OF ENTRY NOT AFFECTED BY LIMITATIONS IMPOSED BY TREATY OF 1818. $306. Whatever may be the limitations of the treaty of 1818 as to trading by fishermen in the British possessions bordering on the fisheries, they do not apply to ports of entry in which fishing vessels, if having proper papers, can enter for commercial purposes. On the other hand, no British municipal regulations as to ports of entry can affect, so far as concerns the United States, the right of fishermen, under treaties and under the law of nations, to visit ports, bays, and harbors of that coast to obtain shelter, wood, and water, and to obtain provisions and supplies in the exercise of the territorial privileges they thus possess. (8) BRITISH MUNICIPAL LEGISLATION MAY RESTRICT, BUT CANNOT EXPAND, BRITISH RIGHTS UNDER THESE TREATIES. § 307. It is conceded that there is no British legislation making it penal for United States fishermen to purchase bait or supplies on Canadian shores when visiting them in pursuance of their rights as coufirmed by this treaty. This, as has been said (supra, § 304), is a cotemporaneous construction of the treaty, since the statutes go back to the period when the treaty was framed. But in the aspect of the present section the statutes may be regarded as a statutory statement of treaty rights in this connection, whatever these rights might be. The British Government, with whom exclusively the United States has to deal in this matter, prescribes by statute that the seizures under the treaty of 1818 are to be only for certain specified causes, among which buying provisions is not included. And the rule is well settled, that while a municipal law caunot expand an international right, it may so contract it for municipal purposes that municipal prosecutions under it can only be brought in submission to the statutory terms. “If, however, it be said that this claim (to exclude United States fishermen from these rights) is founded on provincial or colonial statutes, and not upon the convention, this Government cannot but regard them as unfriendly, and in contravention of the spirit, if not of the letter, of the treaty, for the faithful execution of which the imperial Government is alone responsible. "Anticipating that an attempt may possibly be made by the Canadian authorities in the coming season to repeat their unneighborly acts toward our fishermen, I recommend you to confer upon the Executive the power to suspend, by proclamation, the operation of the laws authorizing the transit of goods, wares, and merchandise in bond across the territory of the United States to Canada; and, further, should such an extreme measure become necessary, to suspend the operation of any laws whereby the vessels of the Dominion of Canada are permitted to enter the waters of the United States." President Grant, Second Annual Message, 1870. Infra, § 319. (9) GREAT BRITAIN AND NOT HER PROVINCES IS THE SOVEREIGN TO BE DEALT WITH FOR INFRACTIONS OF LAW OF NATIONS AND OF TREATIES IN THIS RELATION. § 308. It has been already seen (supra, §§ 8, 9) that the treaty-making power of a Government is the power which is to answer to the other contracting power for infractions of the treaty. It has also been seen that the organ of a Government which is charged with its foreign relations is that which is to be addressed by foreign Governments in respect to foreign relations, and that in federal systems this prerogative is assigned to the federal executive acting through his secretary for foreign affairs (supra, § 78, ff). To appeals of this class, based either upon treaty or the law of nations, no municipal statute, federal, state, or provincial, can be set up as a defense; and this has been repeatedly admitted in the United States in respect to international duties and to treaties executed by President and Senate within the range of their constitutional power (supra, §§ 9, 21, 138). This principle is conceded by Great Britain in respect to Canadian statutes and Canadian adjudications in this very relation. See 2 Halifax Com., 1544. "This Government conceives that the fishery rights of the United States, conceded by the treaty of Washington, are to be exercised wholly free from the restraints and regulations of the statutes of Newfoundland." Mr. Evarts, Sec. of State, to Mr. Welsh, Feb. 17, 1879. MSS. Inst., Gr. Brit. As to further assertions of this responsibility of Great Britain for pro vincial invasions of United States fishing rights, see Mr. Evarts to Sir E. Thornton, March 2, 1878. This responsibility was conspicuously claimed and accepted in connection with the injuries received by United States fishermen in Fortune Bay in January, 1878. See papers contained in part in the message of President Hayes, May 17, 1880. House Ex. Doc. 84, 46th Cong., 2d sess. "With Great Britain there are still unsettled questions, growing out of the local laws of the maritime provinces and the action of provincial authorities deemed to be in derogation of rights secured by treaty to American fishermen. The United States minister in London has been instructed to present a demand for $105,305.02 in view of the damages received by American citizens at Fortune Bay, on the 6th day of January, 1878. The subject has been taken into consideration by the British Government, and an early reply is anticipated." President Hayes, Third Annual Message, 1879. See Fourth Annual Message of same, 1880- See House Ex. Doc. 84, 46th Cong., 2d sess. "Early in the year the Fortune Bay claims were satisfactorily settled. by the British Government paying in full the sum of £15,000, most of which has been already distributed. As the terms of the settlement |