The right of fishing in the waters adjacent to the § 8. Right of fishery. coasts of any nation, within its territorial limits, belongs exclusively to the subjects of the State. The exercise of this right, between France and Great Britain, was regulated by a Convention concluded between these two powers, in 1839; by the 9th article of which it is provided, that French subjects shall enjoy the exclusive right of fishing along the whole extent of the coasts of France, within the distance of three geographical miles from the shore, at low-water mark, and that British subjects shall enjoy the same exclusive right along the whole. extent of the coasts of the British Islands, within the same distance; it being understood, that upon that part of the coasts of France lying between Cape Carteret and the point of Monga, the exclusive right of French subjects shall only extend to the fishery within the limits mentioned in the first article of the Convention; it being also understood, that the distance of three miles, limiting the exclusive right of fishing upon the coasts of the two countries, shall be measured, in respect to bays of which the opening shall not exceed ten miles, by a straight line drawn from one cape to the other.1

By the 1st article of the Convention of 1818, between the United States and Great Britain, reciting, that "whereas differences have arisen respecting the liberty claimed by the United States, for the inhabitants thereof to take, dry, and cure fish, on certain coasts, bays, harbors, and creeks, of his Britannic Majesty's dominions in America," it was agreed between the contracting parties, "that the inhabitants of the said United States shall have, forever, in common with the subjects of his Britannic Majesty, the liberty to take fish of every kind on that part of the southern coast of Newfoundland, which extends from Cape Ray to the Rameau Islands, on the western and northern coast of Newfoundland, from the said Cape Ray to the Quirpon Islands; on the shores of the Magdalen Islands; and also on the coasts, bays, harbors, and creeks, from Mount Joly, on the southern coast of Labrador, to and through the Straits of Belleisle, and

Adm. Reports, vol. ii. p. 245. Le Louis. Cranch's Reports, vol. ii. p. 187. Church v. Hubbard. Vattel, Droits des Gens, liv. i. ch. 22, § 281.

1 Annales Maritimes et Coloniales, 1839, 1re Partie, p. 861.

thence northwardly indefinitely along the coast; without prejudice, however, to any of the exclusive rights of the Hudson Bay Company. And that the American fishermen shall also have liberty, forever, to dry and cure fish in any of the unsettled bays, harbors, and creeks, of the southern part of the coast of Newfoundland, here above described, and of the coast of Labrador; but so soon as the same, or any portion thereof, shall be settled, it shall not be lawful for the said fishermen to dry or cure fish at such portion so settled, without previous agreement for such purpose with the inhabitants, proprietors, or possessors of the ground. And the United States hereby renounce forever any liberty heretofore enjoyed or claimed by the inhabitants thereof, to take, dry, or cure fish, on or within three marine miles of any of the coasts, bays, creeks, or harbors, of his Britannic Majesty's dominions in America, not included within the above-mentioned limits. Provided, however, that the American fishermen shall be admitted to enter such bays or harbors, for the purpose of shelter, and of repairing damages therein, of purchasing wood, and of obtaining water, and for no other purpose whatever. But they shall be under such restrictions as may be necessary to prevent their taking, drying, or curing fish therein, or in any other manner whatever abusing the privileges hereby reserved to them."1 (a)

1 Elliot's Diplomatic Code, vol. i. p. 281.

(a) [The negotiations of 1818 were conducted by Messrs. Gallatin & Rush, on the part of the United States, and by Mr. Robinson, (afterwards Lord Goderich,) and Mr. Goulburn, on the part of Great Britain. An arrangement on the subject of impressment, on the basis heretofore referred to, (pp. 164-5, note,) of the exclusion of all natural born citizens or subjects of either power thereafter naturalized, from serving in the public or private marine of the other, was, as in the negotiations both previous and subsequent, made a subject of discussion; and we are informed by Mr. Rush, that a satisfactory adjustment only failed to be effected, because the British insisted on two points of detail. The one regarded as naturalized seamen, within the provision of the treaty, those only, whose names should be inserted in the lists, specifying the places of their birth and the dates of their naturalization, which each government was to furnish to the other, within twelve months after the ratification of the treaty, and the other made the exclusion, imposed by the treaty, apply to those seamen, who were naturalized after its date, and before its ratification. From the fact that, anterior to the adoption of the Federal constitution, the several States exercised the power of naturalization, and that the acts of Congress did not require, for several years, the birth-place of

$9. Claims to portions of the sea

Beside those bays, gulfs, straits, mouths of rivers,

and estuaries which are inclosed by capes and head

the aliens, who were naturalized, to be recorded, and that minor children of naturalized persons, if within the limits of the Union, become ipso facto naturalized, it would have been impossible for us to make the necessary returns. Nor were the British satisfied with our proposition to throw the burden of proof of their naturalization on such seamen as might not be included in the lists. The other provision, however conformable to the rule in ordinary cases, was objected to as giving a retroactive operation to the treaty, with regard to such seamen as might be naturalized in the period intervening between its date and ratification. Mr. Rush expresses the confident opinion, which, from what is elsewhere stated, would seem likewise to have been that of Mr. Gallatin, that "had Lord Castlereagh, (who was then attending the Congress at Aix-la-Chapelle,) been in London, there would not have been a failure."

The point mainly discussed, as regards the fisheries, was, whether the recognition of the American right and liberty to fish on the Banks of Newfoundland and elsewhere, in the 3d article of the treaty of 1783, was of a permanent character, or liable, like the provisions of an ordinary treaty, to be abrogated by war. The British doctrine was, that the treaty of 1783 not being reenacted or confirmed by the treaty of Ghent, was annulled by the war of 1812. The United States, while they did not deny the general rule that a war put an end to previous treaties, insisted that that rule was not applicable to the treaty of 1783, which was a treaty of partition, and by which the rights of each party were laid down as primary and fundamental; so much of territory and incidental rights being allotted to the one and so much to the other. The entire instrument implied permanence, and hence all the fishing rights secured under it to the United States were placed upon the same foundation with their independence itself. This matter was finally adjusted on the basis of compromise, as embodied in the treaty cited in the text. Rush's Memoranda of a Residence at the Court of London, pp. 432, 439, 445, 390. Discussions, as to the interpretation of the provisions respecting the fisheries, in the treaty of 1818, go back as far as 1823; and Mr. Forsyth, in instructing Mr. Stevenson, minister at London, February 20, 1841, states, as the point of difference, that the provincial authorities assume a right to exclude American vessels from all their bays, including the Bays of Fundy and Chaleurs, and to prohibit their approach within three miles of a line drawn from headland to headland, while the American fishermen believe that they have a right to take fish anywhere within three miles of land. Certain relaxations in the pretensions of England, with regard to the Bay of Fundy, were, in 1845, announced by Lord Aberdeen to Mr. Everett, minister at London; but the whole subject obtained renewed importance in 1852, on account of a British force being ordered to that coast, to protect the claims of the colonists, and a correspondence, involving the original merits of the controversy, was, during that year, carried on, at London and at Washington. See Cong. Doc. 32d Cong. 1st Sess. Senate, Ex. Doc. No. 100. Special Session, 1853, Senate Ex. Doc. No. 3.

A treaty was concluded at Washington, on 5th of June, 1854, by Mr. Marcy, Secretary of State, and the Earl of Elgin, then Governor-General of British North

ground of

lands belonging to the territory of the State, a jurisdic- upon the tion and right of property over certain other portions of prescripthe sea have been claimed by different nations, on the

tion.

America, (and who acted as the British Plenipotentiary,) for the final adjustment of these questions, in connection with a trade between the United States and the adjacent Provinces, on the principles of reciprocity. The articles in relation to the fisheries are asfollows:

ARTICLE I. It is agreed by the high contracting parties, that, in addition to the liberty secured to the United States' fishermen by the above-named Convention of 1818, of taking, curing, and drying fish on certain coasts of the British North American Colonies, therein defined, the inhabitants of the United States shall have, in common with the subjects of her Britannic Majesty, the liberty to take fish of every kind, except shell fish, on the seacoasts and shores, and in the bays, harbors, and creeks, of Canada, New Brunswick, Nova Scotia, Prince Edward's Island, and of the several islands thereunto adjacent, without being restricted to any distance from the shore; with permission to land upon the coasts and shores of those colonies, and the islands thereof, and also upon the Magdalen Islands, for the purpose of drying their nets and curing their fish; provided that, in so doing, they do not interfere with the rights of private property, or with the British fishermen, in the peaceable use of any part of the said coast, in their occupancy for the same purpose. It is understood that the above-mentioned liberty applies solely to the sea fishery; and that the salmon and shad fisheries, and all fisheries in rivers and the mouths of rivers, are hereby reserved, exclusively, for British fishermen. And it is further agreed, that in order to prevent or settle any disputes, as to the places to which the reservation of exclusive right to British fishermen, contained in this article, and that of fishermen of the United States, contained in the next succeeding article, apply, each of the high contracting parties, on the application of either to the other, shall, within six months thereafter, appoint a commissioner. The said commissioners, before proceeding to any business, shall make and subscribe a solemn declaration, that they will impartially and carefully decide, to the best of their judgment, and according to justice and equity, without fear, favor, or affection to their own country, upon all such places as are intended to be reserved and excluded from the common liberty of fishing, under this and the next succeeding article, and such declaration shall be entered on the record of their proceedings.

The commissioners shall name some third person, to act as arbitrator or umpire in any case or cases on which they may themselves differ in opinion. If they should not be able to agree upon the name of such person, they shall each name a person, and it shall be determined by lot which of the two persons so named shall be arbitrator or umpire, in cases of difference or disagreement between the commissioners.

The person so to be chosen to be arbitrator or umpire shall, before proceeding to act as such in any case, make and subscribe a solemn declaration, in a form similar to that which shall already have been made and subscribed by the commissioners, which shall be entered on the record of their proceedings.

ground of immemorial use. Such, for example, was the sovereignty formerly claimed by the Republic of Venice over the Adriatic. The maritime supremacy claimed by Great Britain over what are called the Narrow Seas has generally been asserted merely by requiring certain honors to the British flag in those seas, which have been rendered or refused by other nations, according to circumstances, but the claim itself has never been sanctioned by general acquiescence.'

Straits are passages communicating from one sea to another. If the navigation of the two seas thus connected is free, the navi

In the event of the death, absence, or incapacity of either of the commissioners or the arbitrator, or umpire, or of their or his omitting, declining, or ceasing to act as such commissioner, arbitrator, or umpire, another and different person shall be appointed or named, as aforesaid, to act as such commissioner, arbitrator, or umpire, in the place and stead of the person so originally appointed or named as aforesaid, and shall make and subscribe such declaration as aforesaid.

Such commissioners shall proceed to examine the coasts of the North American Provinces and of the United States, embraced within the provisions of the first and second articles of this treaty, and shall designate the places reserved by the said articles from the common right of fishing therein. The decision of the commissioners, and of the arbitrator or umpire, shall be given in writing in each case, and shall be signed by them respectively. The high contracting parties hereby solemnly engage to consider the decision of the commissioners conjointly, or of the arbitrator or umpire, as the case may be, as absolutely final and conclusive in each case decided upon by them or him respectively.

ART. 2. It is agreed by the high contracting parties, that British subjects shall have, in common with the citizens of the United States, the liberty to take fish of every kind, except shell fish, on the castern sea-coasts and shores of the United States, north of the thirty-sixth parallel of north latitude, and on the shores of the several islands thereunto adjacent, and in the bays, harbors, and creeks of the said sea-coast coasts and shores of the United States, and of the said islands, without being restricted to any distance from the shore, with permission to land upon the said coasts of the United States, and of the islands aforesaid, for the purpose of drying their nets and curing their fish; provided that in so doing they do not interfere with the rights of private property, or with the fishermen of the United States, in the peaceable use of any part of the said coasts, in their occupancy for the same purpose.

It is understood that the above-mentioned liberty applies solely to the sea fishery, and that salmon and shad fisheries, and all fisheries in rivers and mouths of rivers, are hereby reserved exclusively for fishermen of the United States. Washington Union.]

1 Vattel, Droit des Gens, liv. i. ch. 23, § 289. Martens, Précis du Droit des Gens Moderne de l'Europe, liv. ii. ch. 1, § 42. Edinburgh Review, vol. xi. art. 1, pp. 17-19. Wheaton's Hist. Law of Nations, pp. 154-157. Klüber, § 132.