British territory, and part of the country made subject to the Legislature of Newfoundland.

To establish this proposition it is not necessary to go further back than to the 59 Geo. 3, c. 38, passed in 1819, now nearly sixty years ago.

* * *

And as this assertion of dominion has not been questioned by any nation from 1819 down to 1872, when a fresh convention was made, this would be very strong in the tribunals of any nation to shew that this bay is by prescription part of the exclusive territory of Great Britain. As already observed, in a British tribunal it is decisive.

Inasmuch as the Act of 59 Geo. III was passed immediately after the treaty of 1818, and merely used the words of the treaty, and since the evidence before this Tribunal establishes that the United States has steadfastly, since the question arose, not acquiesced in the exclusive dominion of Newfoundland or Great Britain over any bays on the non-treaty coasts, but has, on the contrary, asserted the right of American fishermen freely to resort to all such bays not less than six miles in width at their entrances so long as they did not fish within three marine miles of the shores thereof, it is apparent that the assumption by the Privy Council that the United States had" from 1819 down to 1872" not questioned the assertion of exclusive dominion over this bay is without foundation in fact. An examination of the record in this Conception Bay case also shows that it contains no evidence that the United States ever regarded this act as an assertion by Newfoundland or Great Britain of exclusive dominion over the waters of this bay.

The case of Regina vs. Keyn, (L. R. 2 Ex. Div., p. 63), was decided on the ground that the Central Criminal Court of England had no power to try, in the absence of statutory authorization, an offence committed by a foreigner on board a foreign ship within the limit of three miles from the English coast.

The case of Regina vs. Cunningham (Bell's Crown Cases, page 72) is not authority for the statement that "by the common law of England, all enclosed waters are within the realm."a That case merely decided that an offence committed aboard a ship at anchor was committed within the jurisdiction of Glamorgan County in Wales "when [page 72] the ship was three-quarters of a mile from land," of the County of Glamorgan, and within "a quarter of a mile of the land which is left dry by the tide," and "when the offence was committed, the ship was inside and about two miles from the Flat Holms," an island, lying off the shore, and it having been determined

a British Case, 112.

that (page 86) "the Holmes, between which and the shore of the County of Glamorgan the place in question is situated, having always been treated. as part of the parish of Cardiff and as part of the County of Glamorgan."

Delivering the opinion of the court, Chief Justice Cockburn said:

In this case we are of opinion that the conviction is right. The only question with which it becomes necessary for us to deal is whether the part of the sea on which the vessel was at the time when the offence was committed forms part of the body of the county of Glamorgan; and we are of opinion that it does.

The British Case " refers to the capture of the British ship Grange by the French frigate L'Embuscade in Delaware Bay in 1793, and to the action of the United States in restoring the vessel to its owners, on the ground that it was captured in neutral waters.

In 1793 Great Britain and France were at war. The independence of the United States had been recognized only ten years before, and the new Republic was anxious to avoid complications with Great Britain. It is a matter of common knowledge that the French minister in the United States, Monsieur Genet, was attempting to make use of the territory of the United States as a base of hostile activities against Great Britain. In this state of affairs the United States declared, when the opportunity arose, that the waters of Delaware Bay, which are in reality but a part of the Delaware River, a broad navigable stream leading into the heart of one of the populous sections of the United States, and in fact to Philadelphia, then one of the most important ports of the United States and the capital of the nation, were neutral as against the hostile operations of the two powers then engaged in war.

This declaration has remained uncontested by any nation, and has never been made the basis of broad claims of jurisdiction over other bays adjacent to the shores of the United States.

The letter from Mr. Jefferson, then Secretary of State, to the minister of France, written in November, 1793, is referred to in the British Case. Mr. Jefferson stated:

Not proposing, however, at this time, and without a respectful and friendly communication with the Powers interested in this navi

a British Case, 84.

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gation, to fix on the distance to which we may ultimately insist on the right of protection, the President gives instructions to the officers, acting under his authority, to consider those heretofore given them as restrained for the present to the distance of one sea-league, or three geographical miles from the sea shores."

It is true, as stated in the British Case that Mr. Jefferson added

For that of the rivers and bays of the United States, the laws of the several States are understood to have made provision, and they are, moreover, as being landlocked, within the body of the United States."

All "landlocked" rivers and bays are a part of the territory of the United States. The several States had enacted no legislation intending to enlarge the customary extent of maritime jurisdiction over bays.

In 1862 during the Civil War in the United States, an organized force of the States in rebellion, proceeded overland, embarked on the waters of the Chesapeake Bay, a body of water leading by a navigable river to Washington, the national capital, and into a populous interior district, as in the case of the Delaware Bay and River, and captured and destroyed the Alleganean, a vessel duly registered in and sailing from a loyal port in the United States. When later, commissioners appointed to apportion the award of the Geneva Tribunal, considered the claim of the owners of the Alleganean, they decided that the waters of Chesapeake Bay could not be used for the operations of war to the injury of the United States. The waters of this bay are open to the vessels of all nations for all peaceful purposes.

The Supreme Court of the United States, in Manchester vs. Massachusetts, 139 U. S. Reports, p. 258, held:

We think it must be regarded as established that, as between nations, the minimum limit of the territorial jurisdiction of a nation over tide-waters is a marine league from its coast; that bays wholly within its territory not exceeding two marine leagues in width at the mouth are within this limit; and that included in this territorial jurisdiction is the right of control over fisheries, whether the fish be migratory, free-swimming fish, or free-moving fish, or fish attached to or embedded in the soil. The open sea within this limit is, of course, subject to the common right of navigation; and all governments, for the purposes of self-protection in time of war or for the prevention of frauds on its revenue, exercise an authority beyond this limit.

a British Case, Appendix, 56.

British Case, S4.

QUESTION SIX.

Have the inhabitants of the United States the liberty under the said article or otherwise to take fish in the bays, harbours, and creeks on that part of the southern coast of Newfoundland which extends from Cape Ray to Rameau Islands, or on the western and northern coasts of Newfoundland from Cape Ray to Quirpon Islands, or on the Magdalen Islands?

THE CONTENTIONS OF GREAT BRITAIN AND THE UNITED STATES.

a

The contention presented by Great Britain is that the liberty "to fish on the southern, western and northern coasts of Newfoundland and on the shores of the Magdalen Islands, does not include the liberty to fish in the bays, harbours and creeks on such coasts or shores." Stated conversely, the contention is that the only fishing liberty, which the United States secured by the treaty 1818 on those coasts, was the right to fish in a belt of water three miles wide. Outside was the open sea where any man could fish, and on the inside were bays, harbors, and creeks, from which, by this construction, the American fisherman were to be excluded. Precisely where this belt lies is not made clear, but presumably it will be claimed that it lies outside a line drawn across the entrances of all bodies of water which were in 1818 called bays.

The United States denies that any such construction is possible, and insists, as fully stated in the discussion of Question Five, that in no event can the exclusion, sought to be enforced by Great Britain, extend to bodies of water exceeding six miles in width at their entrances. The present discussion, however, will deal with the British contention as broadly as it is presented.

The effect of this contention would be to deprive American fishermen of substantially all valuable rights on the Newfoundland shores, except those of curing and drying on the southern side from Cape Ray to the Rameau Islands. Herring and bait fishes are to be taken almost wholly, if not exclusively, in the bays and harbors.

It is confidently believed that the Tribunal will not, except upon the clearest proof, adopt a contention which would deprive the United

a British Case, 126.

.

States of all real benefit under the treaty and would leave American fishermen a trivial and barren right.

The British contention was originated by Sir Robert Bond, premier of Newfoundland, in a debate in the House of Assembly of that colony, April 7, 1905, eighty-seven years subsequent to the ratification of the treaty of 1818. He said on that occasion:

I believe I am correct in saying that it is the first time that this position has been taken, and, if I am correct in my interpretation of the treaty of 1818, the whole winter herring fishery of the west coast has been carried on for years by the Americans simply at the sufferance of the government of this Colony."

His construction of the treaty failed to produce conviction in the minds of the members of his own Government, or of the Government of Great Britain. No mention of it was ever made in the voluminous correspondence between Great Britain and the United States until Question Six was proposed by Great Britain, that Government having agreed with Sir Robert Bond to include it in this arbitration, as a means of securing the assent of Newfoundland to the modus vivendi of 1907.

The Case of the United States states that:

Great Britain has never, by word or act, throughout the entire history of this controversy questioned the right of the inhabitants of the United States under the treaty of 1818 to take fish in the bays and harbors of the southern and western coasts of Newfoundland which form part of the so-called "treaty coasts;

that

وو

such question has never been raised or even mentioned in any of the discussions between the two governments with respect to the interpretation of this treaty;

and that

the United States has always asserted the right of the American fishermen to take fish in the waters referred to, and American fishermen have, ever since the treaty was made, openly exercised their right to take fish in these waters without objection or interference by the Newfoundland government up to the present time."

The British Counter Case, in the fraction of a page which it devotes to this Question, makes no denial of either of the first two of the above assertions, and contents itself with saying that the third assertion I cannot be admitted." It will be observed that Great Britain fails to produce the slightest evidence to sustain this qualified denial.

66

с

a U. S. Case, 245. U. S. Case, 244-245. c British Counter Case, 59.