against the Danish pretensions with respect to Davis' Straits and the Greenland fisheries (j).

CXCIV. Great Britain has never been remiss in maintaining the rights of her fisheries. The Newfoundland fisheries were the subject of careful provisions in the Treaties of Utrecht and Paris, 1763 (k); and were in 1818 regulated by a Convention between Great Britain and the United States of North America (1).

CXCV. The language of the Article of the Convention was, 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, “harbours, and creeks of his Britannic Majesty's dominions "in America, it is agreed between the high contracting "parties, that the inhabitants of the said United States shall "have for ever, in common with the subjects of his Britannic

la moins ordinaire de son amitié pour S. M. Britannique, en arrêtant l'exécution et l'effet d'un arrêt donné en faveur de la compagnie de Groenland."-Martens, Causes célèbres, t. ii. pp. 131-2.

(j) Extract from the letter of the Dutch Minister at Copenhagen to Danish Government:

"Mais comme véritablement cette affaire est d'une importance générale pour toutes les puissances intéressées dans la pêche de Groenland et du détroit de Davis, LL. HH. PP. se verraient obligées d'en faire une cause commune avec ces puissances, et de défendre et protéger le droit indisputable de toutes les nations de pouvoir naviguer et pêcher librement par toutes les mers ouvertes, les détroits, et les bayes, et en particulier celui de leurs sujets, qui de temps immémorial ont été en possession d'user de ce droit sur les côtes de Groenland, dans le détroit de Davis, et nommément aussi dans la baye de Disco."-Ibid. PP. 139-40.

See, too, disputes between England, Denmark, and Holland, 1776; as to the Iceland fisheries, 1790, between Denmark and Holland, ib. t. i. ; as to Finland, Heffters, 140, n. 3; Ortolan, Dipl. de la Mer, i. 176; as to the Zuyder Zee, The Twee Gebroeders, 3 C. Rob. Adm. Rep. p. 339.

(k) Koch, Hist. des Tr. i. 209, 362.

Art. 13 of the Treaty of Utrecht.

Art. 5 of the Treaty of Paris.

(1) The line of demarcation between the rights of fishing of English and French subjects in the British Channel was elaborately defined by the Treaty of August 2, 1839.-De Martens et de C. iv. 601.

De Martens et de C. iii. 391.

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Majesty, the liberty to take fish of every kind on that part "of the southern coast of Newfoundland which extends from

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Cape Ray to the Ramean Islands, on the western and "northern coasts of the said Newfoundland, from the said "Cape Ray to the Quirpon Islands, on the shores of the Magdalen Islands, and also on the coasts, bays, harbours, "and creeks, from Mount Joly, on the southern coast of the Labrador, to and through the Straits of Belle Isle, and "thence northwardly indefinitely along the coast, without "prejudice, however, to any of the exclusive rights of the "Hudson's Bay Company; and that the American fishermen "shall also have liberty for ever to dry and cure fish in any "of the unsettled bays, harbours, and creeks of the southern "part of the coast of Newfoundland, here above described, "and off 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.

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"And the United States hereby renounce for ever 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 harbours 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 harbours 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 them" (m).

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CXCVI. It appears that these provisions had not been

(m) Annual Reg. vol. xciv. (1852), pp. 295–6.

strictly observed by the subjects of the United States, and that in 1849 complaints were made by the Legislature of Nova Scotia to the British Crown, who took the opinion of the Law officers as to the true construction of the Article. This opinion was, that, "by the terms of the convention, "American citizens were excluded from any right of fishing "within three miles from the coast of British America, and "that the prescribed distance of three miles is to be measured "from the headlands, or extreme points of land, next the

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sea or the coast, or of the entrance of bays or indents of the "coast, and that consequently no right exists on the part of "American citizens to enter the bays of Nova Scotia, there "to take fish, although the fishing, being within the bay,

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may be at a greater distance than three miles from the "shore of the bay, as we are of opinion that the term head"land' (n) is used in the Treaty to express the part of the "land we have before mentioned, including the interior of "the bays and the indents of the coasts" (o).

The neglect of these provisions by the subjects of the United States still continued, and in 1852 British men-of-war were sent to protect the fisheries and seize the boats which violated the Treaty. This act of the British Government created a great excitement in the United States, though it does not appear that the legality of the construction of the Article was impugned; but Mr. Webster insisted on the inconvenience to the subjects of the United States, and on the want of comity shown in its sudden enforcement after many years (p) of an opposite practice (q). A temporary adjustment was effected by a Treaty of June 5, 1854-the

(n) The term “headland," however, does not occur in the Treaty. The Law officers probably gave their opinion on a statement of the Colonists in which the word did occur. My attention was drawn to this strange fact by Mr. Addison Thomas in 1854, after the publication of the first edition of this work.

(0) Annual Reg. vol. xciv. (1852), pp. 296-7. See, too, President Filmore's Annual Message, 299.

(p) Twenty-five it is said by President Fillmore.

(q) Annual Reg. for 1852, vol. xciv. pp. 295–300.

Reciprocity Treaty already mentioned. It gave to citizens of the United States, in addition to their rights under the Treaty of 1818, the right to take fish, except shellfish, "on "the sea coasts and shores, and in the bays, harbours, and "creeks of Canada, New Brunswick, Nova Scotia, and Prince "Edward's Island, and of the several islands thereunto ad"jacent, without being restricted to any distance from the "shore," with permission to land for the purpose of drying nets and curing fish. Corresponding rights were given to British subjects to take sea fish and to land and dry nets on the coast of the United States north of latitude 36 deg. N. The Treaty did not embrace the salmon and shad fisheries, or the fisheries at the mouths of rivers. But we have already observed that the United States, using the power given them by the Treaty, put an end to it in 1865 (r).

One of the provisions of the Treaty of Washington of May 1871 established a tribunal of Arbitrators to award upon the claim of Canada to compensation in respect of her fisheries from the United States (s). The Halifax Fishery Commissioners awarded to Canada as a compensation five and a half millions of dollars. The American Commissioner, however, dissented from the award, and his dissent was the more important, because there was no special provision, as there was with regard to the Geneva arbitration, that the award of the majority should suffice. It was at one time uncertain what the United States would do in consequence of this omission: but in 1878 Congress passed a law providing for the payment of the indemnity.

(r) See Dana's Wheaton, n. 110, p. 206; Lawrence's Wheaton. The Revue des Deux Mondes, tom. xvi., Nov. 1874, contains an able article on Les Pêcheries de Terre Neuve et les Traités.

(8) See Papers relating to the Treaty of Washington, published by the American Government. Washington 1872. 5 vols.

CHAPTER VIII.

PORTIONS OF THE SEA.

CXCVII. THOUGH the open sea be thus incapable of being subject to the rights of property, or jurisdiction, yet reason, practice, and authority have firmly settled that a different rule is applicable to certain portions of the sea (a).

CXCVIII. And first with respect to that portion of the sea which washes the coast of an independent State. Various claims have been made, and various opinions pronounced, at different epochs of history, as to the extent to which territorial property and jurisdiction may be extended. But the rule of law may be now considered as fairly establishednamely, that this absolute property and jurisdiction does not extend, unless by the specific provisions of a Treaty (b) or an unquestioned usage, beyond a marine league (being three miles), or the distance of a cannon-shot, from the shore at low tide:-" quousque e terra imperari potest,"-" quousque "tormenta exploduntur,"-" terræ dominium finitur ubi "finitur armorum vis,"--is the language of Bynkershoek (c). "In the sea, out of the reach of cannon-shot" (says Lord Stowell)," universal use is presumed." This is the limit

(a) Günther, t. ii. s. xxviii. p. 48: "Eigenthum und Herrschaft des Meeres an den Küsten."

Heffters, 1. Buch, s. lxxvi. p. 141: "Schutzrechte über die Küstengewässer."

Ortolan, Dipl. de la Mer, t. i. I. ii. c. viii.: “Mer territoriale.”

Kent's Commentaries, vol. i. s. xxvi. p. 25.

(b) Valin, Ordonnance de la Marine, 1. v. tit. i. p. 687: "De la Liberté

de la Pêche," contains a full dissertation on this subject.

Klüber, s. 130, n. a.

(c) Quæstiones Juris Publici, cap. viii.