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maritime territory of a State extends solely to the distance of three marine miles seawards from its coasts. W) Some difficulty, however, still exists on the subject, owing to the different modes by which States establish the line of their sea coasts. It is admitted by all that the actual line of the shore, with its indentations, bays, and promontories, cannot be followed without producing the greatest confusion and doubt as to the limits of the maritime territory of each State, and consequently straight lines running from headland to headland of bays, not exceeding six miles in width, are taken as the actual line of coast, from which the three marine miles of marine territory of the State to which the headlands belong are to be measured. (5> If a buy exceed six miles at its entrance, with islets belonging to the State that owns the shore of the bay, either outside or inside, at a distance of six marine miles or less from the headlands and from each other, the bay is the property of the State to which the headlands and the islets belong, and the boundary landwards of its maritime territory, is the line drawn from headland to headland, resting on the different islets, which give the greatest distance seawards, within six miles of each other, or of one of the headlands, the said line lying perfectly straight between each pair of its resting places, and being also straight between each headland and its nearest resting place. <s> Thus an island or islet lying off the coast of a State at a distance of six miles or less, is considered as part of the land territory of that State, and if aEother island lies at a distance of six miles or less from the first, seawards, or in the entrance of a large bay, such second island also forms part of the land territory of that State, and such is the rule, no matter what may be the number of links in the chain of islands, so long as each inland lies within six miles of the coast, or of the neighbouring islands in the chain.
The exclusive right of fishing within maritime territory belongs to the State. No person has any right, according to the prin
(1) 1. Hautefeuillo tit. 1, c. 3, § I. p. 92. Lawrence's Wheaton, pt. 2. c. 4, § 6. Martens Precis b. 4, c. 4, ji 4 and 10, (three leagues according to him.) Heffter § 75. 1 Twigs j! 172. 1 Azuni pt. 1, c. 2, J 15. Klubcr § 120. Vttttel § 289. 1 Phil. § 19.
0) 1 Haute:fVuille supra. 1 Ortolan 158. 1 Azuni Part 1, c. 2, 117. Lawrence's Wheaton supra. Vattel j! 291. 1 Phillimorc J 199. Abdy's Kent, p. 116.
(0 The Anna, 5 Bob. 385. 1 Ortolan p. 145.
ciples of International Law, to fish within the maritime territory of any country or State, but that of which he is a subject/7) Such right to fish within three miles then of the coast of one State by the subjects of another, must be founded upon the provisions of some treaty between such States in force at the time of such fishing. Consequently it must be regarded as clear law, that American subjects have no right to fish within the maritime territory of the British North American Colonies, other than that conferred upon them either by the Treaty of 1783 or the Convention of 1818.
It becomes necessary, owing to the peculiar ideas entertained in the United States upon this question, to consider, in the first place, whether that portion of the Treaty of 1783 having reference to the fisheries, was put an end to by the breaking out of the War of 1812 between Great Britain and the United States.
In the month of April, 1866, Mr. Raymond, in the United States House of Representatives, introduced a report and resolution relative to a proposition made some days previously to send armed vessels to the fishing grounds, adjacent to the British Provinces, for the protection of American fishermen. In the course of bis remarks he made use of the following expressions: "It will become a question under what treaty we are now to enjoy the right of fishing on these coasts. The British claim, that by the Treaty of 1814, the preceding Treaty of 1783 was annulled. I do not think that claim c:m be maintained, but if it should be maintained, it seems to be equally clear that the Treaty of 1818 must have been annulled by the Treaty of 1854. We are, therefore thrown back either upon the original admission of 1783, or if that was annulled by the Treaty of 1814, then we are thrown back upon the rights which we enjoyed previous to that time."
It is hardly possible to suppose that any man occupying the position of a member of the Committee on Foreign affairs of the United States House of Representatives, could make such a public exhibition of his ignorance of the elements of International Law as is apparent to every one in the foregoing extract from Mr. Raymond's speech. The first blunder apparent is. that he wishes to fasten upon the British Government the reproach of pretending
<7) 1 Ortolan p. 161. 1 Cussy b. 1, t. 2, \ 52, p. 129. 1 Rayneval Institutions b. 2, c. x. § 12. 1 Cauehy. p. 39. 1 Phillimore § 188. Lawrence's Wheaton pt. 2, c. 4 \ 8. Petrushevecz, art. 6.
that the Treaty of 1783 was annulled by that of 1814. Such an untenable pretension was never in fact advanced by that Government, for the Law Officers of the Crown always enunciated the opinion, that the Treaty of 1783 had been annulled by the breaking out of the War of 1812, and that opinion was based upon a recognized principle of International Law, viz., that all treaties (save and except, perhaps, those made to govern their conduct during war, or expressly made perpetual), concluded between two States, expire on the breaking out of hostilities between them.W
This principle, as applicable to the Treaty of 1783, is expressly recognized by a recent American authority.CJ>
Mr. Raymond then proceeds to argue, that if the Treaty of 1814 had the effect of annulling that of 1783, the Convention of 1818 was annulled by the Treaty of 1854. The error committed by him in the first instance of confounding the effect of the War of 1812 with that of the Treaty of 1814, here leads him into the greater absurdity of stating that the Treaty of 1854, by which Great Britain conferred on American subjects great privileges in addition to those enjoyed by them under the provisions of the Convention of 1818, had the effect of annulling that Convention, and then he caps the climax by saying that by the expiration of the Treaty of 1854, the Americans are thrown back upon that of 1783, if not annulled by that of 1818, and if annulled, upon the rights they enjoyed previous to 1783. Now it must be remarked that in the Reciprocity Treaty great care was taken not to interfere with the provisions of the Convention of 1818, so far as the rights of the Americans were concerned, the only portion of the Convention which was temporarily suspended, was that in which they renounced forever the right of inshore fishing off certain portions of the coast of British North American Colonies. The Convention itself was in its nature perpetual. It set at rest, for ever, the rights of the two contracting States. The Reciprocity Treaty merely gave the Americans during its continuance the privilege of fishing where, by the Convention of 1818, they had expressly forever renounced the right to fish. Such privilege or permission was based upon such provision in the treaty; it lasted so long as that treaty lasted, and no longer; and when the treaty
expired, the privilege became extinct, and the rights of the parties are those admitted and granted by the Convention of 1818. It is unnecessary to enter into the question of the rights of the Americans to fish within the limits of the maritime territory of the British American Provinces previous to the American Revolution, for up to that timo the rights they so enjoyed were based solely on the fact of their being British subjects. Having, by their successful rebellion, thrown off allegiance to the British Crown, they lost the character of British subjects, and consequently the basis of their fishing rights having been destroyed by themselves, their previous right of fishing in the maritime territory of the British dominions terminated.(If) Moreover, as already mentioned, the Convention of 1818 was in its nature a settlement of the conflicting claims of the Governments of Great Britain and the United States.
The Convention of 1818, therefore, must be taken as the deed of compromise, by which alone the rights and privileges of American subjects to fish within the maritime territory of the British North American Provinces are to be measured and ascertained.
Under that Convention, American fishermen have no right to fish within three marine miles of any of the coasts, bays, creeks, or harbours of Canada, on the whole of the south shore of the River and Gulf of St. Lawrence, nor further to the west, on the north shore, than Mount Joly, the exclusive rights of the Hudson's Bay Company to the eastward and northward of that point being reserved. They have the right to fish on the shores of the Magdalen Islands, and also to dry and cure their fish on the now unsettled portion of the coast of Labrador, and by agreement with the inhabitants, proprietors, or possessors of the ground, on any settled part of that coast. They have, moreover, the right of entering all bays and harbours of the Provinces for the purpose of shelter, of repairing damages therein, of purchasing wood, and of obtaining water.
With respect to Nova Scotia, New Brunswick, and Prince Edward Island, American fishermen have no right to fish within three marine miles of any of the coasts, bays, harbours, or creeks of those Provinces, nor have they a right to dry or cure fish on any portion or portions of their coasts.
They have no right to fish within three marine miles of the
(10) Phil. § 393-G.
coast of Newfoundland, save from Cape Ray to the Rameati Islands on the southern, and from Cape Ray to the Quirpon Islands on the western and northern coast, and they have the same rights and privileges of drying and curing fish on the southern coast of the island, between Cape Ray and the Rameau Islands, as they have on the coast of Labrador to the east of Mount Joly.
But though the intention of the governments contracting was to avoid (he possibility of any difficulty arising on the subject of the rights of citizens of the United States to carry on fishing operations within the maritime territory of the British Provinces, yet barely five years had elapsed from the making of the Convention of 1818, when discussions took place as to the meaning of the word bays, therein made use of. The Americans contended that the signification attached to the word by the greater number of the States of the civilized world, should be accepted as defining the bays included in the renunciatory clause; whilst,on the other hand, the British insisted that having from time immemorial claimed and possessed sovereign power over all bays on the coasts of the dominions of the Crown in all parts of the world, and the Government of the United States having also claimed and exercised such sovereign power over all the bays on the coasts of the United States, the extended meaning attached generally by the two governments to the word "bay " should be held to be the one intended in the Convention to apply to that word when used therein.
As already mentioned, the principle of International Law relied upon by the American Government, as to the measurement of the maritime territory seawards of a State, is pretty generally recognized, and if it be not clearly shown that both Great Britain and the United States have refused to admit that principle, and have in fact recognized another by which bays of a greater width than six miles from headland to headland are looked upon as included within the line of coast from which the maritime territory of the State to which the headlands belong is to be measured seawards, but little difficulty should be experienced in deciding against the pretensions of Great Britain. If, on the other hand, the United States, and Great Britain, up to the date of the Convention of 1818, had attached such wider meaning to the word "bay," the American claim must be pronounced unfounded.
A treaty, or convention between States, is but a contract subject to the rules of interpretation applicable to contracts between