Compared with the eighteenth century and the earlier part of the nineteenth, the period which has elapsed since the close of the Napoleonic wars has been singularly free from occurrences raising the question of the extent of the territorial sea in connection with the rights of belligerents and neutrals. There has been no great maritime war in Europe since the enormous advance in the power of artillery rendered the three-mile limit untenable for the security of a neutral state against the operations of belligerents in the sea off its coasts, though some questions involving the inadequacy of that limit came to the front during the civil war in America. The chief questions affecting the boundary of the territorial waters were concerned with sea fisheries, and several conventions were made between European nations in which limits were fixed for exclusive fishing. They originated in the perennial disputes between British and foreign fishermen.

In previous chapters it has been shown that the intermittent efforts of the British Government to establish an exclusive right to the fisheries along the coasts of this country were without definite result, except that it came to be tacitly understood by the Dutch fishermen that they should keep out of sight of the shore. At various times during the eighteenth century complaints were made to the Government of the encroachments of Dutch, French, and Danish fishermen along our coasts and in the Channel, and representations were in several instances made to the foreign Government concerned. An examination of these complaints shows that in many cases the foreigners were alleged to fish 605 within the bays and close to the shore, destroying the spawn and brood of fish. In other cases they were accused of fishing in British waters when they were between three and four, or even between six and seven, miles from the coast,—the real ground of complaint being that they occupied the localities where the fish were most abundant, and where the native fishermen mostly carried on their industry.1124 From causes previously described, the number of Dutch fishermen frequenting the British coasts diminished very much during the eighteenth century, while at the same time French fishermen, and on the coast of Scotland also Danes and Prussians, as well as fishermen from the Austrian Netherlands, came in increasing numbers. During the war with France and Holland the fishermen of these nations were unable to pursue their fishing on the British coasts. But shortly after the restoration of peace they returned, and complaints of their encroachments, especially on the coast of Scotland and the south coast of England, soon became prevalent. In 1819 the Board of British White Herring Fishery received numerous complaints of foreign, and more particularly Dutch, herring-busses shooting their nets too near the coasts, and committing depredations on the lines and nets of the native fishermen. The Board were urged to prevent foreigners from fishing “within a certain distance” of the shore; but they considered they had no power to do so, and forwarded copies of the petitions to the Lords of the Treasury. The clamour continued, and in 1821, and again in 1822, the Board strongly recommended the Government to take action. In the latter year the Government made representations on the subject to the Government of the Netherlands; and as a result a royal decree was issued in 1824 by the King of the Netherlands prohibiting Dutch fishermen from fishing on the main coast of Scotland, or even, in the absence of urgent necessity, from approaching it within a distance of two leagues, twenty making a degree, or twice the limit of three miles.1125 606 In 1827—and thus only twelve years before the Anglo-French convention fixed a three-mile limit—this Dutch ordinance was renewed, and from that time few complaints were made of the encroachments of Dutch herring-busses on the Scottish coast. They continued to conduct their herring fishery, for the most part, at distances ranging from twelve or fourteen to forty or fifty miles, as they still do at the present day.

As the disputes with the Dutch fishermen were thus amicably arranged by the recognition of a six-mile zone of reserved water, similar contentions sprang up, and continued for a long period, with fishermen from France. In 1824, some years after the peace, they began to frequent the coast of Scotland, and they came in great numbers in each succeeding year, fishing at the Shetlands, Orkneys, and along the north and east coasts from Cape Wrath to Berwick, and down the English coast as far as Flamborough Head.1126 Several circumstances connected with the French fishery tended to provoke disputes. While the Dutch fished from their busses at a distance from the coast, where the largest and best herrings were caught, and were forbidden under heavy penalties from buying or selling herrings while at sea, or even from entering any foreign port except by reason of urgent necessity, the French fished, as a rule, near the shore from small boats, which they even hired for the season, not uncommonly from Scotch fishermen. They frequented the Scottish ports; they bought herrings in large quantities surreptitiously from native boats engaged to local fish-curers, for 607 money, brandy, tobacco, biscuits, and other articles; and they were allowed to dry their nets, and even sometimes to salt their herrings, on shore for a small payment.1127 They were thus intimately associated with the native fishermen along the coast, and they carried on their fishery near the shore in the waters which were mostly used by the natives.

In the English Channel disputes between British and French fishermen were still more frequent and acrimonious. British naval supremacy during the long war had given a monopoly of the fisheries to the people of the English coast, but after peace was concluded French fishermen swarmed in the Channel, and began to fish along the English shores. Complaints became rife of the decadence of the English fisheries, owing to the alleged encroachments of the French and a general diminution in the abundance of fish. In 1833 a select Committee of the House of Commons was appointed to inquire into the state of the British Channel fisheries and the laws affecting the fishing trade of England, with a view to their amendment. After taking evidence, the Committee reported that they found those fisheries, and the interests connected with them, to be in a very depressed and declining state; that the decline had begun with the peace in 1815; that the number of fishermen and boats had diminished; and that the fishermen and their families were indigent.1128

The principal causes of the depression were found to be the extensive interference and aggressions of the French fishermen on the coasts of Kent and Sussex, the large quantity of foreign-caught fish illegally imported, and the great decrease and comparative scarcity of fish in the Channel. Large fleets of French fishing vessels from Calais, Boulogne, Dieppe, and other ports were in the habit of fishing along the English coasts, frequently within half a league of the shore, and occasionally nearer, as well as in the bays and shallow waters, “in which,” said the Committee, “it is particularly necessary for the preservation of the brood of fish, that such as frequent those waters during the breeding season should not be disturbed, 608 or their young destroyed before they have attained maturity.” The French fishing vessels were more numerous and larger than the English boats,—between two and three hundred coming from Boulogne alone,—and they had caused great injury to the nets and gear of the English fishermen, especially in the herring and mackerel seasons. At other times of the year it was proved that they were in the habit of coming in great numbers every morning into English bays, and dragging there for bait in the shallow waters close upon the shore, taking and destroying an immense quantity of young and unsizeable fish, at periods when they were prevented by French laws from conducting similar operations in their own bays.1129 These laws, the Committee reported, were understood to be enforced also against English fishermen within three leagues of the coast of France; on approaching nearer they were warned off by French cruisers, and told that they would not be allowed to fish within that distance.

The Committee considered it to be proved that the scarcity of fish in the Channel (with the exception of herrings and mackerel) had been occasioned by the great destruction of the spawn and brood of fish in the shallow waters. They recommended as remedies for the evil “that foreign fishermen should be prevented at all seasons of the year from fishing within one league, or such other distance of the English coast, as by the law or usage of nations is considered to belong exclusively to this country,” and that they should also be required to observe, during the spawning or breeding season of fish, all such laws or regulations as might be imposed upon English fishermen for the better preservation of the spawn and brood of fish in the bays and shallow waters on the coast.1130 In order to accomplish these objects, they 609 recommended that customs and revenue officers and the commanders of cruisers should be instructed to prevent foreign fishermen from fishing “within such prohibited distance of the shore,” to enforce the observance by foreigners as well as by subjects of our fishery laws and regulations, and to protect the English fishermen from aggression at sea.

The Committee had considerable difficulty in arriving at their conclusion respecting the limit which should be fixed for exclusive fishing on the English coast. They were influenced partly by what they understood to be the usage, that the sea for one marine league from the shore was considered to be the territory of the adjoining country, partly by the practice of the Customs’ authorities in connection with the prevention of smuggling, and partly by considerations affecting the preservation of the fry and brood of fish. Under the Customs’ regulations, vessels and boats of certain descriptions, including fishing-boats, required a license, and the Commissioners of Customs had discretionary power1131 to prescribe within what distance of the English coast they might be employed. In some cases fishing-boats were restricted to a distance of four leagues, in other instances they were allowed to fish to within one league of a foreign coast, one league of sea being regarded by the Customs’ authorities as belonging to the territory of the adjacent country. With regard to the right of fishing, however, it was generally understood among the English fishermen that the limit on the French coast reserved for French fishermen was three leagues; and they desired that the same limit should be applied on the English coast. The Committee laid great stress on the fixing of a limit of exclusive fishing in order to preserve the spawn and brood of fish. It was universally believed, and stated by all the witnesses, including Mr James Cornish, an ichthyologist 610 of repute, that the fish spawned in the shallow water near the shore,—an erroneous opinion that has prevailed almost to the present day, but which was shown to be incorrect by the observations made by the Fishery Board for Scotland1132 and others.

It was deemed to be of great importance that the breeding fish, and the eggs which they were supposed to deposit near the shore, should be protected from alleged injurious modes of fishing; and the Committee recommended statutory enactments to establish close-times, and to prohibit the use of trawl or drag nets within a league from the shore or in water less than ten fathoms in depth. They inquired carefully as to the limit which would be sufficient for this purpose. Most of the fishermen were of opinion that the distance of one league would be sufficient to include the “breeding-grounds,” and bring them under the protection of the law; but they held that the distance should be measured not from the shore, following its sinuosities, but from a straight line drawn from one headland to another,—an opinion with which the Committee concurred.

No immediate action was taken by the Government to establish a definite boundary for exclusive fishing, and petitions and memorials continued to pour in from various parts 611 of the coast complaining of the depredations of French fishermen. They were accused of interfering with British fishermen engaged in dredging for oysters fifteen miles from the shores of France; of fishing for herrings and mackerel within less than a mile of the British coasts, compelling the native fishermen to shoot their nets to the seawards of them; of maliciously destroying fishing gear, and of recklessly extirpating the spawn and brood of fish in the shallow waters along the English coast. The Government were urged to give effect to the recommendations of the Committee of 1833, and they were asked by the Commissioners for the Herring Fishery to issue instructions to the naval superintendent in Scotland to prevent the encroachments complained of.1133

From a perusal of these petitions it is evident that much doubt existed at the time, not only in the minds of fishermen but among many in authority, as to what was the precise limit of exclusive fishery that might be claimed or enforced. As a general rule, it was believed to extend much farther than a league from the shore. Many fishermen maintained that the boundary was three leagues, an opinion strongly held in Scotland as late as 1862. The fishermen of Eyemouth, probably influenced by traditions of the extent of the “reserved waters” in earlier times, asked that foreigners should be “kept without the limits prescribed by law, and that limits (sic) be seven leagues,” declaring that they went that distance themselves, and were annoyed and endangered by foreign vessels taking up the ground.

On the part of French fishermen there were also numerous complaints against the English, the most bitter referring to the dredging for oysters off the French coast. In 1837 a mixed commission was appointed by the British and French Governments in connection with these complaints, and especially to ascertain and define the limits within which the subjects of the two countries respectively should be at liberty to fish for oysters between Jersey and the neighbouring 612 coast of France. The opportunity was taken at the same time “to define and regulate the limits within which the general right of fishery on all parts of the coasts of the two countries shall be exclusively reserved to the subjects of Great Britain and of France respectively,” and a convention was concluded at Paris in 1839 defining these rights.1134 By its articles a very considerable stretch of water containing oyster-beds, in the Bay of Granville on the French coast, between Cape Carteret and Point Meinga, south-east of Jersey, and extending far beyond the three-mile limit, was reserved exclusively for French fishermen, the boundaries being minutely defined and laid down on a chart annexed to the convention; and British fishermen were prohibited from carrying on any kind of fishing, even for floating fish, within this area. The bay thus appropriated is over seventeen miles in breadth, and the closing line passes in some places about fourteen miles from the shore.1135 This concession to France was a recognition of the principle that fisheries of this nature—that is, for objects which are attached to or stationary on the bottom—require special treatment.

The article defining the general fishery limit on the coasts of the two countries was as follows:—

“Article IX. The subjects of Her Britannic Majesty shall enjoy the exclusive right of fishery within the distance of three miles from low-water mark, along the whole extent of the coasts of the British Islands; and the subjects of the King of the French shall enjoy the exclusive right of fishery within the distance of three miles from low-water mark, along the whole extent of the coasts of France; it being understood that upon that part of the coast of France which lies between Cape Carteret and Point Meinga, French subjects shall enjoy the exclusive right of all kinds of fishery within 613 614 the limits assigned in Article I. of this Convention, for the French oyster fishery.

Fig. 16.—Showing the Limits reserved for French Fishermen in Granville Bay.

It is equally agreed, that the distance of three miles fixed as the general limit for the exclusive right of fishery 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.”

The next article defined the miles to be geographical miles, of which sixty make a degree of latitude; and it was also provided that with a view to prevent the collisions which from time to time took place “on the seas lying between the coasts of Great Britain and of France,” between the trawlers and the line and long-net fishermen of the two countries, a mixed commission should be appointed to prepare a set of regulations for the guidance of the fishermen in the seas above mentioned. The code of regulations so arranged was confirmed by the respective Governments in June 1843, and was in this country embodied in an Act of Parliament. They embraced a large number of subjects, many of them beyond what was contemplated in the convention. Besides what may be termed police regulations, such as the numbering and lettering of fishing-boats, there were others defining and restricting the fishing apparatus to be employed;1136 and all this machinery of regulation was to be applied to British and French fishermen pursuing their industry in the extra-territorial waters.

This convention was the first to establish by an international agreement the three-mile limit as the boundary of exclusive fishing on the British coasts, so far as French fishermen were concerned. In view of the numerous conflicts and disputes, it was clearly of importance that some limit 615 should be precisely fixed, but the selection of so narrow a strip of the adjacent sea was in some respects unfortunate, and has probably acted injuriously on the interests of the sea fisheries. It was imposed, no doubt, partly because it was the limit already recognised in England and America as bounding the territorial seas for the purposes of neutrality, and because it was deemed sufficient to afford protection to the breeding fishes and fish-spawn, one of the objects the Parliamentary Committee had in view in recommending it.

The disputes between the fishermen of the two nations were not set at rest by the convention. Numerous infringements of the new boundary of exclusive fishing occurred, and the difficulty of causing it to be respected was for many years considerable.1137 As many as twenty-one French vessels were seized and taken into Berwick at one time for transgressing the limit, and the convention was naturally not looked upon with favour in certain French seaports.1138 Nor was it generally regarded among the fishery classes in this country as a triumph of diplomacy. In Scotland it was thought that the British Government had made a very bad bargain in parting with the exclusive right to fish for herrings beyond a limit of only three miles instead of three leagues, the boundary maintained to be the “legal” and just distance, for the sake of obtaining, as it was supposed, some fancied advantage for the English oyster fishermen.1139

The convention, moreover, was binding only on French and British subjects. It left unsettled the limit in relation to other nations, and the inconvenience of this was shown by the action of Belgian fishermen. While the French were excluded from the three-mile zone, the Belgians not only fished within it, but in many cases they anchored their vessels in the Scottish harbours and bays and fished in the neighbouring waters from their small boats. In 1848 the commissioners 616 for the British fisheries brought the question before the Board of Trade, and they were advised to enforce the boundary laid down in the Anglo-French convention with respect to Belgian and all other foreign boats also.1140 Against this procedure strong remonstrances were made by the Belgian fishermen, and these were followed by representations from the Belgian Government. The Fishery Commissioners, who were anxious that the law in regard to foreigners fishing on our coasts should be made clear, continued to press the matter. The Belgian fishermen then produced to the naval superintendent a copy of the charter that had been granted by King Charles II., in 1666, to the citizens of Bruges,1141 under which they claimed equal privileges with British subjects. That charter appears to have been generally regarded as fictitious; but, acting on the advice of the Queen’s Advocate, the Board of Trade directed that for the ensuing season of 1851 Belgians should be allowed to fish on the same system as before, but that afterwards this liberty should cease, except in the case of such as had been able to prove special privileges under the asserted charter in the English courts of law. The dispute was settled by a convention between Great Britain and Belgium in 1852, in which, without mention of any specified limit, it was stipulated that 617 Belgian fishermen should enjoy the same rights of fishing on the coasts of the United Kingdom as the most favoured foreign nation, and, in like manner, that British subjects should enjoy corresponding rights on the coast of Belgium.1142 This convention was more beneficial to Belgium than to us, as the Fishery Commissioners pointed out, owing to the extent of the respective coasts conceded for fishing, but it was thought to be satisfactory, inasmuch as defined rights were substituted for vague and disputed privileges. Nevertheless, as the Belgian Minister remonstrated that sufficient time had not been afforded for trying in the British courts the validity of the charter “alleged” to have been granted to the fishing vessels of Bruges, the vessels of that port were allowed for one season more (namely, 1852) the privilege of using the Scottish harbours for their fishing vessels and of fishing from them with small boats.1143 When the authorities attempted in 1852 to enforce the convention against Belgian vessels other than those of Bruges, by excluding them from our harbours, so much dissatisfaction was caused that the Belgian Minister again appealed to the British Government, and the restriction was relaxed for another year for all Belgian boats, so that the enforcement of the three-mile limit against them did not come into operation till 1853.

The violations of the boundary by French vessels, above referred to, continued for many years, and the disputes were sometimes so frequent and serious as to occasion the employment of seven or eight gunboats on the east coast of Scotland to maintain the law. Yet the three-mile limit, as the Commissioners declared, was but “a slender privilege” to retain for the native fishermen. “The extent of it,” they truly said, “when looked at from the sea appears small indeed, 618 seeming but a narrow slip lying close under the high cliffs of the land, and when it is taken into account that the whole sea outside is free to every comer, whether British or foreign, the slight boundary within shore ought to be strictly kept.” Sometimes, however, the French were accused of infringing the limit from a common misconception on the part of our fishermen that the boundary was the traditional one of three leagues or nine miles, instead of only three miles. Upon explanation, they admitted their misapprehension, “but,” said the Commissioners, “with a significant expression of their wish that it had been leagues instead of miles.”

The French herring vessels swarmed chiefly about Berwick and the coast of Northumberland, and in 1853 a question of the limit at the Farne Isles was raised by the French commodore. He interpreted the words of the convention (which did not specify islands) as meaning that the three miles was to be measured from low-water mark on the mainland, which would have allowed the French to fish close to the islands. The British naval superintendent, on the other hand, held that the limit extended to three miles from low-water mark on the islands as well, but, pending a legal opinion, he released two French vessels he had seized for fishing within that distance from them. The Queen’s Advocate decided in favour of the latter interpretation, and the point does not appear to have been again raised.1144 The infringement of the boundary by the French gradually became less frequent, and in 1867 it was reported that they had begun to fish at a greater distance from the coast than formerly, and even out of sight of land.

At this time it was found to be desirable to conclude another fishery convention with France. Nearly all the elaborate regulations under the convention of 1839 had turned out to be unworkable or were disregarded, and much difference of opinion existed as to what actually were “the seas lying between the British Islands and France” to which they applied.1145 In this second convention, in 1867, the exclusive 619 fishery limits of the two countries were defined as in the convention of 1839, and the boundaries of the large area in the Bay of Granville or Cancale, reserved for French fishermen, were precisely the same as before.1146 The international “extra-territorial” regulations under this convention were much less detailed than in the previous one. Fishing beyond the reserved limits was to be entirely free, with the exception that a close-time for oysters was established for the English Channel. The police regulations were to apply to “the seas surrounding and adjoining Great Britain and Ireland,” and adjoining the Atlantic coast of France, between the frontiers of Belgium and Spain. The conditions under which the fishing-boats of one nation might enter the exclusive fishery limits of the other, such as by stress of weather, were carefully specified; and each boat while there was to hoist a blue flag, and was again to leave as soon as the exceptional circumstances had ceased. The convention was to continue in force for ten years, and afterwards from year to year, terminable on twelve months’ notice. But, although confirmed by an Act of the British Parliament, in 1868,1147 it was not ratified by France, and its provisions never came into practical operation, except with regard to the close-time for oysters, owing to certain objections raised by the French Government.1148 Certain of its provisions, including, 620 amongst others, the article in the convention defining the exclusive fishery limits, were repealed by the Sea Fisheries Act, 1883.1149

Both conventions, as we have seen, dealt with oyster fisheries in a special manner, and on the coast of France a large area, extending much beyond the three-mile limit, was reserved to French fishermen on account of the valuable oyster-grounds it contained. An interesting point was raised by the Irish authorities. It happened that Ireland also possessed productive and extensive oyster-beds on the coast of Wexford, stretching for many miles beyond the exclusive fishery limits laid down in the convention, and the Irish authorities claimed the right of control over the whole of them. They had enforced regulations there before the first convention with France, in 1889, had been entered into, and at that time they protested against its application to Ireland. Accordingly, in the Act of 1843 giving effect to the convention, a clause was inserted empowering the Board of Trade, with the sanction of the Privy Council, to suspend the operation of the convention in Ireland or any part thereof, so long as the fisheries there should be carried on exclusively by British subjects, and also to make bye-laws for enforcing the Act as soon as French boats frequented Irish waters for the purpose of fishing.1150 On the day following the passing of the Act an Order in Council was issued directing “that the said Act and articles of regulation shall be suspended with respect to the fisheries of the whole coasts of Ireland, so long as such fisheries shall be carried on exclusively by the subjects of Her Majesty.”

The matter was again raised in connection with the convention of 1867, and it was associated with a recent act of jurisdiction by the Irish authorities beyond the three-mile limit. Some Welsh boats which had been dredging for oysters on the coast of Wexford, at a distance, it was said, of four or five miles from the shore, were arrested, taken to Wexford, the fishermen fined, and the oysters forfeited. The Board of Trade thereupon asked the Irish Department, with reference to an Act that had been passed in 1842 to regulate the Irish fisheries,1151 to state what were “the limits of the Act to regulate 621 Irish fisheries” in pursuance of the provisions of which they presumed they had acted, and “whether the oysters in question were captured within those limits.” The reply was that the oysters were taken two and a half miles from the shore, but that the most extensive and valuable oyster-beds on the east coast of Ireland lay at a distance of from five to ten miles from and parallel to the shore, and so far as they, or any other beds, were “within the reach of ordinary shore boats, and were habitually frequented by and afforded the means of living to a shore population, the Commissioners conceive they are justly entitled to be considered Irish beds, and to come within their control.”1152

The Irish Members of Parliament strenuously supported this contention, and they succeeded in getting a clause inserted in the Convention Act of 1868 enabling the Irish Commissioners, with the approval of the Queen in Council, to regulate the dredging for oysters on any oyster-beds situated within the distance of twenty miles seawards from a straight line between Lambay Island and Carnsore Point—an area of nearly 1300 square (geographical) miles, outside the three-mile limit, including the Arklow and Wexford banks, and stretching from twelve and a half to nineteen miles beyond the ordinary limit. All such regulations were to “apply equally to all boats and persons on whom they might be binding,” and they were binding “on all British sea-fishing boats, and on any other sea-fishing boats in that behalf specified in the Order, and on the crews of such boats.”1153 By an Order in Council, dated 29th April 1869, regulations were made under this section of the Act appointing a close-time; but no other boats than British boats were therein specified.1154

In the interval between the two conventions with France, referred to above, there were some other treaties that dealt with territorial waters to which allusion may be made. The provisions of the treaty of 1818 with the United States respecting the fishery rights on the coasts of the British dominions in America (see p. 581) had given rise to disputes, and in particular the words “within three marine miles of any of the coasts, 622 bays, creeks, or harbours.” This was interpreted by the British and Colonial Governments as meaning that the boundary of three miles was to be drawn, not everywhere along the coast following all its sinuosities, but, where bays or creeks existed, from a straight line passing from one headland to another across their mouth or entrance—that is, according to the principle now known as the headland doctrine. The United States, on the other hand, generally contended that the words meant that the three-mile limit was to be measured everywhere along the coast from the line of the shore, following it in all its curves and indents, thus eliminating altogether any special treatment for inlets or bays, and dealing with all parts of the coast as if it were an open coast. There is little doubt that the British interpretation was the correct one. This is evident from the previous usage with regard to bays as shown by the rules relating to the King’s Chambers and the practice of the Admiralty Court in England, and the reserved firths in Scotland, and by the claim advanced by the United States with respect to neutral rights in 1806. It is also evident from the language of previous treaties. That of 1686 between France and Great Britain referred to “havens, bays, creeks, roads, shoals, or places”; in that of 1783 between Great Britain and the United States, “coasts, bays, and creeks” are spoken of; and in that between the same Powers in 1794, with respect to neutral rights, it was agreed that ships should not be taken “within cannon-shot of the coast, nor in any of the bays, ports, or rivers of their territories.” It is clear that a distinction was drawn between coasts and bays—a distinction which is now and always has been recognised in international law, which is made in the North Sea and other fishery conventions of recent times, and is claimed by the United States with regard to their own coasts.1155 If no such 623 distinction between coast and bays was meant in the clause of the treaty of 1818, then the words “bays, creeks, and harbours” are without meaning and superfluous, a construction which is contrary to the rule which requires that effect be given to every word in a contract or treaty. That the British construction was correct was virtually admitted by Mr Webster, the American Secretary of State, when he said in a State paper, 6th July 1852, that “it was undoubtedly an oversight in the convention of 1818 to make so large a concession to England, since the United States had usually considered that those vast inlets, or recesses of the ocean, ought to be open to American fishermen as freely as the sea itself, to within three miles of the shore.” He admitted, moreover, that the word bay applied equally to small and large tracts of water situated between capes or headlands.

Fig. 17.—Bay of Fundy. A, United States territory.

In 1824, and again in 1838 and 1839, British cruisers seized American vessels for fishing within the Bay of Fundy, the Bay of Chaleurs, and elsewhere in contravention of the treaty 624 of 1818; and in 1843 the schooner Washington was arrested for fishing in the Bay of Fundy at a distance of ten miles from shore, taken to Yarmouth, Nova Scotia, and sold. In the diplomatic correspondence which followed these seizures, the two Governments took up the position as to the interpretation of the treaty which is referred to above; but eventually, in March 1845, Lord Aberdeen intimated that the British Government, while adhering to their interpretation, would as a matter of courtesy relax the rule with regard to the Bay of Fundy, and allow “the United States fishermen to pursue their avocations in any part of it, provided they should 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.” The Bay of Fundy (fig. 17) is a very large but typically landlocked inlet of the sea, passing between Nova Scotia and New Brunswick for a distance of about 140 miles from its mouth. As with many other bays, there is more than one cape or projection of land that might be taken as its headlands, but one of them is clearly in the United States; and the distance from it to the opposite coast is from forty to fifty-five nautical miles, while the bay itself at sixty or seventy miles from the entrance is over twenty-five miles in width. Chaleur Bay, between New Brunswick and Quebec, is a little over sixteen miles in width and over sixty miles long (fig. 18).

The United States declined to receive the above-mentioned privilege as a favour, and the colonists made a strong representation to London as to the injurious results that would ensue if the proposed policy were adopted; and in 1849 the British law officers of the Crown gave their opinion on the provisions of the treaty, “that the prescribed distance of three miles is to be measured from the headlands or extreme points of land next the sea of the coasts, or of the entrance of the bays, and not from the interior of such bays or inlets of the coast; and consequently that 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, may be at a greater distance than three miles from the shore of the bay.”

In terms of the convention of February 8, 1853, the case of the Washington, above described, came before referees in 625 London, and on their disagreement it was decided by the umpire, Mr Joshua Bates, in favour of the United States. His conclusion was that the Bay of Fundy was not a British bay, nor a bay within the meaning of the word as used in the treaties of 1783 and 1818, but belonged rather to the class which comprised such bays as the Bay of Bengal and the Bay of Biscay, over which no nation can have the right to assume sovereignty. He also pointed out that one of its headlands was in the United States; and he thought that the doctrine of the headlands had “received a proper limit” in the Anglo-French convention of 1839, where a ten-mile base-line was adopted.

Fig. 18.—Bay des Chaleurs.

A few years before this, negotiations had been opened between the Governments with the view of establishing reciprocal free-trade between Canada and the United States, and in June 1854 a treaty was signed at Washington, commonly known as the Reciprocity Treaty, by which certain articles of produce of the British colonies and of the United States were admitted to each country respectively free of duty, and reciprocal rights of fishery were granted. The subjects of either state were to be free to fish along the 626 coasts and in the bays, harbours, and creeks of the other, without any restriction as to distance from the shore, in Canada, New Brunswick, Nova Scotia, and Prince Edward’s Island, and on the eastern coast of the United States north of the 36th degree of north latitude. On each side salmon and shad fisheries, and the fisheries in rivers and the mouths of rivers, were reserved.1156 This treaty was to endure for ten years, and it was terminated by the United States and came to an end on 17th March 1866, when, in consequence, the provisions of the treaty of 1818 again came into force. The British Government, however, being very desirous to prevent, as far as possible, the loss to the citizens of the United States by a sudden withdrawal of the privileges which they had enjoyed for twelve years, decided to allow American fishermen to continue to fish in all provincial waters upon the payment of a small fee.1157 From the neglect of American fishermen to obtain the licenses, the fee for which had been raised from fifty cents to two dollars per ton, the system was discontinued in 1870, and orders were given to British cruisers to exclude American vessels from fishing in territorial waters, and several of them were seized and forfeited. The Canadian Minister of Marine and Fisheries issued instructions, in May 1870, for 627 the same limits as are contained in the Anglo-French convention of 1839 to be put in force against American fishermen; but, on representations from London, these were withdrawn and other instructions issued to the commanders of the cruisers, in which bays of six miles or less in width at the mouth were alone reserved.1158

Further negotiations between the Governments ended in the treaty of Washington in 1871, in which reciprocal rights of fishing were re-established in much the same way as in the treaty of 1854, but the liberty to British subjects to fish on the coast of the United States was restricted to the part north of the 39th degree of north latitude.1159 ............