Several other Masters of American vessels corroborated these statements, but I did not think it necessary to take the particulars." Admiral Seymour adds in his letter enclosing these statements: I am not aware of the lines therein described having been sanctioned by authority. By direction of the Lieutenant Governor of Nova Scotia, the Provincial Secretary wrote on August 26, 1852, to, Captain Laybold and Captain Dodd of the Provincial Revenue cutters Halifax and Responsible, calling their attention to these statements and asking them to furnish without delay "such explanation as will enable the Lieutenant Governor to judge how far the conversations which are made matter of complaint, have been accurately reported," and adding: "In the meantime you will take care to detain no vessel which is not found trespassing within three miles of land." Before this official inquiry had reached Captain Dodd of the Responsible, it appears that the statements referred to had already been called to his attention by the Admiral, and on August 29, 1852, he wrote to the Provincial Secretary denying the responsibility for any of the statements except that reported to have been made by William Page, with respect to which he says: The assertion of William Page, Master of the Schooner Paragon, may be correct, for I did to several American Captains (and he may have been one of them) say, that I should draw a line from the headlands of the Coast and Bays of Cape Breton, and seize all American Vessels found trespassing within three marine miles of such line; and such are my intentions until further orders, as I consider myself bound to do so by my instructions, in which I am referred to the Convention of 1818; and as it would be great presumption in me to attempt to put any construction on that Treaty, I feel myself bound by the opinions of the Queen's Advocate, and Her Majesty's Attorney General, given in 1841; and also by the result of the trial of the American Schooner Argus, which vessel was seized by me within a line drawn from Cow Bay Head to Long Point, near Cape North, Cape Breton, and condemned. The Provincial Secretary's official communication having subsequently reached him, he again wrote on September 1, 1852, receding from his earlier position and stating in submission to his official instructions, that "the orders not to detain vessels unless found trespassing within three miles of land shall be strictly attended to."a The other captain replied on September 1, 1852, denying all responsibility for the statements referred to. a Appendix, p. 1078. c Appendix, p. 1081. No further correspondence seems to have been exchanged with reference to Mr. Webster's misunderstanding of Lord Malmesbury's intentions, but the President in his annual message to Congress, dated December 6, 1852, calls attention to the incident and the situation out of which it arose, and makes the following statement with reference to the settlement of the fisheries question in connection with the pending reciprocity negotiations: These circumstances, and the incidents above alluded to, have led me to think the moment favorable for a reconsideration of the entire subject of the fisheries on the coasts of the British provinces with a view to place them upon a more liberal footing of reciprocal privilege. A willingness to meet us in some arrangement of this kind is understood to exist, on the part of Great Britain, with a desire on her part to include in one comprehensive settlement as well this subject as the commercial intercourse between the United States and the British provinces. I have thought that, whatever arrangements may be made on these two subjects, it is expedient that they should be embraced in separate conventions. The illness and death of the late Secretary of State prevented the commencement of the contemplated negotiation. Pains have been taken to collect the information required for the details of such an arrangement. The subject is attended with considerable difficulty. If it is found practicable to come to an agreement mutually acceptable to the two parties, conventions may be concluded in the course of the present winter. The control of Congress over all the provisions of such an arrangement, affecting the revenue, will of course be reserved." Mr. Webster's interpretation of “bays”. Before passing from the consideration of Mr. Webster's public letter of July 6, 1852, a misapprehension, which has arisen on the part of Great Britain with respect to Mr. Webster's interpretation of the meaning of the word "bays" as used in the treaty, requires correction. This question came up for discussion in the proceedings before the Halifax Commission under the treaty of 1871, and much reliance was placed by Great Britain on the following statement in Mr. Webster's letter as supporting the "headland theory": It would appear that by a strict and rigid construction of this article, fishing vessels of the United States are precluded from entering into the bays or harbors of the British provinces, except for the purposes of shelter, repairing damages, and obtaining wood and water. A bay, as is usually understood, is an arm or recess of the sea, entering from the ocean between capes or headlands; and the term is applied equally to small and large tracts of water thus situated. It is common to speak of Hudson's Bay, or the Bay of Biscay, although they are very large tracts of water. The British authorities insist that England has a right to draw a line from headland to headland, and to capture all American fishermen who may follow their pursuits inside of that line. 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 marine miles of the shore." 66 That this is not a statement of Mr. Webster's opinion of the true intent and meaning of the treaty is evident from his use of the word 'oversight" which is clearly intended to apply to the employment of language inaccurately expressing the understanding of the parties, and in fact at the end of the letter, in a paragraph which is generally suppressed when the paragraph above quoted is made use of, he distinctly states his dissent from the "headland theory" interpretation as follows: Not agreeing that the construction thus put upon the treaty is conformable to the intention of the contracting parties, this information is, however, made public to the end that those concerned in the American fisheries may perceive how the case at present stands and be upon their guard.a Mr. Webster's letter taken as a whole and considered in the light of the surrounding circumstances cannot fairly be understood as expressing an opinion in support of the British contention, and there was certainly no misapprehension on this point on the part of Great Britain at the time the letter was written, for it will be remembered that Lord Malmesbury, in commenting on the publication of the letter, said, in his note of August 10, 1852 to Mr. Crampton, "her Majesty's government must necessarily entertain the sincerest regret that such a publication should have been made" etc." It may be assumed that if Mr. Webster's letter had been regarded as expressing an opinion in support of the British contention, no regret at its publication would have been entertained by the British Government. Furthermore the opinion held by Mr. Webster at that time as to the meaning of the word "bays" as used in the treaty, is set forth with great clearness and force in a memorandum prepared by him in July, 1852, to be sent to Mr. Crampton, but which unfortunately was never sent owing to Mr. Webster's failing health and untimely death before it was completed. This memorandum shows an exhausta Appendix, p. 510. 1234-09-9 b Appendix, p. 519. ive study of the entire history of the fisheries controversy, and in it Mr. Webster reaches the conclusion that the term "bays" as used in the renunciatory clause means the inner bays in distinction from the outer part of the great indentations of the coast." It will be found that Mr. Webster's views are in accord with those of Mr. Rush, one of the American Plenipotentiaries who negotiated the treaty, as will appear from an examination of several statements published by Mr. Rush on the subject, one of which was written on July 18, 1853, to Mr. Marcy, then Secretary of State, in response to a request for his views on the subject, and in this he says, referring to the treaty of 1818— In signing it, we believed that we retained the right of fishing in the sea, whether called a bay, gulf, or by whatever other term designated, that washed any part of the coast of the British North American Provinces, with the simple exception that we did not come within a marine league of the shore. We had this right by the law of nations. Its confirmation was in the treaty of :83. We retained it undiminished, unless we gave it up by the first article of the convention of 1818. This we did not do. The article warrants no such construction." Mr. Rush's statements on this subject, coming as they do from the highest possible authority upon the true intent and meaning of the renunciatory clause as understood at the time the treaty was made, are entitled to careful consideration and are printed in full in the Appendix to this Case. The decision of the Claims Commission of 1853 in the Washington and Argus cases. Under the Claims Convention of February 8, 1853, between the United States and Great Britain, claims for damages for the seizures of the Washington and the Argus were submitted for decision to the Joint Commission established by that convention for the settlement of claims, and on the disagreement of the commissioners both of these cases were decided in favor of the claimant by the umpire, Mr. Joshua Bates, who sustained in all respects the contentions of the United States as to the true intent and meaning of the word "bays" as used in the treaty of 1818. The full text of these decisions is given below: a Appendix, pp. 524-533. b Appendix, p. 554. c The Washington case-Decision of Bates, Umpire. The schooner Washington was seized by the revenue schooner Julia, Captain Darby, while fishing in the Bay of Fundy, ten miles from the shore, on the 10th of May, 1843, on the charge of violating the treaty of 1818. She was carried to Yarmouth, Nova Scotia, and there decreed to be forfeited to the crown by the judge of the vice admiralty court, and with her stores ordered to be sold. The owners of the Washington claim for the value of the vessel and appurtenances, outfits and damages, $2,483, and for eleven years interest $1,638, amounted together to $4,121. By the recent reciprocity treaty, happily concluded between the United States and Great Britain, there seems no chance for any future disputes in regard to the fisheries. It is to be regretted, that in that treaty, provision was not made for settling a few small claims of no importance in a pecuniary sense, which were then existing, but as they have not been settled, they are now brought before this commission. The Washington fishing schooner was seized, as before stated, in the Bay of Fundy, ten miles from the shore, off Annapolis, Nova Scotia. It will be seen by the treaty of 1783, between Great Britain and the United States, that the citizens of the latter, in common with the subjects of the former, enjoyed the right to take and cure fish on the shores of all parts of Her Majesty's dominions in America, used by British fishermen; but not to dry fish on the island of Newfoundland, which latter privilege was confined to the shores of Nova Scotia in the following words: "And American fishermen shall have liberty to dry and cure fish on any of the unsettled bays, harbors and creeks of Nova Scotia, but as soon as said shores shall become settled, it shall not be lawful to dry or cure fish at such settlement, without a previous agreement for that purpose with the inhabitants, proprietors, or possessors of the ground." The treaty of 1818 contains the following stipulations in relation to the fishery: "Whereas, differences have arisen respecting the liberty claimed by the United States to take, dry, and cure fish on certain coasts, bays, harbors, and creeks of his Britannic Majesty's dominions in America, it is agreed that the inhabitants of the United States shall have, in common with the subjects of his Britannic Majesty, the liberty to fish on certain portions of the southern, western, and northern coast of Newfoundland; and, also, on the coasts, bays, harbors, and creeks, from Mount Joly, on the southern coast of Labrador, to and through the straits of Belle Isle; and thence northwardly indefinitely along the coast, and that American fishermen shall have liberty to dry and cure fish in any of the unsettled bays, harbors, and creeks of said described coasts, until the same become settled, and the United States renounce the 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 in 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 |