necessary to prevent their taking, drying, or curing fish therein, or in any other manner whatever abusing the privileges hereby reserved to them."

The question turns, so far as relates to the treaty stipulations on the meaning given to the word "bays" in the treaty of 1783. By that treaty the Americans had no right to dry and cure fish on the shores and bays of Newfoundland, but they had that right on the coasts, bays, harbors and creeks of Nova Scotia; and as they must land to cure fish on the shores, bays, and creeks, they were evidently admitted to the shores of the bays, etc. By the treaty of 1818, the same right is granted to cure fish on the coasts, bays, etc. of Newfoundland, but the Americans relinquished that right, and the right to fish within three miles of the coasts, bays, etc. of Nova Scotia. Taking it for granted that the framers of the treaty intended that the word "bay or bays" should have the same meaning in all cases, and no mention being made of headlands, there appears no doubt that the Washington, in fishing ten miles from the shore, violated no stipulations of the treaty.

It was urged on behalf of the British government, that by coasts, bays, etc., is understood an imaginary line, drawn along the coast from headland to headland, and that the jurisdiction of her Majesty extends three marine miles outside of this line; thus closing all the bays on the coast or shore, and that great body of water called the Bay of Fundy against Americans and others, making the latter a British bay. This doctrine of headlands is new, and has received a proper limit in the convention between France and Great Britain of 2d August, 1839, in which "it is 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 Bay of Fundy is from 65 to 75 miles wide, and 130 to 140 miles long, it has several bays on its coasts; thus the word bay, as applied to this great body of water, has the same meaning as that applied to the Bay of Biscay, the Bay of Bengal, over which no nation can have the right to assume the sovereignty. One of the headlands of the Bay of Fundy is in the United States, and ships bound to Passamaquoddy must sail through a large space of it. The island of Grand Menan (British) and Little Menan (American) are situated nearly on a line from headland to headland. These islands, as represented in all Geographies, are situate in the Atlantic Ocean. The conclusion, is, therefore, in my mind irresistible, that the Bay of Fundy is not a British bay, nor a bay within the meaning of the word, as used in the treaties of 1783 and 1818.

The owners of the Washington, or their legal representatives, are therefore entitled to compensation, and are hereby awarded not the amount of their claim, which is excessive, but the sum of three thousand dollars, due on the 15th January, 1855.

The opinion of the American Commissioner in this case is printed in full in the appendix.a

The Argus case-Decision of Bates, Umpire.

The Umpire appointed agreeably to the provisions of the Convention entered into between Great Britain and the United States on the 8th of February 1853 for the Adjustment of Claims by a Mixed Commission having been duly notified by the Commissioners under the said Convenion that they had been unable to agree upon the decision to be given with reference to the Claim of the Owners of the Schooner "Argus" of portland United States Doughty Master against the British Government; And having carefully examined and considered the papers and Evidence produced on the Hearing of the said Claim and having conferred with the said Commissioners thereon hereby reports that the Schooner "Argus" 55 tons burthen was captured on the 4th August 1844 while Fishing on St. Ann's Bank by the Revenue Cruiser Sylph of Lunenburg Nova Scotia commanded by William Carr-Phillip Dod seizing Master-carried to Sidney where she was stripped and everything belonging to her sold at Auction. At the time of the Capture the "Argus" was stated on Oath to have been 28 Miles from the nearest land Cape Smoke there was therefore in this case no violation of the Treaty of 1818. I therefore Award to the Owners of the Argus or their legal Representatives for the loss of their vessel outfits stores and fish the sum of Two thousand Dollars on the 15th January 1855.

LONDON 23d December 1854.

JOSHUA BATES, Umpire.

PERIOD FROM 1854 TO 1871.

Treaty of June 5, 1854.

The treaty of June 5, 1854, between the United States and Great Britain, commonly called the Reciprocity Treaty, went into operation on September 11, 1854, for a fixed term of ten years from that date and thereafter until the expiration of twelve months after notice given by either party to the other of its wish to terminate. It was terminated on March 11, 1866, by notice from the United States.

So far as it related to the fisheries controversy under the treaty of 1818, its purpose, as recited in the preamble, was to avoid further misunderstandings between the citizens and subjects respectively of the United States and Great Britain in regard to the extent and the right of fishing on the coasts of British North America, secured to each by Article I of the treaty of 1818.

The fisheries provisions of this treaty are printed in full in the Appendix," and the following extract from them will show their rela tion to the fisheries provisions of the treaty of 1818:

It is agreed by the high contracting parties that in addition to the liberty secured to the United States fishermen by the above-mentioned convention of October 20, 1818, of taking, curing and drying fish on certain coasts of the British North American Colonies therein defined, the inhabitants of the United States shall have, in common with the subjects of Her Britannic Majesty, the liberty to take fish of every kind, except shell-fish, on the sea coasts and shores and in the bays, harbors and creeks of Canada, New Brunswick, Nova Scotia, Prince Edward's Island, and of the several islands, thereunto adjacent, without being restricted to any distance from the shore, with permission to land upon the coasts and shores of those colonies, and the islands thereof, and also upon the Magdalen Islands, for the purpose of drying their nets and curing their fish; provided that, in so doing, they do not interfere with the rights of private property, or with British fishermen, in the peaceable use of any part of the said coast in their occupancy for the same purpose.

It is understood that the above-mentioned liberty applies solely to the sea fishery, and that the salmon and shad fisheries, and all fisheries in rivers and the mouths of rivers, are hereby reserved exclusively for British fishermen."

Article II contains reciprocal provisions in similar form, applying to fishing by British subjects on the "eastern sea-coasts and shores of the United States, north of the 36th parallel of north latitude, and on the shores of the several islands thereunto adjacent, and in the bays, harbors, and creeks of the said sea-coast and shores of the United States and of the said islands." c

Article VI provided for the extension of the foregoing provisions to Newfoundland so far as they were applicable.

It will be perceived that in so far as these provisions related to the coasts now under consideration, they left undisturbed the liberties to which the American fishermen were entitled under the treaty of 1818, and in addition extended to them the liberty of access to all the waters and coasts from which they were excluded by that treaty, excepting only the mouths of rivers; these new provisions therefore were superadded to the fisheries provisions of the treaty of 1818.

During the entire period that this treaty was in force, no question of dispute involving the fisheries arose between the United States and Great Britain. Subsequently, in 1880, in a dispute which arose under the treaty of 1871, in connection with the Fortune Bay seizures, a a Appendix, p. 25. b Appendix, p. 26. c

circular letter which Secretary of State Marcy had addressed to the American fishermen in 1856 was cited by Lord Salisbury in support of the British contention as to the effect of the words "in common with British subjects" which are found in all of these treaties. The questions thus presented may more conveniently be considered in connection with the circumstances and conditions surrounding them, which are reviewed later.

The situation following the expiration of the Treaty of 1854.

As the date of the expiration of the treaty of 1854 approached, the desire to avoid a renewal of the difficulties under the treaty of 1818, which had been set at rest by the treaty of 1854, directed the attention of both governments to the advisability of entering into some new arrangement on the subject. The steps which were taken in this direction on the part of Great Britain up to the date of the expiration of the treaty, and the British views of the American position at that time, are of interest and will be found stated at some length in a communication written on March 17, 1866, by Lord Clarendon, Secretary of State for Foreign Affairs, to Sir Frederick Bruce, the British Minister at Washington."

On February 16, 1866, a month prior to the expiration of the treaty, Sir Frederick Bruce wrote to Mr. Seward, the Secretary of State, stating that "Her Majesty's Government would be well content to renew the Treaty in its present form" or to reconsider "and so to modify its terms as to render it, if possible, more beneficial to both countries than it has hitherto been," and he further suggested that if the United States should prefer the latter course, an arrangement of a provisional character might be entered into with a view to affording time for fresh negotiations. The reasons which had induced the United States to terminate the treaty made the suggestion of its renewal unacceptable, and Mr. Seward replied to the British Minister on the day following this proposal "that careful inquiry made during the recess of Congress induced the President to believe that there was then no such harmony of public sentiment in favor of the extension of the treaty as would encourage him in directing negotiations to be opened." On the 10th of April, 1866, however, Mr Seward instructed Mr. Charles Francis Adams, then American Minister at London, to propose to Lord Clarendon an arrangement for the a Appendix, p. 562. Appendix, pp. 560–562.

temporary regulation of the matter in the manner provided in the following draft of a protocol, which he enclosed:

Whereas in the 1st article of the convention between the United States and Great Britain, concluded and signed in London on the 20th of October, 1818, it was declared that "the United States hereby renounce forever 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 harbors of his Britannic Majesty's dominions in America not included within certain limits heretofore mentioned;" and whereas differences have arisen in regard to the extent of the above mentioned renunciation, the government of the United States and her Majesty the Queen of Great Britain, being equally desirous of avoiding further misunderstanding, have agreed to appoint, and do hereby authorize the appointment of a mixed commission for the following purposes, namely:

1. To agree upon and define by a series of lines the limits which shall separate the exclusive from the common right of fishing on the coasts and in the seas adjacent of the British North American colonies, in conformity with the 1st article of the convention of 1818; the said lines to be regularly numbered, duly described, and also clearly marked on charts prepared in duplicate for the purpose.

2. To agree upon and establish such regulations as may be necessary and proper to secure to the fishermen of the United States the privilege of entering bays and harbors for the purpose of shelter and of repairing damages therein, of purchasing wood, and of obtaining water, and to agree upon and establish such restrictions as may be necessary to prevent the abuse of the privilege reserved by said convention to the fishermen of the United States.

3. To agree upon and recommend the penalties to be adjudged, and such proceedings and jurisdiction as may be necessary to secure a speedy trial and judgment with as little expense as possible, for the violators of rights and the transgressors of the limits and restrictions which may be hereby adopted:

Provided, however, that the limits, restrictions and regulations which may be agreed upon by the said commission shall not be final, nor have any effect, until so jointly confirmed and declared by the United States and her Majesty the Queen of Great Britain, either by treaty or by laws, mutually acknowledged and accepted by the President of the United States, by and with the consent of the Senate and by her Majesty the Queen of Great Britain.

Pending a definitive arrangement on the subject, the United States government engages to give all proper orders to officers in its employment, and her Britannic Majesty's government engages to instruct the proper colonial or other British officers to abstain from hostile acts against British and United States fishermen respectively."

Pursuant to Mr. Seward's instructions, Mr. Adams promptly submitted the draft of the proposed protocol to Lord Clarendon, and on May 11, 1866, Lord Clarendon wrote to Sir Frederick Bruce, author