DESPATCHES, REPORTS, CORRESPONDENCE, ETC. 357 



exclusive jurisdiction over this sheet of water, and the sole right of 

 taking fish within it. 



2. It was contended that, by a fair construction of the treaty of 

 October 20, 1818, between Great Britain and the United States, the 

 United States had renounced the liberty heretofore enjoyed or 

 claimed, to take fish on certain bays, creeks, or harbours, including, as 

 was contended, the Bay of Fundy and other similar waters within 

 certain limits described by the treaty. 



The article containing this renunciation has various other provi- 

 sions, supposed to throw some light on the clause of renunciation 

 referred to. I therefore quote it entire, which is as follows: 



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 inhab- 

 itants of the United States shall have, in common with the subjects of his 

 Britannic Majesty, the liberty to take fish on certain portions of the southern, 

 western, and northern coast of Newfoundland, and also on the coasts, bays, 

 harbors, and creeks from Mount Jolly, on the southern coast of Labrador, to 

 and through the Straits of Belle Isle, and thence northwardly indefinitely along 

 the coast ; and that the 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 har- 

 bors 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 harbors for the purpose of shelter and of re- 

 pairing damages therein, of purchasing wood, and of obtaining water, and for 

 no other purposes 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 to them. 



The first ground that has been taken in the argument of this case is 



that, independent of this treaty, Great Britain had the exclu- 



213 sive jurisdiction over the Bay of Fundy, as part of her own 



dominions, by the law of nations. As this matter, however, is 



settled by the treaty, the position seems to have no bearing on the case, 



except as it may tend to show that the United States would be more 



likely to renounce the right of fishing within limits thus secured to 



Great Britain by the law of nations, than if she had no such claim to 



jurisdiction. 



But on this point we are wholly at issue. The law of nations does 

 not, as I believe, give exclusive jurisdiction over any such large arms 

 of the ocean. 



Eights over the ocean were originally common to all nations, and 

 they can be relinquished only by common consent. For certain pur- 

 poses of protection and proper supervision and collection of revenue 

 the dominion of the land has been extended over small enclosed arms 

 of the ocean, and portions of the open sea immediately contiguous to 

 the shores. But beyond this, unless it has been expressly relinquished 

 by treaty, or other manifest assent, the original right of nations still 

 exists of free navigation of the ocean, and a free right of each nation 

 to avail itself of its common stores of wealth or subsistence (Grotius, 

 Book 2. chap. 2, sect. 3; Vattel, Book 1, chap. 21, sees. 282 and 283.) 



Reference has been made to the Chesapeake and Delaware bays, over 

 which the United States have claimed jurisdiction, as cases militating 

 with this view; but those bays are the natural outlets and enlarge- 

 ment of large rivers, and are shut in by projecting headlands, leaving 



