718 APPENDIX TO BBITISH CASE. 



The " memorandum " prepared by the Department of State for 

 the information of the commissioners who, on the part of the United 

 States, assisted in negotiating the treaty of Washington of 1871, 

 contained suggestions for adjustment in the following language: 



(1) By agreeing upon the terms upon which the whole of the reserved fish- 

 ing-grounds may be thrown open to American fishermen, which might be ac- 

 companied with a repeal of the obnoxious laws and the abrogation of the dis- 

 puted reservation as to ports, harbors, etc. ; or, failing that, 



(2) By agreeing upon the construction of the disputed renunciation, upon 

 the principles upon which a line should be run by a joint commission to ex- 

 hibit the territory from which the American fisherman are to be excluded, 

 and by repealing the obnoxious laws, and agreeing upon the measures to be 

 taken for enforcing the colonial rights, the penalties to be inflicted for a for- 

 feiture of the same, and a mixed tribunal to enforce the same. It may also 

 'be well to consider whether it should be further agreed that the fish taken 



in the waters open to both nations shall be admitted free of duty into the 

 United States and the British North American colonies. 



It will be observed that the suggestions of Mr. Seward were sub- 

 stantially repeated in the instructions of A. D. 1871, and were also 

 embraced almost in terms in the proposals accompanying the dis- 

 patch of Mr. Bayard to Mr. Phelps of November 15, 1886; and the 

 treaty just negotiated, it is believed, accomplishes all which was con- 

 templated by them. 



The words of delimitation of the convention of 1818 are as fol- 

 lows : " On or within 3 marine miles of any of the coasts, bays, creeks, 

 or harbors of His Britannic Majesty's dominions in America." 

 The prohibition of 1818 covered in terms not only the coasts, but also 

 the bays of the British dominion ; so that a fair construction of the 

 language could not be met by running a line which at all points 

 followed the windings of the shore. Such was apparently the theory 

 of Edward Bates, the umpire, in his opinion given in the case of the 

 "Washington, decided under the convention of 1853, wherein he used 

 the following language : " The conclusion is therefore irresistible 

 that the Bay of Fundy is not a British bay within the meaning of 

 the word as used in the treaties of 1783 and 1818." So also Mr. 

 Everett in his note of May 25, A. D. 1844, said " The vessels of the 

 United States have a general right to approach all the bays in Her 

 Majesty's colonial dominions within any distance not less than 3 

 miles." It is not, however, to be understood by this suggestion that 

 the "headland" theory is at all accepted. That assumed to run a 

 line shutting in all sinuosities of the coast, without considering 

 whether or not particular headlands marked jurisdictional bays, or, 

 in other words, bays which were properly parts of the British 

 dominions, and it is now approved. 



That there may be no misunderstanding, let us follow this dis- 

 tinction a little further. The Washington was seized in the Bay 

 of Fundy in A. D. 1843, and that raised a question of the "bays," 

 that is, whether the whole of Fundy was a part of the British do- 

 minions. The Argus was seized at nearly the same time in the great 

 bend of Cape Breton. As the affidavits on file at Halifax show, she 

 was captured less than 2 miles within a line from Cape North to 

 Cow Bay; and that capture marked the "headland" disputes. 



The opinion of the law officers of the Crown of 1841, in answer to 

 the second and third queries, said, erroneously, of course : " The 

 term ' headland ' is used in the treaty to express the part of land we 

 have before mentioned, including the interior of the bays and the 



