Appendix to the Memorial. 181 



rock above named brought her within three miles of the shore and 

 so within the prohibition of the treaty of 1818; 



That she was not fishing unless the taking fish so enclosed 

 from the nets be fishing; 



That she only got within the territory claimed by the 

 Canadian Government to be within the three-mile limit by drifting 

 therein involuntarily after the fish were enclosed in her nets. 



Now on these points it is insisted with great confidence : 



First. The vessel was never within the three-mile limit until 

 the time of its capture. The government of the United States 

 has never submitted to the British headland theory. On the con- 

 trary, that question having been submitted to arbitration by the 

 two governments has been decided in favor of the United States. 



Next. The vessel was never within the three-mile limit in 

 accordance with any reasonable application of the headland theory, 

 because the barren rock above mentioned is not a headland within 

 any reasonable claim. 



Next. A foreign vessel drifting involuntarily from the high 

 seas into the territory or even into the port of any nation does 

 not thereby become subject to its jurisdiction. 



Next. The acts complained of are not fishing within the 

 sense of the treaty, as seems reasonably established by the dis- 

 senting opinions of two of the five Canadian judges, one of whom 

 was the Chief Justice. 



Next. If in any case it would be the duty of an American 

 given under such circumstances to exhaust his remedy in the judicial 

 tribunals of the country seizing the vessel before resorting to 

 diplomacy for a remedy, there can be no such obligation in the 

 present case. 



1. The question what is fishing as prohibited by the treaty 

 cannot be interpreted by one party to the treaty without the 

 assent of the other. 



2. The validity of the capture of an American vessel on the 

 high seas cannot be determined by the captor either through his 

 courts or any other authority. 



3. The question of the limits of the high seas or the limits 

 of the three-mile line cannot be decided by one of llic parties to 

 the treaty as against the other. 



