1102 MISCELLANEOUS. 



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, lays, 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 the American fishermen shall have liberty 

 to dry and cure fish in any of the unsettled lays, 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, lays, creeks, or harbors of His 

 Britannic Majesty's dominions in America, not included within the 

 above mentioned limits; provided, however, that the American fish- 

 ermen shall be admitted to enter such lays or harbors for the purpose 

 of shelter, and of repairing damages therein, of purchasing wood, 

 and of oltaining water, and for no other purpose 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 exclusive 

 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. 



Rights 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 relin- 

 quished 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 sub- 

 sistence. (Grotius, Book 2, ch. 2, sec. 3; Vattel, Book 1, ch. 20, sees. 

 282 and '3.) 



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 

 enlargements of large rivers and are shut in by projecting headlands, 

 leaving the entrance to the bays of such narrow capacity as to admit 

 of their being commanded by forts, and they are wholly different in 

 character from such a mass of the ocean water as the Bay of Fundy. 



There is no principle of the law of nations that countenances the 

 exclusive right of any nation in such an arm of the sea. Claims, in 

 some instances, have been made of such rights, but they have been 

 seldom enforced or acceded to. 



