QUESTION FIVE. 87 



ships should insist on foreign ships striking their top-sails, and tak- 

 ing in their flags, in acknowledgment of His Majesty's sovereignty 

 in his seas, which extended to Cape Finisterre. In 1818, claims to 

 British sovereignty over St. George's Channel and the King's Cham- 

 bers, which include the waters within lines drawn from headland to 

 headland as from Orfordness to the Foreland and from Beachy 

 Head to Dunnose Point, were admitted without dispute. De Mar- 

 tens states that nobody in his time (1821) contested the exclusive 

 right of Great Britain over St. George's Channel. It was insisted to 

 the full in 1818, and was admitted by Chancellor Kent to be a proper 

 claim. 



By the common law of England, all enclosed waters are within the 

 realm. Thus the Bristol Channel was decided by the Court of 

 Queen's Bench in 1859 to be within the counties which bound it. 

 (Ilex v. Cunningham, Bell's Crown Cases, p. 72.) This case 

 D9 is the leading English authority on the point, and it was ac- 

 cepted as good law by the Privy Council in 1877. The Court 

 stated in their judgment, which was delivered by Chief Justice 

 Cockburn, that they proceeded on the principle that the whole of 

 this inland sea between the counties of Somerset and Glamorgan is 

 to be considered as within the counties, by the shores of which its 

 several parts are respectively bounded. 



It is clear, therefore, that by the common law of England, enclosed 

 waters on the coasts of the British dominions are within the sov- 

 ereignty of the British Crown. 



Turning to the particular shores now in question, it may be con- 

 venient to cite from the argument of Mr. Dwight Foster, in the 

 Halifax Arbitration, the following passage, showing his views as to 

 the wide extent of the claim made by Great Britain at the time of the 

 treaty. Speaking as counsel for the United States, he said as fol- 

 lows (British Counter-Case, App., p. 183) : 



"Early in the diplomatic history of this case we find that the 

 Treaty of Paris in 1763 excluded French fishermen three leagues 

 from the coast belonging to Great Britain in the Gulf of St. Law- 

 rence and fifteen leagues from the island of Cape Breton. We find 

 that the treaty with Spain in the same year contained a relinquish- 

 ment of all Spanish fishing rights in the neighborhood of Newfound- 

 land. The Crown of Spain expressly desisted from all pretensions 

 to the right of fishing in the neighborhood of Newfoundland. Those 

 are the two treaties of 1763 the Treaty of Paris with France and 

 the treaty with Spain. Obviously, at that time, Great Britain 

 claimed for herself exclusive sovereignty over the whole Gulf of St. 

 Lawrence and over a large part of the adjacent seas. By the Treaty 

 of Versailles, in 1783, substantially the same provisions of exclu- 

 sion were made with reference to the French fishermen. Now, in 

 that broad claim of jurisdiction over the adjacent seas, and the right 

 asserted and maintained to have British subjects fish there exclu- 

 sively, the fishermen of New England, as British subjects, shared. 



