QUESTION FIVE. 113 



In 1854, a new United States Secretary of State (Mr. Dobbin) 

 seems to have reverted to the position assumed by Mr. Stevenson in 

 1841, as to measuring the three miles from the shores of the bays. It 

 does not appear, however, what his position was upon the question of 

 a line between the headlands of the smaller bays. (British Case, 

 App., p. 203.) 



"WASHINGTON" ARBITBATION, 1854. 



Arbitration proceedings between the two countries took place in 

 1854, the legality of the seizure of the " Washington " in the Bay of 

 Fundy being one of the questions involved. A majority of the 

 arbitrators decided in favour of the United States claim. Mr. Up- 

 ham (appointed by the United States) delivered a long opinion, 

 holding that the Bay of Fundy was not a bay within the meaning of 

 the treaty. Mr. Hornby (appointed by the United Kingdom) held 

 otherwise. Mr. Bates (the Umpire) agreed with the United States 

 Arbitrator, saying as follows (British Case, App., p. 217) : 



" It was urged on behalf of the British Government, that by coasts, 

 bays, &c., is understood an imaginary line, drawn along the coast 

 from headland to headland, and that the jurisdiction of her Majesty 

 extends three marine miles outside of this line; thus closing all the 

 bays on the coast or shore, and that great body of water called the 

 Bay of Fundy against Americans and others, making the latter a 

 British bay. This doctrine of the headlands is new, and 

 128 has received a proper limit in the convention between France 

 and Great Britain of 2d August, 1839, in which ' it is agreed 

 that the distance of three miles fixed as the general limit for the ex- 

 clusive right of fishery upon the coasts of the two countries shall, 

 with respect to bays, the mouths of which do not exceed ten miles in 

 width, be measured from a straight line drawn from headland to 

 headland.' 



" The Bay of Fundy is from 65 to 75 miles wide, and 130 to 140 

 miles long; it has several bays on its coast; thus the word bay, as 

 applied to this great body of water, has the same meaning as that 

 applied to the Bay of Biscay, the Bay of Bengal, over which no na- 

 tion can have the right to assume sovereignty. One of the head- 

 lands of the Bay of Fundy is in the United States, and ships bound 

 to Passamaquoddy must sail through a large space of it. The islands 

 of Grand Menan (British) and Little Menan (American) are sit- 

 uated nearly on a line from headland to headland. These islands, as 

 represented in all geographies, are situated in the Atlantic Ocean. 

 The conclusion is, therefore, in my mind irresistible, that the Bay 

 of Fundy, is not a British bay, nor a bay within the meaning of the 

 word, as used in the treaties of 1783 and 1818." 



The doctrine of headlands on which Mr. Bates lays stress was, of 

 course, not new. It is the same question as that of bays, for if bays 

 are territorial waters then there is a right of sovereignty over the 

 whole of them, that is, over all the space within the line drawn from 

 headland to headland. On the question of fact he spoke with greater 



