116 



" Tho limitB within which you will, if necossury, oxerciMj tho jiower to exclmln United States' 

 fiHhuniiuii, nr to iji'taiii Ami'iicaii tinhinj,' vussoIh or bout,", urn for the pruaciit to lio uxcuptiunal. 

 l>itticiillii;K liiivo iiiiMcn In t'orniiM' tinicH with lUMpwt to tlii' (|iu'alion, whetiior thii exclusive limits 

 sliimlil \»- iiinisiircii on lines dnnvn |iiiiiiIloI cvfiywhcic to tin- idiist miil di'scribinn its HinuositieH, or 

 on lini's |iro liii'ci! IVoiii Ik'ikIIiukI lo liniilliinil wv^'''^ ilic i l|tl•llli(■l'^ of liiiys, cn'i'K'x, or liiulioiirH. Hiir 

 Muji^Mtv'.-< tlovrrnniont urn riciirly ol' opinion tlmt, by llii' Convention of IHIH, tlui I'nii.ed Stiiles hiivo 

 renounred the rijjlit ol' tishinf,', not only within three niih's ol' the (loloniiil shoros, Imt within three 

 miles of a line driiwn iicrosH the nioiitli of any llritisli Imy or c reek. It is, liowcvnr, the wish of Her 

 Majesty's (lovernniunt noilhur to eoneedi'., nor for the pro.sent to en force, any rights in this respect 

 wliieh live in tlieir niitnro open to iiny serious i|uesLioii. I'ntil finiher instructed, tlierelbre, you will 

 not interfere willi any Aniericiiii lishernien, luiless found wiliiin thren miles of tla^ slmre, or within 

 ihree miles of a line drawn aeros.s the mouth <if a imy or ere( k, which, thoiujli iii parlH morn than six 

 mile* irii/i\ in /(•.« //inn xii- i/f-ni/ntiiliiciil ./uAs in iriillli al if.-i niiwlli. In the enno of any other hay — on 

 FJiiy des Chnleurs, I'or example- you will not interfere with any United States' lishinp vessel or boat, 

 or any American Haheriuen, uhIviu they are found vtithin three milen of the slwre." 



The true doctrine on the subject is Inid down by the Government of Great 

 Hritain in a " Menioranchim from the Foroigti Oliicc inspecting a Commission to 

 settle the limits of tho right ol' exclusive (isiiet-y on lite coast of British North 

 America." (Sessional Papers 7 to ID, vol. ii., No. 4, 1871.) 



" The riyht of (ireat llrilain lo excludi^ .Aniericun lisiieimen from wnters within three miles of tlio 

 eoaat is unandii^\ious, and, it is liidievi'il, uiiconlesled. llut lliere nppe.ired to \n\ .some doulit what are 

 the wal.i'rs descrilu'd as wilhiii llaee ndles of liays, eiveks, am! li.irlpoins. When a bay is less than .'iix 

 miles broad, its water.^ are within the tiiree miles' limit, and. llierefon\ clearly within tlie meaninf,' of 

 the Treaty ; hut, wImmi il i.s ujure i!i;in that breadlh, llai iiuestion arises wJa'ther it is a bay of Her 

 Hritannic Majesty's dominions. This is a iiucslioii which has to he coiisicleri'd in each |iartieular case 

 with re;^ard to international laws and u.sa^'e. When sucli a hay, ^c, is not a bay of lliv Majesty's 

 dominions, the American lis-hermen will lie entitled to lisli in il.exi'opt within three miles of the 

 'coast;' when it is a hay of Her Maji'sty's dominions, they will not be entitled to (isli within thrtio 

 miles of it — thnt i.s to say, it is ja'csuined, within three miles of a line dmwii from headland to 

 headhiiul." 



The foregoing statement is acce|)tcd as an acciinitc and satisfactory definition 

 of the rights of the two Governments under the provisions of the Convention of 1818. 

 The question is, What are Ixii/.s of Her Majr.itii's doiiiinionn ;•' 



On this !• bject wo will examine the authorities. 



The latest and most authoritative expositions of the law of t^ngland as to what 

 are territorial waters, and as to tlie extent of jurisdiction, for ai.y purposes, beyond 

 low-water mark, will be found in the caseot'tlic " Kniinonia," decided in November, 

 1870, before all the Judges of lingland. Qurvn v. Kphii, L. R., 2 Kxch. Div. G3. 



The opinions of the diU'crcnl Judges are a repertory of nearly all the learning, 

 ancient and modern, Knglish, American, and Continental, which could be collected 

 from treatises and reports. The immediate question did not relate to headlands, 

 but was whether the criminal jurisdiction of England- extended to a crime com- 

 mitted by a foreigner on a foreign vessel, within three miles of the English 

 coast. 



The case is remarkable for the unanimous and emphatic repudiation, by all the 

 Judges, of former English claims of jurisdiction or sovereignty over portions of 

 the sea. All of the opinions should be read and studied by whoever desires to 

 master the subject. 



n 



i, 



A few citations arc subjoined. Sir Robert Phillimore says: — 



"Whatever may have been the claims asserted by nntion.s, in tiine.s past, and perhaps no nation 

 has been more extmvagant than Kn,i;land in this matter, it is at the present time an unquestionable 

 proposition of international jurisprudence, that the hij,'li sea-s are of rij,'ht navigable by the .ships of aU 

 States 



"The (|U(>stion as to dominion over portion.'; of the seas (uiclosed within headlands or contif^iou.s 

 shores, such as the King's Chamliers. is not now under consideratinii. ft is enough to .say that, withiii 

 this term ' territory,' are certainly comprised the jiorls ami iiarbours, and the space between the flux 

 and reflux of tide, or the laml u|i in Ihe I'uvthvsi point at uliich lie tide recedes. 



"With respect to the .second (|uestion, the distance to whiiii the ten-itorial writers extend, it 

 appears, on an e\aminatio!i of the authiaities, liial the dislance has varied (setting a.side even more 

 extravagant claims) from one huiidred to tinee miles, the )i;'e.sent limit 



"The sound conclusions which result from iIk; investigations of tlu> authorities which have been 

 referred to appear to me to bo these : — 



" The consemiis of civilized, inilepeiident States, has recognized a maritime extension of frontier to 



