Part II. ship's clearance, which the master must produce, or be liable to a penalty of 5001. (c). The right of fishing in the waters adjacent to the coasts of any nation, within its territorial limits, belongs exclusively to the subjects of the State. The exercise of this right, between France and Great Britain, was regulated by a convention concluded between these two powers, in 1839; by the 9th article of which it is provided, that French subjects shall enjoy the exclusive right of fishing along the whole extent of the coasts of France, within the distance of three geographical miles from the shore, at low-water mark, and that British subjects shall enjoy the same exclusive right along the whole extent of the coasts of the British Islands, within the same distance; it being understood, that upon that part of the coasts of France lying between Cape Carteret and the point of Monga, the exclusive right of French subjects shall only extend to the fishery within the limits mentioned in the first article of the Convention; it being also understood, that the distance of three miles, limiting the exclusive right of fishing upon the coasts of the two countries, shall be measured, in respect to bays of which the opening shall not exceed ten miles, by a straight line drawn from one cape to the other (d). By the 1st article of the Convention of 1818, between the United States and Great Britain, reciting that "whereas differences have arisen respecting the liberty claimed by the United States, for the inhabitants thereof to take, dry, and cure fish, on certain coasts, bays, harbours, and creeks, of his Britannic Majesty's dominions in America," it was agreed between the contracting parties, "that the inhabitants of the said United States shall have, forever, in common with the subjects of his Britannic Majesty, the liberty to take fish of every kind on that part of the southern coast of (c) The Customs Consolidation Act, 1876 (39 & 40 Vict. c. 36), s. 134. As to what is a clearance, see Parl. Papers, 1873, N. America (No. 2), p. 113. Newfoundland, which extends from Cape Ray to the Chap. IV. Rameau Islands, on the western and northern coast of Newfoundland, from the said Cape Ray to the Quirpon Islands; on the shores of the Magdalen Islands; and also on the coasts, bays, harbours, and creeks, from Mount Joly, on the southern coast of Labrador, to and through the Straits of Belleisle, and thence northwardly indefinitely along the coast; without prejudice, however, to any of the exclusive rights of the Hudson Bay Company. And that the American fishermen shall also have liberty, forever, to dry and cure fish in any of the unsettled bays, harbours, and creeks, of the southern part of the coast of Newfoundland, here above described, and of the coast of Labrador; but so soon as the same, or any portion thereof, shall be settled, it shall not be lawful for the said fishermen to dry or cure fish at such portion so settled, without previous agreement for such purpose with the inhabitants, proprietors, or possessors of the ground. And the United States hereby renounce forever any 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, bays, creeks, or harbours, of his Britannic Majesty's dominions in America, not included within the above-mentioned limits. Provided, however, that the American fishermen shall be admitted to enter such bays or harbours, for the purpose of shelter, and of repairing damages therein, of purchasing wood, and of obtaining 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 (e). $180a. 1854. Another treaty was negotiated in 1854 on the basis of reciprocity, Treaty of that is, the subjects of each State were permitted to fish in the waters of the other, and the produce was admitted into both countries free of duty. This treaty came to an end in 1866, through notice of terminat (e) Elliot's Diplomatic Code, vol. i. p. 281. Part II. Treaty of 1871. ing it being given by the United States; and the question was for a time regulated by the Treaty of Washington. By Art. XVIII. of the latter convention, the inhabitants of the United States had, in addition to their rights under the treaty of 1818, in common with British subjects, for the term of ten years from the date when the treaty came into force, and further, until after two years' notice of terminating the treaty should be given by either party, the liberty to take fish of every kind, except shell-fish, on the sea-coasts and shores, and in the bays, harbours, and creeks of the Provinces of Quebec, Nova Scotia, and New Brunswick, and the Colony of Prince Edward's Island, and of the several Islands thereunto adjacent, without being restricted to any distance from the shore; with permission to land upon the said coasts and shores and islands, and also upon the Magdalen Islands, for the purpose of drying their nets and curing their fish. This only applied to sea-fishing; salmon and other river-fishing being reserved exclusively for British fishermen. Art. XIX. gave to British subjects corresponding rights, on the same terms, on the eastern sea-coasts and shores of the United States north of the 39th parallel of N. lat. As long as the treaty was in force, fish-oil and fish of all kinds (except fish of the inland lakes, and of the rivers falling into them, and except fish preserved in oil), being the produce of Canadian or United States fisheries, were to be admitted into each country, respectively, free of duty (f). It being asserted that this treaty gave a greater advantage to American than to British subjects, a Commission was appointed to settle what compensation, if any, should be paid by the United States to England; and on the 23rd of November, 1877, the Commission, which met at Halifax, awarded that the sum of 5,500,000 dollars in gold be so paid. Some difficulties were raised by the United States as to complying with the award; but the money was ultimately paid (g). The later abrogation by the United States of the fishery articles of the Treaty of Washington (h), subjected the relations between the two countries to the stipulation of the Convention of 1818. The provisions of this Convention relating to the right of exclusion were construed very strictly by the Canadian Government; and friction arising between the Dominion, Great Britain, and the United States, commissioners were appointed by the respective governments with a view to Draft Treaty, arriving at an amicable settlement (i). On 15th February, 1888, a provisional treaty was signed at Washington. By this treaty it was provided that Great Britain and the United States should appoint a mixed commission to delimit, as in the now stating treaty specified, the waters of Canada and Newfoundland as to which the United States, by the Treaty of 1818, had renounced all liberty to take, cure, 1888. (f) The Treaty of Washington, 1871, 1878, Supplement. (h) Wharton, Dig. p. 64. (i) Mr. Chamberlain to Lord Salisbury, "Times," 3rd March, 1888. or dry fish. The three marine miles mentioned in the 1818 Conven- Chap. IV. tion were to be measured seaward from low-water mark; but in every bay, creek, or harbour, not otherwise specially provided for, such miles were to be measured seaward from a straight line drawn across such waters in the part nearest the entrance at the first point where the width does not exceed ten miles. There were other provisions similar in principle to those contained in the Treaty of 1871. The plenipotentiaries exchanged protocols establishing a modus vivendi for two years (k). On 21st August, 1888, the United States Senate, by the Republican majority, refused to ratify the treaty (1). Besides those bays, gulfs, straits, mouths of rivers, and estuaries which are enclosed by capes and headlands belonging to the territory of the State, a jurisdiction and right of property over certain other portions of the sea have been claimed by different nations, on the ground of immemorial use. Such, for example, was the sovereignty formerly claimed by the Republic of Venice over the Adriatic. The maritime supremacy claimed by Great Britain over what are called the Narrow Seas has generally been asserted merely by requiring certain honours to the British flag in those seas, which have been rendered or refused by other nations, according to circumstances, but the claim itself has never been sanctioned by general acquiescence (m). Straits are passages communicating from one sea to another. If the navigation of the two seas thus connected is free, the navigation of the channel by which 66 (k) Mr. Chamberlain to Lord Salisbury, Times," 22nd Feb. 1888; Ibid. 17th Feb. 1888; Annual Register, 1888. (7) Annual Register, 1888, p. 406. There is a long standing dispute with France with respect to fishing rights, and incidental matters on the Newfoundland shore, relating to the interpretation to be placed on Article 13 of the Treaty of Utrecht of 1713, and on the arrangements made at Versailles in 1783. A summary of it is given in Lord Derby's despatch of 12th June, 1884, to the Governor of Newfoundland, which was laid before Parliament in January, 1886, together with an arrangement signed at Paris in April (m) Vattel, Droit des Gens, liv. i. ch. 23, § 289. Martens, Précis du Droit des Gens Moderne de l'Europe, liv. ii. ch. 1, § 42. Edinburgh Review, vol. xi. art. 1, pp. 17-19. Wheaton's Hist. Law of Nations, pp. 154-157. Klüber, $132. Part II. they are connected ought also to be free. Even if such strait be bounded on both sides by the territory of the same sovereign, and is at the same time so narrow as to be commanded by cannon shot from both shores, the exclusive territorial jurisdiction of that sovereign over such strait is controlled by the right of other nations to communicate with the seas thus connected. Such right may, however, be modified by special compact, adopting those regulations which are indispensably necessary to the security of the State whose interior waters thus form the channel of communication between different seas, the navigation of which is free to other nations. the passage of the strait may remain free to the private merchant vessels of those nations having a right to navigate the seas it connects, whilst it is shut to all foreign armed ships in time of peace. § 182. The Black Dardanelles. Thus So long as the shores of the Black Sea were exclusively possessed by Turkey, that sea might with propriety be considered a mare clausum; and there seems no reason to question the right of the Ottoman Porte to exclude other nations from navigating the passage which connects it with the Mediterranean, both shores of this passage being at the same time portions of the Turkish territory; but since the territorial acquisitions made by Russia, and the commercial establishments formed by her on the shores of the Euxine, both that Empire and the other maritime powers have become entitled to participate in the commerce of the Black Sea, and consequently to the free navigation of the Dardanelles and the Bosphorus. This right was expressly recognized by the seventh article of the Treaty of Adrianople, concluded in 1829, between Russia and the Porte, both as to Russian vessels and those of other European States in amity with Turkey (n). The right of foreign vessels to navigate the interior waters of Turkey, which connect the Black Sea with the Mediterranean, does not extend to ships of war. The (n) Martens, Nouveau Recueil, tom. viii. p. 143. |