UPHAM, United States Commissioner, delivered the opinion of the commission:

This case has been ably argued on the question, what are the rights of the crown as to this property, and whether it is a mere personal claim or a claim of the government. The laws settling on the personal representative of the crown, from time to time, a fixed yearly income, on the express relinquishment of the former uncertain and changeable revenues of the crown, seems to place them on the same basis as other

revenues.

The act of 39 and 40, Geo. III, also expressly declares that the representatives of the crown are unable to dispose of, by will or otherwise, any property which comes to them with or in right of the crown. This would seem to set at rest any claim to control over such revenues as personal property.

There is a question, however, behind this which I regard as fully conclusive of our jurisdiction in this case.

It may be conceded that the claim comes nominally within the letter of the convention. This, however, does not settle the question of jurisdiction. It is quite clear we may go beyond its terms to the consideration of the various classes of cases embraced in ordinary international controversies; and if any class of claims have not been heretofore regarded as matters of international adjustment, we are not necessarily bound to regard them as included within the provisions of the convention.

No instance can be found of the interference of government with the question of ordinary heirship and succession of estates in other jurisdictions. They are ever left to local action and jurisdiction of the courts of the countries where situated. There is every reason why it should be so.

The claim comes before us, then, in altogether an unwonted position; and we are fully of the opinion that it is not of the class of cases designed to be embraced within the convention, and that we have no jurisdiction over it.

SCHOONER WASHINGTON.

Construction of the treaty of 1818 relative to fisheries on the coasts of North America.

The clause in said treaty in which the United States renounced the liberty to take, dry, and cure fish, on certain coasts, bays, harbors, and creeks of his Britannic Majesty's dominions of North America," held not to include the Bay of Fundy.

The Bay of Fundy held to be an open arm of the sea, so as not to be subject to the exclusive right of Great Britain as to fisheries.

The schooner Washington, while employed in fishing in the Bay of Fundy, ten miles distant from the shore, was seized by her Britannic Majesty's cruiser, and taken to Yarmouth, in Nova Scotia, and condemned, on the ground of being engaged in fishing in British waters, in violation of the provisions of the treaty relative to the fisheries, entered into between the United States and the British government on October 20, 1818.

Claim of damage was made before the commission on the ground that the seizure was in violation of the provisions of that treaty and of the law of nations.

THOMAS, agent and counsel for the United States.

HANNEN, agent and counsel for Great Britain.

UPHAM, United States Commissioner:

In 1843 the fishing schooner Washington was seized by her Britannic Majesty's cruiser, when fishing, broad, as it is termed, in what is called the Bay of Fundy, ten miles from the shore.

This seizure was justified on two grounds.

1. That the Bay of Fundy was an indentation of the sea, extending up into the land, both shores of which belonged to Great Britain, and that for this reason she had, by virtue of the law of nations, the exclusive jurisdiction over this sheet of water, and the sole right of taking fish within it.

2. It was contended that, by a fair construction of the treaty of October 20, 1818, between Great Britain and the United States, the United States had renounced the liberty, heretofore enjoyed or claimed, to take fish on certain bays, creeks, or harbors, including, as was contended, the Bay of Fundy, and other similar waters within certain limits described by the treaty.

The article containing this renunciation has various other provisions, supposed to throw some light on the clause of renunciation referred to. I therefore quote it entire, which is as follows: "Whereas differences have arisen respecting the liberty claimed by the United States to take, dry, and cure fish on certain coasts, bays, harbors, and creeks of his Britannic Majesty's dominions in America, it is agreed that the inhabitants of the United States shall have, in common with the subjects of her Britannic Majesty, the liberty to take fish on certain portions of the southern, western, and northern coast of Newfoundland, and also on the coasts, bays, 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 bays, 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, bays, creeks, or harbors 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 harbors 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.”

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 purposes 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 relinquished 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 subsistence.-(Grotius, Book 2, ch. 2, sec. 3; Vattel, Book 1, ch. 20, secs. 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 conntenances 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.

This is well known to be the prevailing doctrine on the subject in

America, and it would have been surprising if the United States negotiators had relinquished, voluntarily, the large portions of the ocean now claimed by Great Britain as her exclusive right, under the provisions of this treaty, on the ground that it was sanctioned by the law of nations.

It would have been still more surprising if it had been thus relinquished, after its long enjoyment by the inhabitants of America in common, from the time of their first settlement down to the revolution, and from that time by the United States and British provinces, from the treaty of 1783 to that of 1818.

I see therefore no argument, in the view which has been suggested, to sustain the right of exclusive jurisdiction claimed by England.

2. I come now to the consideration of the second point taken in the argument before us, which is, that by the treaty of 1818 the United States renounced the right of taking fish within the limits now in controversy. This depends on the construction to be given to the article of the treaty which I have already cited.

In the construction of a treaty, admitting of controversy on account of its supposed ambiguity or uncertainty, there are various aids we may avail ourselves of in determining its interpretation.

"It is an established rule," says Chancellor Kent, "in the exposition of statutes," and the same rule, I may add, applies to treaties, 'that the intention of the lawgiver is to be deduced from a view of the whole and of every part of a statute, taken and compared together, and the real intention, when accurately ascertained, will always prevail over the literal sense of the terms."

He further says, "when the words are not explicit, the intention is to be collected from the occasion and necessity of the law, from the mischief felt, and the remedy in view; and the intention is to be taken or presumed, according to what is consonant to reason and good discretion. (1 Kent's Com. 462.)

Now there are various circumstances to be considered in connexion with the treaty, that will aid us in coming to a correct conclusion as to its intent and meaning.

These circumstances are the entire history of the fisheries; the views expressed by the negotiators of the treaty of 1818, as to the object to be effected by it; the subsequent practical construction of the treaty for many years; the construction given to a similar article