BATES, Umpire:

The schooner Washington was seized by the revenue schooner Julia, Captain Darby, while fishing in the Bay of Fundy, ten miles from the shore, on the 10th of May, 1843, on the charge of violating the treaty of 1818. She was carried to Yarmouth, Nova Scotia, and there decreed to be forfeited to the crown by the judge of the vice admiralty court, and with her stores ordered to be sold. The owners of the Washington claim for the value of the vessel and appurtenances, outfits and damages, $2,483, and for eleven years interest, $1,638, amounting together to $4,121. By the recent reciprocity treaty, happily concluded between the United States and Great Britain, there seems no chance for any future disputes in regard to the fisheries. It is to be regretted, that in that treaty, provision was not made for settling a few small claims of no importance in a pecuniary sense, which were then existing, but as they have not been settled, they are now brought before this commission.

The Washington fishing schooner was seized, as before stated, in the Bay of Fundy, ten miles from the shore, off Annapolis, Nova Scotia. It will be seen by the treaty of 1783, between Great Britain and the United States, that the citizens of the latter, in common with the subjects of the former, enjoyed the right to take and cure fish on the shores of all parts of her Majesty's dominions in America, used by British fishermen; but not to dry fish on the island of Newfoundland, which latter privilege was confined to the shores of Nova Scotia in the following words: "And American fishermen shall have liberty to dry and cure fish on any of the unsettled bays, harbors, and creeks of Nova Scotia, but as soon as said shores shall become settled, it shall not be lawful to dry or cure fish at such settlement, without a previous agreement for that purpose with the inhabitants, proprietors, or possessors of the ground."

The treaty of 1818 contains the following stipulations in relation to the fishery: "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 his Britannic Majesty, the liberty to fish on certan 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 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 in 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 question turns, so far as relates to the treaty stipulations on the meaning given to the word "bays" in the treaty of 1783. By that treaty the Americans had no right to dry and cure fish on the shores and bays of Newfoundland, but they had that right on the coasts, bays, harbors, and creeks of Nova Scotia; and as they must land to cure fish on the shores, bays, and creeks, they were evidently admitted to the shores of the bays, &c. By the treaty of 1818, the same right is granted to cure fish on the coasts, bays, &c., of Newfoundland, but the Americans relinquished that right, and the right to fish within three miles of the coasts, bays, &c., of Nova Scotia. Taking it for granted that the framers of the treaty intended that the word "bay or bays" should have the same meaning in all cases, and no mention being made of headlands, there appears no doubt that the Washington, in fishing ten miles from the shore, violated no stipulations of the treaty.

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 headlands is new, and 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 exclusive 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 coasts; 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 nation can have the right to assume the sovereignty. One of the headlands of the Bay of Fundy is in the United States, and ships bound to Passamaquoddy must sail through a large space of it. The island of Grand Menan (British) and Little Menan (American) are situated nearly on a line from headland to headland. These islands, as represented in all Geographies, are situate 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 owners of the Washington, or their legal representatives, are therefore entitled to compensation, and are hereby awarded not the amount of their claim, which is excessive, but the sum of three thousand dollars, due on the 15th January, 1855.

THE BRIG ENTERPRIZE.

Every country

entitled to the free and absolute right to navigate the ocean, as the common highway of nations; and, while in the enjoyment of this right, retains over its vessels the exclusive jurisdiction.

A vessel, compelled by stress of weather, or other unavoidable necessity, has a right to seek temporary shelter in any harbor, as incident to her right to navigate the ocean, until the danger is past, and she can proceed in safety.

When a vessel, engaged in a lawful voyage by the law of nations, is compelled, by stress of weather, or other inevitable cause, to enter a harbor of a friendly nation for temporary shelter, the enjoyment of such shelter, being incident to the right to navigate the ocean, carries with it, over the vessel and personal relations of those on board, the rights of the ocean, so far as to extend over it, for the time being, the protection of the laws of its country. The act of 3 and 4 William IV., ch. 73, abolishing slavery in Great Britain and her dominions, could not overrule the rights of nations, as sustained by these propositions.

The brig Enterprize sailed from Alexandria, in the District of Columbia, on the 22d of January, 1835, for Charleston, South Carolina. She had on board seventy-three slaves, besides the owners of the vessel. She encountered severe weather on her passage, was driven from her course, and was ultimately compelled, by stress of weather, and her leaky condition, after being three weeks at sea, to put into Port Hamilton, in Bermuda, to refit, in order to enable her to proceed on her voyage. While in port, the vessel was entered by persons claiming authority under the government, and the slaves were liberated.

Claim was early made for indemnity for such liberation, under the circumstances in which the vessel entered into port; and after much correspondence between the governments in reference to it, the claim was still pending at the time the convention was entered into, and it was then presented for adjustment by the commission.

HANNEN, agent and counsel for Great Britain, resisted the claim on the several grounds following, viz:

1. That laws have no force in themselves beyond the territory of the country by which they are made.

2. That, while by the comity of nations, the laws of one country are, in some cases, allowed by another to have operation within its territory when it is so permitted, the foreign law has its authority in the other country from the sanction given to it there, and not from its original institution.

3. That every nation is the sole judge of the extent and the occasions on which it will permit such operation, and is not bound to give such permission when the foreign law is contrary to its interests or its moral sentiments.

4. That England does not admit within its territory the application of any foreign law establishing slavery, having abolished the status of slavery throughout her dominions.

5. He contended that the condition of apprenticeship, as permitted to remain in the West India islands, formed no exception to the abolition of slavery throughout the British dominions, as it was a system entirely different from slavery, and would not justify sustaining any other description of slavery.

6. That the liberty of any individual in British territory could not be restrained without some law to justify such restraint, and that neither the apprentice law nor any other law could be appealed to to justify the detention of these negroes.

7. That slavery was not a relation which the British government, by the comity of nations, was bound to respect.