from fishing on what is to-day considered a common sea, it is precisely because it was then understood that such tracts of water, now free and open to all, were the exclusive property of a particular power, who, being the owners, admitted or excluded others from their use. The treaty of 1818 is in the meantime one of the few which mark an era in the diplomacy of the world. As a matter of fact it is the very first which commuted the rule of the cannon-shot into the three marine miles of coastal jurisdiction. And it really would appear unjustified to explain such historic document, by referring it to international agreements of a hundred and two hundred years before when the doctrine of SELDEN'S Mare Clausum was at its height and when the coastal waters were fixed at such distances as sixty miles, or a hundred miles, or two days' journey from the shore and the like. It seems very appropriate, on the contrary, to explain the meaning of the Treaty of 1818 by comparing it with those which immediately followed and established the same limit of coastal jurisdiction. As a general rule a treaty of a former date may be very safely construed by referring it to the provisions of like Treaties made by the same nation on the same matter at a later time. Much more so when, as occurs in the present case, the later Conventions, with no exception, starting from the same premise of the three miles coastal jurisdiction arrive always to a uniform policy and line of action in what refers to bays. As a matter of fact all authorities approach and connect the modern fishery Treaties of Great Britain and refer them to the Treaty of 1818. The second edition of KLUBER, for instance, quotes in the same sentence the Treaties of October 20, 1818, and August 2, 1839, as fixing a distance of three miles from low water mark for coastal jurisdiction. And FIORI, the well-known Italian jurist, referring to the same marine miles of coastal jurisdiction, says: "This rule recognized as early as the Treaty of 1818 between the United States and Great Britain, and that between Great Britain and France in 1839, has again been admitted in the Treaty of 1867." (Nouveau droit International Public, Paris, 1885, Section 803.) This is only a recognition of the permanency and the continuity of States. The Treaty of 1818 is not a separate fact unconnected with the later policy of Great Britain. Its negotiators were not parties to such International Convention and their powers disappeared as soon as they signed the document on behalf of their countries. The parties to the Treaty of 1818 were the United States and Great Britain, and what Great Britain meant in 1818 about bays and fisheries, when they for the first time fixed a marginal jurisdiction of three miles, can be very well explained by what Great Britain, the same permanent political entity, understood in 1839, 1843, 1867, 1874, 1878 and 1882, when fixing the very same zone of territorial waters. That a bay in Europe should be considered as different from a bay in America and subject to other principles of international law cannot be admitted in the face of it. What the practice of Great Britain has been outside the Treaties is very well known to the Tribunal, and the examples might be multiplied of the cases in which that nation has ordered its subordinates to apply to the bays on these fisheries the ten mile entrance rule or the six miles according to the occasion. It has been repeatedly said that such have been only relaxations of the strict right, assented to by Great Britain in order to avoid friction on certain special occasions. That may be. But it may also be asserted that such relaxations have been very many and that the constant, uniform, never contradicted, practice of concluding fishery Treaties from 1839 down to the present day, in all of which the ten miles entrance bays are recognized, is the clear sign of a policy. This policy has but very lately found a most public, solemn and unequivocal expression. "On a question asked in Parliament on the 21st of February, 1907,'' says PITT CORBETT, a distinguished English writer, "with respect to the Moray Firth Case, it was stated that, according to the view of the Foreign Office, the Admiralty, the Colonial Office, the Board of Trade and the Board of Agriculture and Fisheries, the term 'territorial waters' was deemed to include waters extending from the coast line of any part of the territory of a State to three miles from the low water mark of such coast line and the waters of all bays, the entrance to which is not more than six miles, and of which the entire land boundary forms part of the territory of the same state." (PITT CORBETT Cases and Opinions on International Law, Vol. I, p. 143.) Is there a contradiction between these six miles and the ten miles of the treaties just referred to? Not at all. The six miles are the consequence of the three miles marginal belt of territorial waters in their coincidence from both sides at the inlets of the coast and the ten miles far from being an arbitrary measure are simply an extension, a margin given for convenience to the strict six miles with fishery purposes. Where the miles represent sixty to a degree in latitude the ten miles are besides the sixth part of the same degree. The American Government in reply to the observations made to Secretary BAYARD'S Memorandum of 1888, said very precisely: "The width of ten miles was proposed not only because it had been followed in Conventions between many other powers, but also because it was deemed reasonable and just in the present case; this Government recognizing the fact that while it might have claimed a width of six miles. as a basis of settlement, fishing within bays and harbours only slightly wider would be confined to areas so narrow as to render it practically valueless and almost necessarily expose the fishermen to constant danger of carrying their operations into forbidden waters." (British Case Appendix, page 416). And Professor JOHN BASSET MOORE, a recognized authority on International law, in a communication addressed to the Insti tute of International Law, said very forcibly: "Since you observe that there does not appear to be any convincing reason to prefer the ten mile line in such a case to that of double three miles, I may say that there have been supposed to exist reasons both of convenience and of safety. The ten mile line has been adopted in the cases referred to as a practical rule. The transgression of an encroachment upon territorial waters by fishing vessels is generally a grave offence, involving in many instances the forfeiture of the offending vessel, and it is obvious that the narrower the space in which it is permissible to fish the more likely the offence is to be committed. In order, therefore, that fishing may be practicable and safe and not constantly attended with the risk of violating territorial waters, it has been thought to be expedient not to allow it where the extent of free waters between the three miles drawn on each side of the bay is less than four miles. This is the reason of the ten mile line. Its intention is not to hamper or restrict the right to fish, but to render its exercise practicable and safe. When fishermen fall in with a shoal of fish, the impulse to follow it is so strong as to make the possibilities of transgression very serious within narrow limits of free waters. Hence it has been deemed wiser to exclude them from space less than four miles each way from the forbidden lines. In spaces less than this operations are not only hazardous, but so circumscribed as to render them of little practical value." (Annuaire de l'Institut de Droit International, 1894, p. 146.) So the use of the ten mile bays so constantly put into practice by Great Britain in its fishery Treaties has its root and connection with the marginal belt of three miles for the territorial waters. So much so that the Tribunal having decided not to adjudicate in this case the ten mile entrance to the bays of the Treaty of 1818, this will be the only one exception in which the ten miles of the bays do not follow as a consequence the strip of three miles of territorial waters, the historical bays and estuaries always excepted. And it is for that reason that a usage so firmly and for so long a time established ought, in my opinion, to be applied to the construction of the Treaty under consideration, much more so, when custom, one of the recognized sources of law, international as well as municipal, is supported in this case by reason and by the acquiescence and the practice of many nations. The Tribunal has decided that: "In case of bays the three miles (of the Treaty) are to be measured from a straight line drawn across the body of water at the place where it ceases to have the configuration characteristic of a bay. At all other places the three miles are to be measured following the sinuosities of the coast." But no rule is laid out or general principle evolved for the parties to know what the nature of such configuration is or by what methods the points should be ascertained from which the bay should lose the characteristics of such. There lies the whole contention and the whole difficulty, not satisfactorily solved, to my mind, by simply recommending, without the scope of the award and as a system of procedure for resolving future contestations under Article IV of the Treaty of Arbitration, a series of lines, which practical as they may be supposed to be, cannot be adopted by the Parties without concluding a new Treaty. These are the reasons for my dissent, which I much regret, on Question V. Done at the Hague, September 7, 1910. LUIS M. DRAGO. THE CANADIAN OYSTER INDUSTRY By M. J. PATTON Assistant Secretary of the Commission of Conservation The Canadian oyster industry is one which is fast dying out. At one time, the supply of oysters was thought to be inexhaustible; but, like nearly all other resources of which this has been predicated, ruthless exploitation and the demands of an increasing population have reduced it to the verge of depletion. Years ago only the larger and more prolific beds were fished; but the decreasing supply has, year by year, compelled the fishermen to resort to the bottoms which heretofore were neglected as not being rich enough to repay the effort of fishing. Very slowly, after repeated warnings by the Government fishery officers on the ground, restrictive measures have been adopted; but these have come too late. any case, it is doubtful if they alone would have proved adequate to save the industry from depletion without the aid of oyster culture operations. The decision of the Imperial Privy Council on the Fisheries Reference in 1898 divided in uncertain fashion the proprietary interest in the foreshore, and has effectively prevented that certainty of ownership which is essential to the investment of private capital in oyster farming. No man is going to invest his capital where others may claim the fruit of it. In Yet the future of the industry is not so black as one might conclude from these facts. The matter of divided jurisdiction is one that is possible of adjustment as between the Federal and Provincial authorities. The oyster, under favourable conditions, multiplies rapidly and comes to maturity within a period of some four years. The Canadian oyster area is extremely large, and the experience of the United States, England, France, and other countries shows that oyster culture can be successfully prosecuted with the sure return of a handsome rate of profit. What is required, therefore, is a full knowledge of the present condition of the industry, the causes that have brought about that condition, and the regulations and laws in force, so that a sure basis may be laid for determining what measures are best calculated to encourage the adoption of artificial culture on a large scale by private interests. The Oyster Nearly all the oysters grown in Canada come from the Atlantic sea-board. British Columbia produces, though so far in relatively small quantities, a native oyster (ostrea lurida) which is inferior in size and quality to the eastern oyster. The three provinces, however, that produce practically all our oysters are |