to fish' (in the statutes) were introduced for the purpose of preventing the escape of a foreign vessel which, though with intent of illegal fishing in British waters, had not taken fish or engaged in fishing by setting nets and lines, but was seized in the very act of putting out her lines, nets, etc., into the water, and so preparing to fish." This opinion is valuable merely as an authority that buying bait in the three-mile zone is not by itself held illegal in the Canada waters. So far as the statute construed expands the operation of the treaty it has no extraterritorial force. The opinion in the case of the J. H. Nickerson, by Sir William Young (vice-admiralty, Halifax, 1871), contains a dictum that "to purchase or procure bait" is "a preparing to fish." This, to say the least, is badly put, since "procuring" includes "catching,” which would not only be "preparing to fish," but actually "fishing." But, aside from the badness of the phraseology, the law of the proposition is bad. As "preparing to commit a crime" is an indictable attempt, there are many cases in which, sometimes by very able judges, the question has been determined in what such preparation consists. These cases establish the principle that unless the preparation be such that if not interrupted by extraneous force it would result in the crime alleged, it is not an indictable attempt; and it is a settled principle that purchasing poison or a deadly weapon is not indictable as a "preparation" for homicide. (See cases cited in Whart. Cr. Law § 180.) The reason is that where a thing purchased can be used either for a lawful or an unlawful purpose there can be no conviction of an attempt unless the unlawful purpose be shown. In the case here cited there ought to have been no conviction, even under the statute, unless it could have been shown that the purchase was a preparation to fish within the forbidden belt, and that this was put in process of execution. Sir W. Young's dictum on this point, therefore, cannot be sustained as a matter of municipal law. As a ruling of international law it is of no authority, since preparing to fish without fishing is in any view not a contravention of the treaty of 1818. But Sir W. Young's ruling, on the merits, coincides with that of Judge Hazen, since he concedes that merely buying fish within the three miles is not a violation of the treaty. In the Halifax Commission it was asserted, as part of the British case, that "freedom to transfer cargoes, to outfit vessels, buy supplies, obtain bait, and traffic generally in British ports and harbors, or to transact other business ashore, not necessarily connected with fishing pursuits, are secondary privileges which materially enhance the principal concessions to United States citizens. These advantages are indispensable to the success of foreign fishing on Canadian coasts; without such facilities, fishing operations, both inside and outside of the inshores, cannot be conducted on an extensive and remunerative scale." The commission, however, in discharge of the duty assigned to it of determining the balance of indebtedness between the two powers on the fishery question, unanimously decided that "it was not within the competence of this tribunal to award compensation for commercial intercourse between the two countries, nor for purchasing bait, ice, supplies, etc., nor for permission to transship cargoes on British waters." As the submission in this case covered all cases of claims by either power, the only basis on which this decision can stand is the privileges thus exercised which were secured to them by treaty as well as by the law of nations; for on both sides it was agreed that these privileges were valuable. We must, therefore, understand that the commission-a tribunal the majority of which cannot be charged with undue partiality to the United States-held that the enjoyment of these privileges by fishermen of the United States was a matter of right. The claim in the British argument, it must be recollected, was put on strong ground: "In all those instances where it has come out in evidence that they (the United States fishermen) come in and get our fishermen to catch bait for them and pay them for doing so, in all such cases the act is that of the United States fishermen themselves." (Halifax Com., 1556.) Yet even for acts such as these, verging so closely on fishing within the three-miles zone, the Halifax tribunal held that the British Government, acting for itself and for Canada, had no cause for complaint. "At the first conference (of the Ghent negotiators), on the 8th of August (1814), the British plenipotentiaries had notified to us that the British Government did not intend henceforth to allow to the people of the United States, without an equivalent, the liberties to fish, and to dry and cure fish, within the exclusive British jurisdiction stipulated in their favor by the latter part of the third article of the treaty of peace of 1783; and in their note of the 19th of August the British plenipotentiaries had demanded a new stipulation to secure to British subjects the right of navigating the Mississippi, a demand which, unless warranted by another article of that same treaty of 1783, we could not perceive that Great Britain had any colorable pretext for making. Our instructions had forbidden us to suffer our right to the fisheries to be brought into discussion, and had not authorized us to make any distinction in the several provisions of the third article of the treaty of 1783, or between that article and any other of the same treaty. We had no equivalent to offer for a new recognition of our right to any part of the fisheries, and we had no power to grant any equivalent which might be asked for it by the British Government. We contended that the whole treaty of 1783 must be considered as one entire and permanent compact, not liable, like ordinary treaties, to be abrogated by a subsequent war between the parties to it; as an instrument recognizing the rights and liberties enjoyed by the people of the United States as an independent nation, and containing the terms and conditions on which the two parts of one empire had mutually agreed thenceforth to constitute two distinct and separate nations. In consenting, by that treaty, that a part of the North American continent should remain subject to the British jurisdiction, the people of the United States had reserved to themselves the liberty, which they had ever before enjoyed, of fishing upon that part of the coasts, and of drying and curing fish upon the shores; and this reservation had been agreed to by the other contracting party. We saw not why this liberty, then no new grant, but a mere recognition of a prior right always enjoyed, should be forfeited by a war any more than any other of the rights of our national independence, or why we should need a new stipulation for its enjoyment more than we needed a new article to declare that the King of Great Britain treated with us as free, sovereign, and independent States. We stated this principle, in general terms, to the British plenipotentiaries, in the note which we sent to them with our project of the treaty; and we alleged it as the ground upon which no new stipulation was deemed by our Government necessary to secure to the people of the United States all the rights and liberties stipulated in their favor by the treaty of 1783. No reply to that part of our note was given by the British plenipotentiaries; but, in returning our project of a treaty, they added a clause to one of the articles stipulating a right for British subjects to navigate the Mississippi. Without adverting to the ground of prior and immemorial usage, if the principle were just that the treaty of 1783, from its peculiar character, remained in force in all its parts, notwithstanding the war, no new stipulation was necessary to secure to the subjects of Great Britain the right of navigating the Mississippi, as far as that right was secured by the treaty of 1783; as, on the other hand, no stipulation was necessary to secure to the people of the United States the liberty to fish, and to dry and cure fish, within the exclusive jurisdiction of Great Britain. If they asked the navigation of the Mississippi as a new claim, they could not expect we should grant it without an equivalent; if they asked it because it had been granted in 1783, they must recognize the claim of the people of the United States to the liberty to fish, and to dry and cure fish, in question. To place both points beyond all future controversy, a majority of us determined to offer to admit an article confirming both rights, or we offered at the same time to be silent in the treaty upon both, and to leave out altogether the article defining the boundary from the Lake of the Woods westward. They finally agreed to this last proposal, but not until they had proposed an article stipulating for a future negotiation for an equivalent to be given by Great Britain for the navigation of the Mississippi, and by the United States for the liberty as to the fisheries within the British jurisdiction. This article was unnecessary, with respect to its professed object, since both Governments had it in their power, without it, to negotiate upon these subjeccts, if they pleased. We rejected it, although its adoption would have secured the boundary of the forty-ninth degree of latitude west of the Lake of the Woods, because it would have been a formal abandonment on our part of our claim to the liberty as to the fisheries recognized by the treaty of 17-3. "You will perceive by the correspondence that the ninth article was offered us as a sine qua non and an ultimatum. We accepted it, not without much hesitation, as the only alternative to a rupture of the negotiation, and with a perfect understanding that our Government was free to reject it, as we were not authorized to subscribe to it." Letter of the Am. plenip. to Sec. of State, Ghent, Dec. 25, 1814, given in The Fisheries and the Mississippi, 54 ff. "The principle (that of the continuous right of the United States to the northeastern fisheries and the non-abrogation of these rights by the war of 1812) asserted by the American plenipotentiaries at Ghent has been still asserted and maintained through two long and arduous negotiations with Great Britain, and has passed the ordeal of minds of no inferior ability. It has terminated in a new and satisfactory. arrangement of the great interest connected with it, and in a substantial ad ission of the principle asserted by the American plenipotentiaries at Ghent.” Mr. J. Q. Adams, The Fisheries and the Mississippi, 97, 98. "In that instrument (the treaty of 1818) the United States have renounced forever that part of the fishing liberties which they had enjoyed or claimed in certain parts of the exclusive jurisdiction of the British provinces, and within three marine miles from the shore. This privilege, without being of much use to our fishermen, had been found very inconvenient to the British, and in return we have acquired an enlarged liberty, both of fishing and of drying fish, within the other parts of the British jurisdiction forever. The first article of the convention affords a signal testimonial of the correctness of the principle assumed by the American plenipotentiaries at Ghent; for, by accepting the express renunciation of the United States of a small portion of the privilege in question, and by confirming and enlarging all the remainder of the privilege forever, the British Government have implicitly acknowledged that the liberties of the third article of the treaty of 1783 had not been abrogated by the war. * It is not the word forever in this convention which will secure to our fishermen for all time the liberties stipulated and recognized in it, but it was introduced by our negotiators and admitted by those of Great Britain as a warning that we shall never consider the liberties secured to us by it as abrogated by * They and we are aware forever that nothing but our own renunciation can deprive us of this right." mere war. Ibid, 109. "The nature of the rights and liberties consisted in the free participation in a fishery. That fishery, covering the bottom of the banks which surround the island of Newfoundland, the coasts of New England, Nova Scotia, the Gulf of Saint Lawrence, and Labrador, furnishes the richest treasure and the most beneficent tribute that ocean pays to earth on this terraqueous globe. By the pleasure of the Creator of earth and seas, it had been constituted in its physical nature one fishery, extending in the open seas around that island, to little less than five degrees of latitude from the coast, spreading along the whole northern coast of this continent and insinuating itself into all the bays, creeks, and harbors to the very borders of the shores. For the full enjoyment of an equal share in this fishery it was necessary to have a nearly general access to every part of it, the habits of the game which it pursues being so far migratory that they were found at different periods most abundant in different places, sometimes populating the banks and at others swarming close upon the shores. The latter portion of the fishery had, however, always been considered as the most valuable, inasmuch as it afforded the means of drying and curing the fish immediately after they were caught, which could not be effected upon the banks. "By the law of nature this fishery belonged to the inhabitants of the regions in the neighborhood of which it was situated. By the conventional law of Europe it belonged to the European nations which had formed settlements in those regions. France, as the first principal settler in them, had long claimed the exclusive right to it. Great Britain, moved in no small degree by the value of the fishery itself, had made the conquest of all those regions upon France, and had limited by treaty, within a narrow compass, the right of France to any share in the fishery. Spain, upon some claim of prior discovery, had for some time enjoyed a share of the fishery on the banks, but at the last treaty of peace prior to the American Revolution had expressly renounced it. "At the commencement of the American Revolution, therefore, this fishery belonged exclusively to the British nation, subject to a certain limited participation in it reserved by treaty stipulations to France." "The most important matter adjusted at this negotiation (that of 1818) was the fisheries. The position assumed at Ghent, that the fishery rights and liberties were not abrogated by war, was again insisted on, and those portions of the coast fisheries relinquished on this occasion were renounced by express provision, fully implying that the whole right was not considered a new grant." "During the conferences which preceded the negotiation of the convention of 1818, the British commissioners proposed to expressly exclude the fishermen of the United States from the privilege of carrying on trade with any of his Britannic Majesty's subjects residing within the limits assigned for their use;' and also that it should not be lawful for the vessels of the United States engaged in said fishery to have on board any goods, wares, or merchandise whatever, except such as may be necessary for the prosecution of their voyages to and from the said fishing grounds; and any vessel of the United States which shall contravene this regulation may be seized, condemned, and confiscated with his cargo.' "This proposition, which is identical with the construction now put upon the language of the convention, was emphatically rejected by the American commissioners, and thereupon was abandoned by the British plenipotentiaries, and Article I, as it stands in the convention, was substituted." President Grant, Second Annual Message, 1870. On the subject of the Northeastern fisheries generally see the following Congressional documents: Articles of the treaty of 1871 with Great Britain. Resolution of Massachusetts favoring their abrogation. Feb. 28, 1879. Senate Mis. Doc., 80, 45th Cong., 3d sess. Abrogation of the fishery articles of the treaty of May 8, 1871, with Great Britain recommended. Apr. 28, 1880. House Rep. 1275, 46th Cong., 2d sess. Recommendation that duties be reimposed upon fish and fish oil, the product of Canada, as British Government insists that local laws are superior to stipulation of treaty of 1871. President's message. May 17, 1880. Senate Ex. Doc. 180, 46th Cong., 2d sess. Provisions of the treaty of May 8, 1871, with Great Britain. Report in favor of paying damages sustained by American fishermen on account of the acts of the people of Newfoundland and the abrogation of the treaty. June 9, 1880. House Rep. 1746, 46th Cong., 2d sess. Certain provisions of the treaty of Washington on. Report that they be terminated. Feb. 4, 1882. House Rep. 235, 47th Cong., 1st sess. Protection of, in waters of United States and Canada. Resolution of Vermont Protection of, on Atlantic coast. Proposed legislation not antagonistic with Senate Rep. 365, As to Canada fisheries in general, see Senate Ex. Doc. No. 100, 32d Cong., 1st sess. On the subject of the negotiations attending the treaty of 1818, the following documents may be consulted: Message of President Monroe, Feb. 18, 1825, with papers as to "the capture and detention of American fishermen during the last season." Huse Doc. 405, 18th Cong., 2d sess. 5 Am. St. Pap. (For. Rel.), 675. Letter of Mr. Rush to Mr. Monroe, Oct. 22, 1818, Monroe Pap. See also in same, important argument of Mr. Rodney, Nov. 4, 1818, in same collection. Mr. Rush's dispatch to Mr. J. Q. Adams, Sec. of State, of July 28, 1823, narrating the incidents of the then closing negotiations with the British ministry, is given in Senate. Ex. Doc. No. 396, 18th Cong., 2d sess. 5 Am. St. Pap. (For. Rel.), 529. See ibid., 548, 580, as to passages in respect to Newfoundland fisheries. Mr. Gallatin's dispatch to Mr. J. Q. Adams, Nov. 6, 1818. 2 Gallatin's Writings, 82. As to course of commissioners at Ghent, in respect to the fisheries, see Mr. Gallatin to Mr. Monroe, Dec. 25, 1814. 1 Gallatin's Writings, 345. See further, 1 Philli. Int. Law (3d ed.), 270. In the British and Foreign State Papers for 1818-'19, vol. 6, p. 69 ff., will be found the proceedings of the commissioners by whom the treaty of 1818 was negotiated. (5) UNDER THE TREATIES OF 1783 AND 1812 THE THREE MILES BElt follows THE SINUOSITIES AND INDENTATIONS OF THE COAST. § 305. The general doctrine of the law of nations as to marginal seas has been already discussed (supra, § 32). That territorial jurisdiction over the North East Atlantic is limited to three miles, following the sinuosities and indentations of the coast, is shown by the action of the British and United States Governments under the treaties of 1783 and of 1818. As in some aspects this question may become the matter of future negotiations, the publication in the present shape of a summary of the corre spondence in this relation is deferred. (6) BAY OF FUNDY AND Other Large BAYS ARE OPEN SEAS. § 305a. On November 30, 1845, Lord Stanley, then British Colonial Secretary, after saying that "Her Majesty's Government feel satisfied that the Bay of Fundy has been rightly claimed by Great Britain as a bay within |