2. That the headland doctrine had no foundation in the convention of 1818, and had been decided against Great Britain in the case of the schooner Washington, under the claims convention of February 8,

1853.

3. That the assumption to prevent American fishermen from purchasing bait, supplies, ice, etc., and from transshipping their fish in bond, under color of the convention of 1818, was never acquiesced in by the United States, and was carrying out in practice provisions which the American plenipotentiaries declined to insert in that con

vention.

4. That as the mackerel fishery, out of which the trouble mostly arose, had come into existence since 1818, it was a subject for consideration whether the convention was fairly applicable to it.

For the adjustment of these questions it was suggested that provision might be made, either

1. By agreeing on the terms upon which the whole of the reserved fishing grounds might be thrown open to American fishermen, all obnoxious laws to be repealed, and the disputed reservation as to ports, harbors, etc., to be abrogated; or,

2. By agreeing upon the construction of the disputed renunciation, and upon the principles on which a line should be run by a joint commission to mark the territory from which the American fishermen were to be excluded; and by repealing the obnoxious laws, and agreeing on the measures to be taken for the protection of the colonial rights, such measures to prescribe the penalties for the violation of those rights, and to provide for a mixed tribunal for their enforcement. It might also, said the American instructions, be well to consider whether it should be further agreed that the fish taken in the waters open to both nations should be admitted free of duty into the United States and the British North American colonies." The results of the deliberations of the Joint High Commission on the subject of the fisheries were embodied in certain Treaty of May 8, articles of the treaty concluded at Washington May

1871.

8, 1871.'

By Article XVIII. it was provided that, in addition to the liberty secured by the convention of 1818 of taking, drying. and curing fish on certain coasts of the British North American colonies, the inhabitants of the United

Restoration of fishing liberties.

States should have, in common with the subjects of Her Britannic Majesty, the liberty, for the term of years mentioned in Article

a Papers relating to the Treaty of Washington, VI. 287–288.

For the deliberations of the Joint High Commission on this subject, see Moore, Int. Arbitrations, I. 716–719.

XXXIII. of the treaty, "to take fish of every kind, except shellfish, on the sea-coasts and shores, and in the bays, harbors 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; provided that, in so doing, they do not interfere with the rights of private property, or with British fishermen, in the peaceable use of any part of the said coasts in their occupancy for the same purpose.' And it was provided that the liberty thus defined applied solely to the sea fishery, and that the salmon and shad fisheries, and all other fisheries in rivers and the mouths of rivers, were reserved exclusively for British fishermen.

On the other hand, it was agreed by Article XIX. that British subjects should have, in common with the citizens of the United States, and subject to such terms, conditions, and limitations as were expressed in the preceding article, the liberty to take fish, and to land for the purpose of drying nets and curing fish, on the eastern seacoast and shores of the United States north of the thirty-ninth parallel of north latitude, and on the shores of the adjacent islands, and in the bays, harbors, and creeks of such seacoasts and islands.

By Article XX. it was provided that the places designated by the commissioners appointed under Article I. of the recReservations. iprocity treaty of June 5, 1854, upon the coasts of the two countries, as places reserved from the common right of fishing under that treaty, should in like manner be regarded as reserved from the common right of fishing under the present article; and that, in case any question should arise as to the common right of fishing in places not thus designated as reserved, a commission should be appointed to designate such places, in precisely the same manner as under the treaty of 1854.

In addition to these stipulations, it was agreed by Article XXI. Free admission of that, for the term of years mentioned in Article fish and fish oil. XXXIII. of the treaty, "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 the fisheries of the United States, or of the Dominion of Canada, or of

This article provided that Articles XVIII. to XXV., inclusive, and Article XXX. should go into operation as soon as the necessary laws should have been passed to give them effect, and remain in force for ten years thereafter, and further until the expiration of two years after either party should have notified the other of its wish to terminate them, each party being at liberty to give such notice at the end of the period of ten years or at any time afterward.

H. Doc. 551——31

Prince Edward's Island," should be admitted into each country. respectively, free of duty."

Arbitration as question of compensation.

It being asserted by Great Britain, but not admitted by the United States, that the privileges accorded to the citizens of the United States under Article XVIII. of the treaty were of greater value than those accorded to British subjects under Articles XIX. and XXI., it was provided by Article XXII. that commissioners should "be appointed to determine, having regard to the privileges accorded by the United States to the subjects of Her Britannic Majesty, as stated in Articles XIX. and XXI. of this treaty, the amount of any compensation which, in their opinion, ought to be paid by the Government of the United States to the Government of Her Britannic Majesty in return for the privileges accorded to the citizens of the United States under Article XVIII. of this treaty." It was agreed that any sum of money which the commissioners might so award should be paid by the United States in a gross sum, within twelve months after such award should have been given.

Newfoundland.

By Article XXXII. of the treaty it was agreed that the stipulations of Articles XVIII. and XXV., inclusive, should extend to the colony of Newfoundland, so far as they were applicable; but that if the Imperial Parliament, the legislature of Newfoundland, or the Congress of the United States should not embrace that colony in the laws passed to give those articles effect, then the article (XXXII.) should be of no effect."

To a proposal of the Government of Newfoundland that American fishermen should be admitted to the right of taking seals within the territorial jurisdiction of Newfoundland in return for the free admission into the United States of the products of the Newfoundland seal fishery, the Department of State replied that such a measure would require the sanction of Congress, and that it was not considered probable that the assent of that body would be given."

British Columbia fisheries products were not entitled to free entry into the United States under the treaty of 1871.o

Acts in relation to the fishery articles were passed by the Imperial Parliament and by Canada and Prince Edward Island. These acts

As to certain provisional proposals, pending the adoption of legislation `to carry into effect the fisheries clauses, see Moore, Int. Arbitrations, I. 722; For. Rel. 1871, 485–492; 1872, I. 215–222.

Mr. Fish, Sec. of State, to Sir E. Thornton, Brit. min. June 25, 1873, MS. Notes to Gr. Br. XVI. 130. As to the Newfoundland fisheries, see Rev. des Deux-Mondes, XVI. (Nov. 1874), and 29 Hunt's Merch. Mag. 420.

c 66 Br. and For. State Papers, 968–969. fisheries, see H. Report 7, 46 Cong. 1 sess.

d For. Rel. 1873, I. 402, 403, 407.

As to the rights of nations over sea

were to take effect at a time to be appointed by proclamation, in order that the beginning of their operation might be simultaneous with that of the legislation to be enacted by the United States. The corre sponding legislation on the part of the United States was adopted on March 1, 1873, to take effect on the 1st of the following July, the beginning of the new fiscal year. On the 3d of March, 1873, the committee of the privy council of Canada recommended that, pending the coming into force of the United States act, American vessels should not be prevented from fishing within the three-mile limit." On the 7th of June, 1873, Mr. Fish and Sir Edward Thornton signed at Washington a protocol in which, after reciting the reciprocal legislation on the subject, they declared that the fishery articles would take effect on the 1st of the following July. The colony of New foundland, having passed the necessary laws, was admitted to the benefits of the treaty and the act of Congress on the 1st of June, 1874.a The question of the amount of the compensation, if any, to be paid to Great Britain in return for the fisheries privilege. accorded to the citizens of the United States under the treaty of 1871 was determined by the commission at Halifax, in 1877. The aggregate amount claimed for the twelve years during which the treaty was certainly to remain in force was $14,880,000, or $1,240,000 per annum. Of this amount the sum of $2,880,000 was claimed on account of Newfoundland. The commission by a vote of two to one, the American commissioner dissenting, awarded Nov. 23, 1877, the total sum of $5,500,000 in gold, which, after some discussion, was duly paid.

Halifax award.

During the taking of proofs in support of the British case at Halifax, in 1877, it became evident that a large part Commercial privileges. of the British claim was based on the alleged advantages of a commercial character. Mr. Foster, the agent of the United States, took the ground that these advantages, whether valu

a 17 Stats. at L. 482.

b For. Rel. 1873, I. 418-419.

c Treaties and Conventions, 1776–1887, 498.

d Treaties and Conventions, 1776-1887, 499; For. Rel. 1873, I. 419, 427, 429; 1874, 554, 557, 558, 559. All of Labrador, outside the province of Quebec, came into the arrangement as part of the colony of Newfoundland. (For. Rel. 1874, 567, 572, 573; 1875, I. 643.)

© Moore, International Arbitrations, I. 725 et seq. As to the attempt to supersede the necessity of an arbitration by a new reciprocity arrangement, see id. 724-725. As to Mr. Delfosse, the third commissioner, see id. 725-727, 746–747. 1 As to the privileges covered by these claims, and the answer of the United States, see Moore, International Arbitrations, I. 732-735, 736–743.

9 Moore, Int. Arbitrations, I. 745 753. See, also, S. Ex. Doc. 44. 45 Cong. 2 sess.; S. Ex. Doc. 100, 45 Cong. 2 sess.: H. Ex. Doc. 89, 45 Cong. 2 sess.; S. Rep. 439, 45 Cong. 2 sess.; S. Mis. Doc. 73, 15 Cong. 2 sess.

able or not, were not secured to the citizens of the United States by the articles of the treaty of Washington. He therefore, on the 1st of September, submitted to the commission the following motion:

"The counsel and agent of the United States ask the honorable commissioners to rule and declare that it is not competent for this commission to award any compensation for commercial intercourse between the two countries, and that the advantages resulting from the practice of purchasing bait, ice, supplies, etc., and from being allowed to transship cargoes in British waters, do not constitute good foundation for an award of compensation, and shall be wholly excluded from the consideration of this tribunal.”

In support of this motion Mr. Foster contended that by Article XXII. of the treaty of Washington the question before the commission was the amount of any compensation which ought to be paid by the United States for the privileges secured to their citizens under Article XVIII. of the treaty of Washington. By that article the privileges secured to the citizens of the United States were the liberty of inshore fishing and that of landing on uninhabited and desert coasts for the purpose of drying nets and curing fish. These were, he maintained, the sole concessions to which the jurisdiction of the commission extended. All other questions, such as the purchase of bait, ice, and supplies, the conduct of commercial intercourse, and alleged damages to British fisheries, were beyond the commission's cognizance. The treaty of Washington conferred no such privileges on the inhabitants of the United States, who enjoyed them merely by sufferance, and could at any time be deprived of them by the enforcement of existing laws or the reenactment of former oppressive statutes."

Counsel for Great Britain, in reply, maintained that the privileges in question were embraced in and incidental to the grant under Article XVIII. of the treaty of Washington. By Article I. of the convention of 1818, the American fishermen were, he said, permitted to enter British waters for four specified purposes, and " for no other purpose whatever." The object of the treaty of Washington was to do away altogether with these restrictions and to place the American fishermen on the same footing as the British fishermen in respect of the inshore fisheries. According to the argument of Mr. Foster, said British counsel, if an American fisherman landed for the purpose of obtaining a barrel of flour in exchange for fish, or of purchasing bait, or of obtaining a gallon or two of kerosene oil, he would be subject to punishment and render his vessel liable to forfeiture.

a Documents and Proceedings of the Halifax Commission, II. 1539 et seq.

b Documents and Proceedings of the Halifax Commission, II. 1547-1557. Other counsel took part in the discussion. (Id. 1557-1570.)