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

Arbitration as to 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.

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

a 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.

c66 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 Newfoundland, having passed the necessary laws, was admitted to the benefits of the treaty and the act of Congress on the 1st of June, 1874.4 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.

Commercial privileges.

During the taking of proofs in support of the British case at Halifax, in 1877, it became evident that a large part 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.

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

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. f As to the privileges covered by these claims, and the answer of the United States, see Moore, International Arbitrations, I. 732-735, 736–743.

g 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, 45 Cong. 2 sess.

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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."

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

The argument on Mr. Foster's motion was closed on the part of the United States by Mr. Dana. He contended that American fishermen possessed by comity the right to run into British ports and buy bait and other necessaries, unless they were specially excluded on some proper ground. Great Britain might regulate their entry, require them to report at the custom-house and be searched in order to see whether they were merchants in disguise, and levy duties upon them. But, in the absence of a prohibition, there was no right to prevent fishermen from buying bait and supplies; and he maintained that there was no law preventing the exercise by American fishermen of the privileges in question.

On the 6th of September the commission unanimously rendered the following decision:

"The commission having considered the motion submitted by the agent of the United States at the conference held on the 1st instant, decide:

"That it is 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 the permission to transship cargoes in British waters."

After this decision was read, Sir Alexander Galt, the British commissioner, stated the grounds on which he acquiesced in it. He did not think that counsel for the United States had correctly stated the position of the two parties at the time when the treaty of Washington was entered into. The impression left on his mind by an examination of the treaty was, said Sir Alexander, that it must necessarily have been supposed that, as in the case of the reciprocity treaty, so in the case of the Washington treaty, the rights of traffic and of obtaining bait and supplies were conferred, being incidental to the fishing privilege. He therefore believed that it was the intention of the parties to the treaty of Washington to direct the tribunal to consider all the points relating to the fisheries which had been set forth in the British case; but he was now met by the most authoritative statement as to what the parties to the treaty intended. The agent of the United States had distinctly stated that it was not the intention of his Government to provide by the treaty for the continuance of those incidental privileges, and that the United States were prepared to take the whole responsibility and to run all the risk of the reenactment of the vexatious statutes to which reference had been made. From this argument as to the true, rigid, and strict interpretation of the treaty of Washington, he "could not escape." The responsibility must rest upon those who appealed to the strict words of the treaty as their justification."

a Documents and Proceedings of the Halifax Commission, II. 1585-1588.

Accompanying the answer of the United States before the Halifax commission, there was a " Brief for the United States

Territorial waters. upon the Question of the Extent and Limits of the

Inshore Fisheries and Territorial Waters on the Atlantic Coast of British North America." In this brief the discussions between the two Governments subsequent to the convention of 1818 are reviewed, and various writers on international law are cited, and it is maintained "that, prior to the treaty of Washington, the fishermen of the United States, as well as those of all other nations, could rightfully fish in the open sea more than three miles from the coast; and could also fish at the same distance from the shore in all bays more than six miles in width, measured in a straight line from headland to headland.". The brief cites, on the question of territorial waters, Queen . Keyn, L. R. 2 Exch. Div. 63; Bluntschli, Law of Nations, book 4. §§ 302, 309; Klüber, Droit des Gens Modernes de l'Europe, Paris, 1831, vol. 1, p. 216; Ortolan, Diplomatie de la Mer, ed. 1864, pp. 145, 153; Hautefeuille, Droits et Devoirs des Nations Neutres, tom. 1, tit. 1, ch. 3, § 1; Manning's Law of Nations, by Amos; Martens, Précis du Droit des Gens Modernes de l'Europe, ed. 1864, Pinheiro-Ferreira, SS 40, 41; De Cussy, Phases et Causes Célèbres du Droit Maritime des Nations, Leipzig. 1856, liv. 1, tit. 2, SS 40, 41.a

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The British representatives filed a brief in reply. In this brief it is declared to be admitted by all authorities, whether writers on international law, judges who have interpreted that law, or statesmen who have negotiated upon or carried it into effect in treaties or conventions, that every nation has the right of exclusive dominion and jurisdiction over those portions of its adjacent waters which are included by promontories or headlands within its territories." On this proposition the brief cites Kent's Com. I. 32; Lawrence's Wheaton (1863), 320. The brief also maintains that by the convention of 1818 the United States fishermen are prohibited from fishing, not merely within three miles from the shore, but within three marine miles of the entrance of any of the bays, creeks, or harbors of His Britannic Majesty's dominions in America. As to the meaning of the terms coasts, creeks, bays, and harbors, and the extent of marine jurisdiction, it cites Bee's Adm. Rep. 205; act of Congress, 3 Stats. at L. 136: The Anna, 5 Rob. 385; United States . Grush, 5 Mason, 298; United States . Bevan, 3 Wheat. 387; Hargrave's Tracts, chapter 4: De Lovio . Boit, 2 Gallison, 2nd ed., 426; Church . Hubbart, 2 Cranch, 187: 1 Op. At. Gen. 32; Martin e. Waddell, 16 Pet. 367: Life of Sir Leoline Jenkins, II. 726; Azuni,

@ Documents and Proceedings of the Halifax Commission, I. 119-167. b Id. II. 1887-1906.

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