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, $$ 40, 41; De Cussy, Phases et Causes Célèbres du Droit Maritime des Nations, Leipzig. 1856, liv. 1, tit. 2, SS 40, 41.a

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,

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

Droit Maritime de l'Europe, ch. II. art. 3, § 3; Pufendorf, b. 3, c. 5; Vattel, b. I. ch. 33; Queen ». Keyn, L. R. 2 Exch. Div. 63; The Direct United States Cable Co. v. The Anglo-American Telegraph Co., L. R. 2 App. Cas. 394.

The British agent also filed certain "Official Correspondence from the Years 1827 to 1872, inclusive, Showing the Encroachments of United States Fishermen in British North American Waters since the Conclusion of the Convention of 1818." a

On Sunday, January 6, 1878, some American fishermen, while fishing in Fortune Bay, Newfoundland, were attacked Fortune Bay case. by a mob of natives, who expelled them and destroyed their boats and nets. The attack was due to local feeling caused by the fact that the American fishermen, under a claim that their privileges in the inshore fisheries under the treaty could not be abridged by local legislation, were availing themselves of an opportunity to take fish in the bay when the native fishermen were forbidden by the colonial law to carry on their operations. The United States minister in London was instructed to present a demand for damages amounting to $105,305.02. The British Government took the ground that the treaty granted only a right to fish in common with Her Majesty's subjects, and that as the American fishermen, as their evidence disclosed, were, by the manner and time of their fishing on the occasion in question, violating the laws of Newfoundland, and thus overstepping the limits of their privilege, the United States could not complain of their having been driven away. The United States, while contending that the local law could not be admitted to define or limit the treaty privilege, also maintained that, independently of this question, compensation was due on account of the violence and irregularity of the acts complained of. Early in 1881 the claims were settled by the British Government's paying £15,000, which included compensaiton for certain injuries suffered by American fishermen at Aspee Bay. The offer of indemnity was made by Earl Granville on condition of receiving from the United States an "assurance that it is accepted in full of all claims arising out of any interruption of American fishermen on the coast of Newfoundland and its dependencies up to the present time, and without prejudice to any question of the rights of either Government under the treaty of Washington." To this Mr. Lowell, under instructions of Mr. Evarts, replied: "The assurance I may give is this: That the sum paid is accepted in full of all claims arising out of any interruptions

C

a Documents and Proceedings of the Halifax Commission, II. 1457–1508. H. Ex. Doc. 84, 46 Cong. 2 sess.; President Arthur, first annual message, Dec. 6, 1881.

Earl Granville, for. sec., to Mr. Lowell, min. to England, Feb. 26, 1881, For. Rel. 1881, 509.

of American fishermen on the coasts of Newfoundland and its dependencies, up to this time presented to either Government, and without prejudice to any question of the rights of either Government under the treaty of Washington." a

Termination

fishery articles.

of

By a joint resolution of Congress of March 3, 1883, the President was directed to give notice to the British Government of the termination of Articles XVIII. to XXV., inclusive, and of Article XXX. of the treaty of May 8. 1871, in accordance with its terms. Notice was given accordingly, so that the articles expired on July 1, 1885; and it was agreed that Article XXXII., by which Newfoundland was admitted to the arrangement, ended with them. Early in 1885 it was sug gested by the British minister at Washington that, as inconvenience might be occasioned by the expiration of the articles in the midst of the fishing season, it might be desirable to come to an agreement under which they might in effect be extended till the 1st of January following. After consultation with leading Senators, Mr. Frelinghuysen advised the British minister that it was deemed impracticable at that late day to carry out the suggestion; and a Presidential proclamation was issued warning the American fishermen of the approaching expiration of the articles.

1885.

March 12, 1885, the British minister embodied his suggestion in a memorandum, which he communicated with a perModus vivendi, sonal letter to Mr. Bayard, who had succeeded Mr. Frelinghuysen as Secretary of State. Informal negotiations ensued, which were conducted on the part of Canada and Newfoundland by Sir Ambrose Shea. They resulted, June 22. 1885, in an arrangement by exchange of notes, and the results were embodied in a notice issued by Mr. Bayard as Secretary of State. In this notice it was announced that the privilege of inshore fishing, which would otherwise have ended on the 1st of July, might continue throughout the season of 1885, and that the immunity thus accorded to American fishing vessels in British-American waters would likewise be extended to British vessels and subjects engaged

a Mr. Lowell, min. to England, to Earl Granville, for. sec., March 2, 1881, For. Rel. 1881, 509. See also Mr. Blaine, Sec. of State, to Mr. Lowell, min. to England, July 30, 1881, For. Rel. 1881, 544. For proposals as to the abrogation or suspension, in connection with the Fortune Bay case, of the fishery articles of the treaty of Washington, see S. Mis. Doc. 80, 45 Cong. 3 sess.; H. Report 1275, 46 Cong. 2 sess.; S. Ex. Doc. 180, 46 Cong. 2 sess.; H. Report 1746, 46 Cong. 2 sess.

See report of Feb. 4, 1882, H. Report 235, 47 Cong. 1 sess.; 22 Stat. 641.
For. Rel. 1883, 41, 435, 441, 451, 464; 1884, 214-215; 1885, 466.

@ Mr. Frelinghuysen, Sec. of State, to Senator Edmunds. Jan. 15, 1885, 153 MS. Dom. Let. 661; Mr. Frelinghuysen, Sec. of State, to Mr. West, British min., Jan. 20, 1885, MS. Notes to Great Britain, XIX. 625.

in fishing in the waters of the United States. But, as the joint resolution of Congress had repealed the act of March 1, 1873, for the execution of the fishing articles, it was stated that the arrangement in no way affected the question of exemption from customs duties, as to which the abrogation of the fishing articles remained complete. It was added, however, that, as part of the arrangement, the President would bring the whole question of the fisheries before Congress at its next session and recommend the appointment of a joint commission to consider the matter, "in the interest of maintaining good neighborhood and friendly intercourse between the two countries, thus affording a prospect of negotiation for the development and extension of trade between the United States and British North America." Copies of the memoranda and exchanged notes on which the agreement rested were appended to the notice, and reference was also made to the President's proclamation of January 31, 1885, giving warning of the termination of the fishery articles."

In his annual message of December 8, 1885, President Cleveland recommended that provision should be made for the appointment of a joint commission, such as was referred to in the arrangement. This recommendation was voted upon adversely by the Senate on April 13, 1886. Negotiations were then instituted with a view to reach a joint interpretation of the convention of 1818, but they were unsuccessful, and President Cleveland, in his annual message of December 6, 1886, declared that, while he was desirous that mutually beneficial and friendly relations should exist between the American people and the inhabitants of Canada, the action of the Canadian officials during the past season toward American fishermen had been "such as to seriously threaten their continuance." He added, however, that, although he was disappointed in his efforts to secure a satisfactory settlement of the fishery question, negotiations were still pending, with reasonable hope that before the close of Congress an announceinent might be made that an acceptable conclusion had been reached.

a For. Rel. 1885, 460-469; message of President Cleveland of Jan. 12, 1886, S. Ex. Doc. 32, 49 Cong. 1 sess.

See resolution of Senator Frye, Jan. 18, 1886, adverse to the appointment of a joint commission, S. Mis. Doc. 37, 49 Cong. 1 sess; also, resolution reported by Mr. Frye from the Committee on Foreign Relations, Feb. 3, 1886, S. Mis. Doc. 59, 49 Cong. 1 sess.

The message of July 24, 1886, gives seizures and detentions which had then taken place, S. Ex. Doc., 217, 49 Cong. 1 sess. See the message of Dec. 8, 1886, II. Ex. Doc. 19, 49 Cong. 2 sess., with a suggestion that a commission be authorized by law to take perpetuating proofs of losses sustained by American fishermen by reason of the action of the Canadian officials during the season then just past. See, also, letter of Mr. Manning, Secretary of the Treasury, to the Speaker of the House, on the fisheries question, H. Ex. Doc. 78, 49 Cong. 2 sess.