United States, it was agreed that the inhabitants of the United States should have forever, in common with British subjects, the right of taking fish in certain waters therein defined. In the waters not included in the limits named in the convention, within three miles of parts of the British coast, it has been the custom for twenty years to give to intruding fishermen of the United States a reasonable warning of their violation of the technical rights of Great Britain. The Imperial Government is understood to have delegated the whole or a share of its jurisdiction or control of these inshore fishery-grounds to the colonial authority, known as the Dominion of Canada, and this semi-independent but irresponsible agent has exercised its delegated powers in an unfriendly way-vessels have been seized without notice or warning, in violation of the custom previously prevailing, and have been taken into the colonial ports, their voyages broken up, and the vessel condemned. There is reason to believe that this unfriendly and vexatious treatment was designed to bear harshly upon the hardy fishermen of the United States, with a view to political effect upon the government.

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That is not all. The President went further, and made a second complaint in this language:

The statutes of the Dominion of Canada assume a still broader and more untenable jurisdiction over the vessels of the United States; they authorize officers or persons to bring vessels hovering within three marine miles of any of the coasts, bays, creeks, or harbors of Canada into port, to search the cargo, to examine the master on oath touching the cargo and voyage, and to inflict upon him a heavy pecuniary penalty if true answers are not given, and if such a vessel is found preparing to fish within three marine miles of any of such coasts, bays, creeks, or harbors, without a license, or after the expiration of the period named in the last license granted to it, they provide that the vessel with her tackle, &c., shall be forfeited. It is not known that any condemnations have been made under this statute. Should the authorities of Canada attempt to enforce it it will become my duty to take such steps as may be necessary to protect the rights of the citizens of the United States.

The President further goes on to say:

It has been claimed by Her Majesty's officials that the fishing-vessels of the United States have no right to enter the open ports of the British possessions in North America, except for the purpose of shelter and repairing damages, of purchasing wood and obtaining water; that they have no right to enter at the British Customs-houses, or to trade there, except for the purchase of wood or water, and that they must depart within twenty-four hours after notice to leave. It is not known that any seizure of a fishing-vessel carrying the flag of the United States has been made under this claim.

These were complaints which were made in the annual message of President Grant in 1870; and he concludes by suggesting to Congress the course that should be taken in reference to this matter, in the following words:

Anticipating that an attempt may possibly be made by the Canadian authorities in the coming season to repeat their unneighborly acts towards our fishermen, I recommend you to confer upon the Executive the power to suspend by proclamation the operation of the laws authorizing the transit of goods, wares, and merchandize in bond across the territory of the United States to Canada; and further, should such an extreme measure become necessary, to suspend the operation of any laws whereby the vessels of the Dominion of Canada are permitted to enter the waters of the United States.

It is, therefore, plainly evident that disagreements were in existence at that time with regard to the fisheries, and that the fear that they would produce serious complications between the two countries was present in the minds of the President and Government of the United States. Well, the history of the case goes on to show that these complaints made by President Grant were the foundation of the negotiations which led to the adoption of the Washington Treaty; and it is important to observe, on examining that treaty, that the means whereby President Grant proposed to Congress to insure the repeal of

these so-called unfriendly acts on the part of Canada, by repealing the bonded system, and by putting on other restrictions, which President Grant proposed to apply to that particular purpose, are, by the clauses of the Washington Treaty, dealt with for the term of that treaty in another way, and for other considerations; therefore, to my mind, it leaves me in this position, in endeavouring to interpret the intentions of the parties to the Washington Treaty, 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. It could scarcely be otherwise, because in the case of the Reciprocity Treaty commercial advantages were the compensation which the United States offered to Great Britain for the concession of the privilege of fishing in her waters; while, by the Washington Treaty, compensation in money, exclusively of the free admission of fish, is to be made the measure of the difference in value; therefore I quite believe that the intention of the parties to the treaty was to direct this tribunal to consider all the points relating to the fisheries, which have been set forth in the British case. But I am now met by the most authoritative statement as to what were the intentions of the parties to the treaty. There can be no stronger or better evidence of what the United States proposed to acquire under the Washington Treaty than the authoritative statement which has been made by their Agent before us here, and by their counsel. We are now distinctly told that it was not the intention of the United States, in any way, by that treaty, to provide for the continuation of these incidental privileges, and that the United States are prepared to take the whole responsibility, and to run all the risk of the re-enactment of the vexatious statutes, to which reference has been made.

I cannot resist the argument that has been put before me, in reference to the true, rigid, and strict interpretation of the clauses of the Treaty of Washington. I therefore cannot escape, by any known rule concerning the interpretation of treaties, from the conclusion that the contention offered by the Agent of the United States must be acquiesced in.

There is no escape from it. The responsibility is accepted by and must rest upon those who appeal to the strict words of the treaty as their justification. I therefore, while I regret that this tribunal does not find itself in a position to give full consideration to all the points that may be brought up on behalf of the Crown, as proof of the advantages which the United States derive from their admission to fish in British waters, still feel myself, under the obligation which I have incurred, required to assent to the decision which has been communicated to the Agents of the two governments by the president of this tribunal.

266 Extract from closing argument of Hon. William H. Trescot, on behalf of the United States.

In the treaty of 1871 we have reached a settlement which it depends upon your decision to make the foundation of a firm and lasting Union. Putting aside for the moment the technical pleadings

and testimony, what is the complaint and claim of the Dominion? It is that where they have made of the fishery a common property, opened what they consider a valuable industry to the free use of both countries, they are not met in the same spirit, and other industries, to them of equal or greater value, are not opened by us with the same friendly liberality. I can find no answer to this complaint, no reply to this demand, but that furnished by the British Case, your own claim to receive a money compensation in the place of what you think we ought to have given. If a money compensation is recompense-if these unequal advantages, as you call them, can be equalized by a money payment, carefully, closely, but adequately estimated-then we have bought the right to the inshore fisheries, and we can do what we will with our own. Then we owe no obligation to liberality of sentiment or community of interest; then we are bound to no moderation in the use of our privilege, and if purseseining and trawling and gurry-poison and eager competition destroy your fishing, as you say they will, we have paid the damages beforehand; and when at the end of twelve years we count the cost, and find that we have paid exorbitantly for that which was profitless, do you think we will be ready to renew the trade, and where and how will we recover the loss?

Extract from closing argument of Hon. Richard H. Dana, Jr., on behalf of United States.

66

Now, your honors will allow me a word, and I hope you will not think it out of place it is an interesting subject; I do not think it is quite out of place, and I will not be long about it on the nature of this right which England claimed in 1818, to exclude us from the three miles, by virtue of some supposed principle of international law. I have stated my opinion upon it; but your honors will be pleased to observe, that on that, as upon the subject of headlands, on an essential part of it, without which it can never be put in execution, there is no fixed international law. I have taken pains to study the subject; have examined it carefully since I came here, and I think I have examined most of the authorities. I do not find one who pledges himself to the three-mile line. It is always "three miles," or the cannon-shot." Now, "the cannon-shot" is the more scientific, though not the more practical, mode of determining the question, because it was the length of the arm of the nation bordering upon the sea, and she could exercise her rights so far as the length of her arm could be extended. That was the cannon-shot, and that, at that time, was about three miles. It is now many more miles. We soon began to find out that it would not do to rest it upon the cannon-shot. It is best to have something certain. But international writers have arrived at no further stage than this, to say that it is "three miles, or the cannon-shot." When they are called upon to determine what are the rights of bordering nations, they say, "to the extent of three miles, or the cannon shot." But upon the question, "How is the three-mile line to be determined?" we find everything

utterly afloat and undecided. My purpose in making these remarks is, in part, to show your honors what a precarious position a state holds which undertakes to set up this right of exclusion and to put it in execution. The international law makes no attempt to define what is "coast." We know well enough what a straight coast is, and what a curved coast is; but the moment they come to bays, harbors, gulfs, and seas, they are utterly afloat-as much as the sea-weed that is swimming up and down their channels. They make no attempt to define it, either by distance or by political or natural geography. They say at once, "It is difficult, where there are seas and bays. Names will not help us. The Bay of Bengal is not national property; it is not the King's chamber; nor is the Bay of Biscay, nor the Gulf of Saint Lawrence, nor the Gulf of Mexico. Names will not help us. An inlet of the sea may be called a "bay," and it may be two miles wide at its entrance; or it may be called a "bay," and it may take a month's passage in an old-fashioned sailing vessel to sail from one headland to the other. What is to be done about it? If there is to be a three-mile line from the coast, the natural result is, that that three-mile line should follow the bays. The result then would be that a bay more than six miles wide was an international bay; one six miles wide, or less, was a territorial bay. That is the natural result. Well, nations do not seem to have been contented with this. France has made a treaty with England saying that anything less than ten miles wide shall be a territorial bay.

The difficulties on that subject are inherent, and, to my mind, they are insuperable. England claimed to exclude us from fishing in the Bay of Fundy, and it was left to referees, of whom Mr. Joshua Bates was umpire, and they decided that the Bay of Fundy was not a territorial bay of Great Britain, but a part of the high seas. This decision was put partly upon its width; but the real ground was, that one of the assumed headlands belonged to the United States, and it was necessary to pass the headland in order to get to one of the towns of the United States. For these special reasons, the Bay of Fundy, whatever its width, was held to be a public and international bay.

Then look at Bristol Channel. That question came up in the case of Queen v. Cunningham. A crime was committed by Cunningham in the Bristol Channel, more than three miles from the shore of Glamorganshire, on the north side, and more than three miles 267 from Devonshire and Somersetshire, on the south side. Cunningham was indicted for a crime committed in Glamorganshire. The place where the vessel lay was high up in the channel, somewhere about 90 miles from its mouth, and yet not as far up as the river Severn. The question was, whether that was a part of the realm of Great Britain, so that a man could be indicted for a crime committed there. Now, there is a great deal of wisdom in the decision made in that case. The court say, substantially, that each case is a case sui generis. It depends upon its own circumstances. Englishmen and Welshmen had always inhabited both banks of the Bristol Channel. Though more than ten miles in width at its entrance, it still flowed up into the heart of Great Britain; houses, farms, towns, factories, churches, court-houses, jails everything on its banks; and it seemed a preposterous idea, and I admit it, that in

time of war two foreign ships could sail up that Bristol Channel and fight out their battle to their own content, on the ground that they did not go within three miles of the shore. I think it would have been preposterous to say that a foreign vessel could have sailed up the center of that channel, and defied the fleets and armies of Great Britain, and all her custom-house cutters, on the ground that she was flying the American or the French flag, and the deck was a part of the soil under that flag. Well, it was a question of political geography, not of natural geography. It was a question of its own circumstances. It was decided to be a part of the realm of Great Britain. I do not know that anybody can object to the decision.

No. 165.-1877, December 13: Extract from Report Mr. Dwight Foster (Agent of the United States) to the United States Secretary of State.

During the progress of the evidence offered for Her Britannic Majesty, it became obvious that a very large, if not the greater, part of the British claim was based upon alleged advantages of a commercial character, which, whether valuable or not, were certainly not secured to the citizens of the United States by the articles of the treaty of 1871.

I therefore, on the 1st of September, made the following motion, for the purpose of excluding these pretended advantages from consideration, and thus relieving us from the necessity of swelling an already enormous volume of testimony by evidence on points clearly irrelevant to the true issue:

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, &c., and from being allowed to transship cargoes in British waters, do not constitute a foundation for award of compensation, and shall be wholly excluded from the consideration of this tribunal.

No. 166.-1878, February 11: Letter from Governor Sir J. Glover of Newfoundland to the Earl of Carnarvon (British Colonial Secretary).

GOVERNMENT HOUSE, February 11, 1878. MY LORD, I regret to have to report the destruction of an American seine by our fishermen in Fortune Bay on the 6th ultimo, the news of which only reached me through a cable telegram from London on the

4th instant.

2. On receipt of this intelligence I at once caused an inquiry to be instituted to ascertain the truth of the report, but the result of the inquiry has not yet reached me from Fortune Bay. I have the honour to inclose the only information I have as yet been able to obtain, viz., the deposition of the master of a vessel who was present at the time.

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