prevailing, and have been taken into the colonial ports, their voyages broken up, and the vessels 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.

That is not all. The President went further, and made a second com. plaint 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 custom-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 merchandise 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 negotia tions 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 endeavoring 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 advan tages which the United States derive from their admission to fish in British waters, still feel myself, under the obligation which I have in curred, required to assent to the decision which has been communicated to the Agents of the two governments by the president of this tribunal.

IV.

CLOSING ARGUMENT OF HON. DWIGHT FOSTER ON BEHALF OF THE

UNITED STATES.

GENTLEMEN OF THE COMMISSION: It becomes my duty to open the discussion of this voluminous mass of evidence, which has occupied your attention through so many weeks. It is a satisfaction to know that many topics, as to which numerous witnesses testified, and over which much time has been consumed, have been eliminated from the investigation, so that they need not occupy the time of counsel in argument, as they are sure not to give any trouble to the Commissioners in arriving at their verdict. The decision of the Commission, made on the 6th of September, by which it was held not to be competent for this tribunal to award compensation for commercial intercourse between the two countries, or for purchasing bait, ice, supplies, &c., or for permission to transship cargoes in British waters, is based upon the principle-the obvious principle, perhaps, I may properly say-that no award can be made by this tribunal against the United States, except for rights which they acquire under the treaty; so that, for the period of twelve years, they belong to our citizens, and cannot be taken from them. For advantages conferred by the treaty, as vested rights, you are empowered to make an award, and for nothing else.

The question before you is whether the privileges accorded the citizens

of the United States by the Treaty of Washington are of greater value than those accorded to the subjects of Her Britannic Majesty; and if so, how much is the difference, in money? The concessions made by each government to the other in the treaty were freely and voluntarily made. If it should turn out (as I do not suppose it will) that in any respect the making of those concessions has been injurious to the subjects of Her Majesty, you are not on that account to render an award of damages against the United States. The two governments decided that they would grant certain privileges to the citizens of one and the subjects of the other. Whether those privileges may be detrimental to the party by whom they have been conceded is no concern of ours. That was disposed of when the treaty was made. Our case before this tribuual is a case, not of damages, but of an adjustment of equivalents between concessions freely made on the one side and on the other. It follows from this consideration, gentlemen, that all that part of the testimony which has been devoted to showing that possibly under certain circumstances American fishermen, either in the exercise of their treaty rights, or in trespassing beyond their rights, may have done injury to the fishing grounds, or to the people of the provinces, is wholly aside from the subject-matter submitted for your decision. The question whether throwing over gurry hurts fishing-grounds-the question whether vessels lee. bow boats-and all matters of that sort, which at an early period of the investigation loomed up occasionally, as if they might have some impor tance, may be dismissed from our minds; for, whether the claims made in that respect are well founded or not, no authority has been vested in this tribunal to make an award based upon any such grounds. That which you have been empowered to decide is the question, to what ex tent the citizens of the United States are gainers by having, for the term of twelve years, liberty to take fish on the shores and coasts of Her Majesty's dominious without being restricted to any distance from the land. It is the right of inshore fishing. In other words, the removal of a restriction by which our fishermen were forbidden to come within three miles of the shore for fishing purposes; and that is all. No rights to do anything upon the land are conferred upon the citizens of the United States, under this treaty, with the single exception of the right to dry nets and cure fish on the shores of the Magdalen Islands, if we did not possess that before; no right to land for the purpose of seining from the shore; no right to the "strand fishery," as it has been called; no right to do anything except, water-borne on our vessels, to go within the limits which had been previously forbidden.

When I commenced the investigation of this question I supposed that it was probable that an important question of international law would turn out to be involved in it, relative, of course, to the so-called headland question, which has been the subject of so much discussion between the two governments for a long series of years; but the evidence that has been introduced renders this question not of the slightest importance, and inasmuch as it is a question which you are not empowered, except incidentally, to decide, a question eminently proper to be passed upon between the governments directly, I presume you will rejoice with me in finding that it is not practically before us, and that we need not trouble ourselves concerning it. If it had appeared in this case that there was fishing carried on to any appreciable extent within the large bays, more than six miles wide at the headlands, and at a dis. tance of more than three miles from the contour of the shores of those bays, the United States would have contended that their citizens, in common with all the rest of mankind, were entitled to fish in such great

bodies of water as long as they kept themselves more than three miles from the shore. In short, they would have contended, as it has been contended, in the brief filed in this case, that where the bays are more than six miles in width from headland to headland, they are to be treated in this respect, for fishing purposes, as parts of the open sea; but the evidence, as I said before, has eliminated all that matter from the inquiry. The only bodies of water as to which any such question can arise are, in the first place, the Bay of Fundy. Now, the right of American fishermen to enter and fish in that bay was decided by arbitration in the case of the schooner Washington, and Her Majesty's Government have uniformly acquiesced in that decision. So, as to that body of water, the rights of the citizens of the United States must be regarded as res adjudicata. In addition, however, it turns out that within the body of the Bay of Fundy there has not been any fishing more than three miles from the shore for a period of many years. One of the British witnesses gaid that it was forty years since the mackerel fishery ceased in the Bay of Fundy. At all events, there is no evidence in this case of fishing of any description in the body of the Bay of Fundy more than three miles from the shore, and this fact, in addition to the decision in the Washington case, disposes of that.

The next body of water is the Bay of Miramichi; as to which it will turn out by an inspection of the map on which the Commissioners, appointed under the Reciprocity Treaty, marked out the lines reserved from free fishing, on the ground, that they were mouths of rivers, that the mouth of the river Miramichi comes almost down to the headlands of the bay. You will remember that the report of the Commission on the Reciprocity Treaty is referred to in the Treaty of Washington, and that the same places excluded by their decision remain excluded now. What is left? The narrow space below the point marked out as the mouth of the river Miramichi, and within the headlands of the bay, is so small that there can be no fishing there of any consequence, and no evidence of any fishing there at all has been introduced. So far as the Bay of Miramichi goes, therefore, I cannot see that the headland question need trouble you at all.

Then comes the Bay of Chaleurs, and in the Bay of Chaleurs whatever fishing has been found to exist seeins to have been within three miles of the shores of the bay, in the body of the Bay of Chaleurs. I am not aware of any evidence of fishing, and it is very curious that this Bay of Chaleurs, about which there has been so much controversy heretofore, can be so sumarily dismissed from the present investigation. I suppose that a great deal of factitious importance has been given to the Bay of Chaleurs from the custom among fishermen, and almost universal a generation ago, of which we have heard so much, to speak of the whole of the Gulf of St. Lawrence by that term. Over and over again, and particularly among the older witnesses, we have noticed that when they spoke of going to the Gulf of St. Lawrence, they spoke of it by the term "Bay of Chaleurs," but in the Bay of Chaleurs proper, in the body of the bay, I cannot find any evidence of any fishing at all. I think, therefore, that the Bay of Chaleurs may be dismissed from our consideration.

There are two or three other bodies of water as to which a possible theoretical question may be raised, but their names have not been introduced into the testimony on this occasion from first to last. The headland question, therefore, gentlemen, I believe may be dismissed as, for the purpose of this inquiry, wholly unimportant, and although I am not authorized to speak for my friend, the British Agent, and to say that

he concurs with me, yet I shall be very much surprised if I find any different views from those that I have expressed taken on the other side. If in argument other views should be brought forward, or if it should seem to your houors, in considering the subject, that the question has an importance which it has not in my view, then I can only refer you to the brief that has been filed, and insist upon the principles which the United States have heretofore maintained on that subject. For the present, I congratulate you, as I do myself, that no grave and vexed question of international law need trouble you in coming to a conclu sion.

I think it is necessary to go somewhat, yet briefly, into the historical aspects of the fishery question, in order to see whether that which has been the subject of diplomatic controversy and of public feeling in the past is really the same thing which we have under discussion to day. The question has been asked, and asked with some earnestness, by my friends on the other side, "If the inshore fisheries have the little importance which you say they have, why do your fishermen go to the Gulf of St. Lawrence at all?" And again it has been asked, "If the inshore fisheries are of such insignificant consequence, why is it that the fishermen and people of the United States have always manifested such a feverish anxiety on the subject?" Those questions deserve an answer, and unless an answer can be made, you undoubtedly will feel that there must be some unseen importance in this question, or there would not have been all the trouble with reference to it heretofore. Why do the fishermen of the United States come to the Gulf of St. Lawrence at all? Why should they not come here? What men on the face of the earth have a better right to plow with their keels the waters of the Gulf of St. Lawrence than the descendants of the fishermen of New England, to whose energy and bravery, a century and a quarter ago, it is chiefly owing that there is any Nova Scotia to day under the British flag? I am not going to dwell upon the history of the subject. It is well known that it was New England that saved to the Crown of England these maritime provinces; that to New England fishermen is due the fact that the flag of Great Britain flies on the citadel, and not the flag of France, to-day.

Early in the diplomatic history of this case we find that the Treaty of Paris in 1763 excluded French fishermen three leagues from the coast belonging to Great Britain in the Gulf of St. Lawrence and fifteen leagues from the island of Cape Breton. We find that the treaty with Spain in the same year contained a relinquishment of all Spanish fishing rights in the neighborhood of Newfoundland. The Crown of Spain expressly desisted from all pretensions to the right of fishing in the neighborhood of Newfoundland. Those are the two treaties of 1763— the Treaty of Paris with France and the treaty with Spain. Obviously, at that time, Great Britain claimed for herself exclusive sovereignty over the whole Gulf of St. Lawrence and over a large part of the adjacent seas. By the Treaty of Versailles, in 1783, substantially the same provisions of exclusion were made with reference to the French fishermen. Now, in that broad claim of jurisdiction over the adjacent seas, in the right asserted and maintained to have British subjects fish there exclusively, the fishermen of New England, as British subjects, shared. Undoubtedly, the pretensions that were yielded to by those treaties have long since disappeared. Nobody believes now that Great Britain has any exclusive jurisdiction over the Gulf of St. Lawrence or the Banks of Newfoundland, but at the time when the United States asserted their independence and when the treaty was formed between