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. 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, $$ 40, 41; De Cussy, Phases et Causes Célèbres du Droit Maritime des Nations, Leipzig, 1856, liv. 1, tit. 2, §§ 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 v. Boit, 2 Gallison, 2nd ed., 426; Church . Hubbart, 2 Cranch, 187; 1 Op. At. Gen. 32; Martin v. Waddell, 16 Pet. 367; Life of Sir Leoline Jenkins, II. 726; Azuni,

a Documents and Proceedings of the Halifax Commission, I. 119-167. 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. . 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 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 suggested 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. Freling huysen 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.

Modus vivendi,

1885.

March 12, 1885, the British minister embodied his suggestion in a memorandum, which he communicated with a personal 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. sess.

See report of Feb. 4. 1882, H. Report 235, 47 Cong. 1 sess. ; 22 Stat. 641.

c For. Rel. 1883, 413, 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.