not so framed as to give unfairly an advantage to the former over the latter class.

It is contended on the part of the United States that the exercise of such liberty is not subject to limitations or restraints by Great Britain, Canada, or Newfoundland in the form of municipal laws, ordinances, or regulations in respect of (1) the hours, days, or seasons when the inhabitants of the United States may take fish on the treaty coasts, or (2) the method, means, and implements used by them in taking fish or in carrying on fishing operations on such coasts, or (3) any other limitations or restraints of similar character

(a.) Unless they are appropriate and necessary for the protection and preservation of the common rights in such fisheries and the exercise thereof; and

(b.) Unless they are reasonable in themselves and fair as between local fishermen and fishermen coming from the United States, and not so framed as to give an advantage to the former over the latter class; and

(c.) Unless their appropriateness, necessity, reasonableness, and fairness be determined by the United States and Great Britain by common accord and the United States concurs in their enforcement.

Question 2.-Have the inhabitants of the United States, while exercising the liberties referred to in said article, a right to employ as members of the fishing crews of their vessels persons not inhabitants of the United States?

Question 3.-Can the exercise by the inhabitants of the United States of the liberties referred to in the said article be subjected, without the consent of the United States, to the requirements of entry or report at customhouses, or the payment of light, or harbour, or other dues, or to any other similar requirement, or condition, or exaction?

3

Question 4.-Under the provision of the said article that the American fishermen shall be admitted to enter certain bays or harbours for shelter, repairs, wood. or water, and for no other purpose whatever, but that they shall be under such restrictions as may be necessary to prevent their taking, drying. or curing fish therein or in any other manner whatever abusing the privileges thereby reserved to them, is it permissible to impose restrictions making the exercise of such privileges conditional upon the payment of light or harbour or other dues, or entering or reporting at custom houses, or any similar conditions?

Question 5.-From where must be measured the "three marine miles of any of the coasts, bays, creeks, or harbours" referred to in the said article?

Question 6.-Have the inhabitants of the United States the liberty under the said article or otherwise to take fish in the bays, harbours, and creeks on that part of the southern coast of Newfoundland which extends from Cape Ray to Rameau Islands, or on the western and northern coasts of Newfoundland from Cape Ray to Quirpon Islands, or on the Magdalen Islands?

Question 7.-Are the inhabitants of the United States whose vessels resort to the treaty coasts for the purpose of exercising the liberties referred to in article 1 of the treaty of 1818 entitled to have for those vessels, when duly authorised by the United States in that

behalf, the commercial privileges on the treaty coasts accorded by agreement or otherwise to United States trading vessels generally? Article 2. Either party may call the attention of the tribunal to any legislative or executive act of the other party, specified within three months of the exchange of notes enforcing this agreement, and which is claimed to be inconsistent with the true interpretation of the treaty of 1818, and may call upon the Tribunal to express in its award its opinion upon such acts, and to point out in what respects, if any, they are inconsistent with the principles laid down. in the award in reply to the preceding questions; and each party agrees to conform to such opinion.

Article five of the agreement provides for the constitution of a Tribunal of Arbitration chosen from the general list of members of the Permanent Court at The Hague in accordance with the provisions of article forty-five of the convention for the settlement of international disputes concluded at the second peace conference at The Hague on the 18th October, 1907.

Article eleven provides that the agreement shall be deemed to be binding only when confirmed by the two Governments by an exchange of notes.

4

The agreement was duly confirmed on the 4th March, 1909, and the present Tribunal has been constituted in accordance with. the provisions of article five. The full text of the agreement is set out in the appendix to this case.

In accordance with the provisions of article two (App., p. 2) notices were served by both parties, and these will be found in the appendix.

The accompanying Case, together with the documents, official correspondence, maps, and other evidence on which the Government of Great Britain relies contained in the appendices, is delivered pursuant to article six of the agreement.

INTRODUCTION.

The treaty between Great Britain and the United States, to be interpreted by this Tribunal, was concluded on the 20th October, 1818. It is thought desirable, however, to submit a brief statement as to the position of the British American colonies at the time of the war of independence (terminated by the treaty of 1783), and a short chronological summary of the more material subsequent incidents, in order to enable the Tribunal better to appreciate the questions which are presented for their decision.

POSITION BEFORE 1783.

British American Colonies.-Prior to the 4th July, 1776, Great Britain possessed upon the American continent seventeen colonies. On that date the thirteen southern colonies declared their independence, and afterwards became the United States of America. The four northern colonies-Newfoundland, Nova Scotia, St. John's Island (now known as Prince Edward Island), and Quebec (afterwards Upper and Lower Canada)—adhered to the United Kingdom. The questions involved in the present reference relate to liberties claimed within the territorial waters, or on the land, of these colonies; and it is material to call attention to some points in their history.

Newfoundland.-The ownership of Newfoundland was, at one time, a matter of dispute between Great Britain and France; but by the treaty of Utrecht, in 1713, France ceded all her claims to Great Britain, subject to the following clause (App., p. 7) :—

Moreover, it shall not be lawful for the subjects of France to fortify any place in the said Island of Newfoundland, or to erect any buildings there, besides stages made of boards, and huts necessary and

usual for drying of fish; or to resort to the said island, beyond 5 the time necessary for fishing and drying of fish. But it shall

be allowed to the subjects of France to catch fish, and to dry them on land, in that part only, and in no other besides that, of the said Island of Newfoundland, which stretches from the place called Cape Bonavista to the northern point of the said island, and from thence, running down by the western side, reaches as far as the place called Point Riche.

Nova Scotia.--By the same treaty of Utrecht (1713), France ceded to Great Britain "Nova Scotia, or Acadie, with its ancient boundaries." A question as to whether these boundaries did, or did not,

92909°-S. Doc. 870, 61-3, vol. 4—————2

5

include the north coast of the peninsula was settled by the later treaty of 1763, France giving up all claim. By this later treaty, too, Cape Breton Island passed from France to Great Britain. At the date of the 1783 treaty, therefore, Great Britain was possessed of the whole of Nova Scotia (including New Brunswick and Cape Breton) and all of its coast fisheries. (App., p. 7.)

Prince Edward Island.-By the treaty of 1763, this island (then called St. John's Island) was ceded by France to Great Britain. At first, part of Nova Scotia, it was afterwards, in 1768, made a separate province. (App., p. 8.)

Quebec.-Prior to 1763, France was possessed of much of that which now constitutes the Provinces of Ontario and Quebec in Canada; but ownership of the territory lying between the thirteen British colonies on the Atlantic coast and the River Mississippi was in dispute between Great Britain and France.

By the treaty of 1763, France ceded to Great Britain "Canada with all its dependencies," including all the territory in dispute to the east of the Mississippi. In the same year, part of the ceded territory was constituted a province under the name of the Province of Quebec. In 1774, there was a re-arrangement, and all the territory now known as the Provinces of Ontario and Quebec (in Canada) and as the States of Indiana, Ohio, Illinois, Wisconsin, and Michigan, and the eastern part of Minnesota (in the United States), together with all the great lakes (except the southern half of Lake Ontario), were united as the Province of Quebec.

Labrador and the Magdalen Islands formed part of the Province of Quebec in 1783. A portion of Labrador was annexed to Newfoundland prior to the treaty of 1818. (App., p. 8.)

6

POSITION BEFORE 1783.

Fisheries.-There were, and are, two sorts of fisheries: (1) the bank fisheries of the ocean; and (2) the coast fisheries within the territorial waters of the respective colonies.

In respect of the bank fisheries (lying more than 35 miles from the shore), Great Britain at one time asserted an exclusive right. By the treaty of 1763, Spain had relinquished the pretensions of the Guipuscoans, and other Spanish subjects to fish there; and France had agreed not to (App., p. 10) —

exercise the said fishery but at the distance of 3 leagues from all the coasts belonging to Great Britain, as well those of the continent as those of the islands situated in the said Gulf of St. Lawrence. And as to what relates to the fishery on the coasts of the Island of Cape Breton out of the said gulf, the subjects of the Most Christian King shall not be permitted to exercise the said fishery but at the distance of 15 leagues from the coasts of the Island of Cape Breton. (App., p. 8.)