List of documents filed with the Secretary of the Halifax Commission in support of the Case of Her Majesty's Government.

1. Treaty of Paris, 1783.

2. Treaty of Ghent, 1814.

3. Convention of October 20, 1818.

4. Reciprocity Treaty, 1854.

5. Instructions to Her Majesty's High Commissioners and Protocols of the Conferences held at Washington between February 27 and May 26, 1871.

6. Treaty of Washington, May 8, 1871.

7. Imperial Act of August 6, 1872.

8. Canadian Act, June 14, 1872.

9. Prince Edward Island Act, June 29, 1872.

10. Proclamation issued at Washington, June 7, 1873.

11. Proclamation issued at Washington, May 29, 1874.

12. Documents admitting United States fishermen by Prince Edward Island in 1871.

13. Annex A. (Attached to "Case.")

14. United States Trade and Navigation Reports, 1868-'69, '70, '71, '72. 15. Mr. E. H. Derby's Report.

16. Minutes of Executive Council of Prince Edward Island, February 17, 1874.

17. Report of Commander of "La Canadienne" in 1865.

18. Schedule of Fishing Licenses issued to United States citizens, 1866, '67, '68, '69.

19. Cape Ann Advertiser, March 6, 1874.

20. United States Trade and Navigation Returns, 1866.

21. Col. R. D. Cutt's Report, 1869.

22. Mr. W. Smith's Report, 1866 (p. 27).

23. Mr. Perley's Report, 1852 (pp. 28, 33, 44, 49, 52, 56).

24. Report of Collector of Customs at Port Mulgrave, 1873.

25. Mr. Lorenzo Sabine's Report, 1865.

26. Professor Baird's Report, 1871-72.

27. Report of the State Commissioners for Maine, 1872–’74. 28. Mr. Currie's Report, 1873.

29. Mr. Andrew's Report, 1852.

30. Canadian Fishery Reports for last ten years.

31. Report of Massachusetts Fishery Commissioners, 1872 (p. 39).

32. Annex B. (Attached to "Case.")

33. Annex C, Census Returns of Newfoundland. (Attached to "Case.") 34. Annex D, Exports from Newfoundland to Foreign Countries. (At

tached to "Case.")

APPENDIX B.

ANSWER ON BEHALF OF THE UNITED STATES OF AMERICA TO THE CASE OF HER BRITANNIC MAJESTY'S GOVERNMENT.

I.

Before proceeding to consider the case which has been presented on behalf of Her Majesty, the attention of the Commissioners is first called to the precise question which, and which only, they have been appointed and are authorized to determine.

By Article XVIII of the Treaty of Washington, the inhabitants of the United States have acquired, for the term of twelve years, which commenced July 1, 1873, liberty "to take fish of every kind, except shell-fish, on the sea coasts and shores, and in the bays, harbors, and creeks of the Provinces of Quebec, Nova Scotia, and New Brunswick, and the Colony of Prince Edward Island, and of the several islands thereunto adjacent, without being restricted to any distance from the shore; with permission to land upon the said coasts and shores and islands, and also upon the Magdalen Islands, for the purpose of drying their nets and curing their fish; provided that, in so doing, they do not interfere with the rights of private property, or with British fishermen in the peaceable use of any part of the said coasts in their occupancy for the same purpose.

"It is understood that the above-mentioned liberty applies solely to the sea fishery; and that the salmon and shad fisheries, and all other fisheries in rivers and the mouths of rivers, are reserved exclusively for British fishermen."

By Article XXII provision is made for the appointment of Commissioners to determine the amount of any compensation which, in their opinion, ought to be paid by the Government of the United States to that of Her Britannic Majesty, in return for the privileges accorded to the citizens of the United States under Article XVIII of the treaty.

Compensation can be awarded only for such new privileges as the United States acquired by virtue of Article XVIII. It is not competent for the Commissioners to award compensation for those rights which the fishermen of the United States enjoy in common with the rest of mankind; nor for the liberty secured to them by the Convention of 1818; nor for any rights, privileges, liberties, or advantages to which the United States are entitled by virtue of any other articles of the Treaty of Washington. Nothing, except the privileges newly acquired by virtue of Article XVIII, falls within the claim for compensation which Her Majesty's Government is entitled to make, and upon the validity and amount of which the Commission has jurisdiction to determine.

These are, 1st. The privilege to fish on the sea-coasts and shores, and in the bays, harbors, and creeks of Quebec, Nova Scotia, New Bruuswick, Prince Edward Island, and the adjacent islands, without being restricted to any distance from the shore.

2d. The permission to land on said coasts, shores, and islands, for the purpose of drying nets and curing fish; provided that they do not inter

fere with the rights of private property, or with the occupancy of British fishermen.

These are the only privileges accorded for which any possible compensation can be demanded. The liberty extends only to the sea fishery; the salmon and shad fisheries, and all other fisheries in rivers and mouths of rivers, are reserved exclusively for British fishermen.

It becomes necessary at the outset to inquire what rights American fishermen, and those of other nations, possess, independently of treaty, upon the ground that the sea is the common property of all mankind. For the purposes of fishing, the territorial waters of every country along the sea-coast extend three miles from low-water mark; and beyond is the open ocean, free to all. In the case of bays and gulfs, such only are territorial waters as do not exceed six miles in width at the mouth, upon a straight line measured from headland to headland. All larger bodies of water, connected with the open sea, form a part of it. And wherever the mouth of a bay, gulf, or inlet exceeds the maximum width of six miles at its mouth, and so loses the character of territorial or inland waters, the jurisdictional or proprietary line for the purpose of excluding foreigners from fishing is measured along the shore of the bay, according to its sinuosities, and the limit of exclusion is three miles from lowwater mark.

The United States insist upon the maintenance of these rules; believ ing them to conform to the well-established principles of international law, and to have received a traditional recognition from other powers, including Great Britain.

Moreover, the province of the present Commission is not to decide upon questions of international law. In determining what, if any, compensation Great Britain is entitled to receive from the United States, for the privilege of using for twelve years the in-shore sea fisheries, and for the permission to land on unoccupied and desert shores for the purpose of curing fish and drying nets, it is the manifest duty of the Commissioners to treat the question practically, and proceed upon the basis of the status actually existing when the Treaty of Washington was adopted.

The Commissioners who framed the Treaty of Washington decided not "to enter into an examination of the respective rights of the two countries under the treaty of 1818 and the general law of nations, but to approach the settlement of the question on a comprehensive basis."

What, then, was the practical extent of the privileges enjoyed by American fishermen at and before the date of the Treaty of Washington?

Even before the Reciprocity Treaty adopted June 5, 1854, the extreme and untenable claims put forth at an earlier day had been abandoned; and, directly after its abrogation, the colonial authorities were instructed (April 12, 1866) "that American fishermen should not be interfered with, either by notice or otherwise, unless found within three miles of the shore, or within three miles of a line drawn across the mouth of a bay or creek which is less than ten geographical miles in width, in conformity with the arrangement made with France in 1839."

After that time, till 1870, the Canadian Government issued licenses to foreign fishermen. And when that system was discontinued (May 14, 1870), the minister of marine and fisheries gave orders to the commander of the government vessels engaged in protecting the fisheries, not to interfere with any American fishermen, unless found within three miles of the shore, or within three miles of a line drawn across the mouth of a bay or creek which is less than ten geographical miles in width.

In the case of any other bay-as the bay of Chaleurs, for example-you will not admit any United States fishing-vessel or boat, or any Ameri. can fishermen, inside of a line drawn across at that part of such bay where its width does not exceed ten miles." It is not apprehended that, for the purposes of the present Commission, there would be any appreciable practical difference between extending the headland doctrine to bays ten miles wide at the mouth, and limiting it to those which are only six miles wide.

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But, as soon as these instructions were received in England, Her Majesty's Government made haste to telegraph to the Governor-General its hope that the United States fishermen will not be for the present prevented from fishing, except within three miles of land, or in bays which are less than six miles broad at the mouth." Accordingly, Mr. Peter Mitchell, the minister of marine and fisheries, was compelled to withdraw his former instructions, and to give new ones, as follows, under the date of June 27, 1870:

Until further instructed, therefore, you will not interfere with any American fishermen, unless found within three miles of the shore, or within three miles of a line drawn across the mouth of a bay or creek, which, though in parts more than six miles wide, is less than six geographical miles in width at its mouth. In the case of any other bay-as Bay des Chaleurs for example-you will not interfere with any United States fishing vessel or boat, or any fishermen, unless they are found within three miles of the shore.

In connection with and as a part of this case, the United States submit to the Commission a brief, exhibiting more fully the history of this controversy, and the authorities upon it, which conclusively show that the instructions just quoted correspond exactly with the well-established rules of international law. It is not doubted that the instructions given were carefully framed with a view to precise conformity with these rules, and in order that Great Britain might claim no more than it was prepared to concede to all foreign governments in dealing with a question of great practical importance.

The United States believe that Her Majesty's Government are now in full accord with their own on this subject, and that all more extensive claims formerly made are regarded by it, in the recent and forcible language of the Lord Chief Justice of England, "as vain and extravagant pretensions, which have long since given way to the influence of reason and common sense. These assertions of sovereignty were manifestly based on the doctrine that the narrow seas are part of the realm of England. But that doctrine is now exploded. Who at this day would venture to affirm that the sovereignty thus asserted in those times now exists? What English lawyer is there who would not shrink from maintaining, what foreign jurist who would not deny, what foreign government which would not repel, such a pretension?”

II.

Having ascertained the extent and limits of the privileges accorded to the United States by Article XVIII, it is next necessary to state what are the privileges accorded to Her Majesty's subjects by Articles XIX and XXI of the Treaty of Washington. For Article XXII, which defines the powers and duties of this Commission, and constitutes its sole authority to act, expressly directs it to have "regard to the privi leges accorded by the United States to the subjects of Her Britannic Majesty, as stated in Articles XIX and XXI.”

By Article XIX, British subjects acquire, for the same term of years, identically the same privileges, and upon the same restrictions of land