PROTOCOL LXXVIII. Record of the proceedings of the Fisheries Commission at the seventy-eighth conference, held at Halifax, Nova Scotia, on the 23d day of November, 1877. The Commission met at 2 p. m., pursuant to adjournment. The three Commissioners, and the Agents of the United States and of Great Britain, respectively, were present. By direction of the President, the Secretary read the records of the last conference, which were approved, and signed by the Commissioners, the Secretary, and the Agents. The President first expressed the thanks of the Commissioners to Mr. Foster and to Mr. Ford for the able manner in which they had conducted the proceedings, and his best wishes for the welfare of all those who had been connected with the inquiry. The President then read the following Award: The undersigned Commissioners appointed under Articles XXII and XXIII of the Treaty of Washington of the 8th of May, 1871, to determine, having regard to the privileges accorded by the United States to the subjects of Her Britannic Majesty, as stated in Articles XIX and XXI of said treaty, the amount of any compensation which in their opinion ought to be paid by the Government of the United States to the Government of Her Britannic Majesty, in return for the privileges accorded to the citizens of the United States under Article XVIII of the said treaty; Having carefully and impartially examined the matters referred to them according to justice and equity, in conformity with the solemn declaration made and subscribed by them on the fifteenth day of June, one thousand eight hundred and seventy-seven: Award the sum of five millions five hundred thousand dollars, in gold, to be paid by the Government of the United States to the Government of Her Britannic Majesty in accordance with the provisions of the said treaty. Signed at Halifax, this twenty-third day of November, one thousand eight hundred and seventy-seven. MAURICE DELFOSSE. The United States Commissioner is of opinion that the advantages accruing to Great Britain under the Treaty of Washington are greater than the advantages conferred on the United States by said treaty, and he cannot therefore concur in the conclusions announced by his colleagues. And the American Commissioner deems it his duty to state further that it is questionable whether it is competent for the board to make an award under the treaty, except with the unanimous consent of its members. E. H. KELLOGG, Commissioner. Mr. Foster then addressed the Commission as follows: GENTLEMEN OF THE COMMISSION: I have no instructions from the Government of the United States as to the course to be pursued in the contingency of such a result as has just been announced. But if I were to accept in silence the paper signed by two Commissioners, it might be claimed hereafter that, as Agent of the United States, I had acquiesced in treating it as a valid award. Against such an inference it seems my duty to guard. I therefore make this statement, which I desire to have placed upon record. Mr. Kellogg next expressed his thanks and those of Sir A. T. Galt to Mr. Delfosse for the manner in which he had fulfilled the duties of President of the Commission. The President then announced that the Commission was adjourned sine die. MAURICE DELFOSSE. E. H. KELLOGG. A. T. GALT. FRANCIS CLARE FORD. DWIGHT FOSTER. J. H. G. BERGNE. APPENDIX A. CHAPTER 3.—Advantages derived by British subjects. CHAPTER 3.-Advantages derived by British subjects. Liberty of free fishing and advantage of a free market for fish and fish-oil..... CONCLUSION. Page. 106 Amount of compensation claimed in respect of the Colony of Newfoundland.... 107 SUMMARY. Total amount of compensation claimed by Her Majesty's Government on behalf of Canada and Newfoundland, collectively.. 103 INTRODUCTION. In laying the case of Her Majesty's Government before the Commissioners, it will be desirable to commence by a brief history of the fisheries question since the outbreak of the War of Independence in 1775. Before the commencement of this war all British colonists enjoyed equal privileges in matters connected with fishing, but at its close, and on the conclusion of peace, it became a question how far such privileges should be restored to those who had separated from the British Crown. The matter was very fully discussed in the negotiations which preceded the treaty of the 3d September, 1783, and though Great Britain did not deny the right of the American citizens to fish on the Great Banks of Newfoundland, or in the Gulf of Saint Lawrence, or elsewhere in the open sea, she denied their right to fish in British waters, or to land in British territory for the purpose of drying or curing their fish. A compromise was at length arrived at, and it was agreed that United States fishermen should be at liberty to fish on such part of the coast of Newfoundland as British fishermen could use, but not to dry or cure their fish on that island; and they were also to be allowed to fish on the coasts, bays, and creeks of other British possessions in North America, and to dry and cure their fish in any of the unsettled bays, harbors, and creeks of Nova Scotia, the Magdalen Islands, and Labrador, so long as they should remain unsettled; but so soon as any of them became settled, the United States fishermen were not to be allowed to use them without the previous permission of the inhabitants and proprietors of the ground. The III. Article of the Treaty of Paris of the 3d of September, 1783, is as follows: It is agreed that the people of the United States shall continue to enjoy unmolested the right to take fish of every kind on the Grand Bank and on all the other banks of Newfoundland; also in the Gulf of Saint Lawrence, and at all other places in the sea, where the inhabitants of both countries used at any time heretofore to fish; and also that the inhabitants of the United States shall have liberty to take fish of every kind on such part of the coast of Newfoundland as British fishermen shall use (but not to dry or cure the same on that island), and also on the coasts, bays, and creeks of all other of His Britannic Majesty's dominions in America; and that the American fishermen shall have liberty to dry and cure fish in any of the unsettled bays, harbors, and creeks of Nova Scotia, Magdalen Islands, and Labrador, so long as the same shall remain unsettled; but so soon as the same, or either of them, shall be settled, it shall not be lawful for the said fishermen to dry or cure fish at such settlement without a previous agreement for that purpose with the inhabitants, proprietors, or possessors of the ground. It should, however, be observed that the rights conceded to the United States fishermen under this treaty were by no means so great as those which, as British subjects, they had enjoyed previous to the War of Independence, for they were not to be allowed to land to dry and cure their fish on any part of Newfoundland, and only in those parts of Nova Scotia, the Magdalen Islands, and Labrador where no British settlement had been or might be formed, expressly excluding Cape Breton, Prince Edward Island, and other places. So matters stood until the war of 1812 broke out, when, of necessity, the right of American citizens to fish in British waters, and to dry and cure their fish on British territory, terminated. In the course of the negotiations which preceded the peace of 1814, this question was revived, and the alleged right of American citizens to fish and cure fish within British jurisdiction was fully gone into by the British and American commissioners who were assembled at Ghent for the purpose of drawing up the articles of peace. At that time, however, the circumstances had very considerably changed since the Treaty of 1783 had been concluded. The British North American possessions had become more thickly populated, and there were fewer unsettled bays, harbors, and creeks in Nova Scotia than formerly. There was consequently greater risk of collision between British and American interests; and the colonists and English merchants engaged in the fisheries petitioned strongly against a renewal of the privileges granted by the treaty of 1783 to the American fishermen. It was under these circumstances that the negotiations for peace were entered into. At the first meeting, which took place on the 8th of August, 1814, the British commissioners stated "that the British Government did not intend to grant to the United State gratuitously the privileges formerly granted to them by treaty of fishing within the limits of British territory, or of using the shores of the British territories for purposes connected with the fisheries." They contended that the claim advanced by the United States, of immemorial and prescriptive right, was quite untenable, inasmuch as the inhabitants of the United States bad until quite recently been British subjects, and that the rights which they possessed formerly as such could not be contiaued to them after they had become citizens of an independeni state. After much discussion, it was finally agreed to omit all mention of this question from the treaty, which was signed at Ghent on the 24th December, 1814, and which contains no reference to the fisheries question. Orders were now sent out to the governors of the British North American colonies not to interfere with citizens of the United States engaged in fishing on the Newfoundland Banks, in the Gulf of Saint Lawrence, or on the high seas, but to prevent them from using the British territory for purposes connected with the fishery, and to exclude their fishing-vessels from the harbors, bays, rivers, and creeks of all Her Majesty's Possessions. Orders were also given to the British naval officers on the Halifax station to resist any encroachment on the part of American fishermen on the rights of Great Britain. The result was the capture of several American fishing-vessels for trespassing within British waters; and the President of the United States in 1818 proposed to the Prince Regent that negotiations should be opened for the purpose of settling in an amicable manner disputed points which had arisen connected with the fisheries. Commissioners were accordingly appointed by both parties to meet in London, and the Convention of 20th October, 1818, was eventually signed. Article 1 of this Convention is in these words: Whereas differences have arisen respecting the liberty claimed by the United States for the inhabitants thereof to take, dry, and cure fish on certain coasts, bays, harbours, and creeks of His Britannick Majesty's dominions in America, it is agreed between the High Contracting Parties that the inhabitants of the said United States shall have, forever, in common with the subjects of His Britannick Majesty, the liberty to take fish of every kind on that part of the southern coast of Newfoundland which extends from Cape Ray to the Rameau Islands, on the western and northern coast of Newfoundland, from the said Cape Ray to the Quirpon Islands, on the shores of the Magdalen Islands, and also on the coasts, bays, harbours, and creeks from Mount Jolly, on the southern coast of Labrador, to and through the Straits of Belle Isle, and thence northwardly indefinitely along the coast, without prejudice, however, to any of the exclusive rights of the Hudson Bay Company; and that the American fishermen shall also have liberty, forever, to dry and cure fish in any of the unsettled bays, harbours, and creeks of the southern part of the coast of Newfoundland, hereabove described, and of the coast of Labrador; but so soon as the same or any portion thereof shall be settled, it shall not be lawful for the said fishermen to dry or cure fish at such portion so settled, without previous agreement for such purpose with the inhabitants, proprietors, or possessors of the ground. And the United States hereby renounce forever, any liberty heretofore enjoyed or claimed by the inhabitants thereof, to take, dry, or cure fish on or within three marine miles of any of the coasts, bays, creeks, or barbours of His Britannick Majesty's dominions in America not included within the above-mentioned limits. Provided, however, that the American fishermen shall be admitted to enter such bays or harbours for the purpose of shelter, and of repairing damages therein, of purchasing wood, and of obtaining water, and for no other purpose whatever. But they shall be under such restrictions as shall be necessary to prevent their taking, drying, or curing fish therein, or in any other manner whatever abusing the privileges hereby reserved to them. Subsequent to the conclusion of this Convention, in consequence of numerous complaints on the part of Her Majesty's Government of encroachments on their waters by American fishermen, the United States Government issued a notice warning their subjects that they were ❝ to observe strictly the limits assigned for taking, drying, and curing, fish by the fishermen of the United States, under the 1st Article of the Couvention of the 20th of October, 1818," a copy of which was annexed to the circular notice. This was the state of affairs until the year 1847, when, in consequence of a petition addressed to the Queen by the Canadian Parliament, negotiations were opened between the two governments for the establishment of reciprocal free trade between Canada and the United States; and on the 1st of November, 1849, Sir H. Bulwer, who was then about to proceed to Washington as British Minister, was authorized to enter into a negotiation by which access to the fisheries of all the colonies (except Newfoundland, which refused to consent on any terms) should be given to the citizens of the United States, in return for reciprocity of trade with the United States, in all natural productions, such as fish, wheat, timber, &c. The proposal was favorably received by the United States Government, but some delay occurred, owing to the death of General Taylor in 1850. The new President, however, doubted whether it was a proper subject for a Treaty, and thought that it should be done by legislation, and accordingly a bill was brought in for the purpose. The bill was, however, thrown out, and from one cause or another nothing was done from that time until 1852, when a desire was evinced on the part of the United States Government to come to an arrangement on the subject, and a draft convention having been prepared, a copy thereof was sent home by the British Minister on the 19th December, 1852, together with remarks made by the President thereon. A good deal of correspondence passed between the two Governments on the subject, but, owing to difficulties connected with the question of Tariff, the United States Government appeared anxious to have the |