APPENDIX C.

BRIEF FOR THE UNITED STATES UPON THE QUESTION OF THE EXTENT AND LIMITS OF THE INSHORE FISHERIES AND TERRITORIAL WATERS ON THE ATLANTIC COAST OF BRITISH NORTH AMERICA.

The articles relating to the fisheries in this treaty are the following:

ARTICLE XVIII.

It is agreed by the High Contracting Parties, that, in addition to the liberty secured to the United States fishermen by the convention between the United States and Great Britain, signed at London on the 20th day of October, 1818, of taking, curing, and drying fish, on certain coasts of the British North American Colonies therein defined, the inhabitants of the United States shall have, in common with the subjects of Her Britannic Majesty, the liberty, for the term of years mentioned in Article XXXIII of this treaty, 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's 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 pur

pose.

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.

ARTICLE XIX.

It is agreed by the High Contracting Parties that British subjects shall have, in common with the citizens of the United States, the liberty, for the term of years mentioned in Article XXXIII of this treaty, to take fish of every kind, except shell-fish, on the eastern sea-coasts and shores of the United States north of the thirty-ninth parallel of north latitude, and on the shores of the several islands thereunto adjacent, and in the bays, harbors, and creeks of the said sea-coasts and shores of the United States, and of the said islands, without being restricted to any distance from the shore, with permission to land upon the said coasts of the United States and of the islands aforesaid, 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 the fishermen of the United States, 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 salmon and shad fisheries, and all other fisheries in rivers and mouths of rivers, are hereby reserved exclusively for fishermen of the United States.

ARTICLE XX.

It is agreed that the places designated by the Commissioners, appointed under the first article of the treaty between the United States and Great Britain, concluded at Washington on the 5th of June, 1854, upon the coasts of Her Britannic Majesty's dominions and the United States, as places reserved from the common right of fishing under that treaty, shall be regarded as in like manner reserved from the common right of fishing under the preceding articles. In case any question should arise between the governments of the United States and of Her Britannic Majesty, as to the common right of fishing in places not thus designated as reserved, it is agreed that a Commis.

sion shall be appointed to designate such places, and shall be constituted in the same manner, and have the same powers, duties, and authority, as the Commission appointed under the said first article of the treaty of the 5th of June, 1854.

ARTICLE XXI.

It is agreed that, for the term of years mentioned in Article XXXIII of this treaty, fish-oil and fish of all kinds (except fish of the inland lakes and of the rivers falling into them, and except fish preserved in oil), being the produce of the fisheries of the United States, or of the Dominion of Canada, or of Prince Edward's Island, shall be admitted into each country, respectively, free of duty.

ARTICLE XXII.

Inasmuch as it is asserted by the Government of Her Britannic Majesty, that the privileges accorded to the citizens of the United States under Article XVIII of this treaty are of greater value than those accorded by Articles XIX and XXI of this treaty to the subjects of Her Britannic Majesty, and this assertion is not admitted by the Government of the United States, it is further agreed that Commissioners shall be appointed 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 this 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 this treaty; and that any sum of money which the said Commissioners may so award shall be paid by the United States Government in a gross sum within twelve months after such award shall have been given.

ARTICLE XXIII.

The Commissioners referred to in the preceding article shall be appointed in the following manner; that is to say, one Commissioner shall be named by the President of the United States, one by Her Britannic Majesty, and a third by the President of the United States and Her Britannic Majesty conjointly; and in case the third Commissioner shall not have been so named within a period of three months from the date when this article shall take effect, then the third Commissioner shall be named by the representative at London of His Majesty the Emperor of Austria and King of Hungary. In case of the death, absence, or incapacity of any Commissioner, or in the event of any Commissioner omitting or ceasing to act, the vacancy shall be filled in the manner herein before provided for making the original appointment, the period of three months in case of such substitution being calculated from the date of the happening of the

vacancy.

The Commissioners so named shall meet in the city of Halifax, in the Province of Nova Scotia, at the earliest convenient period after they have been respectively named; and shall, before proceeding to any business, make and subscribe a solemn declaration that they will impartially and carefully examine and decide the matters referred to them to the best of their judgment, and according to justice and equity; and such declaration shall be entered on the record of their proceedings.

Each of the High Contracting Parties shall also name one person to attend the Commission as its Agent, to represent it generally in all matters connected with the Commission.

ARTICLE XXIV.

The proceedings shall be conducted in such order as the Commissioners appointed under Articles XXII and XXIII of this treaty shall determine. They shall be bound to receive such oral or written testimony as either government may present. If either party shall offer oral testimony, the other party shall have the right of cross-examination, under such rules as the Commissioners shall prescribe.

If in the case submitted to the Commissioners either party shall have specified or alluded to any report or document in its own exclusive possession, without annexing a copy, such party shall be bound, if the other party thinks proper to apply for it, to furnish that party with a copy thereof; and either party may call upon the other, through the Commissioners, to produce the originals or certified copies of any papers adduced as evidence, giving in each instance such reasonable notice as the Commissioners may require.

The case on either side shall be closed within a period of six months from the date of the organization of the Commission; and the Commissioners shall be requested to give their award as soon as possible thereafter. The aforesaid period of six months

may be extended for three months, in case of a vacancy occurring among the Commissioners under the circumstances contemplated in Article XXIII of this treaty.

ARTICLE XXV.

The Commissioners shall keep an accurate record and correct minutes or notes of all their proceedings, with the dates thereof, and may appoint and employ a secretary, and any other necessary officer or officers, to assist them in the transaction of the business which may come before them.

Each of the High Contracting Parties shall pay its own Commissioner and Agent or counsel; all other expenses shall be defrayed by the two governments in equal moieties.

ARTICLE XXXII.

It is further agreed that the provisions and stipulations of Articles XVIII to XXV of this treaty, inclusive, shall extend to the Colony of Newfoundland, so far as they are applicable. But if the Imperial Parliament, the Legislature of Newfoundland, or the Congress of the United States, shall not embrace the Colony of Newfoundland in their laws enacted for carrying the foregoing articles into effect, then this article shall be of no effect; but the omission to make provision by law to give it effect, by either of the legislative bodies aforesaid, shall not in any way impair any other articles of this treaty.

ARTICLE XXXIII.

The foregoing Articles XVIII to XXV, inclusive, and Article XXX of this treaty, shall take effect as soon as the laws required to carry them into operation shall have been passed by the Imperial Parliament of Great Britain, by the Parliament of Canada, and by the legislature of Prince Edward's Island, on the one hand, and by the Congress of the United States, on the other. Such assent having been given, the said articles shall remain in force for the period of ten years from the date at which they may come into operation; and, further, until the expiration of two years after either of the High Contracting Parties shall have given notice to the other of its wish to terminate the same; each of the High Contracting Parties being at liberty to give such notice to the other, at the end of the said period of ten years or at any time afterward.

By the Treaty of Paris (February 10, 1763) France yielded up to Great Britain all the possessions formerly held by her in North America, with the exception of some small islands; and Great Britain thus acquired the fisheries along the shores of the North American Provinces. From that time until the Revolution, the citizens of the United States, being under the Government of Great Britain, enjoyed the fisheries equally with the other inhabitants of the British Empire.

By the treaty of 1783, in which the independence of the United States was recognized by Great Britain, the American fishermen were permitted to fish in the waters of the North American Provinces, and to use certain parts of their coast for drying and curing fish. Article III of the treaty is as follows, viz:

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 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 inhabitants of the United States shall have liberty to take fish of every kind on such part of the coasts 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 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, as long as the same shall remain unsettled. But as soon as the same, or either of them, shall be settled, it shall not be lawful for 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.

The fisheries were among the questions discussed by the Commissioners who framed the treaty of peace at the close of the war of 1812. The

United States Commissioners claimed that the treaty of 1783 conferred no new rights upon the United States; that it was merely an agreement as to a division of property, which took place on the division of the British Empire after the success of the American Revolution, and was in no respect abrogated by the war. The British Commissioners, on the other hand, held, that while the treaty of 1873 recognized the right of the United States to the deep-sea fisheries, it conferred privileges as to the inshore fisheries, and the use of the shores which were lost by declaration of war. The Commissioners were unable to come to an agreement, and the Treaty of Ghent, December 24, 1814, did not allude to the question of the fisheries, which remained unsettled.

Until the year 1818, the American fishermen carried on the fisheries as before the war of 1812, but were harassed and troubled by the British cruisers; and several were captured and carried into Halifax, for alleged infringement of the fishing laws, although the American government still claimed, under the treaty of 1783, the right to fish anywhere on the coasts of the British provinces. In a long correspondence with Lord Bathurst, Mr. John Quincy Adams maintains the claims of the United States. American State Papers, Foreign Relations, vol. iii, page 732 et seq. In 1818, Mr. Albert Gallatin, the minister to France, and Mr. Richard Rush, the minister to Great Britain, were empowered by the President to treat and negotiate with Great Britain concerning the fisheries, and other matters of dispute between the two governments. Mr. Frederick John Robinson and Mr. Henry Goulburn were the British Commissioners; and, after a long conference, the Convention of October 20, 1818, was agreed upon, the article of which concerning the fisheries and the subject of the present discussion is as follows, viz:

ARTICLE I.

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, harbors, and creeks of His Britannic Majesty's dominions in America, it is agreed between the High Contracting Parties, that the inhabitants of the said United States shall have for ever, in common with the subjects of His Britannic Majesty, the liberty to take fish of any kind, on that part of the southern coast of Newfoundland which extends from Cape Ray to the Rameau Islands, on the western and northern coasts of Newfoundland from the said Cape Ray to the Quirpon Islands, on the shores of the Magdalen Islands; and also on the coasts, bays, harbors, and creeks, from Mount Joly on the southern coast of Labrador, to and through the straits of Belle Isle, and thence northwardly, indefinitely along the coast; and that the American fishermen shall also have the liberty for ever to dry and cure fish in any of the unsettled bays, harbors, and creeks of the southern part of the coast of Newfoundland, herein before described, and of the coast of Labrador. But as soon as the same, or any portion thereof, shall be settled, it shall not be lawful for said fishermen to dry or cure fish at such portion so settled, without previous agreement for such purpose with the inabitants, proprietors, or possessors of the ground. And the United States hereby renounces for ever 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 harbors of His Britannic 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 harbors for the purpose of shelter, 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 secured to them.

The construction placed upon this article by the Government of the Dominion has been formerly: First, that American fishermen are thereby excluded from, and have given up all rights to, the fisheries in the large bays; such as the Bay of Fundy, the Bay of Chaleurs, and the Bay of Miramichi. Second, that a straight line should be drawn from head

land to headland, across the mouths of all bays, gulfs, or indentations of the shore, and from this line the three marine miles mentioned in the convention should be measured; and that this was the limit within which the Americans were forbidden to prosecute the fisheries. On the other hand, the American Government has always insisted that the three-mile limit should follow the coast parallel to its sinuosities, and should be measured across the mouths of bays only when the distance from headland to headland did not exceed six miles.

After 1818 there appears to have been no correspondence between the two governments until 1824, and during these six years American fishermen used the fisheries in the Bay of Fundy, and more than three miles beyond the line of low-water mark along the shores, without molestation or interference.

In September, 1824, Mr. Brent writes to Mr. Addington, chargé d'Affaires from Great Britain:

I have the honor to transmit to you three memorials, from sundry citizens of the United States belonging to the State of Maine, accompanied by seven protests and affidavits, which exhibit the nature and extent of the facts referred to by the memorialists, complaining of the interruption which they have experienced, during the present season, in their accustomed and lawful employment of taking and curing fish in the Bay of Fundy and upon the Grand Banks by the British armed brig Dotterel, commanded by Captain Hoare, and another vessel, a provincial cutter of New Brunswick, acting under the orders of that officer; and earnestly soliciting the interposition of this government to procure them suitable redress.

This complaint of the American Government was caused by the seizure of two vessels, the Reindeer and the Ruby, on July 26, 1824, at Two-Island Harbor, Grand Menan. The correspondence does not show what the precise cause of the seizure was. The report of Captain Hoare merely says "infringing the treaty." These two vessels were afterward rescued by the fishermen and carried into the harbor of Eastport.

Afterward, in answer to this, February 19, 1825, Mr. Addington writes to Mr. Adams, Secretary of State:

It will, I trust, sir, most conclusively appear to you that the complainants have no just ground of accusation against the officers of the Doterel, nor are entitled to reparation for the loss they have sustained; that, on the contrary, they rendered themselves, by the irregularity of their own conduct, justly obnoxious to the severity exercised against them, having been taken, some flagrante delicto, and others in such a position and under such circumstances as rendered it absolutely impossible that they could have had any other intention than that of pursuing their avocations as fishermen, within the lines laid down by treaty as forming boundaries within which such pursuit was interdicted to them.

The evidence regarding the seizure of these and various other American vessels is appended to this letter, and will be found in full, with the affidavits of the American seamen, in Senate Ex. Doc. No. 100, 32d Congress, 1st session.

The next correspondence was January, 1836, when Mr. Charles Bankbead, chargé d'affaires, writes to Mr. Forsyth concerning the encroachments "on the limits of the British fisheries carried on in the river and Gulf of St. Lawrence."

At this time a circular was issued by the Secretary of the Treasury to the American fishermen, enjoining them to observe the limits of the treaty, but without saying what these limits were. The claim of the provincial authorities to exclude American fishermen from the great bays, such as Fundy and Chaleurs, and also from a distance of three miles, determined by a line drawn from headland to headland across their mouths, was not attempted to be enforced until the years 1838 and 1839, when several of the American fishing vessels were seized by the British cruisers for fishing in the large bays. On July 10, 1839, Mr.