tion of 1818 was communicated to the United States. In this letter it was said that Her Majesty's government were clearly of the opinion that by the convention of 1818 the United States had "renounced the right of fishing, not only within three miles of the colonial shores, but within three miles of a line drawn across the mouth of any British bay or creek." But the question, What is a British bay or creek? was one that had been the occasion of difficulty in former times. The letter said:

"It is, therefore, at present the wish of Her Majesty's government neither to concede nor for the present to enforce any rights which are in their nature open to any serious question. Even before the conclusion of the reciprocity treaty Her Majesty's gov ernment had consented to forego the exercise of its strict right to exclude American fishermen from the Bay of Fundy, and they are of opinion that during the present season that right should not be exercised in the body of the Bay of Fundy, and that American fishermen should not be interfered with, either by notice or otherwise, unless they are 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. * Her Majesty's government do not desire that the prohibition to enter British bays should be generally insisted on, except when there is reason to apprehend some substantial invasion of British rights. And in particular they do not desire American vessels to be prevented from navigating the Gut of Canso, (from which Her Majesty's government are advised they may lawfully be excluded,) unless it shall appear that this permission is used to the injury of colonial fishermen, or for other improper objects."1

Instructions of 1870.

It appears that instructions were given in 1870 not to seize any vessel unless it were evident, and could be clearly proved, that the offense of fishing had been committed and the vessel itself captured within three miles of land. In view of the claims previously made by the British Government, the United States recognized in the tenor of these instructions "a generous spirit of amity." But subsequently, during the same season, it was learned that the colonial authorities were asserting the right to exclude American fishermen from entering the ports of the Dominion, either for the purpose of obtaining bait or supplies or of

Action of Colonial
Authorities.

For. Rel. 1870, 419-420.

2 Id. 421.

3 Id. 421-422.

transshipping their cargoes of fish under the system of bonded transit which had long been in existence.'

Commission.

When the Joint High Commission, which The Joint High negotiated the Treaty of Washington, met on February 27, 1871, the dispute as to the fisheries was one of the subjects that had been placed within its cognizance.

ish Commissioners.

The British commissioners were instructed Instructions of Brit- that the two chief questions were: "As to whether the expression 'three marine miles of any of the coasts, bays, creeks, or harbors of his Britannic Majesty's dominions' should be taken to mean a limit of three miles from the coast-line, or a limit of three miles from a line drawn from headland to headland; and whether the proviso that 'the American fishermen shall be admitted to enter such bays or harbors for the purpose of shelter, and of repairing damages therein, of purchasing wood, and of obtaining water, and for no other purpose whatever,' is intended to exclude American vessels from coming inshore to traffic, transship fish, purchase stores, hire seamen, etc." While a preference was expressed for the conclusion of a definite understanding upon the disputed interpretation of the convention of 1818, the British commissioners were authorized to propose that "the whole question of the relations between the United States and the British possessions in North America, as regards the fisheries," should be "referred for consideration and inquiry to an international commission, on which two commissioners, to be hereafter appointed, in consultation with the government of the Dominion, should be the British representatives." As it was not probable that such a commission would be able to report, and that a treaty could be framed, before the commencement of the fishing season of 1871, the British commissioners were authorized to agree upon some means, by licenses or otherwise, by which disputes might in the mean time be avoided."

American Commissioners.

In the instructions to the American comInstructions of missioners, the following grounds were taken: 1. That the acquisition of the inshore fisheries for the American fishermen was of more importance as removing danger of collision than on account

For. Rel. 1870, 422–434.

2 Lord Granville to Her Majesty's High Commissioners, February 9, 1871. (Papers relating to the Treaty of Washington, VI. 373–374.)

of its money value, the latter, probably, being overestimated by the Canadians.

2. That the headland doctrine had no foundation in the convention of 1818, and had been decided against Great Britain in the case of the schooner Washington, under the claims convention of February 8, 1853.

3. That the assumption to prevent American fishermen from purchasing bait, supplies, ice, etc., and from transshipping their fish in bond, under color of the convention of 1818, was never acquiesced in by the United States, and was carrying out in practice provisions which the American plenipotentiaries declined to insert in that convention.1

4. That as the mackerel fishery, out of which the trouble mostly arose, had come into existence since 1818, it was a subject for consideration whether the convention was fairly applicable to it.

For the adjustment of these questions it was suggested that provision might be made, either

1. By agreeing on the terms upon which the whole of the reserved fishing grounds might be thrown open to American fishermen, all obnoxious laws to be repealed, and the disputed reservation as to ports, harbors, etc., to be abrogated; or,

This allusion to the action of the American plenipotentiaries is based on the exchange of certain propositions, leading up to the conclusion of the convention. In the article first proposed by the American plenipotentiaries on September 17, 1818, the renunciation of the right to fish within three marine miles of the coasts, bays, creeks, and harbors, was followed by the proviso that the American fishermen should be permitted to enter those places "for the purpose only of obtaining shelter, wood, water, and bait, but under such restrictions as may be necessary to prevent their drying or curing fish therein, or in any other manner abusing the privilege hereby reserved to them." The British plenipotentiaries on October 6 presented a counter project, in which, after stipulating that United States fishing vessels should have the liberty to enter bays and harbors "for the purpose of shelter or of repairing damages therein, and of purchasing wood and obtaining water, and for no other purpose," and that "all vessels so resorting to the said bays and harbors" should be "under such restrictions as may be necessary to prevent their taking, drying, and curing fish therein," they proposed to declare that it was "further well understood" that the "liberty of taking, drying, and curing fish" inshore, where it was granted by the article, should "not be construed to extend to any privilege of carrying on trade with any of His Britannic Majesty's subjects residing within the limits hereinbefore assigned to the use of the fishermen of the United States for any of the purposes aforesaid;" that, in order the more effectually to guard against smuggling, it should "not be lawful for the vessels of the United States engaged in the said fishery

2. By agreeing upon the construction of the disputed renunciation, and upon the principles on which a line should be run by a joint commission to mark the territory from which the American fishermen were to be excluded; and by repealing the obnoxious laws, and agreeing on the measures to be taken for the protection of the colonial rights, such measures to prescribe the penalties for the violation of those rights, and to provide for a mixed tribunal for their enforcement. It might also, said the American instructions, be well to consider whether it should be further agreed that the fish taken in the waters open to both nations should be admitted free of duty into the United States and the British North American colonies.'

The substance of the deliberations of the Deliberations of Joint High Commission on the subject of the the Joint High Com- fisheries is disclosed in the following passage from the protocol of its proceedings:

mission.

"At the conference on the 6th of March the British Commissioners stated that they were prepared to discuss the question of the Fisheries, either in detail or generally, Refusal to Renew so as either to enter into an examination of Reciprocity Treaty. the respective rights of the two countries under the Treaty of 1818 and the general law of nations, or to

to have on board any goods, wares, or merchandise whatever, except such as may be necessary for the prosecution of their voyages to and from the said fishing-grounds," and that any United States vessel which contravened this regulation might be seized, condemned, and confiscated, together with her cargo. On the 7th day of October the American plenipotentiaries replied that, whatever extent of fishing ground might be secured to American fishermen, they were not prepared to accept it on a tenure or on conditions different from those on which the whole had previonsly been held, and that making vessels liable to confiscation, in case any articles not wanted for carrying on the fishery should be found on board, would expose the fishermen to endless vexations. The British plenipotentiaries, in turn, on October 13, presented a draft of an article which was accepted by the American plenipotentiaries, and which was textually embodied in the first article of the convention. It differs little, so far as the present discussion is concerned, from the article submitted by the American plenipotentiaries on the 17th of September, except in the omission of the word "bait." The United States subsequently contended that the "bait" referred to was bait for cod, which was then caught in the waters in question, and that it was not intended to prevent the purchase in British ports of bait for the mackerel fishery, which did not begin in those waters till several years afterward. (Papers relating to the Treaty of Washington, VI. 280–282.)

1 Papers relating to the Treaty of Washington, VI. 287–288.

approach at once the settlement of the question on a comprehensive basis.

"The American Commissioners said that with the view of avoiding the discussion of matters which subsequent negotiations might render it unnecessary to enter into, they thought it would be preferable to adopt the latter course, and inquired what, in that case, would be the basis which the British Commissioners desired to propose.

"The British Commissioners replied that they considered that the Reciprocity Treaty of June 5, 1854, should be restored in principle.

The American Commissioners declined to assent to a renewal of the former reciprocity treaty.

"The British Commissioners then suggested that, if any considerable modification were made in the tariff arrangements of that Treaty, the coasting trade of the United States and of Her Britannic Majesty's Possessions in North America should be reciprocally thrown open, and that the navigation of the River Saint Lawrence and of the Canadian Canals should be also thrown open to the citizens of the United States on terms of equality with British subjects.

"The American Commissioners declined this proposal, and objected to a negotiation on the basis of the Reciprocity Treaty. They said that that Treaty had proved unsatisfactory to the people of the United States, and consequently had been terminated by notice from the Government of the United States, in pursuance of its provisions. Its renewal was not in their interest, and would not be in accordance with the sentiments of their people. They further said that they were not at liberty to treat of the opening of the coasting trade of the United States to the subjects of Her Majesty residing in her Possessions in North America. It was agreed that the questions relating to the navigation of the River Saint Lawrence, and of the Canadian Canals, and to other commercial questions affecting Canada, should be treated by themselves.

eries.

"The subject of the Fisheries was further The Inshore Fish- discussed at the conferences on the 7th, 20th, 22d, and 25th of March. The American Commissioners stated that if the value of the inshore fisheries could be ascertained, the United States might prefer to purchase, for a sum of money, the right to enjoy, in perpetuity, the use of these inshore fisheries in common with British fishermen, and mentioned one million dollars as the sum they were prepared to offer. The British Commissioners replied that this offer was, they thought, wholly inadequate, and that no arrangement would be acceptable of which the admission into the United States free of duty of fish, the produce of the British fisheries, did not form a part, adding that any arrangement for the acquisition by purchase of the inshore fisheries in perpetuity was open to grave objection.

"The American Commissioners inquired whether it would be