before the commission was, said Mr. Foster, the amount of any compensation which ought to be paid by the United States for the privileges secured to their citizens under Article XVIII. of the Treaty of Washington. By that article, the privileges secured to the citizens of the United States were the liberty of inshore fishing and that of landing on uninhabited and desert coasts for the purpose of drying nets and curing fish. These were, he maintained, the sole concessions to which the jurisdiction of the commission extended. All other questions, such as the purchase of bait, ice, and supplies, the conduct of commercial intercourse, and alleged damages to British fisheries, were beyond the commission's cognizance. The Treaty of Washington conferred no such privileges on the inhabitants of the United States, who enjoyed them merely by sufferance, and could at any time be deprived of them by the enforcement of existing laws or the reenactment of former oppressive statutes.

In reply, Mr. Thomson maintained that the privileges in question were embraced in and incidental to the grant under Article XVIII. of the Treaty of Washington. By Article I. of the convention of 1818, the American fishermen were, he said, permitted to enter British waters for four specified purposes, and "for no other purpose whatever." The object of the Treaty of Washington was to do away altogether with these restrictions and to place the American fishermen on the same footing as the British fishermen in respect of the inshore fisheries. According to the argument of Mr. Foster, if an American fisherman landed for the purpose of obtaining a barrel of flour in exchange for fish, or of purchasing bait, or of obtaining a gallon or two of kerosene oil, he would be subject to punishment, and render his vessel liable to forfeiture.' Mr. Doutre, Mr. Wetherbe, and Mr. Trescot also participated in the discussion.2

The argument on Mr. Foster's motion was closed on the part of the United States by Mr. Dana. He contended that American fishermen possessed by comity the right to run into British ports and buy bait and other necessaries, unless they were specially excluded on some proper ground. Great Britain might regulate their entry, require them to report at the custom-house and be searched in order to see whether they were

1 Documents and Proceedings of the Halifax Commission. II. 1547–1557. Id. 1557-1570.

merchants in disguise, and levy duties upon them. But, in the absence of a prohibition, there was no right to prevent fishermen from buying bait and supplies; and he maintained that there was no law preventing the exercise by American fishermen of the privileges in question.

Decision on

mercial Question.

On the 6th of September the commission unanimously rendered the following decision: "The Commission having considered the motion submitted by the agent of the United States at the conference held on the 1st instant, decide:

"That it is not within the competence of this tribunal to award compensation for commercial intercourse between the two countries, nor for purchasing bait, ice, supplies, etc., nor for the permission to transship cargoes in British waters."

After this decision was read, Sir Alexander Galt stated the grounds on which he had acquiesced in it. The definition of the tribunal's jurisdiction was, he said, undoubtedly important in its consequences, since it eliminated from the consideration of the commision an important part of the Case submitted on behalf of Her Majesty's government. At the same time it had the further important effect of defining and limiting the rights conceded to the citizens of the United States, under the Treaty of Washington. He could foresee that, under certain circumstances, the exercise of the privileges in question might produce inconveniences, which, if they should arise, were matters properly within the control and judgment of the two governments, and not within that of the commission. At the same time, he did not think that counsel for the United States had correctly stated the position of the two parties at the time when the Treaty of Washington was entered into. By the convention of 1818 the United States renounced for their fishermen the right to do anything except what they were permitted to do by the words of that instrument. The legislation subsequently adopted, to give effect to the restrictions of the convention, produced great irritation, which resulted in the adoption of the reciprocity treaty of 1854. By that treaty it was understood that the restrictictions imposed upon the American fishermen were removed, and that the statutes which had operated against them were suspended. At the termination of the treaty, the restrictions of the convention of 1818 were revived, the statutes were again enforced, and laws of a still more stringent character were passed. In his annual message to Congress of 1870, President Grant complained of

the annoyances to which the American fishermen were subjected. The Treaty of Washington was intended to put an end to these annoyances; and the impression left upon his mind by an examination of the provisions of that treaty was, said Sir Alexander, that it must necessarily have been supposed that, as in the case of the reciprocity treaty, so in the case of the Washington Treaty, the rights of traffic and of obtaining bait and supplies, were conferred, being incidental to the fishing privilege. He therefore believed that it was the intention of the parties to the Treaty of Washington to direct the tribunal to consider all the points relating to the fisheries which had been set forth in the British Case; but he was now met by the most authoritative statement as to what the parties to the treaty intended. The agent of the United States had distinctly stated that it was not the intention of his government to provide by the treaty for the continuance of those incidental privileges, and that the United States were prepared to take the whole responsibility, and to run all the risk of the reenactment of the vexatious statutes to which reference had been made. From this argument as to the true, rigid, and strict interpretation of the Treaty of Washington, he "could not escape." The responsibility must rest upon those who appealed to the strict words of the treaty as their justification.'

The introduction of evidence on the part of Close of Evidence. the United States began on the 19th of September, and was closed on the 24th of October. During that time 78 witnesses were examined orally, nearly all of whom came from the fishing towns of Maine and Massachusetts. Many of them were fishermen and commanders of fishing schooners, but there was also a large number of fish dealers and owners of fishing vessels in the United States. Mr. Foster also introduced 280 affidavits and a mass of statistics gathered from the United States Bureau of Statistics, the customhouses at Boston and Gloucester, and the returns of the Massachusetts inspector general of fish.

On the 25th of October evidence in rebuttal was offered on behalf of the British Government, and on the 1st of November Mr. Doutre announced that the Case of Her Majesty's govern ment was altogether closed. The commission then adjourned till the 5th of November, when Mr. Foster stated that he hoped to be prepared to address the tribunal.

Documents and Proceedings of the Halifax Commission, II. 1585-1588.

Mr. Foster began his closing argument on Oral Arguments. the 5th of November, and completed it on the 6th. On the 8th of November the tribunal was addressed by Mr. Trescot, and on the 9th and 10th by Mr. Dana. On the 15th of November Mr. Whiteway began the closing argument on behalf of the British Government. He was followed on the 16th by Mr. Doutre, who finished his speech on the 17th, and was followed by Mr. Thomson on the 19th. Mr. Thomson continued his argument on the 20th and 21st of November; and at its conclusion on the latter day he announced that the argument on the part of Her Majesty's government was finally closed. The president of the tribunal then requested the secretary to enter on the minutes the thanks of the commissioners to Mr. Bergne, for his services as secretary of the commission, and their sense of the zeal, intelligence, and accuracy which had marked the discharge of his duties.

The commission then adjourned until Friday, the 23d of November, at 2 o'clock.

Contentions of the two Governments.

As the tribunal, when it next met, had determined upon its award, it will be proper, before proceeding to the session of the 23d of November, to summarize the contentions of the two governments, as they appear in the British Case, the Answer of the United States, and the British Reply.

eries.

The British Case opened with a review of British Case: Value the fishery question from 1783 down to the of the Coast Fish- conclusion of the Treaty of Washington, and then, after analyzing the pertinent clauses of that treaty, proceeded separately to estimate the value of the coast fisheries of Canada and of Newfoundland. In the coast fisheries of Canada it embraced the fisheries on the coasts and in the bays, harbors, and creeks of the Dominion, from the Bay of Fundy to the Gulf of St. Lawrence, inclusive. The value of these fisheries, of which the principal products are mackerel, codfish, herring, halibut, haddock, hake, pollack, and many small varieties of fishes taken for bait, was represented as constantly increasing.

The Liberty of Inshore Fishing.

Of the advantages derived by the United States from the Treaty of Washington, the first that was mentioned in the British Case was the liberty of fishing in British waters. The official records of the United States and other sources of information

were represented as showing that an average number of about 1,000 American vessels annually resorted to British waters for the purpose of fishing. Of this fleet it was said that the larger part was fitted almost exclusively for the mackerel fishery, the successful prosecution of which was chiefly dependent on the liberty of resorting freely to the bays, creeks, and inshore waters generally, to fish and refit, and to transship cargoes. It was estimated that these privileges, which were represented as wholly derived from the treaty, were worth $3,600 annually to each vessel engaged in the mackerel fishery. The value of the other fish taken by such vessels was estimated at $2,000, thus making a total of $5,600 worth of fish of all kinds as an average for each trip. The amount of American capital embarked in the business was estimated at more than $7,000,000, and as employing about 16,000 men afloat and many ashore. Thus the inshore fisheries afforded occupation for men and money beyond many other lucrative industries. The fish trade of the United States was constantly increasing, and constantly rendered more valuable and necessary the access to the Canadian fisheries. This consideration was represented as forming an additional reason for compensation.

The second general advantage mentioned in The Liberty to Land. the British Case, as derived by the United States from the Treaty of Washington, was the liberty to land for purposes, such as drying nets and curing fish, connected with the fishing on the coasts of Labrador, the Magdalen Islands, and other portions of the seaboard of the Dominion of Canada. This liberty had been secured to the United States for a period of twelve years, and it was represented as an important item on the ground that without it fishing operations on many parts of the coast would be not only unremunerative but impossible.

other Privileges.

The third general advantage represented in Transshipment and the British Case as accruing to the United States from the fishery articles was the freedom to transfer cargoes, to outfit vessels, buy supplies, obtain ice, engage sailors, procure bait, and traffic generally in British ports and harbors, or tu transact other business ashore not necessarily connected with fishing pursuits. These were treated as "secondary privileges" which were indispensable to the success of foreign fishing on the Canadian coasts, and materially enhanced the value of the principal concessions. By the enjoy5627-47