States shall be admitted to enter "such bays," for the purpose of shelter and to obtain wood and water; thus clearly implying that such bays are small indentations extending into the land to which fishing craft would naturally resort for shelter and to obtain wood and water, and not large, open seas like the Bay of Fundy.

There are numerous bays of this character, along the coast, within the Bay of Fundy, such as the Bay of Passamaquoddy, Annapolis, St. Mary's, Chignecto, Mines Bay, and other well-known bays extending up into the land.

There is a further argument to sustain the American construction given to the treaty derived from the meaning affixed to the term "coasts," as applied by the usage of the country, and which was adopted and embodied in the various treaties between France and England from a very early period, and has been continued down to the present time.

I have not seen this argument adverted to; but it seems to me important, and indeed of itself quite conclusive, as to the matter in question, and I shall now consider it.

The term "coasts," in all these prior treaties, is applied to all the borders and shores of the eastern waters, not only along the mainland but in and about the Gulf of St. Lawrence, and around all the larger and smaller islands where fisheries were carried on.

These coasts are thus defined and specified in the treaty of Utrecht betwen Great Britain and France in 1713, of Paris in 1763, and other treaties to the present time. In the treaty of Utrecht between France and England, the liberty of taking and drying fish is allowed "on the coasts of Newfoundland;" provision is also made as to the fisheries on the coasts, in the mouth, and in the Gulf of St. Lawrence. Reference is made to these "coasts" in the same manner in the treaty of Paris, which took place after the conquest of Canada. The French are permitted by this treaty to fish in the Gulf of St. Lawrence at a given distance from all "the coasts" belonging to Great Britain, as well those "of the continent " as those of the islands situated in the Gulf of St. Lawrence. The fishery also "on the coasts" of the comparatively small island" of Cape Breton out of said Gulf " is regulated and provided for; and further it is provided "that the fishery on the coasts of Nova Scotia, or Acadia, and everywhere else, out of the said Gulf, shall remain on the footing of former treaties." Now, I regard it as utterly impossible for any one looking at these treaties, with the map of the islands and waters in the Gulf or Bay of St. Lawrence, and in and around Nova Scotia, referred to in these treaties, to doubt for a moment that the term "coasts" was designed to apply, and did, in terms, apply to the whole contour of the mainland and the islands referred to, including the entire circuit of Nova Scotia on the Bay of Fundy.

These expressions are continued in the same manner in the treaty of 1783. The United States are there allowed to take fish in the Gulf of St. Lawrence, " on the coast of Newfoundland," and also "on the coasts, bays, and creeks of all other of His Britannic Majesty's dominions in America."

Again, in the preamble to the treaty of 1818, which we are now considering, it is said to have been caused by differences as to the liberty claimed to take fish on certain coasts, bays, harbors, and creeks of his Britannic Majesty's dominions in America, and by the treaty

provision is made as to the fisheries on the coasts of Newfoundland, and 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 then follows the renunciation from the right before enjoyed by the United States "to take, dry, or cure fish on or within three marine miles of any of the coasts, bays, creeks, or harbors of his Majesty's dominions in America."

It seems to me undeniable that the term coasts in all these treaties was well defined and known. The outlet of the St. Lawrence is equally well known by the term "bay " or "gulf." The shores on that bay or gulf, and on the islands within it, are uniformly spoken of as "coasts;" and the same mode of designating the shores along this entire country is used in all these treaties in reference to the various waters where fisheries were carried on.

"The coasts" named in these treaties were not only the coasts of the Bay or Gulf of St. Lawrence, and of the island of Cape Breton, but extended from the head of the Bay of Fundy along the bay entirely around Nova Scotia to the Gulf or Bay of St. Lawrence.

There never had been any misunderstanding as to the application of this term, or denial of the right to fish on these coasts, as I have named them, under all these treaties down to 1818. The term "coasts," as applied to Nova Scotia during this long period, was as well known and understood as the term "coasts" applied to England or Ireland; and it included the coasts on the Bay of Fundy as fully and certainly as the term "coasts" of England applies to the coasts of the English channel. It was a fixed locality, known and established, and the right of taking fish had always been "enjoyed there."

When, therefore, the treaty of 1818 "renounced the liberty, heretofore enjoyed, of taking fish within three marine miles of any of the coasts, bays creeks, etc., of his Britannic Majesty's dominions," the renunciation was, for this distance from a fixed locality, as fully settled and established as language, accompanied by a long and uninterrupted usage, could make it.

"The coasts named are those of 1783, and of prior treaties, and the renunciation of three miles was to be reckoned from these coasts. The Bay of Fundy was therefore not excluded from the fishing grounds of the United States.

The annexed sketch of the Gulf or Bay of St. Lawrence, with the adjoining waters and coasts, will show how the term coasts was practically applied under all the treaties referred to prior to 1818.

I am not aware of any reply to the points here taken that I think can at all invalidate them.

From the papers filed in the case, it appears that in 1841 the province of Nova Scotia caused a case stated to be drawn up and forwarded to England, with certain questions to be proposed to the law officers of the crown.

One inquiry was, whether the fishermen of the United States have any authority to enter any of the bays of that province to take fish. These officers, Messrs. Dodson and Wilde, reply that no right exists to enter the bays of Nova Scotia to take fish," as they are of opinion the term headland is used in the treaty to express the part of the land excluding the interior of the bays and inlets of the coasts."

Now, it so happens that no such term is used in the treaty, and their decision, based on it, falls to the ground.

They were also specifically asked to define what is to be considered a headland. This they did not attempt to do. The headlands of the Bay of Fundy have never been defined or located, and, from the contour of the bay, no such headlands properly exist.

These officers held that the American fisherman, for the reason named, could not enter the bays and harbors of Nova Scotia. But the Bay of Fundy is not a bay or harbor of the Province of Nova Scotia, and was never included in its limits. The Bay of Fundy is bounded on one side by Nova Scotia, and on the other by New Brunswick, and it is not clear that either the question proposed or answer given was designed to include this large arm of the sea.

It is also said that Mr. Webster has conceded the point in issue in a notice given to American fishermen. The claims, now asserted, were not put forth till many years after the treaty of 1818; and it was not until 1852 the British Government gave notice that seizures would be made of fishermen taking fish in violation of the construction of the treaty of 1818, as then claimed by them, when Mr. Webster, to avoid the collisions that might arise, issued a notice setting forth the claims put forth by England.

In one part of his notice he says: "It was an oversight to make so large a concession to England," but closes by saying: Not agreeing that the construction put upon the treaty by the English Government is conformable to the intentions of the contracting parties, this information is given that those concerned in the fisheries may understand how the concern stands at present and be upon their guard."

Mr. Webster subsequently denied relinquishing, in any manner, by this notice the rights of the United States, as claimed under this treaty.

Detached expressions quoted from it to sustain a different opinion can hardly be regarded, under such circumstances, as an authority. I have seen no other argument or suggestions tending, as I think, to sustain the grounds taken by the British Government.

On the other hand, I have adverted briefly, as I proposed, to the history of the fisheries; the views expressed by the negotiators of the treaty of 1818, as to the object to be effected by it; the subsequent practical construction of it for many years; the construction given to a similar article in the treaty of 1783; the evident meaning to be gained from the entire article of the treaty taken together; and from the term coasts as used in the treaty of 1818 and other treaties in reference to this subject; and the whole combine, as I believe, to sustain the construction contended for by the United States.

66

I am therefore of opinion the owners of Washington should receive compensation for the unlawful seizure of that vessel by the British Government when fishing more than three miles from the shore or coast of the Bay of Fundy.

PORTIONS OF "CASE OF HER MAJESTY'S GOVERNMENT" BEFORE THE FISHERY COMMISSION UNDER THE TREATY OF WASHINGTON, OF MAY 8TH, 1871.

PART I-CANADA.

CHAPTER II. Advantages derived by United States Citizens.

1. Liberty of fishing in British Waters.

Liberty to prosecute freely the sea fisheries 'on the coasts and shore in the bays, harbors, and creeks' of Canada, is in itself a very valuable concession to United States citizens. It concedes the common use of extensive and productive fishing grounds, which are readily accessible to American fishermen, and are advantageously situated as regards their home market. "

The privileges secured to United States citizens under Article XVIII of the Treaty of Washington, which have been above described particularly and in detail, may be summarized as follows:

1.-The liberty of fishing in all inshore waters of the Dominion; the value of which shown by the kinds, quantity, and value of the fish annually taken by United States fishermen in those waters, as well as by the number of vessels, hands and capital employed. 2. The liberty to land for the purpose of drying nets, and curing fish, a privilege essential to the successful prosecution of fishing operations.

3.-Access to the shore for purposes of bait, supply &c, including the all important advantage of transferring cargoes, which enables American fishermen to double their profits by securing two or more full fares during one season.

4. Participation in the improvements resulting from the fisheries service maintained by the Government of the Dominion.

The above privileges may be considered as susceptible of an approximate money valuation, which it is respectfully submitted should be assessed as well with reference to the quantity and value of fish taken, and the fishing-vessels and fishermen employed, as to other collateral advantages enjoyed by United States citizens.

It has been stated in the preceding portions of this chapter that an average number of at least 1,000 United States vessels annually frequent British Canadian waters. The gross catch of each vessel per trip has been estimated at $5,600, a considerable portion of which is net profit, resulting from the privileges conferred by the treaty.

These privileges profitably employ men and materials representing in industrial capital several millions of dollars; the industries to the

• Documents and Proceedings of Halifax Commission, 1877, Volume I, p. 88.

advancement of which they conduce support domestic trade and foreign commerce of great extent and increasing value; they also serve to make a necessary and healthful article of food plentiful and cheap for the American nation. It is not merely the value of "raw material" in fish taken out of British Canadian waters which constitutes a fair basis of compensation; the right of this fishery was an exclusive privilege, the sole use of which was highly prized, and for the common enjoyment of which we demand equivalents to be measured by our just estimation of its worth; we enhance the main concession on this point by according kindred liberties and indispensable facilities, all of which are direct advantages; and, in order to illustrate the assessable value of the grant, we adduce certain data relating to the number of United States fishing-vessels more immediately interested, and the gross quantity and value of their catch in British Canadian waters.

In addition to the advantages above recited, the attention of the Commissioners is respectfully drawn to the great importance attaching to the beneficial consequences to the United States of honorably acquiring for their fishermen full freedom to pursue their adventurous calling without incurring constant risks, and exposing themselves and their fellow-countrymen to the inevitable reproach of willfully trespassing on the rightful domain of friendly neighbors. Paramount, however, to this consideration is the avoidance of irritating disputes, calculated to disquiet the public mind of a spirited and enterprising people, and liable always to become a cause of mutual anxiety and embarrassment."

*

PART II-NEWFOUNDLAND.

CHAPTER I. Introduction and description of Newfoundland Fisheries.

*

In addition to the privileges so enjoyed under the Convention of 1818, Articles XVIII and XXI of the Treaty of Washington granted to United States citizens:

1. The liberty to take fish of every kind, except shell-fish, on the remaining portion of the coast of Newfoundland, with liberty to land on the said coast 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 coast in their occupancy for the said purpose; the salmon and shad fisheries and all other fisheries in rivers and mouths of rivers being reserved exclusively for British fishermen.

2. The admission into Newfoundland of fish-oil and fish of all kinds, except fish of the inland lakes and rivers falling into them, and except fish preserved in oil, being the produce of fisheries of the United States, free of duty.

a Ib., pp. 96-97.