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waiving the rights of Great Britain in respect of the non-treaty coasts, this letter amounts to an assertion of these rights, which can be got rid of only by amicable arrangement. It is submitted that neither on the treaty, nor on the non-treaty coasts, have the American fishermen any right to purchase bait or otherwise to traffic on British. territory.

At the time this letter was written the treaty of 1871 was under negotiation: it was signed three months later and ratified in the following June.


1871-1885.-The treaty restored tranquillity, by again according to United States fishermen the larger liberties of fishing; certain trade privileges were given to the provinces, and they once more relaxed the restrictions against buying bait and other articles by the fishermen.


1877. The same point that is now under discussion was raised before the Halifax Commission in 1877. The question before that Commission was what sum was payable by the United States Government to Great Britain in respect of the greater value of the concessions made by Great Britain as compared with those made by the United States. Great Britain argued that under the right to fish conceded by article 18 of the treaty of 1871 (which in this respect is substantially the same as the convention of 1818) American fishermen would be able to purchase bait and supplies and transship cargoes in British waters, and claimed compensation on that head. The United States Government, however, entirely disclaimed that construction of the treaty. They stated that no such right was intended to be implied from the mere grant of a right to fish. In the recapitulation of the argument at the end of the "Answer " filed by the United States Government is the following statement:


Third. That the various incidental and reciprocal advantages of the treaty, such as the privileges of traffic, purchasing bait, and other supplies are not the subject of compensation; because the treaty of Washington confers no such rights on the inhabitants of the United States, who now enjoy them merely by sufferance, and who can at any time be deprived of them by the enforcement of existing laws, or the re-enactment of former oppressive Statutes."

The tribunal accepted this contention and held that it was not within their competence to award compensation on this head. Their decision was as follows (App., p. 263):

a United States Documents relating to the Fishery Controversy, vol. v, p. 136.

The commission, having considered the motion submitted by the agent of the United States at the conference held on the 1st instant, decided:

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

Sir Alexander T. Galt (the Canadian commissioner), in giving the reasons for his decision, said (App., p. 265) :—


But I am now met by the most authoritative statement as to what were the intentions of the parties to the treaty. There can be no stronger or better evidence of what the United States proposed to acquire under the Washington Treaty than the authoritative statement which has been made by their agent before us here and by their counsel. We are now distinctly told that it was not the intention of the United States in any way, by that treaty, to provide for the continuation of these incidental privileges, and that the United States are prepared to take the whole responsibility and to run all the risk of the re-enactment of the vexatious statutes, to which reference has been made.

1885.-Fourteen years after the making of the 1871 treaty, its fishery clauses were terminated by the United States, but a modus vivendi was arranged for the season of 1885.


1886.-On the termination of the arrangements, the parties were thrown back on their rights under the treaty: British rights were strictly enforced, and American fishing vessels were seized for offences against the fisheries laws. Canada passed the statute 49 Vict., cap. 114 (1886) (App., p. 631); the Department of Marine issued a "warning" (5th March, 1886) (App., p. 296); and the Department of Customs issued a circular (7th March). A correspondence then ensued between Great Britain and the United States, to which attention will presently be invited.

The Canadian statute provided that (App., p. 632)—

if such ship, vessel, or boat is foreign, or not navigated according to the laws of the United Kingdom or of Canada, and (a) has been found fishing, or preparing to fish, or to have been fishing in the British waters within three marine miles of any of the coasts, bays, creeks, or harbours of Canada, not included within the above-mentioned limits, without a licence, or after the expiration of the term named in the last licence granted to such ship, vessel, or boat under the first section of this Act; or (b) has entered such waters for any purpose not permitted by treaty or convention, or by any law of the United Kingdom or of Canada for the time being in force, such ship, vessel or boat, and the tackle, rigging, apparel, furniture, stores, and cargo thereof shall be forfeited.

The clause (b) of this statute was new legislation. The judges, as has been stated, had disagreed as to whether purchasing bait could be stopped under statutes which forbade "preparing to fish." It was now included in the general prohibition. A despatch from the Governor-General of Canada to the Colonial Secretary (19th May, 1886) explains the situation:

Your Lordship is no doubt aware that the decisions of the Canadian Courts leave it open to question whether the purchase of bait in Canadian water does or does not constitute a preparation to fish within the meaning of the Imperial Act of 1819, and the Canadian statute which it is now sought to amend. The decision of Chiet Justice Sir W. Young in the Vice-Admiralty Court of Nova Scotia given in November 1871, in the case of the fishing-schooner "Nickerson," was to the effect that the purchase of bait constituted such a preparation to fish within Canadian waters. The same point had, however, previously arisen in February 1871, in the case of the American fishing-vessel "White Fawn," when Mr. Justice 135 Hazen decided that the purchase of bait within the 3-mile limit was not of itself a proof that the vessel was preparing to fish illegally within that limit.

There being therefore some doubt whether the intention of the convention of 1818 is effectually carried out either by the Imperial or the Canadian Acts referred to, it has been thought desirable by my Government to have recourse to legislation removing all doubt as to the liability to forfeiture of all foreign fishing-vessels resorting to Canadian waters for purposes not permitted by law or by treaty.


Thereupon the United States passed a statute which contained the following provision (App., p. 792) :—

That whenever the President of the United States shall be satisfied that American fishing vessels or American fishermen, visiting or being in the waters or at any ports or places of the British dominions of North America, are or then lately have been denied or abridged in the enjoyment of any rights secured to them by treaty or la, or are or then lately have unjustly vexed or harassed in the enjoyment of such rights, or subjected to unreasonable restrictions, regulations, or requirements in respect of such rights; or otherewise unjustly vexed or harassed in said waters, ports or places; or whenever the President of the United States shall be satisfied that any such fishing vessels or fishermen, having a permit under the laws of the United States to touch and trade at any port or ports, place or places in the British dominions of North America, are or then lately have been denied the privilege of entering such port or ports, place or places in the same manner and under the same regulations as may exist therein applicable to trading vessels of the most favoured nation, or shall be unjustly vexed or harassed in respect thereof, or otherwise be unjustly vexed or harassed therein, or shall be pre

"Can. Sess. Pap. 1887, No. 16, p. 56.


vented from purchasing such supplies as may there be lawfully sold to trading vessels of the most favoured nation or whenever the President of the United States shall be satisfied that any other vessels of the United States, their masters or crews, so arriving at or being in such British waters or ports or places of the British dominions of North America, are or then lately have been denied any of the privileges therein accorded to the vessels, their masters or crews, of the most favoured nation, or unjustly vexed or harassed in respect of the same, or unjustly vexed or harassed therein by the authorities thereof, then, and in either or all of such cases, it shall be lawful, and it shall be the duty of the President of the United States, in his discretion, by proclamation to that effect, to deny vessels, their masters and crews, of the British dominions of North America, any entrance into the waters, ports, or places of, or within the United States (with 136 such exceptions in regard to vessels in distress, stress of weather, or needing supplies as to the President shall seem proper), whether such vessels shall have come directly from said dominions on such destined voyage or by way of some port or place in such destined voyage elsewhere; and also to deny entry into any port. or place of the United States of fresh fish or salt fish or any other product of said dominions, or other goods coming from said dominions to the United States.

1887.-Newfoundland passed a statute by which it was provided that no person (without a licence) should export or catch or sell, for the purpose of exportation, any herring, caplin, squid, or other bait fishes. (App., p. 711.)

1888.-A convention was negotiated known as the ChamberlainBayard convention. It provided for the settlement of the question as to bays; and, in exchange for the removal by the United States of customs duties upon fish and certain fish products, it was agreed that (App., pp. 42, 44)—

the privilege of entering the ports, bays, and harbours of the Atlantic coasts of Canada and Newfoundland shall be granted to United States fishing-vessels by annual licences, free of charge, for the following purposes, namely:

1. The purchase of provisions, bait, ice, seines, lines, and all other supplies and outfits;

2. Transhipment of catch, for transport by any means of conveyance;

3. Shipping of crews.

The United States Senate declined to ratify this convention, and It therefore never became operative.

The negotiators however had provided for a modus vivendi pending legislative action with regard to the convention, as follows (App., p. 427):

1. For a period not exceeding two years from the present date, the privilege of entering the bays and harbours of the Atlantic coasts of Canada and of Newfoundland shall be granted to United States.

fishing-vessels by annual licences at a fee of $14 per ton, for the following purposes:

The purchase of bait, ice, seines, lines, and all other supplies and Transhipment of catch and shipping of crews.

2. If, during the continuance of this arrangement, the United States should remove the duties on fish, fish-oil, whale, and seal oil (and their coverings, packages, &c.), the said licences shall be issued free of charge.

This arrangement is still in operation in Canada. Under it American fishermen have taken out licences entitling them to the privileges mentioned on payment of annual licence fees. Between the years 1888 and 1907 American fishermen have thus paid over 165,000 dollars to Canada alone for the enjoyment of some of the commercial privileges to which they now assert a right. Similar privileges were conceded in Newfoundland until 1905 under various statutes of that colony, for which, since 1888, American fishermen have paid over 120,000 dollars.


1888.-Newfoundland passed a statute providing for the issue of licenses. (App., p. 712.)

to purchase herring, caplin, squid, or other bait fishes to be used by the purchasers bona fide for the purposes of bait in the prosecution of the fishery upon or adjacent to the coasts of this colony or its dependencies or of the bank fishery.

1889.-Newfoundland passed a statute (known as "The Bait Act,” 52 Vic., cap. 6) amending and consolidating the two previous statutes. It prohibited (without licence) the export of bait fishes, either for consumption or as bait. (App., p. 713.)

1890.-A convention known as the Bond-Blaine convention was arranged between the United States and Newfoundland. It never became effective. In return for entry into the United States of certain fish and fish products free of duty, Newfoundland agreed as follows (App., p. 45) :—

United States fishing vessels entering the waters of Newfoundland shall have the privilege of purchasing herring, caplin, squid, and other bait fishes at all times on the same terms and conditions and subject to the same penalties in all respects as Newfoundland vessels. They shall also have the privilege of touching and trading, selling fish and oil, and procuring supplies in Newfoundland, conforming to the harbour regulations, but without other charge than the payment of such light, harbour, and custom dues as are or may be levied on Newfoundland fishing-vessels.

1893.-Newfoundland passed a statute having for its object the prohibition (without licence) of:

1. The sale to foreigners of "herring, caplin, squid, or other bait fishes, ice, lines, seines, or other outfit or supplies for the fishery." (App., p. 730.)

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