Her Majesty's Government cordially agree with your Government in believing that a determination of these limits would, whatever may be the future commercial relations between Canada and the United States either in respect of the fishing industry or in regard to the interchange of other commodities, be extremely desirable and they will be found ready to co-operate with your Government in effecting such settlement. They are of opinion that Mr. Bayard was justified in reverting to the precedent afforded by the negotiations which took place upon this subject between Great Britain and the United States after the expiration of the Reciprocity Treaty of 1854, and they concur with him in believing that the draft Protocol communicated by Mr. Adams in 1866 to the Earl of Clarendon affords a valuable indication of the lines upon which a negotiation directed to the same points might now be allowed to proceed. 415 Mr. Bayard has himself pointed out that its concluding paragraph, to which Lord Clarendon emphatically objected, is not contained in the 1st Article of the Memorandum now forwarded by him; but he appears to have lost sight of the fact that the remaining Articles of that Memorandum contain stipulations not less open to objection, and calculated to affect even more disadvantageously the permanent interests of the Dominion in the fisheries adjacent to its coasts. There can be no objection on the part of Her Majesty's Government to the appointment of a Mixed Commission, whose duty it would be to consider and report upon the matters referred to in the three first Articles of the draft Protocol communicated to the Earl of Clarendon by Mr. Adams in 1866. Should a Commission instructed to deal with these subjects be appointed at an early date, the result of its investigations might be reported to the Governments affected without much loss of time. Pending the termination of the questions which it would discuss, it would be indispensable that United States' fishing vessels entering Canadian bays and harbours should govern themselves not only according to the terms of the Convention of 1818, but by the Regulations to which they, in common with other vessels, are subject while within such waters. Her Majesty's Government, however, have no doubt that every effort will be made to enforce those Regulations in such a manner as to cause the smallest amount of inconvenience to fishing vessels entering Canadian ports under stress of weather, or for any other legitimate purpose. But there is another course which Her Majesty's Government are inclined to propose, and which, in their opinion, would afford a temporary solution of the controversy equally creditable to both parties. Her Majesty's Government have never been informed of the reasons which induced the Government of the United States to denounce the Fishery Articles of the Treaty of Washington, but they have understood that the adoption of that course was in a great degree the result of a feeling of disappointment at the Halifax Award, under which the United States were called upon to pay the sum of £1,100,000, being the estimated value of the benefits which would accrue to them, in excess of those which would be derived by Canada and Newfoundland, from the operation of the Fishery Articles of the Treaty. Her Majesty's Government and the Government of Canada, in proof of their earnest desire to treat the question in a spirit of liberality and friendship, are now willing to revert for the coming fishing season, and, if necessary, for a further term, to the condition of things existing under the Treaty of Washington, without any suggestion of pecuniary indemnity. This is a proposal which, I trust, will commend itself to your Government as being based on that spirit of generosity and goodwill which should animate two great and kindred nations, whose common origin, language, and institutions constitute as many bonds of amity and concord. I have, &c., [Draft Protocol communicated by Mr. Adams to the Earl of Clarendon in 1866, enclosed in above.] Whereas in the 1st Article of the Convention between the United States and Great Britain concluded and signed in London on the 26th October, 1818, it was declared that The United States hereby renounce, 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 harbours of His Britannic Majesty's dominions in America, not included within certain limits heretofore mentioned. And whereas differences have arisen in regard to the extent of the above-mentioned renunciation the Government of the United States and Her Majesty the Queen of Great Britain, being equally desirous of avoiding further misunderstanding, have agreed to appoint, and do hereby authorise the appointment, of a Mixed Commission for the following purposes, namely: 1. To agree upon and define, by a series of lines, the limits which shall separate the exclusive from the common right of fishery, on the coasts and in the seas adjacent, of the British North American Colonies, in conformity with the 1st Article of the Convention of 1818. The said lines to be regularly numbered, duly described, and also clearly marked on charts prepared in duplicate for the purpose. 2. To agree upon and establish such regulations as may be necessary and proper to secure to the fishermen of the United States the privilege of entering bays and harbours for the purpose of shelter; and of repairing damages therein, of purchasing wood, and of obtaining water; and to agree upon and establish such restrictions as may be necessary to prevent the abuse of the privilege reserved by said Convention to fishermen of the United States. 3. To agree upon and recommend the penalties to be adjudged, and such proceedings and jurisdiction as may be necessary to secure a speedy trial and judgment with as little expense as possible, for the violation of rights and the transgression of the limits and restrictions which may be hereby adopted. Provided, however, that the limits, restrictions and regulations which may be agreed upon by the said Commission shall not be final, nor have any effect, until so jointly confirmed and declared by the United States and Her Majesty the Queen of Great Britain, either by Treaty or by laws mutually acknowledged and accepted by the President of the United States, by and with the consent of the Senate and by Her Majesty the Queen of Great Britain. 416 Pending a definitive arrangement on the subject, the United States' Government engages to give all proper orders to officers in its employment; and Her Britannic Majesty's Government engages to instruct the proper Colonial or other British officers to abstain from hostile acts against British and United States' fishermen respectively." No. 238.-1887, July 12: Letter from Mr. Bayard to Mr. Phelps, enclosing copy proposed Arrangement with British Observations thereon and reply of United States thereto. (Extract.) DEPARTMENT OF STATE, SIR: On March 24 last the Marquis of Salisbury made reply to your note to him of December 3, 1886, and communicated the views of the Canadian Government upon the ad interim arrangement proposed by the Government of the United States, under date of the 15th of November preceding, for the settlement of the fishery disputes. This reply of his lordship and the "observations" of the Canadian authorities upon the proposal for an arrangement were conveyed in Mr. White's dispatch of March 30th, and received at this Department April 11 last, when it had my immediate consideration. An answer was prepared forthwith to the note of his lordship, as well as to the "observations," and I now enclose two copies of the latter, which, for convenience and intelligibility, has been printed as a third parallel column to the original proposal and the Canadian "observations." I am, etc., T. F. BAYARD. 66 FISHERIES ARRANGEMENT PROPOSED BY UNITED STATES, WITH OBSERVATIONS" OF BRITISH GOVERNMENT AND REPLY OF GOVERNMENT OF UNITED STATES. Ad interim Arrangement proposed by the United States' Government. ARTICLE I. WHEREAS, in the 1st Article of the Convention between the United States and Great Britain, concluded and signed in London on the 20th October, 1818, it was 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 lib prejudice, however, to any of the exclusive rights of the Hudson's Bay Company; and that the American fishermen shall also have liberty for ever to dry and cure fish in any of the unsettled bays, harbours, and creeks of the southern part of the coast of Newfoundland, here above described, and of the coast of Labrador; but so soon as the same, or any portion thereof, shall be settled, it shall not be lawful for the said fishermen to dry or cure fish at erty to take fish of every such portions so settled without previous agree ment for such purpose with the inhabitants, proprietors, or possessors of the ground; and was declared that "the United States hereby renounce for ever any lib. erty heretofore enjoyed or claimed by the inhabitants thereof to take, dry, or cure fish on or within 3 marine miles of any of the coasts, bays, creeks, or harbours of His Britannic Majesty's dominions in America not included within the abovementioned limits; provided, however, that the American fishermen shall be admitted to enter such bays or harbours for the purpose of shelter, and of repairing danges therein, of purchasing wood, and obtaining water, and for no other purpose whatever. But they shall be under such restrictions as may be necessary to prevent their taking, drying, or curing fish there in, or in any other manner whatever abusing the privileges hereby reserved to them; and whereas differences have arisen in regard to the extent of the above-mentioned renunciation, the Government of the United States and Her Majesty the Queen of Great Britain, being equally desirous of avoiding further misunderstanding, agree to appoint a Mixed Commission for the following purposes, namely: for the purposes for which entrance into the bays and harbours is permitted by said Article, are hereby agreed to be taken to be such bays and harbours as are 10 or less than 10 miles in width, and the distance of 3 marine miles from such bays and harbours shall be measured from a straight line drawn across the bay or harbour, in the part nearest the entrance, at the first point where the width does not exceed 10 miles, the said lines to be regularly numbered, duly described, and also clearly marked on Charts prepared in duplicate for the purpose. 418 2. To agree upon and establish such regulations as may be necessary and proper to secure to the fishermen of the United States the privilege of entering bays and harbours for the purpose of shelter and repairing damages therein, of purchasing wood, and of obtaining water, and to agree upon and establish such restrictions as may be necessary to prevent the abuse of the privilege reserved by said Convention to the fishermen of the United States. 3. To agree upon and recommend the penalties to be adjudged, and such proceedings and jurisdiction as may be necessary to secure a speedy trial and judgment, with as little expense as possible, for the violators of rights and the transgressors of the limits and restrictions which may be hereby adopted: Provided, however, that the limits, restrictions, 1. To agree upon and establish by a series of lines the limits which shall separate the exclusive from the common right of fishing on the coast and in the adjacent waters of the British and regulations which North American Colonies, in conformity with the 1st Article of the Convention of 1818, except that the bays and harbours from which American fishermen are in the future to be excluded, save may be agreed upon by the said Commission: shall not be final, nor have any effect, until so jointly confirmed and declared by the United States and He. Majesty the Queen of Great Britain, either by Treaty or by laws mutually acknowledged. Observations on Mr. Bayard's Memorandum. THE most important departure in this Article from the Protocol of 1866 is the interpolation of the stipulation, "that the bays and harbours from which American vessels are in future to be excluded, save for the purposes for which entrance into bays and harbours is permitted by said Article, are hereby agreed to be taken to be such harbours as are 10, or less than 10, miles in width, and the distance of 3 marine miles from such bays and harbours shall be measured from a straight line drawn across the bay or harbour in the part nearest the entrance at the first point where the width does not exceed 10 miles." This provision would involve a surrender of fishing rights which have always been regarded as the exclusive property of Canada, and would make common fishing grounds of the territorial waters which, by the law of nations, have been invariably regarded both in Great Britain and the United States, as belonging to the adjacent conntry. In the case, for instance, of the Baie des Chaleurs, a well-marked and almost peculiarly land-locked indentation of the Canadian coast, the 10-mile line would be drawn from points in the heart of Canadian territory, and almost 70 miles distance from the natural entrance or mouth of the bay. This would be done in spite of the fact that, both by Imperial legislation and by judicial interpretation, this bay has been declared to form a part of the territory of Canada. (See Imperial Statute 14 & 15 Vict., cap. 63; and "Mouat v. McPhee," [Mowat v. McFee] 5 Sup. Court of Canada Reports, p. 66.) The Convention with France in 1839, and similar Conventions with other European Powers, form no precedents for the adoption of a 10-mile limit. Those Conventions were doubtless, passed with a view to the geographical peculiarities of the coast to which they related. They had for their object the definition of the boundary-lines which, owing to the configuration of the coast, perhaps, could not readily be settled by reference to the law of nations, and involve other conditions which are inapplicable to the territorial waters of Canada. This is shown by the fact that in the French Convention the whole of the oyster-beds in Granville Bay, otherwise called the Bay of Cancale, the entrance of which exceeds 10 miles in width, were regarded as French, and the enjoyment of them is reserved to the local fishermen. A reference to the action of the United States' Government, and to the admission made by their statesmen in regard [to] bays on the American coasts, strengthens this view; and the case of the English ship "Grange' shows that the Government of the United States in 1793 claimed Delaware Bay as being within territorial waters. Mr. Bayard contends that the rule which he ask to have set up was adopted by the Umpire of the Commission appointed under the Convention of 1853 in the case of the United States' fishingschooner "Washington," that it was by him applied to the Bay of Fundy, and that it is for this reason applicable to other Canadian bays. It is submitted, however, that as one of the headlands of the bay of Fundy is in the territory of the United States any rules of international law applicable to that bay are not therefore equally applicable to other bays the headlands of which are both within the Territory of the same Power. The second paragraph of the 1st Article does not incorporate the exact language of the Convention of 1818. For instance, the words "and for no other purpose whatever," should be inserted after the mention of the purposes for which vessels may enter Canadian waters, and after the words "as may be necessary to prevent should be inserted, "their taking, drying, or curing fish therein, or in any other manner abusing the privileges reserved," &c. To make the language conform correctly to the Convention of 1818, several other verbal alterations, which need not be enumerated here, would be necessary. Reply to “Observations " on Proposal. to A prior agreement between the two Governments as to the proper definition of the "bays and harbours" from which American fishermen are hereafter be excluded, would not only facilitate the labours of the proposed Commission, by materially assisting it in defining such bays and harbours, but would give to its action a finality that could not otherwise be expected. The width of ten miles was proposed not only because it had been followed in Conventions between many other powers, but also because it was deemed reasonable and just in the present case; this Government recognizing the fact that, while it might have claimed a width of six miles as a basis of settlement, fishing within bays and harbours only slightly wider would be confined to areas so narrow as to render it practically valueless and almost necessarily expose the fishermen to constant danger of carrying their operations into forbidden waters. A width of more than ten miles would give room for safe fishing more than three miles from either shore, and thus prevent the constant disputes which this Government's proposal, following the Conventions above noticed, was designed to avert. It was not known to involve the surrender of rights "which had always been regarded as the exclusive property of Canada," or to "make common fishing ground of territorial waters, which, by the law of nations, have been invariably regarded, both in Great Britain and the United States, as belonging to the adjacent country." The case of the Baie des Chaleurs, the only case cited in this relation, does not appear to sustain the "observation " above quoted. From 1854 until 1866 American fishermen were permitted free access to all territorial waters of the provinces under Treaty stipulations. From 1866 until 1870 they enjoyed similar access under special licences issued by the Canadian Government. In 1870 the licence system was discontinued, and under date of May 14 of that year a draft of Special Instructions to officers in command of the marine police, to protect the inshore fisheries, was submitted by Mr. P. Mitchell, Minister of Marine and Fisheries of the |