Dominion, to the Privy Council, and on the same day was approved. In that draft the width of ten miles, as now proposed by this Government, was laid down as the definition of the bays and harbours from which American fishermen were to be excluded; and in respect to the Bay des Chaleurs, it was directed that the officers mentioned should not admit American fishermen "inside of a line drawn across at that part of such bay where its width does not exceed ten miles." (See Sess. Pap., 1870; see also Appendix "A" to this Memorandum.) It is true that it was stated that these limits were "for the present to be exceptional." But they are irreconcilable with the supposition that the present proposal of this Government "would involve a surrender of fishing rights which have always been regarded as the exclusive property of Canada." It is, however, to be observed that the instructions above referred to were not enforced, but were, at the request of Her Majesty's Government, amended, by confining the exercise of police jurisdiction to a distance of three miles from the coasts or from bays less than six miles in width. And in respect to the Bay des Chaleurs, it was ordered that American fishermen should not be interfered with unless they were found "within three miles of the shore." (Sess. Pap., vol. iv, No. 4, 1871; see also Appendix "B.") The final instructions of 1870 being thus approved and adopted, were reiterated by their reissue in 1871. Such was the condition of things from the discontinuance of the Canadian licence system in 1870, until, by the Treaty of Washington, 419 As to the Statute cited Excepting the Bay des Chaleurs, no case is adduced to show why the limit adopted in the Conventions regulating the fisheries in the British Channel and in the North Sea would not be equally applicable to the provinces. The coasts bordering on those waters contain numerous "bays" more than 10 miles wide; and no other condition has been suggested to make the limit established by Great Britain and other Powers as to those coasts "inapplicable" to the coasts of Canada. The exception referred is believed that the area The Bay des Chaleurs is 161 miles wide at the mouth, measured from Birch Point to Point Macque reau; contains within its limits several other welldefined bays, distinguished by their respective names, and, according to the "observations,' a distance of almost seventy miles inward may be traversed before reaching the ten mile line. The Delaware Bay is 11 miles wide at the mouth, 32 miles from which it narrows into the river of that name, and has always been held to be territorial waters, before and since the case of the "Grange "—an international case,-in 1793, down to the present time. In delivering Judgment in the case of the "Washington," the Umpire considered the headland theory and pronounced it "new doctrine." He noted among other facts that one of the headlands of the Bay of Fundy was in the United States, but did not place his decision on that ground. And immediately in the next case, that of the "Argus," heard by him and decided on the same day, he wholly discarded the headland theory and made an award in favour of the owners. The "Argus was seized, not in the Bay of Fundy, but because (although more than three miles from land) she was found fishing within a line drawn from headland to headland, from Cow Bay to Cape North, on the northeast side of Cape Breton Island. The language of the Convention of 1818 was not fully incorporated in the second paragraph of the 1st Article of the proposal, because that paragraph relates to Regulations for the secure enjoyment of certain privileges expressly reserved. The words "and for no other purpose whatever" would in this relation be surplusage. The restrictions to prevent the abuse of the privileges referred to would necessarily be such as to prevent the "taking, drying, and curing' of fish. For these reasons the words referred to were not inserted, nor is the usefulness of their insertion apparent. Ad interim Arrangement proposed by the United States' Government. ARTICLE II. Pending a definitive arrangement on the subject, Her Britannic Majesty's Government agree 420 to instruct the proper Colonial and other British officers to abstain from seizing or molesting fishing vessels of the United States unless they are found within 3 marine miles of any of the coasts, bays, creeks, and harbours of Her Britannic Majesty's dominions in America, there fishing, or to have been fishing or reparing to fish within those limits, not included within the limits within which, under the Treaty of 1818, the fishermen of the United States continue to retain a common right of fishery with Her Britannic Majesty's subjects. Ad interim Arrangement proposed by the United States' Government. ARTICLE III. For the purpose of executing Article I of the Convention of 1818, the Government of the United States and the Government of Her Britannic Majesty hereby agree to send each to the Gulf of St. Lawrence a national vessel, and also one each to cruise during the fish marine same commercial privileges as other vessels of the United States, including the purchase of bait and other supplies; and such privileges shall be exercised subject to the same Rules and Regulations and payment of the same port charges as are prescribed for other vessels of the United States. Observations on Mr. Bayard's Memorandum. ing season on the south- minions in America the 421 But some them, however, the said Ad interim Arrangement ARTICLE IV. The fishing-vessels of the United States shall have in the established ports of entry of Her Britannic Majesty's do This Article would suspend the operation of the Statutes of Great Britain and of Canada, and of the provinces now constituting Canada, not only as to the various offenses connected with fishing, but as to Customs, harbours, and shipping, and would give to the fishing-vessels of the United States privileges in Canadian ports which are not enjoyed by vessels of any other class, or of any other nation. Such vessels would, for example, be free from the duty of reporting at the Customs on entering a Canano dian harbour, and safeguard could be adopted to prevent infraction of the Customs Laws by any vessel asserting the character of a fishing vessel of the United States. Instead of allowing to such vessels merely the restricted privileges reserved by the Convention of 1818, it would give them greater privileges than are enjoyed at the present time by any vessels in any part of the world. Observations on Mr. Bayard's Memorandum. This Article would deprive the Courts in Canada of their jurisdiction, and would vest that jurisdiction in a tribunal not bound by legal principles, but clothed with supreme authority to decide on most important rights of the Canadian people. It would submit such rights to the adjudication of two naval officers, one of them belonging to a foreign country, who, if they should disagree and be unable to choose an Umpire, must refer the final decision of the great interests which might be at stake to some person chosen by lot. If a vessel charged with infraction of Canadian fishing rights should be thought worthy of being subjected to a “judicial examination," she would be sent to the ViceAdmiralty Court at Halifax, but there would be no redress, no appeal, and no reference to any tribunal if the naval officers should think proper to release her. It should, however, be observed that the limitation in the second sentence of this Article of the violations of the Convention which are to render a vessel liable to seizure could not be accepted by Her Majesty's Government. For these reasons, the Article in the form proposed is inadmissible, but Her Majesty's Government are not indisposed to agree to the principle of a joint enquiry by the naval officers of the two countries in the first instance, the vessel to be sent for trial at Halifax if the naval officers do not agree that she should be released. They fear, however, that there would be serious practical difficulties in giving effect to this arrangement, owing to the great length of coast, and the delays, which must in consequence be frequent, in securing the presence at the same time and place of the naval officers of both powers. Observations on Mr. Bayard's Memorandum. It This Article is also open to grave objection. It proposes to give the United States fishing vessels the same commercial privileges as those to which other vessels of the United States are entitled, although such privileges are expressly renounced by the Convention of 1818 on behalf of fishing vessels, which were thereafter to be denied the right of access to Canadian waters for any purpose whatever, except those of shelter, repairs, and the purchase of wood and water. has frequently been pointed out that an attempt was made, during the negotiations which preceded the Convention of 1818, to obtain for the fishermen of the United States the right of obtaining bait in Canadian waters, and that this attempt was successfully resisted. In spite of this fact, it is proposed, under this Article, to declare that the Convention of 1818 gave that privilege, as well as the privilege of purchasing other supplies in the harbours of the Dominion. Reply to "Observations' on Proposal. ARTICLE II. The objections to this Article will, it is believed, be removed by a reference to Article VI, in which "the United States agrees to admonish its fishermen to comply" with Canadian Customs Regulations and to cooperate in securing their enforcement. Obedience by American fishing vessels to Canadian laws was believed, and certainly was intended to be secured by this Article. By the consolidation, however, of Arti cles II and VI the criticism would be fully met. Reply to "Observations " on Proposal. ARTICLE III. As the chief object of this Article is not anacceptable to Her Majesty's Government-i.e., the establishment of a joint system of enquiry by naval officers of the two countries in the first instance-it is believed that the objections suggested may be removed by an enlargement of the list of enumerated offenses so as to include infractions of the Regulations which may be established by the Commission. And the treatment to be awarded to such infractions should also be considered by the same body. The Treaty of 1818 related solely to fisheries. It was not a Commercial Convention, and no commercial privileges were renounced by it. It contains no reference to "ports," of which, it is believed, the only ones then existing were Halifax, in Nova Scotia, and possibly one or two more in the other provinces; and these ports were not until long afterwards opened by reciprocal commercial regulations to vessels of the United States engaged in trading. The right to "obtain " (i. e., take, or fish for) bait, was not insisted upon by the American negotiators, and was doubtless omitted from the Treaty because, as it would have permitted fishing for that purpose, it was a partial reassertion of the right to fish within the limits as which the right to take fish had already been expressly renounced. The purchase of bait and other supplies by the American fishermen in the established ports of entry of Canada, as proposed in Article IV, is not regarded as inconsistent with any of the provi sions of the Treaty of 1818; and in this relation it is pertinent to note the declaration of the Earl of Kimberley, in his letter of the 16 February, 1871, to Lord Lisgar, that "the "exclusion of American "fishermen from resort"ing to Canadian ports, "terms of the Imperial by the Treaty of 1854, "Act 59 Geo. III. chap. By this Article, it is proposed to give retrospective effect to the unjustified interpretation sought to be placed on the Convention by the last preceding Article. It is assumed, without discussion, that all United States' fishing vessels which have been seized since the expiration of the Treaty of Washington have been illegally seized, leaving, as the only question still open for consideration, the amount of the damages for which the Canadian authorities are liable. Such a proposal appears to Her Majesty's Government quite inadmissible. nor by the Treaty of Washington; and the Halifax Commission decided in 1877, that it was not "competent" for that Tribunal "to award com"pensation for commer"cial intercourse between "the two countries, nor "for purchasing bait, ice, "supplies, &c., nor for 'permission to transship 66 66 cargoes in British "waters." And yet this Government is not aware that, during the existence of the Treaty of 1854, or the Treaty of Washington, question was ever made of the right of American fishermen to purchase bait and other supplies in Canadian ports, or that such privileges were ever denied them. Reply to "Observations " on Proposal. ARTICLE V. This Government is not disposed to insist on the precise form of this Article, but is ready to substitute therefor a submission to arbitration in more general terms. No. 239.-1888, February 20: Message from the President of the United States transmitting a treaty between the United States and Great Britain concerning the interpretation of the convention of October 20, 1818, signed at Washington, February 15, 1888. February 20, 1888.-Read, treaty read the first time, referred to the Committee on Foreign Relations, and, together with the message and the accompanying documents, ordered to be printed, in confidence for the use of the Senate. To the Senate of the United States: In my annual message transmitted to the Congress in December, 1886, it was stated that negotiations were then pending for the settlement of the questions growing out of the rights claimed by American fishermen in British North American waters. As a result of such negotiations a treaty has been agreed upon between Her Britannic Majesty and the United States, concluded and signed in this capital, under my direction and authority, on the 15th of February instant, and which I now have the honor to submit to the Senate, with the recommendation that it shall receive the consent of that body, as provided in the Constitution, in order that the ratifications thereof may be duly exchanged and the treaty be carried into effect. Shortly after Congress had adjourned in March last, and in continuation of my efforts to arrive at such an agreement between the Governments of Great Britain and the United States as would secure to the citizens of the respective countries the unmolested enjoyment of their just rights under existing treaties and international comity in the territorial waters of Canada and of Newfoundland, I availed myself of opportune occurrences indicative of a desire to make without delay an amicable and final settlement of a long-standing controversy-productive of much irritation and misunderstanding between the two nations-to send through our minister in London proposals that a conference should take place on the subject at this capital. a Printed Appendix, Part I, p. 43. |