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 liberty 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 damages 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 therein, 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, to appoint a Mixed Commission for the following purposes, namely: agree 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: the Provided, however, that 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 limits, restrictions, waters of the British and regulations which North American Colonies, may be agreed upon by in conformity with the the said Commission shall 1st Article of the Conven- not be final, nor have any tion of 1818, except that effect, until so jointly the bays and harbours confirmed and declared from which American by the United States and fishermen are in the fu- He. Majesty the Queen ture to be excluded, save 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 country. In the case, for instance, of the Baie des Chaleurs, a peculiarly well-marked and almost land-locked indentation of the Canadian coast, the 10-mile line would 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. be 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 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 ap plicable 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. A prior agreement between the two Governments as to the proper definition of the "bays and harbours" from which American fishermen are hereafter to 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 702 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 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." ten Treaty of Washington, 419 As to the Statute cited Excepting the Bay des dering on those waters to (of the oyster beds in 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 "established 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.”) 66 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 cial principles;" and it see The Bay des Chaleurs miles wide at the mouth, is 161 measured from Point to Point MacqueBirch reau; contains within its limits several other welldefined guished by their respecbays, distintive 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 the case of the "WashIn delivering Judgment ington," the Umpire considered the headland the"new doctrine." He ory and pronounced it 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 mediately in the next on that ground. And imheard by him and decided case, that of the “Argus," on the same day, he headland wholly discarded the made an award in favour theory and of the owners. gus" was seized, not in The "Arthe Bay of Fundy, but because (although more than three miles from land) she was found fishfrom headland to heading within a line drawn Cape North, on the northland, from Cow Bay to east side of Cape Breton Island. Convention of 1818 was The language of the not fully incorporated in the second paragraph of the 1st Article of the proposal, paragraph relates to Regulations for the secure enjoyment of certain privileges expressly because that 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 preparing 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 ing season on the southern coasts of Nova Scotia. Whenever a fishing vessel of the United States shall be seized for violating the provisions of the aforesaid Convention by fishing or preparing to fish within 3 marine miles of any of the coasts, bays, creeks, and harbours of Her Britannic Majesty's dominions included within the limits within which fishing is by the terms of the said Convention renounced, such vessel shall forthwith be reported to the officer in command of one of the said national ves sels, who, in conjunction with the officer in command of another of said vessels of different nationality, shall hear and examine into the facts of the case. Should the said Commanding Officers be of opinion that the charge is not sustained, the vessel shall be released. But if they should be of opinion that the vessel should be subjected to a judicial examination, she 421 shall forthwith be sent for trial before the Vice-Admiralty Court at Halifax. If, said however, the Commanding Officers should differ in opinion, they shall name some third person to act as Umpire between them, and should they be unable to agree upon the name of such third person, they shall each name a person, and it shall be determined by lot which of the two persons so named shall be the Umpire. Ad interim Arrangement proposed by the United States' Government. ARTICLE IV. The fishing-vessels of the United States shall have in the established ports of entry of Her Britannic Majesty's do minions in America the 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. This Article would suspend the operation of the Statutes of Great Britain the provinces now constiand of Canada, and of tuting Canada, not only as to the various offenses connected with fishing, but as to Customs, harbours, and shipthe fishing-vessels of the ping, and would give to 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 Canadian harbour, and safeguard could be adopted to prevent infraction of the Customs Laws by any vessel asserting the no 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. Observations on Mr. Bayard's Memorandum. 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. It 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 They fear, however, States agrees to admonthat there would be seri- ish its fishermen to comous practical difficulties ply" with Canadian Cusin giving effect to this ar- toms Regulations and to rangement, owing to the cooperate in securing great length of coast, their enforcement. Obeand the delays, which dience by American fishmust in consequence be ing vessels to Canadian frequent, in securing the laws was believed, and presence at the same certainly was intended to time and place of the be secured by this Arnaval officers of both ticle. By the consolidapowers. tion, 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 unacceptable 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 Regu lations which may be established by the Commission. And the treatment to be awarded to such infractions should also be considered by the same body. Reply to "Observations" on Proposal. ARTICLE IV. 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 |