CORNELL UNIVERSITY LIBRARY © nell University ‘penne JX 238.N69 1912 Argument of the honorable Elihu Roo 1924 0 olin ARGUMENT OF THE HONORABLE ELIHU ROOT ON BEHALF OF THE UNITED STATES BEFORE THE NORTH ATLANTIC COAST FISHERIES ARBITRATION TRIBUNAL AT THE HAGUE, 1910 EDITED WITH INTRODUCTION AND APPENDIX BY JAMES BROWN SCOTT OF COUNSEL FOR THE UNITED STATES Inter leges silent arma THE WORLD PEACE FOUNDATION 1912 ‘COPYRIGHT, 1912, BY THE WORLD PEACE FOUNDATION ALL RIGHTS RESERVED 3461674 x PREV ACE INSTANCES must indeed be rare, if not wholly unknown, in which the statesman who raised and framed the issue appeared as counsel and argued the case before an International Tribunal. These unusual circumstances met in the person of Senator Root who, as Secretary of State, raised and framed the issues in the North Atlan- tic Coast Fisheries Arbitration, and argued the case thus raised and made as leading counsel for the United States before the Special Tribunal of the Permanent Court at The Hague in 1910. If Mr. Root did not speak the first word in this historic controversy, which may be said to antedate the recognition of our independence, he nevertheless spoke the final word, so far as the present is concerned. His argument is therefore of more than passing interest, and the case, bearing as it does the impress of a single mind, is well worth careful study and analysis. In an address delivered before the American Society for Judicial Settlement of International Disputes on December 17, 1910, Presi- dent Taft aptly said: “What teaches nations and peoples the possibility of permanent peace is the actual settlement of controversies by courts of arbitration. The settle- ment of the Alabama controversy by the Geneva arbitration, the settlement of the Seals controversy by the Paris Tribunal, and the settlement of the Newfoundland Fisheries controversy by The Hague Tribunal are three great substantial steps toward permanent peace, three facts accomplished that have done more for the cause than anything else in history.” Accepting this statement as correct, a study of the controversy and the steps by which it was settled would seem to be as important as it is enlightening, as showing by a concrete example the means by which a controversy which embittered the relations of two great and fraternal peoples and which, on more than one occasion, threatened war, was settled as easily and successfully as disputes between private litigants are settled by national courts of justice. Mr. Root yielded to the request that his argument be published iil iv PREFACE in handy and permanent form, but regretted that it was impossible to include within the compass of a single volume the arguments of the other American as well as of the British counsel. He also felt that an introduction’ should be prefixed to the argument which would give the case its necessary historical setting, and asked the editor to furnish it. It seemed advisable to test the award in the light of admitted fact and principles of law which were thought to be applicable. The recent statement by Dr. Lammasch, President of the Tribunal, that the judgment in the case ‘‘contained elements of a compromise,” seemed to justify, if it did not require, a more detailed exposition than was originally contemplated, and the intro- duction has therefore assumed larger proportions. For the views expressed in this part of the work Mr. Root is in no way responsible, but the appendix of documents has had the stamp of his approval. Important as the award is in itself as showing by a concrete example how easily nations may settle long-standing and vital disputes by judicial means, if they are only minded to do so, the good feeling which marked every step of the proceedings at The Hague, and the personal intercourse of counsel which laid the foundation of personal friendship, happily shows that judicial settle- ment not merely avoids the bitterness engendered and perpetuated by war, but draws official representatives and the nations them- selves closer together. Were it not presumptious to dedicate such a trifle, the editor would like to inscribe it to the agents and counsel of Great Britain and the United States who labored so patiently and successfully at The Hague to settle by judicial means a controversy which diplomacy had failed to adjust. Wasuincron, D.C., James Brown Scott September 7, 1911. PAGE I. INTRODUCTION InTROopUCTORY REMARKS. . . 3 oP Ge wah Ge, ao cas, LAIR FRENCH FISHERIES RIGHTS IN Newronnocann ‘ Ye cee iat te! ie SAT AMERICAN FisHinG RIGHTS UNDER THE TREATY OF 1783 . . .. . XXvii CONVENTION OF 1818 . he . Xxxi DISCUSSION OF THE FISHERIES Ouesiran BETWEEN Sucre Root AND Sir Epwarp GREY . . . z BD ink xlii THE SPECIAL AGREEMENT OF Taaay ee 1909 il xg . xilvii QUESTION ONE. . gt ts 3 te ee ok ee > TV QUESTION Two. . eo a a ae . . XciVv QuesTION “THREE «© «© 8 © 4 6 4 %© 4 4% m @ © @ @ @ 3 ci Question Four « « « 6 «© © & & 8 ® w # 2 ow # » « €vi QUESTION FIVE. Bo ee ae mts he c's ae ss . cix QUESTION SIx . . . oo. Gs) Bin, de oi Geek Go Ge, Ge 2) Geel QUESTION SEVEN . . ...... @ ee oe a a Gklvl CoNCLUSION. . 5 oo: 4 cm mw olor las J he Be cara Ad: ae cae. Sel II. 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APPENDIX OF DOCUMENT TREATIES TREATY OF UTRECHT, MARCH ii II, 1713, BETWEEN FRANCE AND GREAT BRITAIN 3 375 TREATY OF PARIS, FEBRUARY Io, 769 BETWEEN Paden, — Buri AND SPAIN. . : 375 TREATY OF VERSAILLES, Sepeeseer 3. 785, BETWEEN FRANCE AND Great BRITAIN. . 376 Britisa DECLARATION, Actomparere THE TREATY OF VERSATLEES = 377 Frenca COUNTER DECLARATION . . 377 TREATY OF PARIS, SEPTEMBER 3, 1783, BETWEEN Great BRITAIN AND THE UNITED STATES . . . . . we wee . 378 CONTENTS v V1 CONTENTS PAGE UNRATIFIED TREATY OF AMITY, COMMERCE, AND NAVIGATION, BETWEEN Great BRITAIN AND THE UNITED STATES, DECEMBER 31, 1806 . 378 CONVENTION OF OCTOBER 20, 1818, BETWEEN GREAT BRITAIN AND THE UNITED STATES é r 379 TREATY OF JUNE 5, 1854, BETWEEN GREAT BRITAIN AND THE Wier STATES, 380 TreaTy OF WASHINGTON, May 8, 1871, BETWEEN GREAT BRITAIN AND THE UNITED STATES 2 381 CONVENTION OF May 6, 1882, BETWEEN 1 GREAT Britain, GERMANY, BEL- ciuM, DENMARK, FRANCE, AND THE NETEERLANDS : 383 UNRATIFIED TREATY OF FEBRUARY 15, 1888, BETWEEN GREAT Brrrany AND THE UNITED STATES 383 UNRATIFIED CONVENTION OF 1891 BETWEEN ‘Gendt Bertite AND THE UNITED STATES (FOR THE IMPROVEMENT OF COMMERCIAL RELATIONS BETWEEN THE UNITED STATES AND NEWFOUNDLAND) . . 387 UNRATIFIED CONVENTION OF NOVEMBER 8, 1902, BETWEEN GREAT BRITAIN AND THE UNITED STATES (FOR THE IMPROVEMENT OF Com- MERCIAL RELATIONS BETWEEN THE UNITED STATES AND NEWFOUND- LAND) . . A 388 CONVENTION OF APRIL 8, 1904, BETWEEN ‘Gaear BRITAIN AND FRANCE, 390 Circutar Note or M. Detcassf, FRENCH MINISTER FOR FOREIGN. Arrarrs, TO FrencH DIrPLoMATIC AGENTS, APRIL 12, 1904 . . 391 CORRESPONDENCE Correspondence relating to the Convention of 1818: ExTRACT FROM INSTRUCTION, SECRETARY OF STATE Monroe TO Mr. Joun Quincy ApAms, UNITED StTaTES MINISTER TO GREAT BRITAIN, 395 Note, Lorp BatHyurst TO Mr. BAKER, BRITISH CHARGE D’AFFAIRES AT WASHINGTON, SEPTEMBER 7, 1815. . . » . 396 Extract From DespatcH, Mr. Apams To Mr. Monnox (STATING SUB- STANCE OF A CONVERSATION WITH Lorp BATHHURST), SEPT. 19, 1815 . 3096 Note, Lorp Baruuurst TO Mr. ADAMS, OCTOBER 30, 1815 . . . 399 Nore, Mr. ADAMS TO VISCOUNT CASTLEREAGH, JANUARY 22, 1816 . 404 ExTRACT FROM INSTRUCTION, SECRETARY OF STATE ADAMS TO MESSRS. GALLATIN AND Rusu, AMERICAN COMMISSIONERS, JULY 28, 1818 . 4II ExtTRACT FROM INSTRUCTION, VISCOUNT CASTLEREAGH TO MEssRS. ROBINSON AND ee British COMMISSIONERS, AUGUST 24, 1818 412 EXTRACTS FROM REPORT OF MEssrs. Sancxme AND Ruse 7 TO Sienit- TARY OF STATE ADAMS, OCTOBER 20, 1818 . 412 SUPPLEMENTAL Report OF Mr. GALLATIN TO SECRETARY OF » Segre ADAMS, NOVEMBER 6, 1818 249 : 5 413 Correspondence concerning the right of Great Britain to regulate American fishing rights by the Treaty of Washington, May 8, 1871: Note, SECRETARY OF STATE Evarts To Sir E. Tuornton, Britis MINISTER AT WASHINGTON, MarcH 2, 1878 = 415 InstRucTION, Mr. Evarts To Mr. WELsH, UNITED STATES Minviscae AT LonpDON, SEPTEMBER 28, 1878 . . . . 1... uw 416 CONTENTS vii Nore, Marguis or SALispury, British FOREIGN ieee To Mr. PASE WELSH, NOVEMBER 7, 1878 . . . . e & - «420 InstrucTION, Mr. Evarts To Mr. WELSH, Bicuer I, 1879 . . 421 Nore, Lorp Satissury TO Mr. Hoppin, AMERICAN Cuan D’ AFFAIRES AT LoNDON, APRIL 3, 1880 . . . 431 Nore, Eart GRANVILLE, BRITISH Foumen Suomi, To Mr. Lowzrz, AMERICAN MINISTER AT LONDON, OCTOBER 27, 1880 . . . . . 435 InstrucTION, Mr. Evarts TO Mr. LowELt, FEBRUARY 4, 1881 . . 437 Letter, EArt GRANVILLE To Lorps COMMISSIONERS OF THE TREASURY, FEBRUARY 26, 1881 . . - 6 6440 Note, Mr. LowELL To EARL os Maron 2, “1881 sos @ » 441 Correspondence concerning the Treaty of 1818: Note, SECRETARY OF STATE Root, To Srr Mortimer Doranp, Brit- IsH MINISTER AT WASHINGTON, OCTOBER 12, 1905. . ose 442 Nore, Mr. Root ro Sir Mortimer DuRAND, OCTOBER 19, 1905. . 442 Norte, Str Epwarp Grey, British MINIsTER FOR FoREIGN AFFAIRS, To Mr. WHITELAW REID, AMERICAN AMBASSADOR AT LoNDON, FEB- RUARY 2, 7900 6 «© © © © &@ j i - 446 Instruction, Mr. Root to Mr. REID, Jonz 30, 706 i 6 « & @ 453 Note, Str Epwarp Grey To Mr. RED, JUNE 20,1907 . . . . . 459 Note, Mr. Reimp To Sir Epwarp Grey, Juty 12, 1907 . . . . 462 STATUTES British StatuTE, 28 Gro. III, Cap. 35, 1788 de CRE. BA CR RE ae oe MOE. British STATUTE, 59 Geo. III, Cap. 38, JUNE 14, 1819 . . . . 466 NEWFOUNDLAND STATUTE OF 5 Epwarp VII, Cap. 4, JUNE 15, 1905, An Act RESPECTING FOREIGN FISHING VESSELS oe oe & 468 NEWFOUNDLAND STATUTE OF 6 Epwarp VII, Cap. 1, May 10, 1906, 470 CIRCULARS SECRETARY OF STATE WEBSTER’S STATEMENT, JULY 6, 1852 ee oe AZZ SECRETARY Marcy’s CIRCULAR ADDRESSED TO COLLECTORS OF ers “ Juty 12, 1855 . fy aes . WP orien FO Ce ‘ 476 SECRETARY OF STATE Marcy’s Aomonn Coreuran © OF Manon 28, rés6,, 477 SECRETARY MAarcy’s FINAL CIRCULAR OF MARCH 28, 1856 . - 478 SECRETARY OF THE TREASURY BOUTWELL’s FINAL CIRCULAR OF MarcH 6, 3872 «= «= & © « w» @ w & é - 479 ARBITRATION CONVENTION BETWEEN Guan ee AND THE Unirep States, APRIL 4, 1908 . ...... ~~. 482 SPECIAL AGREEMENT BETWEEN GREAT BRITAIN AND THE -Ununan STATES, JANUARY 27, I9099 . . . : . 483 AWARD OF THE TRIBUNAL IN THE ‘Norra Amanric Cai Wentnres ARBITRATION, SEPTEMBER 7, IQI0 . . es) pl oy 488 DIssENTING OprINIon oF Dr. Luis M. Deaco s- 4% a vies, » de 516 Norte: The footnote references are to the printed Case, Counter Case, and Argument of Great Britain and the United States, submitted to The Hague Tribunal, and to the Oral Arguments delivered at The Hague, printed in two volumes by Great Britain and the United States. The simple reference “Appendix,” in italics, is to the appendix to the present volume. INTRODUCTION In his “English Traits” Emerson speaks of Great Britain as anchored off the continent of Europe, which expression, however poetical and figurative, stamps the Briton as a natural born sailor and serves to explain in part the maritime supremacy of the British Isles, without which they could not exist as an independent nation. In a literal and material sense of the word Newfoundland may be considered as a vast island moored in the Gulf of the St. Lawrence, and for centuries the British law-maker considered it as a huge ship anchored off the coast of Canada, at the mouth of the St. Lawrence, and applied to it the characteristics and qualities of a fishing vessel. The island was not a colony in the proper sense of the word. It was rather the deck or strand upon which preparations were made for fishing, and on which the catch was dried and cured. Colonization was prevented.? Immigrants who resorted to its inhospitable shores and settled upon its territory were treated with scant consideration as little better than outlaws, and denied the protection of just laws and of courts of justice for their administration.2 The sovereignty of the 1In his evidence before a Committee of the House of Commons, given April-24, 1793, Mr. William Knox, formerly one of the Under Secretaries of State in the American department, stated — “That the island of Newfoundland had been considered, in all former times, as a great English ship moored near the Banks during the fishing season, for the convenience of the English Fishermen. The Governor was considered as the ship’s Captain, and all those who were con- cerned in the Fishery business, as his crew, and subject to naval discipline while there, and expected to return to England when the season was over.’ (Appendix, U. S. Counter Case, Pp. 560.) 2“To prevent the increase of inhabitants on the island, the most positive instructions were given to the Governors not to make any grants of the lands, and to reduce the number of those who were already settled there. Their vessels, as well as those belonging to the colonies, were to be denied any priority of right in occupying stations in the bays or harbors for curing their Fish over the vessels from England; and he was instructed to withhold from them whatever might serve to encourage them to remain on the island; and, as Lord North expressed it, what- ever they loved to have roasted, he was to give them raw; and whatever they wished to have raw, he was to give them roasted.” (Ibid., p. 561.) 3“Unjust and injurious laws were enacted by the English government, to prevent the settlement of the island, and to keep it forever in the degraded condition of a stage for drying fish. These laws forbade any one to go to Newfoundland as a settler, and ordained that all fishermen should return to England at the close of the fishing season. Masters of vessels were compelled to give bonds of £100, binding them to bring back each year such persons as they took out. Settlement within six miles of the coast was prohibited under heavy penalties. No one could cultivate or enclose the smallest piece of ground or even repair a home, without license, which was rarely granted. This oppressive policy was maintained for more than a hundred years.” (Harvey: Text-Book of Newfoundland History, p. 81. 1885.) 1x x INTRODUCTION island was vested in Great Britain, but, to quote a competent authority, ‘colonisation or settlement was not only not existing or contemplated, but was even prohibited by Great Britain under severe penalties. The fishermen of the two nations met on the New- foundland fishing grounds, living on board their vessels, and prose- cuting their fishing in their boats, and occupying the land, or rather the beaches on the coast, only for the temporary purpose of curing and drying their fish. So carefully was the very idea of anything like a permanent possession, or right of possession, forbidden among the English fishermen, that occupation of any particular place on the shore during one season gave no priority of claim whatever to that place for the next season. The beaches along the coast were marked by the Fishing Admirals, as they were called, and divided into separate ‘rooms’ or areas, one sufficient for the fishing purposes of one ship’s crew for one season; from which circumstances many of these old areas or spaces are called ‘ships’ rooms’ and ‘ancient ships’ rooms’ to this day. At the beginning of each season these rooms were assigned by the Admiral for the time being, one to each of the several ships in turn of arrival, to be used or occupied by her crew for the season. The captain of the first fishing vessel that arrived on the coast from England in the spring was the Admiral for the season, and was clothed with full judicial and administrative powers. In order to emphasize and give the fullest effect to the ‘policy’ of preventing settlement, the inhabitants (if any) of the coast were by express law prohibited from taking up any beach or place until all the ships arriving from England were provided for. There was then, literally, no local government of any sort on the island; no courts of justice, no judges, magistrates, or other ordinary tribunals, for the administration of justice, or the protection of the people in their simplest and most rudimentary rights and liberties.” ! Fishing on the Grand Banks to the south of Newfoundland was practically undisturbed. The island itself was an appanage of the fishery and had no claims to consideration independent of the prosecu- tion of the fishery. It was visited by the fishing fleets about the begin- ning of June. It was forsaken by the fishing fleets in the month of August, at which time it was turned over to winter and anarchy. The fishery supplied not only food for England, but also trained the hardy seamen for its protection. The fishery was, however, the monopoly of merchant adventurers from the west of England who believed that the 1 The Case for the Colony, stated by the People’s Delegates (Messrs: Winter, Scott and Morine), quoted in U. S. Counter Case, pp. 20-21. INTRODUCTION xi colonization of Newfoundland was inimical to their special interests,! and an unreformed Parliament, in which these interests were repre- sented, treated the fishery as a nursery for the navy and doomed the island to centuries of misgovernment when neglect, however unpar- donable, would have been an act of kindness. As apparent from the extract quoted, the coast was treated as uninhabited, subject to pre- emption by the fishing captain, termed for the fishing season the Admiral, who first entered the harbor, and who was invested with the power and the duty of maintain’ng the degree of law and order deemed neces- sary for the prosecution of the fisheries. It was not until the year 1729 that a naval officer was designated as Governor of the island, to whom appeals might be taken from the rough-handed justice adminis- tered by the fishing admirals; and the Governor himself appeared in Newfoundland waters with the opening of the fishing season and left them in August, when the fishery, the sole reason for his presence, ceased. It was only in 1791 and 1792 that a court of justice was established by an act of Parliament, although justices of the peace with indeterminate jurisdiction had been appointed and a vice-admiralty court of uncertain and far-reaching powers had been established. It was only in 1818, that is, in'the very year in which the Convention of 1818 was concluded between Great Britain and the United States, that the Governor of New- foundland was compelled to reside within the island beyond the fishing ‘season. It was only in 1824 that an adequate judicial organization was completed. It was only in 1832 that a legislature was called into being by the reformed Parliament of Great Britain, and, finally, it was only in 1854 that Newfoundland was invested with the inestimable blessings of a responsible local self-government.? The mere statement of these facts is in itself sufficient to show that Newfoundland was but a vast fishing ground and that it was admin- istered solely for the benefit of the merchant adventurers who fished on 1“What they wanted was, as one of their own party expressed it, ‘that Newfoundland should always be considered as a great English ship, moored near the Banks, during the fishing season, for the convenience of English fishermen.’’’ (Harvey, Text-Book of Newfoundland History, p. 84. 1885.) “They were able to persuade the English statesmen and people that the fisheries would be ruined if a resident population should be allowed to grow up in the island, and the fisheries would no longer be a nursery of seamen for the navy. Further, they misled the public by representing the island as helplessly barren, and, in regard to its soil and climate, unfit for human habitation.” (Ibid., p. 81.) 2 In response to the local protests to the proposed agreement of 1857 between Great Britain and France, Mr. Labouchere, Secretary of State for the Colonies, assured the Governor that “the consent of the community of Newfoundland is regarded by Her Majesty’s Government as an essential preliminary to any modification of their territorial or maritime rights.” From this period, therefore, Newfoundland possessed not merely the right of local self- government, but a voice in international agreements which effected the external status of the colony. xii INTRODUCTION a large scale; that the interests of the inhabitants who came, notwith- standing discouragement, were systematically subordinated to the prosecution of a commercial monopoly, and that the international agree- ments concluded by Great Britain with France and the United States were entered into without a proper consideration of the inhabitants of the islands and the development of its internal resources. An interna- tional agreement was a simple matter. The contracting parties agreed upon the terms of such a treaty as circumstances might suggest and the government of Great Britain enforced its terms without a thought of the inhabitants of Newfoundland to be affected, and who in contem- plation of law and in fact were treated as outcasts or as pawns in the great international game. Nevertheless, the colonization of Newfound- land grew apace and the presence of settlers had to be reckoned with. The interests of the colony gradually forced themselves upon the home government, and international agreements detrimental to the legiti- mate rights and interests of a growing, if not thriving, colony embar- rassed the home government in the execution of treaty stipulations. The French treaty rights upon the shores of Newfoundland interfered with the development of the island and became difficult of execution. The Convention of 1818 interfered with the growth of the colony and a self-governing community objected to the strict enforcement of terms inconsistent with their interests and about which they were not con- sulted. The controversies which arose between Great Britain and’ France regarding French treaty rights strained the foreign relations of both countries and led to the negotiation of the Convention of 1904, by which they reached a satisfactory agreement upon the New- foundland fisheries and by which France renounced the exclusive claim to the French shore. The action of the Colonial Govern- ment regarding the exercise of American rights under the Convention of 1818 provoked an acute controversy, to settle which the arbitra- tion of 1910 was agreed upon. For the colony determined to be master of its own house, and while willing to comply with treaty stipulations, insisted upon subordinating the fishing rights of foreigners within Newfoundland waters to the supervision of local authorities, ‘in order that the progress of the colony might not be retarded by restrictions inconsistent with the changed conditions of present or future development. There is much to be said for this point of view, for the Colonies have become, as it were, members of a great household, bound together by common ties of blood and tradition, and no longer subject to exploitation for the benefit of the mother’ country. INTRODUCTION xiii As a knowledge of the French treaty rights in Newfoundland waters is necessary to an understanding of the Convention of 1818 between the United States and Great Britain, the origin, development, and termina- tion of the French treaty rights in Newfoundland waters will be briefly considered before passing to a detailed examination ofthe rights of the United States under the Treaty of 1783 and the Convention of. 1818. FRENCH FISHING RIGHTS IN NEWFOUNDLAND Newfoundland was valuable to France, for more reasons than those which made it valuable to Great Britain. As fishing grounds the island would be a source of profit to France as well as Great Britain, and exclu- sive possession of it would, by preventing competition, increase its value. The fisheries were regarded for centuries as the nursery of the navy, not merely to sustain the position at home, but to render secure the posses- sion of distant colonies. These reasons were common to Great Britain - and France in their struggle for the control of the American continent. Newfoundland controlled the entrance to the Gulf of St. Lawrence, and as France could only reach Canada by passing between Newfound- land and Cape Breton on the south, or by passing through the Straits of Belle Isle between Newfoundland and Labrador on the north, the position of Newfoundland was of strategic importance. For the present purpose it is sufficient to say that, from the dis- covery of Newfoundland, French fishermen frequented the Grand Banks and the shores of Newfoundland in quest of fish, and although France renounced its exclusive claim to the French shore in the year 1904, it still retains the right to fish within Newfoundland waters upon terms of equality with British fishermen. In the century succeeding the dis- covery of the island in 1497 by John and Sebastian Cabot in behalf of England, French fishermen visited Newfoundland in great numbers. Great Britain claimed the island.by right of discovery. Sir Humphrey Gilbert took formal possession of it for England in the year 1583, and ‘England seems always to have claimed sovereignty, although its title was questioned by France and it seemed likely on various occasions that France would make good its claim. The restoration of Charles II was a fortunate event for Louis XIV, and he lost no time in taking full advantage of it. -In 1662 the French occupied and fortified Placentia, and from that date until the Treaty of Utrecht, in 1713, the larger and more profitable part of the island was in the exclusive possession of France. Had Louis XIV succeeded in his continental wars, Newfound- land would have been ceded in full sovereignty to France, but the vic- tories of Marlborough on the continent enabled Great Britain to dictate XIV INTRODUCTION terms of peace. Article XIII of the Treaty of Utrecht, between Great Britain and France, concluded’ in the year 1713, provided that “the Island called Newfoundland, with the adjacent Islands, shall, from this time forward, belong of right wholly to Britain; and to that end the Town and Fortress of Placentia and whatever other places in the said Island are in the Possession of the French, shall be yielded and given up... . Nor shall the most Christian King, his Heirs and Successors, or any of their Subjects, at any time hereafter lay claim to any right to the said Island and Islands, or to any part of it or them.” The purpose and meaning of this clause are reasonably clear. The treaty was a renunciation to Great Britain of any and all rights which France claimed to the Island, and Newfoundland was henceforth lost to France. France was, however, allowed to participate in the fisheries, and the desire of France to enlarge its participation and the determina- tion of Great Britain either to restrict the participation or to confine it within the terms of the grant, engendered controversies which were only adjusted by the Convention of 1904 between the two countries. The article which recognized British sovereignty ‘“‘allowed” French subjects to prosecute the fishery within Newfoundland waters and to use certain specified portions of the island for the drying and curing of the fish. Thus, while the subjects of France were forbidden to fortify any place in Newfoundland or to erect any buildings there, the article permitted them to erect “stages made of boards and huts necessary and usual for drying of fish,” and while French subjects were forbidden to resort to the land they were, nevertheless, permitted to spend there “the time neces- sary for fishing and drying of fish.” These clauses are of a general nature. They do not constitute a grant in the strict sense, but rather a license to visit the island and use certain parts thereof for certain specified purposes. The treaty, however, leaves generalities, and broadly specifies the rights which French fishermen are to possess within New- foundland waters and upon the shores of the island. That is to say, to quote the exact language of the treaty, ‘“‘it shall be allowed to the Sub- jects of France, to catch fish and to dry them on land, in that part only, and in no other besides that, of the said Island of Newfoundland, which stretches from the place called Cape Bonavista, to the northern point of the said Island, and from thence running down by the western side, reaches as far as the place called Point Riche.” As the Treaty of Utrecht is, at least the measure, if not the origin, of French rights within Newfoundland and its territorial waters, it is therefore necessary to analyze each of the clauses in order to determine clearly the nature and extent of the right. INTRODUCTION XV French subjects are not granted the right to catch fish generally within Newfoundland waters. They are to be permitted to fish from Cape Bonavista to Point Riche, and the treaty recognizing the right to fish within specific limits guarantees the enjoyment of the right allowed or granted. British subjects are not excluded by the terms of the treaty from fishing within these limits. It would appear, therefore, that British subjects might, by virtue of British sovereignty, fish within these limits. As French subjects were granted the right to fish within specified limits, competition was not excluded, and controversies might and actually did arise between the French and British subjects within the region stretching from Cape Bonavista to Point Riche. It is self- evident that British subjects might use the shores of Newfoundland in the prosecution of their calling. It is equally evident that French subjects would need a specific permission to use the coasts, and this specific permission is contained in the treaty, which allows them not merely to catch fish, but ‘“‘to dry them on land,” stretching from Cape Bonavista to Point Riche. This was, hdwever, to be the extreme limit within which French fishermen could use the shores of the island, because the article limited them expressis verbis to that part of the island. It is frequently asserted by French publicists that Article XTIT is not a grant of a new right, but is a solemn recognition of a pre-existing sovereignty; that in consideration of the conveyance of sovereignty to Britain, France retained its former sovereign right to fish and to use the portions of the coast between Cape Bonavista and Point Riche, and as France claimed to be sovereign of these waters and the coast washed by them, the treaty liberty is a recognition of a previously existing sovereign right. British publicists, however, insist that the Treaty of Utrecht was a conveyance to Great Britain of any and all rights possessed or claimed by France within Newfoundland and its territorial waters, and that the rights secured to France by the treaty were in the nature of a permission or a license. The language of the treaty is perhaps ambig- uous. The attitude of the two governments, however, has been clear and constant. The expression ‘“‘allowed” seems: to favor the British contention. In the unsettled state of Newfoundland the matter was not of any great importance. The Seven Years’ War (1756-1763) put an end to the domination of France in the New World and required a readjustment and definitive statement of the situation of the two governments in North America. The Treaty of 1763, which ended the war, confirmed the fishing rights of France as specified in Article XIII of the Treaty of Utrecht. xvi INTRODUCTION The provisions of the Treaty of Paris of 1763 in so far as they relate to this matter follow: _ “(Article V) The Subjects of France shall have the liberty of Fishing and Drying on a part of the coasts of the Island of Newfoundland, such as it is specified in the Article XIII of the Treaty of Utrecht; which Article is renewed and confirmed by the present Treaty.... And His Britannic Majesty consents to leave the Subjects of the Most Christian King the liberty of fishing in the Gulph St. Lawrence, on condition that the Subjects of France do not exercise the said Fishery, but at the distance of three leagues from all the coasts belonging to Great Britain, as well those of the Continent, as those of the Islands situated in the said Gulph St. Lawrence. . . “(Article VIII) The King of Great Britain cedes the Islands of St. Pierre and Miquelon, in full right, to His Most Christian Majesty, to serve as a shelter to the French Fishermen; and His said Most Christian Majesty engages not to fortify the said Islands; to erect no buildings upon them but merely for the conveniency of the Fishery; and to keep upon them a Guard of fifty Men only for the Police.” It will be observed that while Article XIII of the Treaty of Utrecht is confirmed, it is modified in certain particulars. For example, the per- mission or right of the French to participate in the fisheries and to use certain specified portions of the coast of Newfoundland is termed “a liberty,” which is the appropriate technical term for the grant of a fishing right within the territory belonging to the grantor. French fishermen are to have the liberty of fishing within the Gulf of St. Lawrence, but they are forbidden to approach within three leagues of British territory. International law would have permitted the French to approach within three miles of low-water mark of British territory, but Great Britain as the victor in the contest either treated the Gulf of St. Lawrence as if it were a closed sea, or forced France to renounce the right which inter- national law granted to fish freely within three miles of British territory. The French fishermen, according to the Treaty of Utrecht, possessed the right to fish within Newfoundland waters and to dry and cure fish upon the shores of Newfoundland extending from Cape Bonavista to Point Riche, a right confirmed by the Treaty of Paris under the name of a liberty; that is to say, French fishermen were granted certain rights upon the northern and western coasts of Newfoundland. They possessed no rights in the remaining waters and territory of Newfoundland. The Islands of St. Pierre and Miquelon, lying to the south of Newfoundland, were granted to France “‘in full right,” but only “to serve as a shelter to the French fishermen.” They were not to be fortified, no buildings were to be erected upon them except for the “conveniency of the fishery,” and a small guard of fifty men was permitted “for the police.” So matters stood until the Treaty of Versailles of September 3, 1783, which concluded the war between Great Britain and France, arising out of French participation in the American revolution. As the outcome of 1 Appendix, p. 375-376; Appendix, U. S. Case, p. 52; Appendix, British Case, pp. 7, 8 INTRODUCTION xvii the war was somewhat favorable to France, it is natural to expect that the provisions of the Treaties of Utrecht and Paris regarding the French fishery rights would be modified in favor of France. This actually happened, for the French retained the rights secured by the Treaty of Utrecht, which was solemnly confirmed, and the Islands of St. Pierre and Miquelon were “ceded in full right, by the present treaty, to his Most Christian Majesty.”” While the French fishing rights were the same, the territorial limits within which they were to be exercised were changed by mutual consent and for reasons which were adequately set forth in Article V: “His Majesty the Most Christian King, in order to prevent the quarrels which have hitherto arisen between the 2 Nations of England and France, consents to renounce the right of Fishing, which belongs to him in virtue of the aforesaid Article of the Treaty of Utrecht, from Cape Bonavista to Cape St. John, situated on the Eastern coast of Newfoundland, in 50 degrees North latitude; and His Majesty the King of Great Britain consents, on his part, that the Fishery assigned to the Subjects of His Most Christian Majesty, beginning at the said Cape St. John, passing to the North, and descending by the Western coast of the Island of Newfoundland, shall extend to the place called Cape Raye, situated in 47 degrees, 50 minutes latitude. The French Fishermen shall enjoy the Fishery which is assigned to them by the present Article, as they had the right to enjoy that which was assigned to them by the Treaty of Utrecht.” } The eastern part of Newfoundland faces Great Britain, and the town of St. John was the heart of the British colony. It was natural that British colonists along the eastern coast between Bonavista and Cape St. John would come into conflict with French fishermen, and, animated by a desire to prevent the conflict of interests by removing its cause, the two nations agreed to a modification of the boundary; but the loss on the eastern coast of Newfoundland was compensated by a greater extent of territory on the western shore; namely, from Point Riche to Cape Ray, at the extreme southwest. A fertile source of con- troversy between the two nations arose from the fact that France con- sidered as exclusive its right to fish within the limits set by the Treaty of Utrecht, whereas Great Britain denied the exclusive character of the French rights. The exclusion of British fishermen from what is com- monly called the French shore would indeed have prevented competition and conflict of interest, but, as sovereign of the island, Great Britain was naturally unwilling that its subjects should be excluded from a profit- able fishery. The most it was willing to concede was that French fishermen should be entitled to fish within specified portions of British sovereignty and to use specified portions of the shores of Newfoundland 1 Appendix p. 376; Appendix, U. S. Case, p. 53; Appendix, British Case, p. 11. Xvili INTRODUCTION for drying and curing fish caught within Newfoundland waters, while retaining for British subjects the right to fish within the same waters, provided they did not interfere with the prosecution of the French fishery. In other words, French and British subjects were to fish in common, and such fishing naturally presupposed competition which should be fair, not unfair, to the subjects of the two nations. In the negotiation of the Treaty of 1783 France sought to take advantage of its success in arms by forcing from Great Britain a declaration that its fishing rights were exclusive in law as well as exclusive in fact. Great Britain refused to concede the right demanded. As a compromise, a Declaration and Counter Declaration were drawn up, to accompany the treaty, but to form no part of it, in which the matured views of. the British and French governments were stated. This Declara- tion was important as ascertaining and affecting rights of British and American fishermen in Newfoundland waters. It is of present importance, because it was a subject of prolonged discussion and analysis during the recent arbitration at The Hague. Its material portions are, therefore, quoted in full: “DECLARATION 1 “The King having entirely agreed with His Most Christian Majesty upon the articles of the definitive treaty, will seek every means which shall not only insure the execution thereof, with his accustomed good faith and punctuality, but will besides give, on his part, all possible efficacy to the principles which shall prevent even the least foundation of dispute for the future. “To this end, and in order that the fishermen of the two nations may not give cause for daily quarrels, His Britannic Majesty will take the most positive measures for preventing his subjects from interrupting, in any manner, by their competition, the fishery of the French, during the temporary exercise of it which is granted to them upon the coasts of the Island of Newfoundland; and he will, for this purpose, cause the fixed settlements, which shall be formed there, to be removed. His Britannic Majesty will give orders, that the French fishermen be not incommoded, in cutting the wood necessary for the repair of their scaffolds, huts, and fishing vessels. “The thirteenth article of the treaty of Utrecht, and the method of carrying on the fishery which has at all times been acknowledged, shall be the plan upon which the fishery shall be carried on there; it shall not be deviated from by either party; the French fishermen building only their scaffolds, confining themselves to the repair of their fishing vessels, and not wintering there; the subjects of His Britannic Maj- esty, on their part, not molesting, in any manner, the French fishermen, during their fishing, nor injuring their scaffolds during their absence. “The King of Great Britain, in ceding the Islands of St. Pierre and Miquelon to France, regards them as ceded for the purpose of serving as a real shelter to the French fishermen, and in full confidence that these possessions will not become an object of jealousy between the two nations; and that the fishery between the said islands, and that of Newfoundland, shall be limited to the middle of the channel.” . . . 1 Appendix, p. 377; Appendix, U. S. Case, p. 54; Appendix, British Case, p. 11. INTRODUCTION xix ““CouNTER-DECLARATION ! “The principles which have guided the King, in the whole course of the negotia- tions which preceded the re-establishment of peace, must have convinced the King of Great Britain, that His Majesty has had no other design than to render it solid and lasting, by preventing, as much as possible, in the four quarters of the world, every subject of discussion and quarrel. The King of Great Britain undoubtedly places too much confidence in the uprightness of His Majesty’s intentions, not to rely upon his constant attention to prevent the Islands of St. Pierre and Miquelon from becoming an object of jealousy between the two nations. “As to the fishery on the coasts of Newfoundland, which has been the object of the new arrangements settled by the two sovereigns upon this matter, it is sufficiently ascertained by the fifth article of the treaty of peace signed this day, and by the dec- laration likewise delivered to-day, by His Britannic Majesty’s Ambassador Extraor- dinary and Plenipotentiary; and His Majesty declares, that he is fully satisfied on this head. “In regard to the fishery between the Island of Newfoundland and those of St. Pierre and Miquelon, it is not to be carried on, by either party, but to the middle of the channel; and His Majesty will give the most positive orders, that the French fish- ermen shall not go beyond this line. His Majesty is firmly persuaded that the King of Great Britain will give like orders to the English fishermen.’’ It is obvious that the Declaration in itself confers no new rights upon French fishermen, although these. rights are clearly defined and stated. It may be said to create additional duties on the part of Great Britain, for Great Britain assumes specifically obligations which however good faith in the observance of treaty stipulations would have suggested or required. The purpose was not to secure to French citizens greater rights than they previously possessed, but to assure to them the exercise of those rights which had been conferred and acknowl- edged by the Treaty of Utrecht, for ‘‘the thirteenth article of the treaty of Utrecht, and the method of carrying on the fisheries which has at all times been acknowledged, shall be the plan upon which the fishery shall be carried on there; it shall not be deviated from by either party.” The origin and nature of the rights are thus determined by the Treaty of Utrecht. The limits within which the rights shall be exercised were modified and defined by Article V of the Treaty of 1783, to which the Declaration under consideration was attached. The Declaration, as its name implies, is not a creation of a right, but a solemn statement of its existence, and is to be considered as a modus operandi or as a modus vivendi. Its purpose is to secure peaceful enjoyment of the rights granted by the Treaty of Utrecht, as modified by the Treaty of 1783, and to give “all possible efficacy to the principles which shall prevent even the least foundation of dis- pute for the future,” and to put an end to the “daily quarrels” which / 1d bpendix, p. 377; Appendix, U. S. Case, p. 56; Appendix, British Case, p. 12. XX INTRODUCTION had unfortunately existed between British and French fishermen. But peace is to be maintained not by granting to Frenchmen rights which they did not previously possess —namely, an exclusive right to fishing within the defined limits —but to prevent British subjects ‘‘from interrupting, in any manner, by their competition, the fishery of the French during the temporary exercise of it which is granted to them upon the coasts of the Island of Newfoundland.” Competition is to exist in the future as in the past, but British competition is not to prevent French fishermen from exercising their treaty rights. Competition cannot be synonymous with exclusion, because Great Britain refused to insert in the Declara- tion the word “exclusion” which was pressed upon them by the French negotiators. It means what it says and it says what it means. British subjects were not to maintain ‘‘fixed settlements upon the French shore,” because the existence of fixed settlements would prevent French fisher- men from erecting temporary fishing stages upon the ground occupied by British structures. This would deprive French fishermen of the full exercise of their treaty rights. Therefore, fixed settlements erected by British subjects were to be removed from the French shore. But French fishermen could not build scaffolds, huts, or repair their fishing vessels without wood, any more than bricks could be made without straw, to quote a familiar expression. Therefore, the right to cut wood for purposes of repair was acknowledged, and, in order that the right might be exercised in the time and manner essential to the fishing industry, French fishermen were not to be “incommoded.” Again, while the French fishermen were permitted to build scaffolds and huts, and to repair their fishing vessels upon “the French shore,” they were not to remain upon the island during the winter, because experience showed that temporary settlements were likely to become permanent and insensibly ripen into a claim inconsistent with the terri- torial sovereignty of the grantor. But during the fishing season and during their temporary occupation of the coasts, French fishermen were not to be molested, and during their absence the scaffolds erected for use in connection with the fisheries were not to be injured. Article IV of the Treaty of 1783 ceded St. Pierre and Miquelon in full sovereignty to France, but the cession, however formal and complete, was not to become a menace to Great Britain. They were still to serve “as a real shelter to the French fishermen,” and Great Britain regarded them as ceded solely for this purpose “and in full confidence that these possessions will not become an object of jealousy between the two nations.” It seems, therefore, abundantly clear that the Declaration as thus analyzed was merely a solemn recognition of antecedent rights INTRODUCTION Xx1 secured to France by the Treaties of Utrecht and of Versailles, and that it was in technical language a modus, whether it be a modus operandi or a modus vivendi, for the exercise of fishing rights acknowledged by both nations to belong to France for the benefit of its subjects engaged in the Newfoundland fisheries. The Treaty of 1783, as explained by the Declaration of the same date, together with the act of Parliament of 1788 empowering the King to execute its provisions,! was the measure of the French rights until the year 1904, when they were modified by mutual agreement in a way apparently satisfactory to both countries.? It is important to form a clear conception of the British view of the right secured to France by the various treaties and the Declaration of 1783, because the American right of 1783 and 1818 is couched in precisely the same terms, giving a liberty to fish in British waters and the liberty to dry and cure fish on certain specified portions of British territory. It has never been maintained by the United States that the rights under the Treaty of 1783 or the Convention of 1818 were exclusive. That is to say, British subjects were entitled to fish within the same waters and the United States has only claimed that the competition between the American and the British fishermen, which must necessarily exist, should nevertheless be fair. If it should appear that Great Britain denied the exclusive character of French fishing rights, and such has always been the British view, it would follow necessarily that the right granted to France and the right granted to the United States in identical language were identical and that the interpretation of each should be the same. From the many state papers dealing with this subject two only are quoted as setting forth with clearness and precision the British view. In 1838 Lord Palmerston wrote: “The British Government has never understood the Declaration to have had for its object to deprive British subjects of the right to participate with the French in taking fish at sea off that shore, provided they did so without interrupting the French cod fishery.” * 1For text of the Act see Appendix pp. 376, 377. 2 At the close of the Napoleonic wars between Great Britain and France, the French treaty rights were recognized as they existed at the outbreak of the war in 1792. “The French right of Fishery upon the Great Bank of Newfoundland, upon the Coasts of the Island of that name, and of the adjacent Islands in the Gulf of St. Lawrence, shall be replaced upon the footing on which it stoodin 1792.” (Treaty of May 30, 1814, Appendix, U. S. Case, Vol. I, p. 57.) “The Treaty of Paris of the 30th of May, 1814, and the final Act of the Congress at Vienna of the oth of June, 1815, are confirmed, and shall be maintained in all such of their enactments which shall not have been modified by the Articles of the present Treaty.” (Treaty of Novem- ber 20, 1815, Appendix, U. S. Case, Vol. I, p. 57.) 3 Lord Palmerston’s note of July ro, 1838, to the French Ambassador, Count Sebastiani. (Appendix, U. S. Case, Vol. II, p. 1098.) xxii INTRODUCTION In 1887 Lord Salisbury wrote: “Her Majesty’s Government have always held that there is nothing in the XIIIth Article of the Treaty of Utrecht, or in the Declaration of 1783, which deprives British subjects of the right of taking fish at sea off that part of the shore to which the French Treaty rights apply, provided they do not molest the French fishermen in the exer- cise of their Treaty right of fishing, nor interrupt them by their competition. It is manifest that such molestation and interruption can only refer to a physical obstruc- tion and impediment to the exercise of the French right of fishery, and not to any diminution of the French catch of fish which may be supposed to result from the mere participation by British fishermen in the sea fishery.” ! It is not necessary for the present purpose to consider the rights possessed by French fishermen upon the French shore; that is to say, that portion of Newfoundland lying between Cape St. John and Cape Ray, because the Arbitration of 1910 was confined to fishing rights in Newfoundland waters. It may be said, however, in passing, that the right to subject the shore to the use of French fishermen was what is technically known as an international servitude and was treated as such in the French diplomatic correspondence, notably in M. Waddington’s note? of December 15, 1888, to Lord Salisbury, and in M. Delcassé’s cir- cular note of April 12, 1904, to French diplomatic officers, notifying them of the conclusion of the Convention of 1904 between Great Britain and France, by which the right to use the French shore for drying and curing was specifically renounced.’ The note quoted in the text thus continues: “And although in accordance with the true spirit of the Treaty and Declaration of 1783, prohibitory Proclamations have from time to time been issued, on occasions when it has been found that British subjects, while fishing within the limits in question, have caused interrup- tion to the French fishery, yet in none of the public documents of British Government — neither in the Act of Parliament of 1788, passed for the express purpose of carrying the Treaty of 1783 ‘into effect, nor in any subsequent Act of Parliament relating to the Newfoundland fishery, nor in any of the instructions issued by the Admiralty or by the Colonial Office, nor in any Proc- lamation which has come under my view, issued by the Governor of Newfoundland or by the British Admiral upon the station — does it appear that the right of French subjects to an exclu- sive fishery, either of codfish or of fish generally, is specifically recognized.” 1Lord Salisbury’s note, dated August 24, 1887, to the French Ambassador, M. Wad- dington. (Appendix, U.S. Counter Case, p. 323.) On the origin and nature of French fishing rights and their non-exclusive character, see the exhaustive and convincing memorandum enclosed in Lord Salisbury’s note, dated July 9,"1889, to M. Waddington. (Appendix, U. S. Case, Vol. II, pp. 1086-1096.) ? “What is understood by ‘the method of carrying on the fishery’ is defined by the develop- ments following this phrase in the text of the declaration. It is a modus vivendi of the French on a coast which has ceased to belong to them, which is regulated; it is their provisional encamp- ment, their right to cut wood necessary for their small repairs, which is confirmed; it is, in a word, the most thorough commentary on the territorial rights of the British Crown in respect of the temporary servitude (‘servitude temporaire’) agreed to by it. ‘The method of carrying on the fishery’ signifies the international police regulations which shall govern the relations of the fishermen of the two nations, and an impartial examination precludes the discovery of the least restriction on the method of fishing of the French, or on the manner of preparing the fish, provided that the French establishments preserve, as they do to-day, the character of ‘ tempo- rary buildings’ possessed by the scaffold.” (Oral Argument, Vol. II, p. 1422.) 3M. Delcassé’s circular note, dated April 12, 1904, to French diplomatic officers: INTRODUCTION xxiii The American right to use certain prescribed portions of British territory under the Treaty of 1783 and the Convention of 1818 would likewise be an international servitude and has been recognized as such by leading writers on international law. But as the right to use the shore as distinguished from the territorial waters was not submitted to arbi- tration it is unnecessary to consider the subject in detail. The right granted to a nation to fish within the territorial waters of another na- tion is regarded, if perpetual, as something more than a commercial privilege. It is the renunciation of the sovereign right to exclude foreigners from domestic waters and the right which the grantee takes is necessarily the right which the grantor granted. Once granted the grantor cannot prevent its exercise. The foreign fishermen enter the specified waters by virtue of a permission from their own coun- try, which is the grantee of the right, and the grantor cannot, without violating the treaty stipulation, prevent their entrance. It would also seem that the foreigner visiting the territorial waters for the purpose specified in the grant—namely, that of fishing—is authorized by the grant to fish, for that was the reason of the grant, and that no local regu- lation should affect the alien in the exercise of his fishing right, unless the treaty reserved the right so to regulate, or unless the grantee consents to the regulation. To hold otherwise would mean that restrictions might be imposed by the grantor upon the exercise of the fishery right, which might prove burdensome or which might easily destroy it; for if the sovereign retains the power, the sovereign is the judge of its exercise. It is self-evident that the territorial sovereign may issue rules and regu- lations binding upon its subjects in the exercise of their rights, but it would seem that foreigners entering the fishing grounds by the per- mission of their sovereign as the grantee are subject only to the rules and regulations prescribed by the grantee from which they derive the right to fish, and that the foreigners should be unaffected by local regu- lation, unless the grantee of the right has either prescribed the rules and regulations, or has consented to the rules and regulations proposed by “In spite of all precautions taken it may be said that in the course of the last century hardly a year passed in which the exercise of our privilege was not the cause of complaints or collisions. The population of Newfoundland, which in the beginning numbered hardly four or five thousand souls, increased gradually to two hundred and ten thousand. In the desire of the latter to develop the resources of their island the French shore presented itself to them as closed to all progress; they could enjoy no benefits in a region in which they hoped to find mines and soil favorable to agriculture, and which we ourselves could not utilize. Thus hostile opinion began to arise against our privilege. The irresistible pressure of the necessities of existence in an uninviting and hard climate weakened in an increasing measure day by day the barriers of the ancient servitude (‘servitudes anciennes’) and in spite of our constant protest the inhabitants of the island established themselves gradually along a portion — - coveted shore.” (Appendix pp. 301-304; Oral Argument, Vol. II, pp. 1425-1426. Xx1V INTRODUCTION the grantor for the preservation or regulation of the fishery. Such is the situation suggested by theory and such was the status recognized in practice by Great Britain and France; for, while maintaining that British subjects had the right to fish within the waters from Cape St. John to Cape Ray in competition with French fishermen, to whom the liberty had been granted to fish within the specified region, neither Great Britain nor its colony, Newfoundland, claimed or exercised the right to regulate French fishermen plying their calling within New- foundland waters covered by the Treaty of Utrecht of 1713 and the Treaty of Versailles of 1783. From the many illustrations which may be cited to substantiate this statement one will suffice. On August 9, 1886, the Newfoundland government issued an Order in Council “prohibiting the taking of lobsters, except for bait or local consumption, during a period of three years, in Rocky Harbor, Bonne Bay, on the French treaty coast, which order contairied no reservation respecting treaty rights.” The French government at once informed the British government that “in view of the fishery right conferred on France by the Treaties in the part of the island to which the Decree applies, a right which can evidently not be restricted in its exercise, it is impossible for my government to recognize in any way the validity of the measure taken by the Newfoundland authorities.” ? _ The issue was squarely raised. The order was general in its nature and applicable to all fishermen within Bonne Bay. Lord Salisbury, who was not unmindful of the just rights of Great Britain, informed the French government that “a despatch has been received from the Gov- ernor of that Colony in which he states that his Government have given a formal assurance that the prohibition will not be enforced against French citizens to whom there had not been any intention of applying it.’ The French government in the discussion of its rights in Newfound- land waters considered it to be an international servitude just as its right upon the French shore formed an international servitude, and writers of authority have uniformly cited the French fishing right as well as the American fishing right under the Treaty of 1783 and the Con- vention of 1818 as the type of the economic servitude. It is impossible to overestimate the importance of the conduct of Great Britain in the matter of the French fishing rights within Newfoundland waters, because, as previously stated, the American right is identical in language with the 1U.S. Counter Case, p. 19. The Order in Council may be found in Appendix, U. S. Counter Case, p. 319. 2U.S. Counter Case, pp. 19-20. This note may be found in Appendix, U. S. Counter Case, p. 316. 3 U.S. Counter Case, p. 20. This note may be found in Appendix, U. S. Counter Case, p. 322. INTRODUCTION 7 sey French grant and the interpretation in point of law should be dane and the same in each instance. If French fishermen were not subjeca¢ to local regulation in the exercise of their fishery rights, American fishermert. should likewise be exempt from British control and regulation, and if, as is the fact, French fishermen were not subjected to local regulation, American fishermen should not have been subjected to local control or regulation in the exercise of their rights upon the treaty coast. In the matter of legal interpretation the fact that France was very powerful and that the United States was not so powerful is unimportant, for we are dealing with law, not with political expediency. It is not maintained that it is wise to grant to foreigners the right to fish within territorial waters without reserving the right of local regula- tion; it is insisted, however, that if such a grant has been made, good faith in the execution of treaties requires that it be observed until it is modified by the mutual consent of the parties to its enjoyment. The new treaty should endeavor to obviate the inconvenience of the old situation and safeguard the right acknowledged in such a way as to meet the legitimate desire of the foreigner and the necessities of the local situation. This is precisely what Great Britain and France did by the Conven- tion of 1904.1. By Article I of this Treaty France renounced the privi- leges secured by Article XIII of the Treaty of Utrecht and confirmed or modified by subsequent provisions. However, by Article II, France retained for her citizens, “on a footing of equality with British subjects, the right of fishing in the territorial waters on that portion of the coast of Newfoundland comprised between Cape St. John and Cape Ray, passing by the north... . “They shall not make use of stake-nets or fixed engines without per- mission of the local authorities,” but in the exercise of this right ‘British subjects and French citizens shall be subject alike to the laws and Regu- lations now in force, or which may hereafter be passed for the establish- ment of a close time in regard to any particular kind of fish, or for the improvement of the fisheries.’’ That is to say, the treaty formally and in express words renounced any claim to exclusive fishing rights, and subjected by express treaty stipulations the fishery to local regulations. But the interest of France in any and all future legislation was recog- nized, for it was expressly stated, in the same article, that ‘‘notice of any fresh laws or Regulations shall be given to the Government of the French Republic three months before they come into operation.” This 1 Appendix, pp. 390-391; Appendix, U. S. Case, Vol. 1, pp. 83-91. Appendix, British Case, p. 48. ts a i. xxv INTRODUCTION nd that France be given ample time to examine such regulations before they go into effect, in order to protest against unreasonable regulations and to secure their modification. It will not escape observation that the treaty provisions referred to concern the time and manner of fish- ing, — two of the questions submitted to arbitration in 1910. The Convention of 1904 acknowledged the rights of France to fish within Newfoundland waters, and places French citizens engaged in fishing upon a footing of equality with British fishermen and subjects each to local regulation, both as to the time and manner of fishing. This was, no doubt, a very proper modification, because the claim of foreigners to fish within territorial waters without observing those local regulations which local fishermen are bound to respect must be galling to the local sovereign. But the right way to effect this modification is by agreement of the contracting parties, not by the unilateral action of the original grantor. The Convention of 1904 is remarkable for another provision, for it recognizes clearly that the policing of the fishery should not depend solely upon the grantor, lest the regulations might bear harshly upon foreigners, who, by virtue of the treaty, are lawfully within Newfoundland waters. Therefore, it is provided, in Article II: “That the policing of the fishing on the above-mentioned portion of the coast, and for prevention of illicit liquor traffic and smuggling of spirits, shall form the subject of Regulations drawn up in agreement by the two Governments.” The Convention of 1904 converted an unregulated into a regulated fishery; placed British and French fishermen upon a like footing; sub- jected them to local regulations respecting the time and manner of fish- ing, reserving, however, the policing of the fishery for joint regulation to be agreed upon by the two governments. There is no limitation of time to the enjoyment of the right recognized by the treaty, and French and British fishermen are likely to fish in peace and harmony, for the treaty clearly defined the rights of each. It is submitted that Great Britain, convinced that the Convention of 1818 was objectionable, should have been willing to negotiate with the United States as it did with France in order to produce a treaty as satis- factory to British subjects as to American fishermen, instead of seeking to bring about the same result by a forced and strained interpretation of a treaty identical in terms of grant with the French treaty, which Great Britain had never attempted to modify by unilateral action. Having thus considered somewhat in detail the origin, nature, and Xxix INTRODUCTION ap ae final adjustment of French fishing rights within Newfoundland tert! 0 and Newfoundland waters, and noted their exact similarity with i provisions of the American Treaty of 1783 and the Convention of 1818, it is necessary to examine American fishing rights within British and Newfoundland waters, in order to understand the nature and extent of those rights and the origin of the controversies submitted to arbitration in IgIo. AMERICAN FISHING RIGHTS UNDER THE TREATY OF 1783 The fisheries question as an international controversy was acute between Great Britain and the United States before the recognition of the revolted colonies by the mother country. It was adjusted for the moment, as it turned out, by the insistence of the United States that no treaty of peace would be acceptable to the American negotiators which did not recognize in the inhabitants of the United States a right to par- ticipate in the fisheries upon substantially equal terms. The views of the two countries were diametrically opposed, for the American Com- missioners regarded the former colonies as entitled to share in the fish- eries because colonial troops had participated in the conquest of Canada and the definite acquisition by Great Britain of the French possessions to the north of the United States, in which the fishery in question was carried on. Great Britain, on the contrary, regarded the conquest of the territorial waters in which fishing was carried on and the coasts or portions of land, upon which the fish taken from the waters were dried and cured, as a British conquest in which the colonists were permitted to share by reason of the fact that they were British subjects. The American claim was a claim of right based upon joint acquisition. The British contention regarded the acquisition as a British conquest, and the right to fish in the conquered regions as a privilege to be conceded to or to be withheld from the Americans according to the pleasure of the British Government. There can be no doubt that the part played by the colonies in the conquest of Canada and its adjacent territory supplied John Adams, as representative of New England, with a strong moral argument for a recognition of the right to fish within British territorial waters, but the contention was, it would seem, historical and moral rather than legal in its nature. It is equally clear that the knowledge of the part which the colo- nists had taken in the conquest might lead the British negotiators to consider a claim which in strict law they might believe to be unfounded. The recognition of the claim, however, would depend upon the belief Xxvi INTRODUCTION provjé British negotiators that its acceptance was either a prerequisite sukthe conclusion of peace or that the friendliness of the future rela- tions of the two countries would be enhanced by a concession as a matter of negotiation or compromise. The desire of the United States was to secure the recognition of its independence by the mother country and the most favorable concessions obtainable. The desire of Great Britain was to conclude peace with the colonies by the least possible sacrifice of imperial interests. The international situation, however, was such as to force the hands of the British negotiators, for Great Britain was not only at war with the United States, but with France, Holland, and Spain, and the armed neutrality of 1780, generated by the conduct of Great Britain toward neutral nations, complicated a situation already difficult and rendered concession not merely necessary but the part of wise statesmanship. The result was that Great Britain consented to an article in the preliminary and in the definitive treaty of peace of September 3, 1783 (Article III), which largely, if not wholly, satisfied the American negotiators: “Tt is agreed that the people of the United States shall continue to enjoy unmo- lested the right to take fish of every kind on the Grand Bank, and on all other banks of Newfoundland; also in the Gulph of Saint Lawrence, and at all other places in the sea, where the inhabitants of both countries used at any time heretofore to fish. And also that the inhabitants of the United States shall have liberty to take fish of every kind on such part of the coast of Newfoundland as British fishermen shall use (but not to dry and cure the same on that island) and also on the coasts, bays and creeks of all other of his Britannic Majesty’s dominions in America; and that the American fisher- men shall have the liberty to dry and cure fish in any of the unsettled bays, harbours and creeks of Nova Scotia, Magdalen Islands, and Labrador, so long as the same shall remain unsettled; but so soon as the same or either of them shall be settled, it shall not be lawful for the said fishermen to dry or cure fish at such settlement, without a previous agreement for that purpose with the inhabitants, proprietors or possessors of the ground.”! (Article III.) An analysis of this article shows that the historical argument ad- vanced by the American negotiators was not without effect upon the British negotiators, for the first sentence is a specific and solemn recog- nition of the fact that the colonists had in times past exercised the rights of fishing and that notwithstanding the “partition of the empire” the colonists, now become people of the United States, shall continue to enjoy the right of fishery in the future. That is to say: 1. “That the people of the United States shall continue to enjoy unmolested the right to take fish of every kind on the Grand Bank, and on all other banks of New- foundland.” + Appendix, U. S. Case, Vol. I, p. 24. Appendix, British Case, p. 12. INTRODUCTION xxix z. “That the people of the United States shall continue to enjoy unmolested the right to take fish of every kind . . . in the Gulph of Saint Lawrence, and at all other places in the sea where the inhabitants of both countries used at any time heretofore to fish.” In the balance of the article no reference is made to the antecedent rights of the people or inhabitants of the United States, although the American contention is equally applicable. It will be observed that although the fishery is discussed and regulated within the compass of a single article, there is apparent in the minds of the negotiators, or at least in the language used, a two-fold division: the deep sea fishery is dis- posed of in the first sentence; the inshore fishery in the second and con- cluding sentence. Again, each subdivision is susceptible of a two-fold division. The people of the United States are to continue to enjoy unmolested the right to take fish on the Grand Bank and all other banks of Newfoundland; that is to say, American fishermen are to continue to enjoy the right to fish on the Grand Bank and on all other banks of Newfoundland, and in the prosecution of the fishery upon all the seas they are to be unmolested. The right to fish upon the high seas does not lie in grant because international law permits any and every nation to fish upon the high seas, but a nation may renounce this right in favor of another nation, as indeed France and Spain had by treaty with Great Britain specifically renounced this right.1_ The provisions of the French and Spanish treaties would not affect the rights of American fishermen, but the use of the term ‘‘unmolested” removed any possible doubt that might arise upon the subject. In the next place American fishermen were ‘“‘to continue to enjoy unmolested the right to take fish . . . in the Gulph of Saint Lawrence and at all other places in the sea’’ where the inhabitants of either country had heretofore fished. It would seem that the Gulf of St. Lawrence and other places in the sea were regarded by the negotiators as differing somewhat from the situation of the Grand Banks, admittedly within the high seas. International law does 1 Thus in the Treaty of Utrecht (Article XII) France agreed that the ‘subjects of the Most Christian King shall hereafter be excluded from all kinds of fishing in the said seas, bays, and other places, on the coast of Nova Scotia, that is to say, on those which lie towards the east, within 30 leagues, beginning at the island commonly called Sable, inclusively, and thence stretching along towards the southwest.” Again by the Treaty of Paris (1763) France renounced the right to fish within three leagues, and fifteen leagues, and thirty leagues of certain specified coasts (Article V). By the Treaty of Versailles 1783 (Article VI) the provisions of Article V of the Treaty of Paris are confirmed: ‘‘With regard to the fishery in the Gulf of St. Laurence the French shall continue to exercise it conformably to the fifth article of the treaty of Paris.’’ Article XVIII of the Treaty of Paris, to which Spain was a party, excluded Spain from the coasts of Newfoundland: “His Catholic Majesty desists, as well for himself as for his succes- sors, from all pretention which he may have formed in favour of the Guipuscoans, and other his subjects, to the right of fishing in the neighbourhood of the island of Newfoundland.” XXX INTRODUCTION not, however, recognize the distinction, for a gulf of the proportions of the St. Lawrence could hardly be considered without specific agreement as the territorial water of any country. The statement, however, that the people of the United States were to possess the right to fish un- molested in the Gulf of St. Lawrence and in all other places in the sea indicated that whatever the claim of Great Britain might be against other countries, by virtue of treaty or convention, American fishermen were not to be excluded. The express statement of the right precluded the possibility of ambiguity or controversy. Passing now to the second or concluding sentence of the article, it will be seen that the right granted to the inhabitants of the United States is two-fold, for American fishermen are not to fish generally as in the first. sentence, but within certain clearly defined and specific limits. For example, “‘on such part of the coast of Newfoundland as British fishermen shall use . . . and also on the coasts, bays and creeks of all other of His Britannic Majesty’s dominions in America.” In the next place American fishermen are to possess, in addition to the right of fishing on the coast of Newfoundland and other coasts, bays, and creeks of British North America, the liberty to dry and cure fish in certain specified bays, harbors, and creeks, that is to say, the bays, harbors, and creeks of Nova Scotia, Magdalen Islands, and Labrador. But the right to dry and cure fish is conditioned upon the fact that such harbors and creeks are unsettled, and that the right shall remain only “so long as the same shall remain unsettled.” Should they become settled American fisher- men are not denied by the treaty the right to dry and cure fish within or upon them, but the exercise of the right is made to depend upon “a previous agreement for that purpose with the inhabitants, proprietors, or possessors of the ground.” It will be noted that the nature of the right to each of the two main divisions is expressed by the use of different technical terms; for example, the people of the United States are to enjoy the right to take fish upon the high seas or portions thereof, whereas in the second division the inhabitants of the United States are to possess the Jiberty to take fish within certain definite regions, and the liberty to dry and cure fish within certain specified portions of British territory. Much learning and ingenuity have been employed to estab- lish a distinction between the word “right” and the word “liberty,” and it may be that the word “right” is more properly used to denote a gen- eral right not vested in the Crown as such. For example, a right to fish upon high seas is conferred by international law, whereas the word “liberty” is more appropriate to indicate a right vested in the Crown, namely, the right of fishing within territorial waters or bodies of water INTRODUCTION XXxi within the land. It is a fact that the British negotiators preferred the use of the word “liberty” to “right” in the second sentence’of the article, but the reason advanced for such preference was not due to any differ- ence of meaning in the two terms, but because the word “liberty” would be more palatable to the British public than the word “right” in such a connection. The American Commissioners were not unwilling to gratify the British negotiators in the matter of form provided that the substance was unaffected. To quote John Adams: “They said it” (the use of the word “liberty’’) “amounted to the same thing, for liberty was right and privilege was right; but the word right might be more unpleasing to the people of England than liberty and we did not think it necessary to contend for a word.” } From this brief summary and analysis of the provisions of the article and the reasons advanced for the form in which it is couched, it is appar- ent that the Treaty of 1783 was a recognition and a solemn confirmation by treaty of the antecedent right of the people of the United States, as the successors of the colonists, to fish not only upon high seas over which Great Britain claimed a right to exclude foreigners, and within the territorial waters of Great Britain, but also within definite limits and upon certain conditions to dry and cure fish upon certain portions of British territory mentioned in the article. THe CONVENTION OF 1818 So matters stood at the conclusion of the American Revolution and the recognition of the independence of the United States by Great Britain. And so the rights of American fishermen in British waters and upon British territory would have continued to stand had it not been for the unfortunate War of 1812, which settled little and unsettled much. The treaty of peace as far as the fisheries were concerned was eminently satisfactory, so satisfactory indeed that controversies between the two countries respecting them do not seem to have arisen from 1783 to 1812, and they are therefore unmentioned either in Jay’s Treaty of 1794 or in the Pinkney Treaty of 1806 between the two countries, which failed of ratification. It may well be that the treaty would in the course of time have required interpretation and have given rise to serious controversies, because the growth of the British colonies to the north of the United States would have brought into operation the condition specified in the second sentence of the third article, and also because the question whether the American fishermen were to be subject to local regulations of a discriminatory nature in the exercise of their treaty 1U. S. Case, p. 31; Appendix, U.S. Case, Vol. I, p. 318. Xxxii INTRODUCTION rights would undoubtedly have presented itself in due course. But the fact is that the development of the British colonies in North America was not so rapid in the years succeeding the American Revolution as in more recent years, and the conclusion of the Napoleonic wars found the colonies very much in the same condition as at the signing of the defi- nite treaty of peace between Great Britain and the United States. A revision of the treaty might have been proposed by Great Britain in the interest of its colonies, and resisted by the United States in the interest of its people and inhabitants, but the treaty would have been the measure of the rights and duties of the respective nations, and statesmanship would have solved the problem, however acute or complicated it might have been. The War of 1812, however, caused the two nations to recon- sider the Treaty of 1783, at a time when the feeling between the two countries was tense, and when compromise was objectionable to the conqueror of Napoleon and disadvantageous to the chastened, if not humiliated, opponent of Great Britain in the War of 1812. The government of Great Britain maintained that war abrogated commercial treaties and that the fishery stipulations of 1783 were com- mercial agreements; whereas the United States maintained that the Treaty of 1783 was a definite treaty of peace between the two countries, and that the fisheries article was of the nature of a partition of empire unaffected by war, as were the boundaries between the two nations. The question was not academic, because the American government claimed the right to have its people and inhabitants resort to the fishing grounds and to be unmolested in the exercise of the rights secured to them by the Treaty of 1783. American fishermen actually resorted to the North American waters, and Americans were not only molested in the exercise of their treaty rights, but their vessels were seized in the enjoyment of those rights. There can be no doubt that the War of 1812 suspended the exercise of the rights, but suspension and annulment are in fact and in law different and distinct. The conclusion of peace would restore the inhabitants of the United States to their treaty rights, if war did not annul the provisions of the treaty. The American negotiators of the Treaty of Ghent of 1814 were unable to secure the acceptance of their contention that the treaty rights were merely suspended, not abrogated, by war, and the treaty of peace between the two countries avoids any mention of the subject, although it was discussed in the negotiations, and the views of the American and British commissioners were set forth at length and maintained by assertion and counter-assertion. Disputes occurring after the conclusion of peace made the question the subject of negotiation, and eventually commissioners, Messrs. Gallatin and Rush INTRODUCTION XXxill on behalf of the United States, and Messrs. Robinson and Goulburn on behalf of Great Britain, met at London in the summer of 1818 in order to adjust the fisheries and other questions raised by the late war. The result of their negotiations appears in the first article of the convention respecting the fisheries, boundary, and the restoration of slaves, signed at London on October 20, 1818. As this text'is the measure and, accord- ing to the British contention, the origin of American fishing rights, and was submitted for interpretation to The Hague Tribunal in 1910, it is necessary to set forth its exact terms and to analyze it at length: “Whereas differences have arisen respecting the liberty claimed by the United States for the inhabitants thereof, to take, dry and cure Fish on Certain Coasts, Bays, Harbours, and Creeks, of His Britannic Majesty’s Dominions in America, it is agreed between the High Contracting Parties that the Inhabitants of the said United States shall have forever, in common with the Subjects of His Britannic Majesty, the Liberty to take Fish of every kind on that part of the Southern Coast of Newfound- land which extends from Cape Ray to the Rameau Islands, on the Western and Northern coast of Newfoundland, from the said Cape Ray to the Quirpon Islands, on the shores of the Magdalen Islands, and also on the Coasts, Bays, Harbours, and Creeks, from Mount Joly on the Southern Coast of Labrador, to and through the Streights of Belleisle and thence Northwardly indefinitely along the Coast, without prejudice, however, to any of the exclusive Rights of the Hudson Bay Company: And that the American fishermen shall also have liberty forever, to dry and cure fish in any of the unsettled Bays, Harbours, and Creeks of the Southern part of the Coast of Newfoundland hereabove 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 and cure Fish at such Portion so settled, without previous agreement for such purpose with the Inhabitants, Proprietors, or Possessors of the ground. And the United States hereby renounce, forever, 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 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 of 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.’’! It is obvious that the third article of the Treaty of 1783 lies at the very root of the settlement, and that an understanding of the conven- tion cannot be reached without bearing in mind its terms; for Article I of the Convention of 1818 states that “differences have arisen respect- ing the liberty claimed by the United States for the inhabitants thereof, to take, dry, and cure Fish on certain Coasts, Bays, Harbours, and (Creeks of His Britannic Majesty’s Dominions in America,” and the 14 ppendix, p. 379-380; Appendix, U. S. Case, p. 24. Appendix, British Case, p. 30. XXXIV INTRODUCTION liberty claimed by the United States in 1818 was the liberty secured by the Treaty of 1783. It is likewise necessary to recall the terms of the treaty, because the American negotiators insisted that the rights secured by the Treaty of 1783, which were not renounced by the Convention of 1818, remained in force between the two countries, and the convention lends color to this contention, because it is expressly stated in the second sentence of its first article that “The United States hereby renounce, forever, 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 the abovementioned limits.” The liberty heretofore enjoyed or claimed was the liberty recognized or granted by the second sentence of the fishery article of 1783, so that the provisions of the earlier treaty are not merely material but essential to a right understanding of the renunciation made by the United States of a previous liberty or claim. No differences, it seems, had arisen about the exercise of the “right”; the provisions of the Treaty of 1783 respecting fishing upon the high seas are not mentioned in the Convention of 1818 and therefore were un- affected by its terms. The “liberty” of drying and curing fish secured by the second sentence of the Treaty of 1783 gave rise to many and varied differences, to adjust which the Convention of 1818 was negotiated. An examination of the fisheries article of the Convention of 1818 discloses the fact that it consists of several parts, dealing with various phases of the general question. 1. There is a preamble setting forth that differences have arisen respecting the liberty claimed by the United States for the inhabitants thereof to take, dry, and cure fish within certain portions of His Britannic Majesty’s dominions in America, and that, animated by the desire to adjust these differences, the present agreement was concluded; 2. The article then proceeds either to regrant or to confirm the liberty of fishing secured by the Treaty of 1783 with, however, very material modifications of the territorial limits within which American inhabitants might prosecute their fishery; 3. A liberty is granted to dry and cure fish in various unsettled portions of British North America; 4. In consideration of the grant, regrant, or recognition of the liberty to ‘take, dry, and cure fish, subject to the conditions specified in the article, the United States renounces any liberty heretofore enjoyed or claimed by its inhabitants to take, dry, or cure fish on or within three marine miles of any of the coasts, bays, creeks, or harbors of His INTRODUCTION XXXV Britannic Majesty’s dominions in America not included within the specified limits; 5. American fishermen are granted permission to enter bays or har- bors of the non-treaty coast for certain definite purposes; namely, for shelter, for repairing damage, for purchasing wood, or for obtaining water; 6. The permission to enter bays or harbors on the non-treaty coasts for the purposes last specified are to be subject to restrictions to prevent the taking, drying, or curing of fish therein or the abuse in any way of the specified privileges. Each division into which the article of the convention naturally falls will be examined in order and somewhat in detail. The preamble states in general that differences had arisen respecting the liberty claimed by the United States for its inhabitants to take, dry, and cure fish, but does not specify in detail the origin of the differences, their nature or their serious- ness. The underlying cause of the differences lay in the effect of the War of 1812 upon the liberties secured to the United States by the third article of the Treaty of 1783, the United States maintaining that the treaty in question was merely suspended during the continuance of the war, but that it revived ex proprio vigore at its termination; Great Britain insisting as strenuously that the War of 1812 annulled the liberty, so that the conclusion of the war, while it restored the peaceful relations of the two countries, did not reinstate the commercial privileges of the treaty. The commissioners for the negotiation of the Treaty of Ghent were un- able to reach an agreement regarding the fisheries, and the question was adjourned to a more auspicious occasion. This difference of opinion was fundamental and irreconcilable, because of the American contention that the War of 1812 had no effect upon the liberty of fishing secured by the Treaty of 1783, and that any interference was therefore illegal on the part of Great Britain. If, on the other hand, the British con- tention was correct, American fishermen as such would have had no right after the war to take, dry, or cure fish within British possessions, and in the absence of a general or special permission could be treated as trespassers. The difference therefore went to the existence of the liberty, not merely to the method or the place of its exercise. In the next place the British Government objected to the competition of American fishermen. In the note of Lord Bathurst, dated October 30, 1815, to Mr. John Quincy Adams, then Minister of the United States to Great Britain, His Lordship pointed out that: “. , . although they were compelled to resist the claim of the United States, when thus brought forward as a question of right, they feel every disposition to afford to the citizens of those States, all the XXXv1 INTRODUCTION liberties and privileges connected with the fisheries which can consist with the just rights and interests of Great Britain, and secure His Majesty’s subjects’ from those undue molestations in their fisheries which they have formerly experienced from citizens of the United States.’”} Taking up the contention that the liberty was unaffected by war, he states that Great Britain — “Knows of no exception to the rule, that all treaties are put an end to by subsequent war between the same parties; she cannot, therefore, consent to give to her diplomatic relations with one State a different degree of permanency from that on which her connexion with all other States depends. Nor can she consider any one State at liberty to assign to a treaty made with her such a peculiarity of character as shall make it, as to duration, an exception to all other treaties, in order to found, on a peculiarity thus assumed, an irrevocable title to all indulgences which have all the features of tem- porary concessions.” ? Lord Bathurst next proceeds to review Mr. Adams’ contention that the United States had a peculiar right to participate in the fish- eries, because the colonists were British subjects, stating that, — “When the United States, by their separation from Great Britain, became released from the duties, they became excluded also from the advantages of British subjects. They cannot, therefore, now claim, otherwise than by treaty, the exercise of privileges belonging to them as British subjects, unless they are prepared to admit, on the part of Great Britain, the exercise of the rights which she enjoyed previous to the separation.” 3 In Lord Bathurst’s opinion the rights of the colonies to share in the fisheries was lost by the separation of the two countries. The liberty secured by the Treaty of 1783 was cancelled by the War of 1812. The United States could not, therefore, claim the right to fish within British waters by virtue of British nationality, which they had repu- diated by their Declaration of Independence and its recognition by the Treaty of 1783. As, therefore, there was no treaty in existence between the two countries, conveying or recognizifg the liberty, it was non- existent. He stated, however, that while rejecting the claim of the United States and the reasons upon which it was sought to be justified, Great Britain nevertheless felt — “That the enjoyment of the liberties, formerly used by the inhabi- 1 Appendix, b. goo; Appendix, U. S. Case, p. 274. Appendix, British Case, p. 69. \? Appendix, b. goo; Appendix, U. S. Case, p. 274. Appendix, British Case, p. 69. 5 Appendix, p. 403; Appendix, U. S. Case, p. 277. Appendix, British Case, Pp. 69. INTRODUCTION XXXVI tants of the United States, may be very conducive to their national and individual prosperity, though they should be placed under some modifications; and this feeling operates most forcibly in favor of con- cession. But Great Britain can only offer the concession in a way which shall effectually protect her own subjects from such obstructions to their lawful enterprises as they too frequently experienced immedi- ately previous to the late war, and which are, from their very nature, calculated to produce collision and disunion between the two states.” In the next paragraph of his note Lord Bathurst states the griev- ances of the British Government in the matter of fishing. “It was not,” he said, “of fair competition that His Majesty’s Government had reason to complain, but of the preoccupation of British harbors and creeks, in North America, by the fishing vessels of the United States, and the forcible exclusion of British vessels from places where the fishery might be most advantageously conducted. They had, likewise, reason to complain of the clandestine introduction of prohibited goods into the British colonies by American vessels ostensibly engaged in fishing trade, to the great injury of the British revenue.” From these passages it is evident that Great Britain was willing to admit the Americans to participate in the fisheries not as a matter of right, but as a ‘‘matter of concession,” and that the liberty to be enjoyed by the Americans should be so defined and limited as to prevent the mis- understandings and embarrassments which had previously existed. It is also evident that Lord Bathurst contemplated a change in the territorial limits within which American fishermen might prosecute their industry in order to prevent the preoccupation of the British har- bors and creeks ‘‘and the forcible exclusion of British vessels from places where the fishery might be most advantageously conducted,” and that Americans engaged in fishing were to be confined to fishing and not to be permitted to introduce ‘“‘goods into the British colonies by American vessels ostensibly engaged in the fishing trade, to the great injury of the British revenue.” The United States naturally wished a confirmation of the liberty to take, dry, and cure fish in accordance with the terms of the Treaty of 1783. The exchange of views between the two governments had shown this to be impossible, and the United States, therefore, aimed to retain as large a part of the liberties as pos- sible, insisting that the liberties to be secured should be perpetual in the sense that they were to be unaffected by future war between the two countries. The fundamental purpose of Great Britain seems to have been to reduce the limits within British jurisdiction in which the inhabitants of the United States might carry on their fishing operations XXXvill INTRODUCTION without injury to British interests. The United States expected a modi- fication of the limits and was prepared to accept it, but insisted that the liberty granted, whatever its extent, should be perpetual. The basis for a compromise was thus laid. In consideration of a lesser extent of British jurisdiction within which the fishing might be prosecuted, Great Britain was willing to make the liberty perpetual, and in consideration of the fact that the liberty secured by the convention was to be perpetual, the United States was willing to consent to a modification of the terri- torial limits within which its inhabitants could take, dry, and cure fish. Lord Bathurst’s note to Mr. Adams laid particular stress upon “the forcible exclusion of the British vessels from places where the fishery might be most advantageously conducted,” and it is safe to assume that Great Britain would not consent to any treaty stipulations which did not remove the possibility of exclusion of the British vessels from the fish- ing grounds. Lord Bathurst intimates that British subjects had been injured not merely by the “preoccupation” of British harbors and creeks, which was, in his opinion, unfair competition, but that they had actually been excluded therefrom. Great Britain had had a long and disagreeable experience with France, which claimed an exclusive right in fact as well as in law to fish upon the French shore, and it would seem that Great Britain, wishing to prevent like disputes with American fish- ermen, regarded the insertion of a clause negativing any such conten- tion as of very considerable importance. Its commissioners, therefore, proposed that the liberty to be enjoyed by the United States forever should be “in common with the subjects of His Britannic Majesty.” This would seem to be the natural explanation of the phrase “in common,” and it is the interpretation which the American Govern- ment has placed upon it. It should be said, however, that Great Britain has uniformly regarded the words “in common” as implying subjection of American fishermen to general regulation with British subjects; that is, as defining the nature and extent of the liberty, not merely as negativing exclusion. After having ascertained the understanding of the contracting parties—namely, that the liberty secured should be perpetual and that it should be in common with the subjects of His Britannic Majesty —the article next defines the regions in which American fishermen might take fish. In the first place the liberty was to take fish of every kind just as in the Treaty of 1783, but the limits within which the liberty was to be exercised were much less extensive than in the Treaty of 1783. In that treaty the inhabitants of the United States were confined to “such part of the coast of Newfoundland as British fishermen shall use,” — INTRODUCTION XXxix a clause apparently due to the fact that French fishermen claimed an exclusive right under the treaties of 1713, 1763 and 1783, which, however, Great Britain strenuously denied.'. The Treaty of 1783, therefore, restricted American fishermen to such part of the coasts of Newfoundland as British fishermen should actually use. This cautious phraseology was probably justified in 1783, when Great Britain was concluding peace with France after a war in which it could not be said to have been oversuccessful. The situation in 1818 was, how- ever, different, for but three years before France had been crushed at Waterloo, and Great Britain emerged from the revolutionary wars crowned with victory and not unnaturally flushed with success. The language of the Convention of 1818, therefore, might well be expected to negative an exclusive right on the part of French fishermen in Newfoundland waters, and Great Britain might be willing to acknowl- edge a liberty to American fishermen in common with British subjects in such waters irrespective of the claim of France to an exclusive fishery within certain portions thereof. The territorial limits within which the Americans were to enjoy the liberty of fishing are thus defined: “On that part of the Southern Coast of Newfoundland which extends from Cape Ray to the Rameau Islands, on the Western and Northern Coast of Newfoundland, from the said Cape Ray to the Quirpon Islands, on the shores of Magdalen Islands, and also on the Coasts, Bays, Harbours, and Creeks from Mount Joly on the South- ern Coast of Labrador, to and through the Streaights of Belleisle and thence Northwardly indefinitely along the Coast, without prejudice, however, to any of the exclusive Rights of the Hudson Bay Company.” ? An examination of the instructions issued to the American commis- sioners shows that the fishing grounds actually obtained were more extensive than the minimum which the commissioners were authorized by their instructions to accept.? The convention then proceeds to define the nature and extent of the liberty to dry and cure fish. It will be recalled that the corresponding clause of the Treaty of 1783 denied to American fishermen the liberty to dry or cure fish in Newfoundland, a restriction due, in part, to the claim of French fishermen in their treaties with Great Britain and the Declara- tion of 1783 to an exclusive use to what is called the French shore. The 1See Lord Salisbury’s memorandum on the subject. (Appendix, U. S. Case, Vol. II, PP. 1086-1098.) 2 Appendix, p. 380; Article I of the Convention of 1818. Appendix, U. S. Case, p. 24-25. Appendix, British Case, p. 30. 3 Mr. Adams’ Instructions to Messrs. Gallatin and Rush, dated July 28, 1818. (Appendix, U.S. Case, Vol. I, p. 304.) xl INTRODUCTION change in situation probably accounted for the liberty granted to dry and cure fish on the southern part of the coast of Newfoundland. In the Treaty of 1783 American fishermen obtained the liberty to dry and cure fish in any of the unsettled bays, harbors, and creeks of Nova Scotia, Magdalen Islands, and Labrador, subject to the condition that they should remain unsettled, and that in the case of settlement a previous agreement with the inhabitants, proprietors, or possessors of the ground for drying and curing was prescribed. The Convention of 1818 followed the language of the treaty, but substituted other portions of the British coast. The unsettled bays, harbors, and creeks of the southern part of the coast of Newfoundland replace the unsettled bays, harbors, and creeks of Nova Scotia and the Magdalen Islands. Labrador is retained, although the convention omits the expression “bays, har- bors, and creeks” in this connection and mentions merely the coast of Labrador. So far the American negotiators of the convention seemed to have held their own fairly well against the British commissioners, but the recognition of previously existing liberties or their re-grant was to be purchased. Lord Bathurst had stated roundly in his correspondence with Mr. Adams that the concession required what is known in law as a consideration, and the renunciation of any liberty heretofore enjoyed or claimed by the inhabitants of the United States, not specified in the convention, was to be the consideration moving from the United States to Great Britain. The American commissioners were very anxious to balance the liberties secured by the convention — they would say retained from the treaty — by the liberties secured by the treaty but which were renounced by the convention, so that it might appear that the Convention of 1818 was not a new grant but a confirmation of the Treaty of 1783 with certain modifications agreed to by the contracting parties. By so doing the liberty “continued” by the convention would, in the absence of an express stipulation to the contrary, be held upon the same tenure and the fundamental position of the United States admitted; namely, that the Convention of 1818 was a recognition and a, confirmation of the unmodified portions of the Treaty of 1783. There- fore as the liberty secured by the convention was to be perpetual, the renunciation of the treaty liberty sacrificed by the convention was like- wise to be perpetual, so that the recognition and renunciation should counterbalance and offset each other. The British commissioners objected to the expression ‘renounced forever,” not because they were unwilling to accept the renunciation, but because the form of renuncia- tion would lend color to the American contention. They, however, INTRODUCTION xli sacrificed any scruples they may have had to the form in order to secure the substance. The renunciation went to the entire grant of 1783 in the matter of taking, drying, or curing fish, except within the limits specified in the convention, but comprehensive as was the renunciation, the intention of the United States was not to renounce fishing upon all portions of the non-treaty coast, but merely the liberty to take, dry, and cure fish “within three marine miles of any of the coasts, bays, creeks, or harbors of His Britannic Majesty’s dominions in America” not included within the limits set by the convention. It is therefore beyond controversy that the United States renounced a liberty which it had heretofore possessed or claimed. It is equally clear that the renuncia- tion was not of the entire liberty, but only the liberty within three marine miles of the non-treaty coast. The language of the clause has given rise to much divergence of opinion, as will appear later; for Great Britain has insisted that bays, the most important part of the renuncia- tion, was to be understood in the general or geographical sense, whereas the United States has maintained that the expression ‘“‘bays” was not used generally, but specifically, as the bays of His Britannic Majesty’s dominions in America; that is to say, the bays which should properly or necessarily be considered within the exclusive dominion of Great Britain, thereby contrasting geographical with territorial bays. It has been stated that the renunciation, however general and un- equivocal it may have been, was nevertheless confined within certain limits; namely, within three marine miles. In another respect it was qualified by the proviso that American fishermen should be admitted to any bays or harbors in case of stress of weather, or in case of distress, such as to obtain shelter, to repair damages, to purchase wood, and to obtain water. Lest, however, an entry for a particular purpose should be converted into a general license, the convention limits the right of entry to these four specified purposes. And finally, in order to obviate any misunderstanding as to the status of American fishermen who might have entered the bays and harbors for the four specified purposes, the convention prescribed that the American fishermen should ‘“‘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” reserved to them. The intention of the negotiators was clear and expressed in unmistakable terms. Entry was permitted for four purposes, and the fact that Great Britain meant to limit the entry of American fishermen to these four purposes is evident from the fact that the commissioners refused to permit American fishermen to enter for the purchase of bait. The xlii INTRODUCTION American negotiators had proposed that the fishermen be permitted to purchase bait, but this proposition was expressly rejected. Such is in brief the analysis of the first article and explanation of its terms, together with some reasons for the form in which they are expressed. As, however, this article, the measure of American fishing liberties within British waters and British territory, has since the year 1818 been the fertile source of controversy, it seems desirable not to endeavor to interpret it in this connection, but to consider its provisions in connection with the award of the Tribunal on each of the ques- tions submitted at The Hague by the special agreement of January 27, 1909. DISCUSSION OF THE FISHERIES QUESTION BETWEEN Mr. Root AND SiR EDWARD GREY The appointment of Mr. Root as Secretary of State, on July 7, 1905, was not only fortunate in itself as bringing to the Department of State a highly accomplished lawyer with a mind seasoned and trained in administration as Secretary of War, but in placing in charge of our foreign relations a public servant familiar with controversies between Great Britain and the United States and alive to their serious conse- quences if not settled by agreement before they had strained the foreign relations of the two countries. Mr. Root’s experience as Commissioner in the Alaskan Boundary Question, decided in London in 1904, showed him how difficult it was to settle a controversy in time of stress, which might have been adjusted previously without threatening the good relations of Great Britain and the United States. He therefore determined to take up the various questions pending between the two countries and to secure their adjustment with the least possible delay and friction, both because the Alaskan question had shown the danger lurking in a simple question of fact, and because the friendly relations of the two countries suggested the advisability of removing from the future relations of Great Britain and the United States the possible danger of misunderstanding and unfriendliness resulting from a diver- gence of view upon questions of great importance to both countries. He therefore took advantage of a report which reached him in October, 1905, that the Newfoundland Minister of Marine and Fishery had “for- bidden all vessels of American register to fish on the Treaty coast where they now are, and where they have fished unmolested since 1818,”! to open up the fishery question, and by a frank discussion between the two governments to reach, if possible, a solution of this vexed question. 1 Appendix, pp. 441, 442; Appendix, U. S. Case, p. 964; Appendix, British Case, p. 491. INTRODUCTION xliii The report was promptly called to the attention of the British Ambassa- dor at Washington, who informed Mr. Root that it was without foundation. It appearing, however, as a result of inquiries that several American vessels had been ordered by Newfoundland authorities not to take herring at Bonne Bay, within the treaty coast of Newfound- land, Mr. Root wrote a note, dated October 19, 1905, to the British Ambassador in which he opened up the entire question of American rights in the northeastern fisheries and expressed a belief that an under- standing could be reached upon this much vexed and mooted question.! _‘“We consider,” he said, “that — “ce xz. Any American vessel is entitled to go into the waters of the Treaty Coast and take fish of any kind. “She derives this right from the Treaty (or from the conditions existing prior to the Treaty and recognized by it) and not from any permission or authority pro- ceeding from the Government of Newfoundland. ““5. An American vessel seeking to exercise the Treaty right is not bound to retain a licence from the Government of Newfoundland, and, if she does not purpose to trade as well as fish, she is not bound to enter at any Newfoundland custom- house. “3. The only concern of the Government of Newfoundland with such a vessel is to call for proper evidence that she is an American vessel, and, therefore, entitled to exercise the Treaty right, and to have her refrain from violating any laws of Newfoundland not inconsistent with the Treaty. “4. The proper evidence that a vessel is an American vessel and entitled to exercise the Treaty right is the production of the ship’s papers of the kind generally recognized in the maritime world as evidence of a vessel’s national character. “3. When a vessel has produced papers showing that she is an American vessel, the officials of Newfoundland have no concern with the character and privileges accorded to such a vessel by the Government of the United States. No question as between a registry and licence is a proper subject for their consideration. They are not charged with enforcing any laws or regulations of the United States. As to them, if the vessel is American she has the Treaty right, and they are not at liberty to deny it. ‘6. If any such matter were a proper subject for the consideration of the officials of Newfoundland, the statement of this Department that vessels bearing an American registry are entitled to exercise the Treaty right should be taken by such officials as conclusive. “If your Government sees no cause to dissent from these propositions, I am inclined to think that a statement of them as agreed upon would resolve the immediate difficulty now existing on the Treaty Coast.” In the course of the same note Mr. Root called attention to “An Act respecting foreign fishing vessels, passed by Newfoundland in the year 1905,” of which he said, 1 Appendix, p. 442; Appendix, U. S. “Case, p. 966; Appendix, British Case, p. 491. Appendix, Case of U.S. Vol. II, pp. 966-970. Appendix, British Case, p. 491. xliv INTRODUCTION “This Act appears to be designed for the enforcement of laws previously enacted by Newfoundland, which prohibited the sale to foreign fishing vessels of herring, caplin, squid, or other bait fishes, lines, seines or other outfits or supplies for the fishery or the shipment by a foreign fishing vessel of crews within the juris- diction of Newfoundland.” ? After quoting the objectionable portions of the act in question, Mr. Root proceeded as follows: “Tt seems plain that the provisions above quoted constitute a warrant to the officers named to interfere with and violate the rights of American fishing-vessels under the Treaty of 1818. “The ist section authorizes any of the officers named to stop an American vessel while fishing upon the Treaty Coast and compel it to leave the fishing grounds, to prevent it from going to the places where the ‘fish may be, to pre- vent it departing with the fish which it may have taken, and to detain it for an indefi- nite period during a search of the cargo and an examination of the master under oath under a heavy penalty. “The 3rd section of the Act, . . . makes the presence on board of an American vessel of the fish, gear — the implements necessary to the exercise of the Treaty right — prima facie evidence of a criminal offence against the laws of Newfoundland, and it also makes the presence on the board of vessels of the fish which the vessel has a right to take under Treaty prima facie evidence of a criminal offence under the laws of New- foundland. This certainly cannot be justified. It is, in effect, providing that the exercise of the Treaty right shall be prima facie evidence of a crime.” Mr. Root concluded this portion of the note with the following state- ment: “T feel bound to urge that the Government of Great Britain shall advise the New- foundland Government that the provisions of law which I have quoted are inconsist- ent with the rights of the United-States under the Treaty of 1818, and ought to be repealed; and that, in the meantime, and without any avoidable delay, the Governor in Council shall be requested by a Proclamation which he is authorized to issue under the 8th section of the Act respecting Foreign Fishing-Vessels, to suspend the operation of the Act.” 2 From the passages quoted from Mr. Root’s note it is evident that the entire question of the American rights in British waters was involved and that the discussion was likely to place in clear and unmistakable light the divergence of views held by both governments. The impor- tance of Mr. Root’s note was at once apparent to the British Government, and Sir Edward Grey, Secretary of State for Foreign Affairs of Great Britain, lost no time in taking issue with Mr. Root and setting forth in clear and unmistakable terms the attitude of the British Government. Therefore, on February 2, 1906, Sir Edward Grey transmitted a care- 1Appendix, pp. 442, 444; Appendix, U. S. Case, p. 966; Appendix, British Case, p. 401. ? Mr. Root to Sir Mortimer Durand, October 19, 1905. Appendix, pp. 442, » pent U.S. Case, p. 966; Appendix, British Case, p. 491. 3 444; Appendix INTRODUCTION xlv fully prepared and elaborate ‘“‘memorandum dealing seriatim with the six propositions formulated by Mr. Root, and with his observation with regard to some of the provisions of recent Newfoundland legislation for the regulation of the fisheries.” 1 Sir Edward Grey was at one with Mr. Root “in thinking that inasmuch as the privileges which citizens of the United States have for many years enjoyed of purchasing bait and supplies and engaging men in Newfoundland waters have recently been withdrawn and American fishermen: have consequently, in Mr. Root’s words, been thrown back upon their rights under the Convention of 1818, it is desirable that a clear understanding should be reached regarding these rights and the essential conditions of their exercise.” The memorandum states Sir Edward’s inability to agree with Mr. Root’s propositions “without some important qualifications,” and then proceeds to discuss each in turn and to express the view of the British Government upon it. For the present purpose questions of license and registration, the obligation to pay light dues and to submit to customs regulation are not of importance, as they will be considered in connection with the questions submitted to arbitration. It is, however, necessary to note the fundamental differences of opinion between the two govern- ments regarding the exemption of American fishermen from local regu- lation in the exercise of their calling in British waters. Looking at the larger question involved, Sir Edward Grey stated “that the only ground on which the application of any provisions of the Colonial Law to Ameri- can vessels engaged in the fishery can be objected to is that it unreason- ably interferes with the exercise of the American right of fishery.” In other words, local legislation is equally binding upon American and British fishermen, but may be objected to by the United States if it is unreasonable. After careful consideration of Sir Edward Grey’s memo- randum, Mr. Root, in his instruction to Mr. Reid, dated June 30, 1906, presented with great clearness and detail the American view of the Con- vention of 1818 and of the rights conferred upon American citizens — rights which could not be modified or impaired without the consent of the United States; and he both stated and argued that the United States had the right not merely to object to unreasonable regulations, but that such regulations were, without the consent of the United States, inopera- tive upon American fishermen. In setting forth the American contention and the right of American fishermen in British waters to be exempt from local statutes, Mr. Root is not unmindful of the fact that the fishery should not be unregulated. The United States, he said, 1 Appendix, pp. 446, 447; Appendix, British Case, p. 494; Appendix, U. S. Case, p. 971. xlvi INTRODUCTION “ig willing and ready now, as it has always been, to join with the Government of Great Britain in agreeing upon all reasonable and suitable regulations for the due control of the fishermen of both countries in the exercise of their rights, but this Government cannot permit the exercise of those rights to be subjected to the will of the Colony of Newfoundland. The Government of the United States cannot recognize the authority of Great Britain or of its Colonies to determine whether American citizens shall fish on Sunday. The Govern- ment of Newfoundland cannot be permitted to make entry and clearance at a Newfoundland Custom-house, and the payment of a tax for the support of Newfoundland lighthouse conditions to the exercise of the American right of fishing. If it be shown that these things are reason- able the Government of the United States will agree to them, but it can not submit to have them imposed upon it without its consent.” ! In Mr. Root’s view the question was not one of theory but of vast practical importance, because if Great Britain or its colony — New- foundland — had the right to pass statutes binding alike upon American citizens and British subjects engaged in fishing within British waters, it would follow necessarily that Great Britain or Newfoundland might legislate the fishery out of existence, notwithstanding the treaty, by burdening it with conditions which American fishermen might be unable to meet, or might in the alleged interest of the fishery discontinue it during certain periods or limit its exercise to certain specified regions. To this full and, as it proved, final statement of the American inter- pretation of*the Convention of 1818, Sir Edward Grey replied in a care- ful note to Mr. Reid, dated June 20, 1907, in which, after placing on record his “appreciation of the fairness with which Mr. Root has stated the American side of the question,” he set forth the views of the British Government in what likewise proved to be their final form. Sir Edward Grey said: “The main question at issue is, however, that of the application of the Newfound- land regulations to American fishermen. In this connection the United States Govern- ment admit the justice of the view that all regulations and limitations upon the exercise of the right of fishing upon the Newfoundland Coast, which were in existence at the time of the Convention of 1818, would now be binding upon American fishermen. Although Mr. Root considers that to be the extreme view which His Majesty’s Govern- ment could logically assert, and states that it is the utmost to which the United States Government could agree, His Majesty’s Government feel that they cannot admit any such contention, as it would involve a complete departure from the position which they have always been advised to adopt as to the real intention and scope of the treaties upon which the American fishing-rights depend. In this vital point of principle there 1Mr. Root to Mr. Whitelaw Reid. Appendix, p. 453; Appendix, U. S. Case, p. 978; Ap- pendix, British Case, p. 498. ey ee ee Oe ee INTRODUCTION xlvii does not seem to be any immediate prospect of agreement with the United States views, and it would, therefore, seem better to endeavour to find some temporary solu- tion of the difficulty as to the regulations under which the Americans are to fish.” } The American contentions were unacceptable to Great Britain and the American Government felt itself unable to modify its position with- out sacrificing the fishery. Compromise was therefore impossible, and the decision of the question was, upon the suggestion of the United States, appropriately referred to arbitration. After consultation with its colonies Great Britain accepted the proposal and the two govern- ments framed the questions to be submitted to the determination of the arbitrators. In the meantime, however, a modus vivendi was arranged between the two governments, so that fishermen of both countries should not suffer by an attempt to enforce the extreme and irreconcilable views of the parties in controversy. THE SPECIAL AGREEMENT OF JANUARY 27, 1909 It has been stated that Mr. Root’s appointment as Secretary of State was exceedingly happy in view of the controversies which were so soon to arise between Great Britain and the United States, and it is likewise a pleasure to record that the appointment of Mr. James Bryce as British Ambassador to the United States was equally fortunate; for both were sincerely interested in maintaining the friendly relations of their govern- ments and in settling by arbitration any controversies that threatened good understanding between them. ‘The fair-mindedness of each and their sincere desire to settle a controversy which had, unfortunately, exercised the patience and forbearance of statesmen of both countries since the independence of the United States, and indeed before its recog- nition, cannot be too highly commended, and their negotiations show how easy it is for nations to settle controversies peaceably if they really desire peace. The first step was taken by the proposal to arbitrate, the suggestion emanating, as has been said, from the United States, but Mr. Bryce was equally desirous of arbitration and he had so stated in an interview with Mr. Root.? Mr. Root and Mr. Bryce were anxious to negotiate a general treaty 1 Appendix, pp. 459, 461; Appendix, British Case, p. 507; Appendix U. S. Case, p. 1003. 2In his note dated July 12, 1907, to Sir Edward Grey proposing arbitration, Mr. Reid, the American Ambassador to Great Britain stated: ‘‘We have the greater reason to hope that this solution may be acceptable to you since your Ambassador to the United States recently suggested some form of arbitration, with a temporary modus vivendi pending the decision, as the best way of reaching a settlement. We hope also that the reference of such a long-standing question between two such nations at such a time to The Hague Tribunal might prove an impor- tant step in promoting the spread of this peaceful and friendly method of adjusting differences among all civilised countries of the world.” Appendix, pp. 462, 463; Appendix, U. S. Case, Pp. 1007; Appendix, British Case, p. 500. xlviii INTRODUCTION of arbitration, so that the fisheries question might arise under it and be incidental to it. And Mr. Root was desirous that the special agreement submitting the fisheries arbitration, although in the form of a compromis, under the general treaty, should not merely secure an interpretation of the Convention of 1818, but should provide means for the determination of any future controversy in the matter of the fisheries which might arise between two nations. Hence the general treaty of arbitration and hence the peculiar form of submission of the fisheries dispute. The first article of the general Arbitration Treaty, signed April 4, 1908, reserved, as is customary in such agreements, questions concerning the interest of third parties and provided that “differences which may arise of a legal nature or relating to the interpretation of treaties existing between the two Contracting Parties, and which it may not have been possible to’settle by diplomacy, shall be referred to the Permanent Court of Arbitration established at The Hague by the Convention of the 29th of July, 1899.” The fisheries question was of a legal nature and related to the interpretation of treaties; namely, to the Convention of 1818. It had not been and could not, it would seem, be settled by diplomacy. It was, therefore, peculiarly qualified to be submitted to arbitration. Article two provided that in each individual case the high contracting parties “shall conclude a special Agreement defining clearly the matter in dispute, the scope of the powers of the Arbitrators, and the periods to be fixed for the formation of the Arbitral Tribunal and the several stages of the procedure.’”’ The next step was to frame the special agreement, referred to in the second article of the Treaty of Arbitration, and in doing this the negotiators did not have a wholly free hand, because it is provided by the treaty that the special agreement,:as far as the United States is concerned, is to be made by and with the advice and consent of the Senate, and Great Britain expressly reserved the right “before concluding a special agreement in any matter affecting the inter- ests of a self-governing Dominion of the British Empire to obtain the con- currence therein of the Government of that Dominion.” The statement that the special agreement was to be subjected to the approval of the Senate was self-evident, if it be regarded as an international agreement, and the present policy of the Senate is to regard the special agreement as in the nature of a treaty. Great Britain undoubtedly had the right, without reserving it, “to obtain the concurrence” of the self-governing dominions affected by the negotiation, but the expression of the right suggests not merely the importance which the dominions have assumed in international matters concerning them, but serves to explain in advance any delay which might be occasioned in consulting such dominions. INTRODUCTION xlix The special agreement required careful consideration and much negotiation, for Great Britain was really appearing more on behalf of its colonies than in its own behalf, because the colonies were primarily interested in the arbitration. It was therefore advisable, if not neces- sary, that each question proposed for arbitration should be submitted to the colonies interested — namely, Newfoundland and the Dominion of Canada — in order to receive in advance the stamp of their approval. Certain questions (2, 6, and 7) were submitted at the express request and instance of Newfoundland. The difficulties in the way of the agreement were, however, overcome, and on January 27, 1909, Secretary Root and Ambassador Bryce had the great satisfaction, on behalf of their respective governments, to sign the special agreement submitting the fisheries dispute to arbitration. ; In framing a case for submission to arbitration two problems invariably confront the negotiators; namely, what shall be included in the submission, and what shall be excluded from the submission. Either question is difficult. In the present instance it was agreed that “no question as to the Bay of Fundy, considered as a whole apart from its bays or creeks, or as to innocent passage through the Gut of Canso, is included in this question as one to be raised in the present arbitration, it being the intention of the parties that their respective views or contentions shall be in no wise prejudiced by anything in the present arbitration.” 4 The admission of American fishermen within the Bay of Fundy had been granted by Great Britain as a concession, not as a matter of right, and as the concession is undisputed it was unnecessary to arbi- trate the point. Should the American view prevail in the matter of the measurement of bays, the situation as regards the Bay of Fundy would be unchanged, whereas if the American contention should be rejected, American fishermen might lose the rights they had previously enjoyed. It was, therefore, decided by the negotiators, no doubt wisely, to omit the question altogether from arbitration, and the agreement to omit the Bay of Fundy and the Gut of Canso is evidenced by notes dated January 29, 1909, between Secretary Bacon (Mr. Root’s suc- cessor) and Mr. Bryce; by the action of the Senate, which, in ratifying the agreement of Jan. 27, 1909, expressly excluded the Bay of Fundy and the Gut of Canso, and by the notes of Messrs. Bacon and Bryce, dated March 4, 1909. The first article of the agreement enumerates the questions which Great Britain and the United States agreed to arbitrate. Briefly 1 Mr. Bryce’s note to Mr. Bacon, dated March 4, 1909; Appendix, U. S. Case, Vol. I, p. 10. l INTRODUCTION stated these questions, seven in number, involve the following points: First. Can Great Britain reasonably regulate (a) Without the consent of the United States the hours, days, or seasons when fish may be taken on the treaty coasts; (b) The method, means, and implements to be used in taking fish or in carrying on fishing operations upon such coast; and (c) Any other matters of similar character relating to fishing? SEconp. Can the inhabitants of the United States in the prose- cution of the fisheries rightly employ “‘as members of the fishing crews of their vessels persons not inhabitants of the United States”? Turrp. Can the exercise of the fishing liberties referred to in the Convention of 1818 ‘‘be subjected, without the consent of the United States, to the requirements of entry, or report at custom-houses or the payment of light or harbor or other dues, or any other similar require- ment or condition or exaction”’ ? FourtH. Can the right of American fishermen to enter certain bays or harbors “for shelter, repairs, wood, or water, and for no other purposes whatever,” be made “conditional upon the payment of light or harbor or other dues, entering or reporting at custom-houses or any similar conditions”’ ? Firta. ‘From where must be measured the ‘three marine miles of any of the coasts, bays, creeks, or harbors’ referred to” in the Conven- tion of 1818? SrxtH. Have the inhabitants of the United States, under the Con- vention of 1818 or otherwise, the liberty ‘“‘to take fish in the bays, har- bors, and creeks on that part of the southern coast of Newfoundland which extends from Cape Ray to Rameau Islands, or on the western and northern coasts of Newfoundland from Cape Ray to Quirpon Islands, or on the Magdalen Islands”? SEvENTH. “Are the inhabitants of the United States whose vessels resort to the treaty coasts for the purpose of exercising the liberties referred to in Article I of the Treaty of 1818 entitled to have for those vessels, when duly authorized by the United States in that behalf, the commercial privileges on the treaty coasts accorded by agreement or otherwise to United States trading vessels generally ?” From this brief statement of the questions submitted to arbitration it will be seen that the fundamental rights of American fishermen in British waters, asrecognized by the Convention of 1818, were necessarily involved. The right to dry and cure fish upon the land was eliminated, as were, as before stated, by special agreement of the parties, questions con- INTRODUCTION li cerning the Bay of Fundy and the passage through the Gut of Canso. With these exceptions the fisheries article of the Convention of 1818 was to be submitted to arbitration; but Great Britain and the United States desired to enlarge the scope of the arbitration, already comprehensive, and to provide for the settlement of any future differences that might arise relating ‘‘to the interpretation of the treaty of 1818 or to the effect and application of the award of the Tribunal,” so that it should no longer be within the power of a handful of fishermen, British or Ameri- can, to threaten or disturb the peaceful relations of the two countries. In order to keep within one’s rights it is necessary to know definitely and precisely the nature and extent of those rights. Therefore Great Britain and the United States agreed, in Article II, that the opinion of the tribunal of arbitration might be taken on “any legislative or exec- utive act of the other Party . . . claimed to be inconsistent with the true interpretation of the treaty of 1818”; that the tribunal might be requested ‘‘to express in its award its opinion upon such acts, and to point out in what respects, if any, they are inconsistent with the princi- ples laid down in the award in reply to the preceding questions,” and in order to prevent controversy each country agreed in advance to conform to such opinion. The purpose of this article was to obtain an authoritative interpreta- tion of various legislative or executive acts already called to the atten- tion of the Tribunal, and about which the parties in controversy were themselves unable to agree. Great Britain and the United States agreed, in Question I, that the fishing regulations were to be reasonable, and it might well happen in the course of the arbitration that the reasonable- ness of regulations not previously examined might be questioned, or that expert information regarding the practical effect of the fisheries would be advisable for the guidance of the tribunal. Hence Great Britain and the United States agreed, in Article III, that in such cases a commission of three expert specialists might be created, to which the tribunal could refer such questions. The tribunal was not, however, obliged to constitute such a commission, nor would the findings of the commission when constituted bind the tribunal unless approved by it. During the course of the arbitration the United States requested the institution of the commission in order to pass upon various questions propounded by American counsel, but the arbitrators deemed it neither necessary nor advisable to form it during the course of the arbitration. 1¥For the statement of the United States, see Oral Argument, Vol. IT, pp. 1369-1376. For the British reply objecting to the consideration of the American statement, see ibid., p. 1395. See also Mr. Anderson’s letter to the Tribunal, ibid., pp. 1427-1429; Mr. Aylesworth’s lii INTRODUCTION The controversies just referred to deal with the past, but Great Britain and the United States, however anxious to justify their past contentions, looked anxiously to the future, and in Article IV provided a method of settling future controversies without threatening the peace- able relations of the two countries. The award was to determine the exact questions submitted, and it was believed that the principles laid down in the award would furnish a safe guide for the interpretation of future questions connected with the fisheries. Therefore the tribunal was empowered to recommend “rules and a method of procedure” for the determination of such questions as they should arise. But it might happen that the recommendation of the tribunal would not commend itself to the parties in controversy. In such a case it was essential that the parties themselves should agree upon rules and methods in order to eliminate from the foreign relations of the two countries embarrassing situations. It was foreseen, however, that the two countries might fail to agree upon rules, and in order that the fishermen of both countries might know their rights without being compelled or permitted to pass upon them themselves, Great Britain and the United States agreed to avail themselves of the summary procedure devised by the Second Hague Conference,! and to submit informally future differences concerning the interpretation of the Convention of 1818 or concerning “the effect and application of the award of the tribunal” to the Permanent Court at The Hague. The importance of this provision can hardly be overestimated, because it provides a method for determining future differences when and as they arise, and however informal in terms, this simple article constitutes in itself a permanent treaty between the two countries. It is none the less a treaty because embodied in a special agreement, and the approval of the Senate bound the United States to its adherence. Indeed, it is not too much to say that Article IV is as important as the submission to arbitration, and the obligation to submit future differences to arbitration will probably lead the countries to determine by diplo- matic negotiations questions as they arise without consulting The Hague Tribunal. The knowledge that a failure to agree involves an obligation to submit to arbitration is almost equivalent to an agreement. Having agreed upon the questions to be submitted to arbitration, and having provided the machinery for the determination of future questions when and as they arise, it was necessary to reach a present communication to the Tribunal, ibid., pp. 1429-1430, and the Tribunal’s letter to Mr. Anderson, ibid., pp. 1430-1432. * Convention for the Pacific Settlement of International Disputes, Articles 86-90. INTRODUCTION liii agreement for the constitution of the temporary tribunal to interpret. the Convention of 1818 by answering each of the seven questions to be submitted to its determination. Therefore in Article V, Great Britain and the United States agreed that the arbitrators to form the temporary tribunal should be chosen ‘‘from the general list of members of the Per- manent Court at The Hague, in accordance with the provisions of Article XLV of the Convention for the Pacific Settlement of Interna- tional Disputes,” signed at The Hague on October 18, 1907. Article XLV, referred to, contemplates a direct agreement of the parties on the composition of the tribunal, and provides a method of selecting five judges of the permanent panel to constitute a temporary tribunal should the parties in controversy be unable to agree upon the choice of the judges. Fortunately, Mr. Root and Mr. Bryce agreed upon the five judges of the tribunal, and it is, therefore, unnecessary to outline the method of constituting the tribunal which would have been employed had they failed to agree. It may be said, however, that Article XLV contemplates a tribunal of five as the normal type, although the parties may agree upon a lesser number of judges, and likewise contemplates that not more than two of the prospective judges shall be subjects or citizens of the litigating countries. The ideal tribunal, of course, would consist of five strangers to the controversy, but Messrs. Root and Bryce considered the presence of an American and British judge as likely to prove helpful, because the treaty to be inter- _preted was a technical document, and American and British lawyers, versed in jurisprudence common to both countries, might well assist without dominating the tribunal in ascertaining the meaning and intent of its terms. For this reason, the Honorable George Gray, Judge of the United States Circuit Court of Appeals, and the Right Honorable Sir Charles Fitzpatrick, Chief Justice of the Dominion of Canada, were selected. The remaining members of the tribunal, constituting the majority, were by mutual agreement to be strangers to the controversy. The fact that an English document was to be interpreted and that the diplomatic negotiations running over a century were conducted in English made it essential that the judges should be competent English scholars, and the further fact that the proceedings were to be in English required the judges to possess a conversational knowledge of the language. Dr. Heinrich Lammasch, Professor of International Law at the University of Vienna, was chosen as umpire, and the two remaining members of the tribunal were mutually agreed upon; namely, His Excellency Jonkheer A. F. de Savornin Lohman, Minister of State of The Netherlands, and the Honorable Luis M. Drago, formerly Min- liv INTRODUCTION ister of Foreign Affairs of the Argentine Republic. Mr. Root and Mr. Bryce are believers in a permanent court, and they were anxious to select judges from the permanent panel who either had had experi- ence in international tribunals, or who were lawyers by profession. Professor Lammasch had been a judge in the arbitration at The Hague between Venezuela and the Allied Powers in the Venezuelan Preferential Cases, in 1904, and had been President of the Tribunal of Arbitration in the Maskat controversy between Great Britain and France in 1905. Dr. Lohman had served acceptably as arbitrator in the Pious Fund Case in 1902 and in the Maskat controversy. Dr. Drago had not previ- ously sat on The Hague Court, but was a lawyer of large experience in the Argentine Republic, where he had held judicial position, and as the author of the Drago Doctrine his name is familiar to all students of international law. The tribunal was agreed upon early in 1909 and the judges were notified of their selection on March 4, 1909, the last day of President Roosevelt’s Administration. The tribunal assembled on June I, 1910, at The Hague and delivered its award on September 7, rg1o.! Question I In delivering. its judgment upon the first question submitted to arbitration, the tribunal admitted that it was influenced by “the form in which Question I is put,’ and it is therefore necessary to quote the exact language of the question in order that the peculiar form which influenced the Tribunal may be clearly understood. The text of Ques- tion I, therefore, follows in full: 1¥For details concerning the presentation of the Case, Counter-Case, and Written Argument, and additional right to demand a revision of the award, see Articles VI, VII, VIII, IX, and X of the Special Agreement, Appendix, pp. 486, 487; Appendix, U. S. Case, p. 3; Appendix, British Case, p. 1. AGENT AND COUNSEL OF THE UNITED STATES: Agent: The Honorable Chandler P. Anderson. Counsel: The Honorable Elihu Root, Senator of the United States from the State of New York, formerly Secretary of State and Secretary of War of the United States; The Honorable George Turner, formerly a Senator of the United States from the State of Washington; The Honorable Samuel J. Elder; The Honorable Charles B. Warren; The Hon- orable James Brown Scott, Solicitor for the Department of State of the United States; The Honorable Robert Lansing. Secretary of the Agency: Mr. Otis Thomas Cartwright. AGENT AND COUNSEL OF GREAT BRITAIN: Agent: The Honorable Allen B. Aylesworth, K.C., Minister of Justice of Canada. Counsel: The Right Honorable Sir William Snowdon Robson, K.C., M.P., His Majesty’s Attorney General; The Right Honorable Sir Robert Bannatyne Finlay, K.C., M.P.; The Honorable Sir Edward P. Morris, LL.D., K.C., Prime Minister of Newfoundland; The Hon- orable Donald Morison, K.C., Minister of Justice of Newfoundland; Sir James S. Winter, K.C.; Mr. John S. Ewart, K.C.; Mr. George F. Shepley, K.C.; Sir H. Erle Richards, K.C.; Mr. A. F. Peterson, K.C.; Mr. W.N. Tilley; Mr. Raymond Asquith; Mr. Geoffrey Lawrence; Mr. Hamar Greenwood; Messrs. Blake and Redden, Solicitors; Mr. H. E. Dale, of the British Colonial Office. = Secretary of the Agency: Mr. John D. Clarke. INTRODUCTION lv “Question I. To what extent are the following contentions or either of them justified ? “Tt is contended on the part of Great Britain that the exercise of the liberty to take fish referred to in the said Article, which the inhabitants of the United States have forever in common with the subjects of His Britannic Majesty, is subject, without the consent of the United States, to reasonable regulation by Great Britain, Canada, or Newfoundland in the form of municipal laws, ordinances, or rules, as, for example, to regulations in respect of (1) the hours, days, or seasons when fish may be taken on the treaty coasts; (2) the method, means, and implements to be used in the taking of fish or in the carrying on of fishing operations on such coasts; (3) any other matters of a similar character relating to fishing; such regulations being reasonable, as, being for instance — “‘(a) Appropriate or necessary for the protection and preservation of such fish- eries and the exercise of the rights of British subjects therein and of the liberty which by the said Article I the inhabitants of the United States have therein in common with British subjects; ‘“*(b) Desirable on grounds of public order and morals; “(c) Equitable and fair as between local fishermen and the inhabitants of the United States exercising the said treaty liberty and not so framed as to give unfairly an advantage to the former over the latter class. “It is contended on the part of the United States that the exercise of such liberty is not subject to limitations or restraints by Great Britain, Canada, or Newfoundland in the form of municipal laws, ordinances, or regulations in respect of (1) the hours, days, or seasons when the inhabitants of the United States may take fish on the treaty coasts, or (2) the method, means, and implements used by them in taking fish or in carrying on fishing operations on such coasts, or (3) any other limitations or restraints of similar character — “(a) Unless they are necessary and appropriate for the protection and preserva- tion of the common rights in such fisheries and the exercise thereof; and “(b) Unless they are reasonable in themselves and fair as between local fishermen and fishermen coming from the United States, and not so framed ’as to give an advan- tage to the former over the latter class; and “(c) Unless their appropriateness, necessity, reasonableness, and fairness be de- termined by the United States and Great Britain by common accord and the United States concurs in their enforcement.” 4 It will be noted that the question is limited to the time and manner of fishing within Newfoundland waters and that the liberty of the United States to dry and cure fish taken within Newfoundland waters was not involved. The clause “hours, days, or seasons, when fish may be taken” may briefly be spoken of as the time, and ‘“‘the method, means and implements” used in taking or in carrying on the fishing opera- tions may be summarized in the simple expression of manner of taking fish. There is indeed a third subdivision, which, in view of the subject- 1 Appendix, p. 483; Appendix, U. S., Case p. 3; Appendix, British Case, p. 1. Appendix, U.S. Case, pp. 3, 4; British Case, p. 1. lvi INTRODUCTION matter, may not inaptly be termed a drag-net clause — namely, “any other matters of a similar character relating to fishing’; but the expres- sion “similar character” evidently refers to the time and manner of fish- ing. Therefore the question submitted under Question I reduces itself to the time and manner during which and by which American fishermen may take fish off the treaty coasts of Newfoundland. The submission presupposes that regulation of the time and manner may be necessary, a point on which Great Britain and the United States were agreed. By the form of the question the regulation is to be ‘‘reasonable.”’ Great Britain claimed the right to regulate the fishery according to its sover- eign pleasure, and “without the consent of the United States.” The United States always admitted that the fishery should be regulated, for an unregulated fishery might be synonymous with anarchy. The United States also maintained that the regulation should be reasonable, for an unreasonable regulation would defeat the purposes of regulation; but it did not claim the right to determine for itself the reasonableness of any regulation, because a common fishery was involved. The United States might have been justified in asserting a right to regulate the fishery of . its inhabitants in so far as the exercise of their fishing rights did not concern, involve, or affect British fishermen in the exercise of their fishery. But in so far as the common fishery was involved, the United States insisted upon a common regulation. In other words, the regula- tion should be ‘by common accord,” with the concurrence of the United States in the enforcement of the regulations determined “by common accord.” The single issue involved in Question I is: Who is to deter- mine the reasonableness of fishing regulations respecting the time and manner of fishing, for it was admitted by both litigants that the regula- tions should be reasonable. The contention of Great Britain was that it could determine the question of reasonableness, not merely for its own fishermen, but for the inhabitants of the United States engaged in the fishery, whereas the contention of the United States was that the reason- ableness of any regulation affecting inhabitants of the United States should be determined by the United States and Great Britain by common accord. A further examination of the form of submission shows that both countries agreed upon the kind of legislation requisite for the fisheries. For example, admitting that the regulations were to be reasonable, they should be appropriate or necessary for the protection and preservation of the fisheries, equitable and fair as between local fishermen and the inhabitants of the United States, or, in the language of the American contention, ‘‘reasonable in themselves and fair as between local fishermen INTRODUCTION Iii and fishermen coming from the United States.” Great Britain sub- mitted ‘“ that they should be desirable on grounds of public order and morals.” The United States did not include this heading in its sub- mission, nor did it object to it except as affecting the time and man- ner of fishing. It was a further limitation upon the power of Great Britain, because, however desirable such regulations should be, they were, nevertheless, to be reasonable. Admitting, therefore, that any proposed regulation should be reasonable and appropriate, or necessary for the protection and preservation of the fisheries, desirable on grounds of public order and morals, equitable and fair as between local fish- ermen and the inhabitants of the United States, the United States maintained that imperial or local municipal laws, ordinances, or regula- tions respecting the time and manner of fishing were not binding upon the United States “unless their appropriateness, necessity, reasonable- ness, and fairness be determined by the United States and Great Britain by common accord and the United States concurs in their enforcement.” The issue, therefore, was clearly defined. All regula- tions were to be reasonable. The one question involved was whether Great Britain alone could determine the question of reasonableness or whether the reasonableness of fishing regulations should be determined by Great Britain and the United States in common accord. Simple as the question seems, it is, nevertheless, very difficult, for what is reasonable to one, especially when special interests are involved, may not be reasonable to the other. Regulations which may be reason- able for a shore fishery might appear unreasonable in the case of fishing from ships. A regulation designed to preserve an advantage given by the use of the shore might operate as a discrimination against a fishery wholly conducted from fishing vessels. A regulation prohibiting fishing on Sunday might appear reasonable to those residing permanently upon the shore, whereas a prohibition against Sunday fishing might be a hard- ship upon those present upon the coast for but a limited time, for the fish must be caught, if at all, when and as they appear. A prohibition, how- ever general, of the use of certain kinds of nets might discriminate against a vessel fishery profitably employing nets in the prosecution of its industry, whereas line fishery from the shore might be unaffected, and the result would be a discrimination against the foreigner in favor of the local fishermen. These are but a few examples of the hard- ships and discriminations which may result if the question of the reasonableness of regulation is decided by one party to the treaty in- stead of by common accord. The difficulty may seem, however, more specious than real, because the contention of Great Britain did not lili INTRODUCTION exclude the United States from the determination of the reasonableness of fishing regulations. The treaty gave the inhabitants of the United States the right to fish, and if a regulation interfered with the fishing right, the United States would naturally possess the right to invoke the treaty and protest against the enforcement of the regulation; but the right of Great Britain to determine the reasonableness in the first instance would cast the burden of proving the unreasonableness upon the United States, and in the meantime American fishermen and American vessels violating the regulation would be subject to the penalties imposed by local law. As the protest would be conveyed through diplomatic channels, American inhabitants would suffer in their persons and property during the determination of the ques- tion, and even if the protest were successful, the payment of indem- nity would be delayed to the detriment of fishing operations which had suffered by the enforcement of the regulations. The interpretation of the Convention of 1818 would thus be obtained at the expense of the American fishermen. The contention of the United States would secure the interpretation of the treaty in advance, and American fishermen visiting the fishing grounds would be taxed with knowledge of the com- mon regulations and violate them at their peril. It may be main- tained, and it was indeed often said, that there was no ground to suppose that British regulations would be unreasonable and that such a contention impugned the good faith of Great Britain, which regarded itself as bound by its treaty stipulations. But the answer is that nations are unwilling to submit the interpretation of their rights to other nations even when uninfluenced by special interests. The admin- istration of justice is based upon the fundamental proposition that a party should not be judge in his own cause, and in accordance with this maxim it would seem that the reasonableness of proposed legislation should be decided by neither party, but by both, acting in common accord. The tribunal was apparently impressed by considerations of this nature, because, while holding that Great Britain might “make regulations without the consent of the United States” which are (1) appropriate or necessary, (2) desirable or necessary on grounds of public order and morals, and (3) equitable and fair as between local and American fishermen, and that such a right is inherent in the sover- eignty of Great Britain, it nevertheless held, by virtue of the form of the question and by virtue of the admission of British counsel in the trial of the case, that the question of reasonableness if contested should be decided by an impartial authority.1 1 Appendix, p. 502; Oral Argument, p. 1446. INTRODUCTION lix It will be noted that, in determining the question of reasonableness, the tribunal was influenced by two considerations; namely, the form of submission of the question, and the admission of counsel of Great Britain during the argument. The question of form has been considered in sufficient detail for the present purpose. The question of the admis- sion of counsel must be examined in order that the ratio decidendi be understood. For example, in presenting the British Case to the tribunal Sir Robert Finlay stated that — “Tt is not claimed for the British Government, or for the Colonial Govern- ments, that they can determine the question whether any regulation is reasonable. All that they claim is the right to make reasonable regulations, and if the point is raised as to whether any regulation is reasonable or not, it is not for the Colo- nial Government, it is not for the United States Government, to determine whether that regulation is or is not reasonable. It is for this Tribunal, to which the parties can, if such a difference arises, come.”’} In the course of his argument, Sir William Robson, then Attorney- General, quoted from Lord Salisbury’s note to Mr. Evarts, then Secretary of State, that “Her Majesty’s Government will readily admit — what is, indeed, self-evident — that British sovereignty, as regards those waters, is limited in its scope by the engagement of the treaty of Washington, which cannot be modified or affected by any municipal legislation,” and added that “this is the position we take to-day.”? That is to say, that British sovereignty is limited in its scope. In the latter portions of his argument he represents the American negotiators of the Convention of 1818 as saying to the British negotiators, ““‘you must not exercise your jurisdictional powers or any powers that may be retained to you in any way which operates unfairly as between American and English fishermen.’ That is what the words say on one side. That is the limitation upon our sovereignty.” 3 British counsel thus admitted in the course of argument that neither Great Britain nor its colonies could alone determine the reasonableness of local regulation; that is to say, Sir Robert Finlay considered that Great Britain could not alone determine the reasonableness of fishing regulations affecting American fishermen in the exercise of their fishing liberties, and Sir William Robson stated the reason for such concession, namely, that the Convention of 1818 was a limitation upon British sovereignty. But the form of submission and the admission of British counsel 1Oral Argument, Vol. I, p. 176. 2 Oral Argument, Vol. IT, p. 999. 3 Oral Argument, Vol. II, p. 1037. Ix INTRODUCTION must be carefully examined, because it is not to be presumed that Great Britain accepted a form of submission which limited its rights, or that British counsel in argument admitted a limitation upon British sover- eignty without impelling reason, and without a belief that the concession in each case was based upon legal principles which required such a con- cession to be made. Great Britain may have been willing to consent to a form of sub- mission which restricted it to the enactment of reasonable regulations, because, notwithstanding theories of sovereignty, there was something inherently incongruous in one party passing upon the reasonableness of regulations when two parties were really interested in the subject- matter of the regulations. Attention has already been called to this phase of the question, and it may be dismissed without further comment. It may be that the failure to regulate the exercise of the French fish- ing rights seemed to stand in the way of a claim to regulate a fishery granted in similar terms. Or perhaps the failure to regulate American fishing rights during a long period of years may have questioned the wisdom of a claim more honored in its breach than in its observance. Or finally, that certain principles of international law and practice may have suggested the advisability of putting the claim to regulate upon the lowest plane consistent with the possession and exercise of sov- ereignty. It therefore seems advisable to examine each one of these suppositions. First, as regards the similarity of the French and American fishing rights. It will be recalled that the language of the Treaty of Utrecht which guaranteed or secured to French subjects the right to dry fish within specified portions of Newfoundland and to fish in Newfoundland waters was very general. The expression used was that French sub- jects “shall be allowed” to take, dry, and cure fish! The Treaty of 1763, while confirming the article of the Treaty of Utrecht, used more precise and technical language. French subjects were henceforth to possess the right to fish within and to be excluded from certain waters which to-day would be considered the high seas, and the indefinite phrase ‘‘shall be allowed” was replaced by the technical expression “shall have the liberty of fishing and drying.” The term “liberty” was appropriate to grant a right possessed by the Crown within British jurisdiction. The Treaty of Versailles of 1783, while modifying the limits within which the liberty should be exercised and annexing to the 1Supposing that France was really sovereign of Newfoundland, the cession of the Island to Great Britain extinguished its sovereignty, and the right to fish ‘‘allowed” by Great Britain was a grant by the new sovereign, just as if Newfoundland had never belonged to France. A dos, INTRODUCTION Ixi treaty a declaration or modus vivendi, employed the term “liberty,” and the rights as recognized by the Treaty of Versailles were confirmed by the treaties of 1814 and 1815, which put an end to the Napoleonic Wars and restored the status of 1792 as respects French fishing within Newfoundland and its waters. It will be remembered that the definitive treaty of peace between Great Britain and the United States was signed at Paris on September 3, 1783, the exact date of the treaty between France and Great Britain, terminating the war between these two coun- tries, and the fishing article of the American Treaty described the right of the people of the United States to participate in the Newfoundland fish- eries in identical terms with the wholly contemporaneous and related Treaty of Versailles of 1783 between Great Britain and France. It would seem, therefore, that whatever the origin of the right or liberty, the right actually granted or secured was identical, because the language was the same and the interpretation of identical legal terms should be identical. If France possessed the right to catch, dry, and cure fish within cer- tain portions of Newfoundland jurisdiction without local regulation, it would seem that the United States should likewise possess and should have enjoyed the right to take, dry, and cure fish within the specified portions of British jurisdiction in North America without local regula- tion. If the right actually secured to France was different, or of a dif- ferent nature, a difference of terms would be justified. It is, therefore, necessary to consider whether such is the case. France maintained with great persistency that the right granted to it was exclusive. If so, the fishery became, as far as France was concerned, a French fishery, and its regulations devolved upon France, not upon Great Britain. The Brit- ish Government, on the other hand, always maintained that the French right was not exclusive, but concurrent, and that even if the French right was or was not exclusive during the summer season (approximately five months of the year), British subjects undoubtedly possessed the exclusive right to fish during the winter season (approximately seven months). Great Britain may well have claimed the right to regulate the French fishery during the summer season in order to preserve undoubted British rights during the winter. There is, however, no evi- dence of the successful assertion of this claim to be found in the records dealing with the subject. The Declaration of 1783 is often quoted as recognizing the exclusive nature of the French right, but its very name indicates that it is not a creation, but a declaration of an existent right, and the nature,and meas- ureof that right are specifically stated to be the fishing clause in the Treaty of Utrecht. France, somewhat victorious in the war concluded by the Ixii INTRODUCTION Treaty of Versailles, wished to insert the word “exclusive” in the Decla- ration, Great Britain refused and stated that if the word “exclusive” figured in the French Declaration it would be met by a counter-declara- tion of the British Government, negativing the exclusive character of the right and stating the opposite interpretation which Great Britain placed upon it! It may be said that the matter was doubtful and that Great Britain was unwilling to enforce its contention in a case of doubt; but this theory is inconsistent with the foreign policy of Great Britain, which is noted for its uncompromising statement and successful defense of its rights. It is a fact, however, that Great Britain always denied the exclusiveness of the French right, whether based upon the original treaties or the Declaration of 1783. In a carefully prepared memorandum, dated July 9, 1889, and transmitted to M. Waddington, French Ambassador to Great Britain, Lord Salisbury traces the origin of the French rights from their beginning and analyzes their nature, in the course of which memorandum he says that ‘‘the views expressed in Lord Salisbury’s note to M. Waddington, of the 24th August, 1887, are in accord with the general principles laid down in that note [Lord Palmerston’s note of July 10, 1838, quoted on page xxi], and with the position constantly maintained by Her Majesty’s Government, that the French had not an exclusive right of fishery under the Treaty engagements, and that the British have never given up their right to a concurrent fishery, although in exercising their right they are not to interrupt French fishermen. “Tt is difficult to understand how it can be supposed that such a contention has now been advanced for the first time, whereas it has formed the basis of all action and argument on the part of Her Majesty’s Government for the last 120 years.” ? In view of this clear statement Great Britain would seem to be estopped from maintaining that American fishing rights differ from the French in that the latter were exclusive and from justifying a difference of treatment due to the doubtful nature of the French right. If the French fishing rights were not exclusive they were, so far as Great Britain is concerned, concurrent. The American fishing rights were frankly concurrent, and the United States never claimed an exclu- sive right. Not only was the British attitude made clear to France, but no recognition of exclusiveness was indicated by the Convention of 1818, because the French shore extended to Cape Ray, the extreme southern point of the southwestern shore of Newfoundland, and the Convention 1 See Lord Salisbury’s memorandum, enclosed in his note, dated July 9, 1889, to M. Wad- dington. Appendix, U.S. Case, Vol. II, pp. 1093-1094. ? Appendix, U. S. Case, Vol. II, p. 1095. INTRODUCTION lxiii granted to the United States “the liberty to take fish of every kind .. . on the western and northern coast of Newfoundland from the said Cape Ray, to the Quirpon Islands.” Great Britain thus granted to the United States the liberty to fish “in common with the subjects of His Britannic Majesty” within waters over which France claimed an exclusive right. It seems almost superfluous to add that Great Britain could not convey a right which it did not possess, and an attempt to do so would be an act of bad faith, with which it is unnecessary to charge a great and honorable nation. It is, therefore, clear beyond doubt that, so far as Great Britain is concerned, France did not possess an exclusive right to fish within Newfoundland waters, and if that be so, the French right and the American right were identical in the sense that British subjects retained a concurrent right within the treaty waters. Assuming, there- fore, that the French right was not exclusive, but concurrent, and that it was limited to the summer months, leaving the balance of the year to the exclusive enjoyment of British subjects, so far as France is con- cerned, it is a matter of history that Great Britain did not regulate the exercise of French fishing rights secured to French subjects within the treaty waters of Newfoundland, and it is fair to presume that Great Britain’s failure to‘ regulate French fishermen in the exercise of their calling was due, not to any sense of fear, but rather to the fact that inter- national law did not permit Great Britain to regulate the exercise of the French Treaty rights. In support of the statement that Great Britain did not regulate French fishing rights within Newfoundland waters, attention is called to the solemn statement of Lord Salisbury to the French government in 1887 that the local act of Newfoundland establishing a closed season of three years in Bonne Bay in the French Treaty waters did not apply to French fishermen. The tribunal did not specify a single example of British regulation of French Treaty rights, and it is, therefore, safe to assume that the American contention that none such were to be found is strictly accurate. If American fishing rights were identical with French fishing rights, it is difficult to see why one could be regulated, whereas unbroken practice shows that the other was not.! 1“Tt is an elementary rule of international law that the sovereign power alone exercises authority within its own territory. Whatever rights France may have had on the Newfound- land treaty shore they must be carried out under English supervision and control; neither France nor any other foreign power can exercise coercitive jurisdiction in English territory. It will appear strange to many English readers, but it is nevertheless true, that England has never maintained this principle until the last few years. Lord Salisbury was the first English minister to put his foot down firmly and declare that no French officer would be permitted to seize English boats, cut English nets, or to drive English fishermen out of their own harbours.” (Prowse, History of Newfoundland, p. 355. 1895.) The paragraph quoted from Judge Prowse states the fact; the following extracts from lxiv INTRODUCTION But admitting that the terms of the grant are identical, it may never- theless be that they are accompanied by words of limitation which differentiate otherwise identical rights. Great Britain contended that the phrase “‘in common with the subjects of His Britannic Majesty” was such a limitation, and it is necessary to examine whether this con- tention be well founded, because if it is, then the argument of identity of right, with its consequent identity of interpretation, falls to the ground. The expression “in common” does not occur in the definitive treaty of peace of 1783 between Great Britain and the United States. It appears for the first time in the Convention of 1818, upon the propo- sition of the British negotiators. It is fair to assume that the com- missioners had some reason for its insertion, but as the official report to their government has never been disclosed, not even to the Tri- bunal charged with the interpretation of the convention, the motive must be sought in the language of the treaty and the attending circum- stances. It is to be assumed that the American negotiators, Messrs. Gallatin and Rush, the former of whom was an astute and seasoned diplomat, failed to discover anything in it prejudicial to their country. Otherwise they would have resisted its insertion. From the American point of view it is as easy to account for its absence from the Treaty of 1783 as for its presence in the Convention of 1818. The Treaty of 1783 presupposed in British fishermen the right to use Newfoundland waters,! and the negation of an exclusive character did not affect the original grant of 1783, which the American negotiators of the Convention of 1818 were endeavoring to preserve. There is,. however, good reason why Great Britain should wish the insertion of the clause, because the French treaties were interpreted by France as conveying an exclusive right, and the Treaty of 1783, signed on the same day with the Ameri- can Treaty, was interpreted by France as exclusive. It was the part French sources furnish a reason for the admitted fact. Thus, de Vergennes writing on Sep- tember 25, 1779, to Luzerne, French Minister to the United States, says: “We must carefully distinguish what the jurists call jus in re and jus ad rem; that the jus in re with respect to the fisheries belongs only to England and France in the district assigned to them by the Treaty of Utrecht and the Treaty of Paris.” (Doniol, Histoire de la participa- tion de la France 4 l’établissement des Etats-Unis d’Amérique, Vol. IV, p. 358.) M. Daubigny, after examining French rights in Newfoundland, says: “It results from the Treaty of Paris and the negotiations which followed it, the Treaty of Versailles, the peace of 1814 which confirmed article 13 of the Treaty of Utrecht, that the fishery right belonging to France is an incontestable, absolute, and sovereign tight. It is by virtue of this absolute and sovereign right that France has always maintained and still main- tains for its sailors the right to take all kinds of fish, to regulate their right to fish, and exercises the right o eg in the fishery.” (Choiseul et la France d’outre-mer aprés le Traité de Paris, P. 333. (1892. 1 “And also that the inhabitants of the United States shall have liberty to take fish of every kind on such part of the coast of Newfoundland as British fishermen shall use.” (Article III.) INTRODUCTION lxv of wisdom to preclude the possibility of such a controversy, especially in a convention to settle disputes which had arisen between Great Britain and the United States. The phrase “in common with the subjects of His Britannic Majesty” did not occur in any of the original drafts of the article. It made its appearance in the British proposal at the Seventh Conference, October 13, 1818, and appears to have been accepted without discussion. The article as thus drafted was formally agreed to at the next conference, held on October 19, 1818, and was signed by the British and American commissioners on the following day (October 20, 1818). It has been said that Mr. Gallatin was an astute and seasoned diplo- mat. He was not, however, a lawyer, and the impairment of American rights lurking in the phrase “in common” may have escaped the lay-. man. But then the British commissioners, Messrs. Robinson and Goul- burn, were not lawyers. They were honorable men of affairs and had honorable careers, Mr. Robinson (Lord Goderich) becoming Prime Minis- ter of Great Britain and Mr. Goulburn Chancellor of the Exchequer. It may be that they were advised by counsel to propose the phrase, without indicating its meaning or importance, and to insist upon its incorporation in the finished instrument. But such action would savor of sharp prac- tice inconsistent with their subsequent careers. Mr. Rush, however, was a lawyer, and a distinguished one, for he had been Attorney-General of the United States from 1814 to 1817, and as Acting Secretary of State before his mission to England he had experience in diplomatic affairs and had conducted negotiations concerning the fisheries. Mr. Rush . was, therefore, technically qualified to gauge accurately the meaning of the phrase “in common,” and as he, like his colleagues, was an honorable man, it is impossible to believe that he either betrayed or was negligent of his country’s interest.1_ In the absence of the British report the mean- ing and purpose of the clause is a matter of conjecture. But Great Britain subsequently maintained and insisted at the arbitration that the phrase “‘in common” not merely negatived exclusiveness, but placed American and British fishermen upon a like footing and subjected both to local regulations. The Tribunal accepted the British contention, stat- ing that “these words are such as would naturally suggest themselves to the negotiators of 1818 if their intention had been to express a com- mon subjection to regulation, as well as a common right.” That is to say, whether the French right was concurrent or not, and even although ' 1Had Gallatin or Rush been even suspected of surrendering American rights, Gallatin would not have been retained in the service, and Rush would not have been appointed Secretary of the Treasury in 1825 by the stickler for American fishery rights, John Quincy Adams. Ixvi INTRODUCTION the exercise of that right was unregulated the finding of the Tribunal that the words “in common” subjected American fishermen to regula- tion rejects the identity, destroys the analogy, and invalidates the con- clusions sought to be drawn from both. Indeed the finding of the Tribunal on this point renders discussion of the French Treaty right useless and the supposed consequences based upon principles of law applicable to the French Treaty rights irrelevant. It has been intimated that the attitude of Great Britain toward the regulation of American fishing rights within Newfoundland waters was such as to suggest that the claim to regulate was placed upon the lowest ground consistent with the maintenance and exercise of sovereignty. It therefore appears necessary to examine what regulation of American fishing rights was attempted from the conclusion of the Convention of 1818 down to the negotiations which led to the formulation and sub- mission of the issues between the two governments. In the correspond- ence passing between Lord Salisbury and Mr. Evarts it was stated that the laws in force at the time of the Treaty of Washington (May 8, 1871), (the terms of which, so far as the additional fishing grounds granted for ten years by this Treaty are concerned, are identical with the Conven- tion of 1818) were binding upon the United States, because the grantee acquired rights as defined and limited at the time of the grant, and it was laid down by Lord Salisbury as a fundamental principle that the rights secured by the Treaty of 1871 could not be modified by sub- sequent municipal legislation. It is true that Lord Salisbury’s suc- cessor, Lord Granville, took the broader ground that municipal laws regulating the fishery would be binding upon American fishermen in so far as such regulations were not inconsistent with the terms of the grant. It will facilitate the discussion of the subject to ascertain what laws were in effect in the year 1818 respecting the Newfoundland fish- eries and its exercise, because the statement of Lord Salisbury may be regarded as a statement of general principle applicable to the construc- tion of treaties in general and as an admission of the limitation which the treaty placed upon future action of the grantor. In 1906 Lord Elgin stated, on behalf of the British government, that the only laws regulating the fishery which were in effect in the year 1818 and which, according to Lord Salisbury, were binding upon the United States were the following. 1 Although France was not a party to the arbitration, the Tribunal felt itself justified in passing upon the nature of the French right, saying, ‘the French right, designated in 1713 merely ‘an allowance’ (a term of even less force than that used in regard to the American fisheries), was neverthless converted, in practice, into an exclusive right.” Appendix, p. 495; Oral Argument, p. 1439. INTRODUCTION Ixvii “Light dues were presumably not levied in 1818, seines were apparently in use, the prohibition of Sunday fishing had been abolished in 1776 (see 15 George III, Chap. 31), and fishing-ships were exempted from entering at Custom-house, and required only to make report on first arrival and on clearing (see same Act). United States vessels could, on the basis of the status quo in 1818, only be asked to make report at custom-house on arrival and on clearing.”’! Admitting Lord Salisbury’s statement to be correct it would follow that American fishing vessels would only be required to report at custom- houses on arrival and on clearing, that light dues could not be exacted, and that seines might be used. In other words, the manner of fishing was unregulated so far as light dues and seines were concerned, and the manner was only regulated in the requirements of the customs service, and that to a very limited extent. The prohibition of Sunday fishing had been repealed and the time of fishing was unregulated. It may he said that existing legislation is hinding per se upon American fishermen, and that the local sovereign could enact future legislation subject to the protests of the United States; but the language of Lord Salisbury’s dispatch would seem to deprive the local sovereign of the right to pass such legislation, because, speaking for his government, he stated as Secretary of State that Her Majesty’s Government “have always admitted the incompetence of the Colonial or the imperial legislature to limit by subsequent legislation the advantages secured by Treaty to the subjects of another power.’’? It would seem that this passage draws a clear distinction between legislation, however reasonable, which the grantor may pass, the reason- ableness of which may be corrected by diplomatic protest, and legisla- tion which the grantor is incompetent to pass, because in the first case the grantor is responsible for an unreasonable exercise of an existing power, whereas in the second case the power itself does not exist, and therefore the legislation is, as far as the grantee is concerned, null and void. Its nullity may indeed be questioned by diplomatic protest, but the nullity arises not from the protest, but from the lack of power to enact legislation. It may be said that the correspondence referred to the Treaty of Washington, not to the Convention of 1818, but the terms of the grant of the Treaty of Washington of 1871, in so far as fishing rights were concerned, were identical with the grant of 1818. For example, the Convention of 1818 granted the liberty, within specified limits, to the inhabitants of the United States, to take fish “in common with the subjects of His Britannic Majesty.” The Treaty of 1871 pro- 1 Lord Elgin’s telegram to Governor MacGregor, dated August 8, 1906. (Appendix, U. S. Case, Vol. II, p. 987.) 2 Lord Salisbury’s note, dated April 3, 1880, to Mr. Hoppin. (Appendix, p. 431; Appen- dix, British Case, p. 278; Appendix, U. S. Case, p. 683.) Ixviii INTRODUCTION vided that “the inhabitants of the United States shall have, in common with the subjects of Her Britannic Majesty, the liberty” to take fish, for a term of years and within the regions not specified by the Conven- tion of 1818. There is indeed one difference which strengthens rather than weakens the present contention, because, by the Convention of 1818, the liberty was.to be enjoyed forever, whereas, under the Treaty of 1871, for a period of ten years. (Articles XVIII and XXXIII.) It is familiar doctrine that like terms in like subject-matter should have a like interpretation. Bearing in mind this fundamental canon of interpretation, it is advis- able to pass briefly in review the two treaties between Great Britain and the United States dealing with the fishery question, in which the terms of the grant were identical with the Convention of 1818, in order to ascertain the understanding placed by both parties upon them in the matter of fishing regulations. The two treaties in question are the Reciprocity Treaty of 1854 and the Treaty of Washington of 1871. The Reciprocity Treaty of 1854 will first be considered. The Convention of 1818 was unaffected by subsequent agreements, for the desire of the United States was to obtain a participation in the fisheries not granted by the Convention of 1818. The Reciprocity Treaty, therefore, was additional to and supplemented the right acquired or recognized by the Convention of 1818. It is frequently asserted that the term “right” is less extensive than the term “liberty,” and a great portion of the argument before the Tribunal dealt with the supposed distinction. The parties, however, have uniformly considered “right” and “liberty” as synonymous, and the preamble to the Reciprocity Treaty of 1854 speaks of the liberty of 1818 as “the right of fishing on the coasts of British North America.” It will be recalled that John Adams, one of the negotiators of the Treaty of 1783, considered “right” and “liberty” as synonymous and thought it unnecessary to contend for a word, and the two governments have used the two words inter- changeably. The important passage for present consideration is the wording of the grant, which was that “inhabitants of the United States shall have, in common with the subjects of Her Britannic Majesty, the liberty to take fish of every kind, except shell-fish [on the non-treaty coast], provided that, in so doing, they do not interfere with the rights of private prop- erty, or with British fishermen, in the peaceable use of any part of the. said coast in their occupancy for the same purpose.” If Lord Salisbury’s canon of interpretation be correct, it would follow that the United States INTRODUCTION Ixix did not take the additional liberty of 1854, subject to future local regu- lations inconsistent with the terms of the grant, because the local sover- eign was “incompetent” to enact any such regulations affecting the inhabitants of the United States in their prosecution of the newly granted fishery. It appears that the Department of State was unfamiliar with the local regulations in effect at the time of the treaty and that Mr. Crampton, British Minister at Washington, called the attention of Mr. Marcy, then Secretary of State, to the existence of certain local acts and regulations. These were examined by Mr. Marcy, who, in a cir- cular issued on March 28, 1856, considered them reasonable and, there- fore, binding upon the inhabitants of the United States fishing within the regions and territories opened to American fishermen by the Treaty of 1854. It will be noted that the matter involved was the Reciprocity Treaty of 1854, not the Convention of 1818, and that the Marcy Circular was prepared for the information and guidance of American fishermen availing themselves of the new grant. The Marcy Circular in its final form is not only of importance as expressing the American conception of the rights and duties of American fishermen under the Reciprocity Treaty of 1854, but it has had the good fortune to meet with the commendation of Lord Salisbury and the Brit- ish Government and was relied upon by British counsel in the argument before the Tribunal as a correct statement of the status of American fishermen within British jurisdiction.! The circular in question went through several forms, owing to the fact that the original draft was unsatisfactory to the British Minister, and Mr. Marcy, taking note of the objections made to his proposed cir- cular, was unwilling to modify it in the manner proposed by the British Minister. The completed document was not wholly satisfactory to the British Minister, but it contained the final concessions which Mr. Marcy was willing to make. The circular is as follows: “It is understood that there are certain Acts of the British North American Colonial legislatures, and also, perhaps, Executive Regulations, intended to prevent the wanton destruction of the fish which frequent the coasts of the Colonies, and injuries to the fishing thereon. It is deemed reasonable and desirable that both the United States and British fishermen should pay a like respect to such laws and regulations, which are designed to preserve and increase the productiveness of the fisheries on those coasts. Such being the object of these laws and regulations, the observance of them is enjoined upon the citizens of the United States in like manner as they are observed 1 Lord Salisbury’s note, dated April 3, 1880, to Mr. Hoppin. (Appendix, p. 431; Appen- dix, British Case, p. 278; Appendix, U. S. Case, p. 683.) Sir Robert Finlay said that the circular “contains an express statement in the clearest terms of the doctrine for which Great Britain is now contending before this Tribunal.’”’ (Oral Argument, Vol. I, p. 112.) xx INTRODUCTION by British subjects. By granting the mutual use of the inshore fisheries neither party has yielded its rights to civil jurisdiction over a marine league along its coasts. “Tts laws are as obligatory upon the citizens or subjects of the other as upon its own. The laws of the British Provinces not in conflict with the provisions of the Reciprocity Treaty would be as binding upon the citizens of the United States within that jurisdiction as upon British subjects. Should they be so framed or executed as to make any discrimination in favor of the British fishermen, or to impair the rights secured to American fishermen by that Treaty, those injuriously affected by them will appeal to this Government for redress. “In presenting complaints of this kind, should there be cause for doing so, they are requested to furnish the Department of State with a copy of the law or regulation which is alleged injuriously to affect their rights or to make an unfair discrimination between the fishermen of the respective countries, or with a statement of any supposed grievance in the execution of such law or regulation, in order that the matter may be arranged by the two governments. “You will make this direction known to the masters of such fishing vessels as belong to your port in such a manner as you may deem most advisable.” ! It will be noted that the circular refers exclusively to that part of the coast, not covered by the Convention of 1818, which, as previously stated, was opened up to American fishermen by the Reciprocity Treaty of 1854, and the acts and executive regulations referred to in the circular and appended to it are existing, not prospective. Mr. Marcy says generally that the acts and executive regulations are intended to prevent the destruction of fish, and that it is both reasonable and desirable that American and British fishermen “should pay a like respect to such laws and regulations, which are designed to preserve and increase the produc- tiveness of the fisheries on those coasts,” and as such is the object of the laws and regulations in question “‘the observance of them is enjoined upon the citizens of the United States in like manner as they are observed by British subjects.” That is to say, existing legislation designed to preserve and increase the productiveness of the fishery is binding upon all fishermen. In the next place Mr. Marcy states in general terms that each contracting party possesses the right which it has not yielded “to civil jurisdiction over a marine league along its coast,” and that its laws bind all alike. By way of illustration Mr. Marcy next states that the laws of the British provinces not in conflict with the provisions of the Reciprocity Treaty would be as binding on the citizens of the United States within that jurisdiction as upon British subjects. That is to say, existing laws not in conflict with the Reciprocity Treaty bind Briton and American alike. If they are in conflict, however, the treaty would suspend the 1 Appendix, p. 478; Appendix, British Case, p. 209. INTRODUCTION Ixxi law as far as the United States is concerned, because it is a settled prin- ciple of American jurisprudence that a treaty as the law of the land annuls inconsistent provisions of local legislation. Future laws con- sistent with the provisions of the Reciprocity Treaty would be valid and binding, because “neither party has yielded its right to civil juris- diction over a marine league along its coast.” It is presumed that the legislature acts within its power, and all doubts on this point should be decided, not by the fishermen on the spot, but by their government on appeal, and any law or regulation will be objectionable if-in fact or in execution it discriminates in favor of British fishermen, or if it impairs the right secured to American fishermen by the Reciprocity Treaty. The treaty is the measure of the right. Legislation inconsistent with the treaty is without effect, but this matter is to be determined by the diplomatic intervention of the United States, not by action of American fishermen alleging an injury to their fishing rights. Such is the Ameri- can interpretation of the Marcy Circular, and it would seem that this interpretation is neither false nor strained. The British interpretation, on the contrary, regards the circular as an admission that American fishermen frequenting British waters are subjected to local legislation (for which under Lord Salisbury’s interpre- tation an express clause would be necessary for future legislation), and that the local sovereign retaining “‘its right to civil jurisdiction over a marine league along its coast”? might regulate the fishery, provided such regulation be not inconsistent with the terms of the treaty. Should it, however, be inconsistent with the treaty, the question is one for diplo- matic negotiation between the two countries, with the presumption in favor of the reserved right of Great Britain as local sovereign, provided the regulations do not discriminate in favor of British fishermen. In other words, equality under the treaty is the test and, if equality be preserved, the regulation is effective even though it be not consented to by the American Government. The matter is not free from doubt, and if the British interpretation is correct, the circular is an admission against American interests, just as Lord Salisbury’s admissions under the Treaty of 1871 are admissions against Great Britain. The Reciprocity Treaty was terminated by the United States in 1866 and, from 1866 until the Treaty of Washington in 1871, the Convention of 1818 was the measure of American fishing rights in British American waters. In the interval between the abroga- tion of the Reciprocity Treaty of 1854 and the Treaty of Washington, Mr. Boutwell, Secretary of the Treasury, issued a circular to inform American fishermen of their rights and duties in Canadian waters. In S Ixxii INTRODUCTION the amended circular of June 9, 1870, Mr. Boutwell, after reciting the provisions of the Convention of 1818, stated: “Fishermen of the United States are bound to respect the British laws and regu- lations and preservation of the fisheries to the same extent to which they are appli- cable to British or Canadian fishermen.’’? American counsel confined this circular to the non-treaty waters and did not see in it an admission of local regulation and control. British counsel viewed it as a general warning to American fishermen and re- garded it as an admission against interest and as inconsistent with the American contention. If the American interpretation of the circular is correct, there is no admission; if, on the contrary, the British interpretation is correct, the circular is a serious admission. In this latter point of view the circular is inconsistent with the attitude of the United States, as shown in the correspondence arising out of the Fortune Bay incident, conducted by the duly authorized mouthpieces of foreign affairs, Mr. Evarts, Secre- tary of State, and Lord Salisbury, Secretary of State for Foreign Affairs, which will presently be discussed at length and in detail. By the Treaty of May 8, 1871, the Alabama Claims were submitted to arbitration and advantage was taken of these negotiations to insert a reciprocal clause in the treaty, by which American citizens were to be admitted to the fishing grounds renounced by the Convention of 1818 and British sub- jects admitted to the American fisheries. This subject was dealt with in Article XVIII, the material portions of which follow: “Tt is agreed by the High Contracting Parties that . . . the inhabitants of the United States shall have in common with the subjects of Her Britannic Majesty, the liberty . . . to take fish of every kind, except shell-fish (for a period of ten years); 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 coasts in their occupancy for the same purpose.” It was asserted by the British but not admitted by the American negotiators that the British were more profitable than the Ameri- can waters (Article XXII), and an arbitration was provided for to determine “the amount of any compensation which . . . ought to be paid by the Government of the United States to the Government of Her Britannic Majesty in return for the privileges accorded to the citi- zens of the United States under Article XVIII of this Treaty.” (Article XXII, Treaty of 1871.) Article XVIII is substantially identical with the first article of the Reciprocity Treaty of 1854, and the terms of both identical with the 1 Appendix, pp. 479, 480; Appendix, British Case, p. 249. INTRODUCTION Ixxiii Convention of 1818; namely, that “the inhabitants of the United States shall have, in common with the subjects of His Britannic Majesty, the liberty” for the term of ten years “to take fish of every kind, except shell-fish.” Article XXXII, substantially a reproduction of Article VI of the Reciprocity Treaty of 1854, extended the treaty to Newfoundland. As, however, the terms of this article are important and gave rise to an interpretation on the part of the United States of the right of local regulation it is quoted in full: “Article XXXII. It is further agreed that the provisions and stipulations of Articles XVII to XXV of this Treaty, inclusive, shall extend to the Colony of New- foundland, so far as they are applicable. But if the Imperial Parliament, the Legis- lature of Newfoundland, or the Congress of the United States, shall not embrace the Colony of Newfoundland in their laws enacted for carrying the foregoing Articles into effect, then this Article shall be of no effect; but the omission to make provision by law to give it effect, by either of the legislative bodies aforesaid, shall not in any way impair any other Article of this Treaty.” ! The United States was willing to include Newfoundland in the terms of the treaty, and Newfoundland was willing to become a party to its terms. The Newfoundland Legislature, however, in acceding to the treaty, enacted that ‘“‘all Laws of this Colony which opetate to prevent the said Articles from taking full effect, shall, so far as they so operate, be suspended and have no effect during the period mentioned in the Article numbered Thirty-three in the Schedule to this Act: Provided that such laws, rules and regulations relating to the time and manner of prose- cuting the Fisheries on the coasts of this Island, shall not be in any way affected by such suspension.” ? On Lord Salisbury’s theory that existing legislation would bind the parties to the treaty, unless specifically excluded, all existing rules and regulations relating to the time and manner of prosecuting the fisheries in Newfoundland waters would bind American fishermen in such waters. “It was explained by the British Government that there were but two Newfoundland laws regulating “the time and manner of prose- cuting the fisheries”; namely, the statutes of 1860 and 1862 regulating “the contrivances for taking herring and salmon and the method and time for using these contrivances.” * The United States, however, was unwilling to extend to Newfound- land the provisions of the Treaty of Washington, subject to existing rules and regulations affecting the time and manner of prosecuting the 1“This article terminated July 1, 1885, on notice by United States.’ (Malloy’s Treaties and Conventions, Vol. I, p. 713.) 2 Appendix, British Case, p. 706. Appendix, U. S. Counter Case, p. 86. 3 Appendix, U. S. Counter Case, p. 197. lxxiv INTRODUCTION fisheries. When the Act of Newfoundland was transmitted by the British Minister to Secretary Fish, he called attention to the fact that the suspension of Newfoundland laws was qualified, and that “the pro- viso referred to contemplates a restriction, in point of time, of the herring fisheries on the western coast of the island.” Mr. Fish evidently believed that a right to regulate would not arise by implication, but solely from the express provisions of the treaty. “JT regret, therefore, that the Act of the Legislature of Newfoundland, which re- serves a right to restrict the American right of fishing, within certain periods of the year, does not appear to be such consent on the part of the Colony of Newfoundland to the application of the stipulations and provisions of Articles 18 to 25 of the Treaty.” } He, therefore, considered the Newfoundland Act unacceptable by reason of the reservation, and refused, on behalf of the United States, to extend to Newfoundland the provisions of the Treaty of Washington, unless the act was amended by the omission of the right to regulate the time and manner of prosecuting the fisheries within Newfoundland waters. After much discussion Newfoundland yielded to Secretary Fish’s objections, eliminated the unacceptable proviso, and added the words “any law of this Colony to the contrary notwithstanding.” ? If it be borne in mind that the terms of the grant of the Treaty of 1871 and the Convention of 1818 were identical, the importance of Mr. Fish’s interpretation of the Treaty of 1871 becomes at once evident. For if the Treaty of 1871 did not give Newfoundland the right to regu- late the time and manner of fishing, it is difficult to see how the Conven- tion of 1818 gave this right, and if the United States was not to be bound by existing legislation, regulating the time and manner of fishing, @ for- tiori, it was not to be affected by future legislation to which it did not consent. The transaction is not merely important as an expression of the American view of the status created by the grant of 1871 and of 1818, but the action of Newfoundland, in modifying existing legislation under pressure from the United States, taxed Great Britain and New- foundland with knowledge of the American view that the fisheries under the Treaty of 1871 were not to be regulated so far as the United States was concerned without its consent, and the modified statute of New- foundland must be considered as a concession to, if not an acceptance of, this view. The modified act being thus unobjectionable, Newfound- land was admitted under proclamation to the benefit of the treaty. Further light is thrown upon the subject by the Halifax award of 1877 provided for by Article XXII just quoted of the Treaty of 1 Appendix, U. S. Counter Case, p. 196. ? Appendix, British Case, p. 706, INTRODUCTION xxv 1871 and the discussion to which it gave rise. Great Britain main- tained that the liberty granted to the United States to fish within British waters additional to the Convention of 1818 was much more valuable to the United States than the liberty granted to British subjects to fish in American waters, and Article XXII of the Treaty of Washington provided for the appointment of a commission to determine the differ- ence in value between the liberties and assess the sum of money which the United States should pay to Great Britain. The commission met at Halifax in 1877 and awarded the sum of $5,500,000 to Great Britain. Concluded for a period of ten years, the Treaty of 1871 was to remain in effect for two years after its denunciation by either party at the expi- ration of ten years, so that the American fishermen were to possess the right to fish within Newfoundland waters granted by the treaty and to use the land to dry the catch for a period of twelve years. The award of $5,500,000 was calculated upon the benefit which the Treaty of Washington gave to the citizens of the United States in excess of the benefits enjoyed by British subjects by virtue of the treaty, and in reaching the award, the annual value of the privileges granted to American fishermen was determined and multiplied by twelve. It is obvious that local regulations during the life of the treaty but after the date of the award (1877) might have decreased the value of the fisheries. It is fair to assume that the commission regarded the rights and privi- leges under the treaty as not subject to change, as otherwise their award would have been manifestly unjust. The incident of Fortune Bay and the correspondence between Great Britain and the United States in regard to it brought into clear light the British and American views regarding the interpretation of the Treaty of Washington, the terms of which were similar, as admitted in the correspondence, to the terms of the Convention of 1818, and the incident therefore serves as an interpretation of the Convention of 1818, On Sunday, January 6, 1878, some twenty-two American fishing vessels were within Fortune Bay, a region covered by the Treaty of Washington, but not covered by the Convention of 1818. It appears that a school of herring had entered the bay and that the American vessels proceeded to catch the fish by means of seines. They were interrupted in their fishery and prevented from fishing by mob violence, 1 For the organization of the Halifax Commission, its proceedings, the nature and extent of the claims presented and the award, see Moore, “International Arbitrations to which the United States has been a Party.” (Vol. I, pp. 703-753.) Ixxvi INTRODUCTION so that the American vessels were wholly deprived of the catch. The British Government maintained that the action of the Americans was illegal, for three reasons: First, that the Americans used seines for catching herring in direct violation of the law of Newfoundland of the year of 1862, which pro- vided that “no person shall haul or take herring by or in a seine or other such contrivance on or near any part of the coast of this colony or of its dependencies, or in any of the bays, harbors, or other places therein, at any time between the 2oth day of October and the 25th of April.” Second, that the American fishing vessels in fishing on Sunday vio- lated Section 4, Chapter 7, of an act passed April 26, 1876, which pro- vided that : “no person shall, between the hours of twelve o’clock on Saturday night and twelve o’clock on Sunday night, haul or take any herring, caplin or squid, with net, seines, bunts, or any such contrivance for the purpose of such hauling or taking.” And — Third, that American fishermen were barring fishin violation of a New- foundland statute of the year 1862 which forbade the barring of herring.! It will be noticed that two out of the three transactions concerned the manner of fishing, and were a violation of local statutes of the year 1862; that is to say, of local statutes in existence at the date of the Treaty of Washington, and that the third violation related to the time of taking fish, namely, Sunday, in contravention of a local statute not in existence when the treaty was concluded but passed subsequently, in the year 1876. It will be recalled that the United States refused to extend the pro- visions of the Treaty of Washington to Newfoundland, because in adher- ing to the treaty Newfoundland provided that “rules and regulations as to the time and manner of prosecuting the fishery on the coast of this Island shall not be in any way affected by such suspension”; that Mr. Fish, as Secretary of State, objected specifically to the non-suspension of regulations relating to the time and manner, and that as a result of discussion the Newfoundland act of adherence omitted the objection- able passage and strengthened the suspension clause by the words “any law of this Colony to the contrary notwithstanding.” It would seem, * therefore, that local regulations regarding the time and manner of fish- ing, although in existence at the date of the treaty, were not applicable to American fishermen. The prohibition of Sunday fishing was a regu- lation affecting the time, and would seem to be covered by Mr. Fish’s general objection, but the statute in question was subsequent to the treaty and, therefore, was doubly objectionable, because it was not in 1 Appendix, pp. 416, 417; Appendix, U. S. Case, p. 652; Appendix, British Case, p. 268. INTRODUCTION Ixxvii existence at the time of the conclusion of the treaty and the obligation to observe it was not assumed, and because of Lord Salisbury’s state- ment that the Colonial Legislature was incompetent (to pass legislation subsequent to the treaty in violation of its terms) would render the prohibition inapplicable to American fishermen without the consent of the United States. The American view is clearly put in Mr. Evarts’ correspondence, as appears from the following extracts: “This Government conceives that the fishery rights of the United States, con- ceded by the Treaty of Washington, are to be exercised wholly free from the restraints and regulations of the Statutes of Newfoundland, now set up as authority over our fishermen, and from any other regulations of fishing now in force or that may hereafter be enacted by that government. “Tt may be said that a just participation in this common fishery by the two parties entitled thereto may, in the common interest of preserving the fishery and preventing conflicts between the fishermen, require regulation by some competent authority. This may be conceded. But should such occasion present itself to the common appre- ciation of the two Governments, it need not be said that such competent authority can only be found in a joint convention that shall receive the approval of Her Majesty’s Government and our own. Until this arrangement shall be consummated, this Gov- ernment must regard the pretension that the legislation of Newfoundland can regulate our fishermen’s enjoyment of the treaty right as striking at the treaty itself. “It asserts an authority on one side, and a submission on the other, which has not been proposed to us by Her Majesty’s Government, and has not been accepted by this Government. I cannot doubt that Lord Salisbury will agree that the insertion of any such element in the Treaty of Washington would never have been accepted by this Government, if it could reasonably be thought possible that it could have been proposed by Her Majesty’s Government. The insertion of any such proposition by construction now is equally at variance with the views of this Government.” } The evidence submitted by the British Government before the Hali- fax Commission proved that the United States had used the nets and other instrumentalities forbidden by local statutes of 1862 and that the increased value of the catch by means of such instrumentalities swelled the amount of the award. Mr. Evarts, therefore, held that Great Britain was estopped from denying the right of Americans to fish in a manner and at a time which they had purchased by the Treaty of 1871 and paid for by the Halifax award. It is also evident that as the award included twelve years, not merely the fractions of time between the going into effect of the treaty and the Halifax award of 1877, it presupposed the right of American fishermen to continue to take fish during the future as in the past. Otherwise the United States would have paid the full price for a free fishery, although subject to be deprived 1Sept. 28, 1878. Mr. Evarts to Mr. Welsh, Appendix, p. 416; Appendix, U. S. Case, Vol. II, p. 652. Ixxviii INTRODUCTION of its beneficial enjoyment by local statute. The interpretation of the British Government was, therefore, in fact the same as the American interpretation in law, and after much correspondence the British Govern- ment paid an indemnity to the United States of $75,000 for the outrages upon American fishermen in Fortune Bay, although in so doing it was expressly stated that the payment was not to prejudice the views of either party to the controversy. The Treaty of Washington expired in 1886 and the United States was thrown back upon the Convention of 1818 as the measure of its fishing rights in British American waters. The first attempt to enforce local regulations against American fishermen under the Convention of 1818 appears only to have occurred in the year 1905, in respect to the Newfoundland Foreign Fishing Vessels Act of that year, an act which gave rise to the discussion between Mr. Root and Sir Edward Grey, which has already been set forth, and which resulted in the Arbitration of 1910. It will be seen, therefore, that the discussion of the question of local regulation, arising out of the Reciprocity Treaty of 1854 and the Treaty of Washington of 1871, was not academic and throws a strong light upon the correct interpretation of the Convention of 1818. Mr. Marcy’s Circular notifying American fishermen of the Reciprocity Treaty stated generally that they were subjected to existing local regulations which had been shown to him and which he approved. Mr. Fish’s atti- tude in 1873 negatived the right of Newfoundland to affect by local legislation American fishermen within Newfoundland waters in the man- ner and time of fishing, and made the suspension of such local legisla- tion a condition precedent upon the admission of Newfoundland to the benefits of the Treaty of Washington. Newfoundland complied with the demands of the United States in this matter by suspending the effect of local legislation, ‘any law of this Colony to the contrary not- withstanding.” Mr. Evarts as Secretary of State, in considering a con- crete case—namely, the Fortune Bay outrage— maintained that local regulations affecting the time and manner of fishing of American fisher- men under the Treaty of Washington did not bind such fishermen, and Lord Salisbury admitted, in the course of the same correspondence, that American fishermen were only subject to local legislation existing at the time of the treaty; that the colonial legislature was incompetent to pass legislation restricting or limiting the rights granted by the treaty, because British sovereignty was limited by the obligations of the treaty. It would seem, therefore, that the views of the United States were clearly determined, and formed upon mature consideration, not merely of the reasonable and necessary interpretation of the provisions of the treaty, INTRODUCTION Ixxix but by that close and thorough interpretation which results from the examination of a concrete case. It is, therefore, not improbable that Great Britain may have consented to the.form of the submission, namely, that local legislation in the matter of the manner and time should be reasonable, because of the correspondence and experience had in the interpretations of the Treaties of 1854 and 1871, which were, as has been repeatedly said, identical in terms of grant with the Convention of 1818. Finally, a suspicion or fear that the law involved favored in principle the American contention may have influenced the negotiators and must assuredly have influenced British counsel in the admission that the Treaty of 1818 was a limitation upon British sovereignty to such a degree that the question of reasonableness was.not to be determined alone by Great Britain. As the Tribunal based its judgment on the form of submission and the admission of counsel, it is necessary to examine the reasons which either did or might be supposed to influence the admissions upon which the award of the Tribunal was predicated. The United States has consistently maintained from the Treaty of Versailles of 1783 to the present arbitration that the right to take, dry, and cure fish within the British dominions of North America was more than a permission or a license; that it was a permanent right of a territorial nature, similar in its consequences to the establishment of a boundary between Great Britain and the United States, unaffected by war, sub- ject to modification and regulation by consent of the United States and to loss by renunciation or conquest. If this view be correct, the War of 1812 suspended the exercise of the right within British jurisdiction, but did not abrogate it, and the right would revive without express stip- ulation or agreement of the parties. The British Government has consistently considered the liberty to take, dry, and cure fish within British jurisdiction as a commercial privi- lege or license, temporary in its nature, subject to the vicissitudes of war, and subject likewise to British regulation in its exercise, provided that the regulation be not inconsistent with the terms of the treaty, which is admitted to be a restriction upon British sovereignty. It would prob- ably be more correct to say that Great Britain considered the Treaty of 1783 and its successor, the Convention of 1818, as a restriction upon the exercise of sovereignty rather than upon sovereignty itself, because a restriction upon the exercise would leave sovereignty intact and by virtue of the sovereign power rules and regulations might be issued even although they were inconsistent with the provisions of the treaty. The American contentions, on the contrary, regard the treaty as con- veying to the United States the right to take, dry, and cure fish, and to lxxx INTRODUCTION the extent of the right granted, Great Britain is incompetent to regulate the exercise of the right with which it has parted. In this view of the case the right to regulate would need to be reserved in order to be legal and effectually exercised, whereas, by the British contention, the right to regulate inherent in the sovereign would exist without express reser- vation, although regulations inconsistent with the treaty would con- stitute a breach, which should, however, be corrected by diplomatic protest and negotiation. The American contention was forcibly ex- pressed by Mr. Root, in his correspondence with Sir Edward Grey: “The Treaty of 1818 either declared or granted a perpetual right to the inhab- itants of the United States which is beyond the sovereign power of England to destroy or change. It is conceded that this right is, and forever must be, superior to any inconsistent exercise of sovereignty within that territory. The existence of this right’ is a qualification of British sovereignty within that territory. The limits of the rights are not to be tested by referring to the general jurisdictional powers of Great Britain in the territory, but the limits of those powers are to be tested by reference to the right as defined in the instrument creating or declaring it. . . . An appeal to the general jurisdiction of Great Britain over the territory is, therefore, a complete begging of the question, which always must be, not whether the jurisdiction of the Colony authorizes a law limiting the exercise of the Treaty right, but whether the terms of the grant authorize it.” ! And again: “The government of the United States fails to find in the Treaty any grant of right to the makers of the Colonial law to interfere at all, whether reasonably or unreason- ably, with the exercise of the American rights of fishery, or any right to determine what would be a reasonable interference with the exercise of that American right if there could be any interference.” ? The British view was forcibly stated by Sir Robert Finlay, who in his argument before the Tribunal thus commented upon this passage: “T submit that that statement contains a curious inversion of the real question. It is said that the United States fails to find any grant of a right to the colonies to interfere in any way with the American rights of fishery. The question is whether the treaty contains an abdication by Great Britain of the right which Great Britain undoubtedly possessed as the Sovereign Power, to regulate these fisheries. It is not a question of whether the United States granted to Great Britain the right to legislate with regard to the fisheries in her own territory. The question is whether Great Britain made a grant to the United States so extensive in its terms that it not merely conveyed a share in the enjoyment of the fishery, but also a share in sovereignty, by renouncing the right of Great Britain, as a Sovereign Power, to make laws within her own territory, unless she obtained the consent of a foreign Government.” ? In simplest terms the American contention was that Great Britain 1 Appendix, p. 456; Appendix, U. S. Case, p. 978; Appendix, British Case, p. 498. 2 Appendix, U. S. Case, pp. 980-983. 3 Oral Argument, Vol. I, p. 176. INTRODUCTION Ixxxi could not regulate the exercise of the right granted without a specific reservation of the power to regulate its exercise, whereas Great Britain maintained that the right to regulate the exercise of the right granted remained in the grantor unless it was specifically renounced. In the course of his oral argument, Mr. Root cited numerous commercial treaties concluded by Great Britain and the United States in order to show that when the grantor of the right wished to regulate the exercise of a right within its jurisdiction, the grantor reserved by express words the power so to regulate. The Tribunal, however, held that ‘the com- mercial treaties contemplated did not admit foreigners to all and equal rights, seeing that local legislation excluded them from many rights of importance, e.g., that of holding land; the purport of the provisions in question consequently was to preserve these discriminations;”+ that “no proof is furnished of similar exemptions of foreigners from local legislation in default of treaty stipulations subjecting them thereto;” and that “‘no such express provisions for the subjection of the nationals of either Party to local law was made . . . in this treaty. As the Treaty of 1783 and the Convention of 1818 are silent upon this point, unless the expression “in common” be interpreted to mean subjection of all fishermen to local legislation — which view the Tri- bunal adopted —it is necessary to consider whether in law or in the prac- tice of nations, freedom from local regulation in the exercise of the grant does not arise by necessary implication. Mr. Root laid before the Tri- bunal an instance of express reservation in the matter of fisheries, which not only supported the American contention, but which might well have caused its acceptance.’ Reference is made to the treaty concluded by Austria-Hungary with Italy in October, 1878, regarding the right of inhabitants of the King- dom of Italy to fish within the Dalmatian waters. Dalmatia and the northern portions of Italy had belonged to Austria, and Austrian subjects, whether residing in Italy or in Austria proper, possessed the right to fish in waters subject to Austrian jurisdiction. In this regard the situa- tion was identical with the right of the colonies to fish in Newfoundland waters, and the fishery was, it may be said in passing, a vessel fishery from a distance, because Venetia, in which the fishermen resided, was separated from Dalmatia by the waters of the Adriatic. In 1866 a partition of empire followed, because Austria conveyed to the King- dom of Italy the province of Venice, and Venetian fishermen desired to share in the fishery, which, as subjects of Austria, they had enjoyed. 14 ppendix, p. 498; Oral Argument, p. 1442. 2A ppendix, p. 499; Oral Argument, p. 1443. 3 See page 58. Ixxxii INTRODUCTION Controversies arose, to put an end to which the Treaty of 1878 was concluded, which granted to Italian subjects inhabiting the shores of the Adriatic the right to fish within Austro-Hungarian waters for a period of ten years, subjecting them, however, in the exercise of their fishery, to local regulation, as appears from the provisions of the treaty: “maintaining expressly in principle for the subjects of the country the exclusive right of fishing along the coasts, there shall be reciprocally accorded as-an exception thereto and for the duration of this Treaty . . . to Austro-Hungarian inhabitants and the Italians of the shores of the Adriatic the right to fish along the coasts of the other State, reserving therefrom, however, the coral and sponge fishery as well as the fishery within a marine mile of the coast, which is reserved exclusively to the inhab- itants of the coast. “Tt is understood that the Regulations for maritime fishery in force in the respec- tive States must be strictly observed, and especially those which forbid the fishery carried on in a manner injurious to the propagation of the species.” ! Austria-Hungary recognized, as did Great Britain, that the coast fishery may belong as of right to the adjoining country; that a right may be given to foreigners — in this case inhabitants — as in the Anglo- American Treaty, to participate in the fisheries and the terms and conditions of participation defined. Desiring Italian fishermen to be amenable to local regulation, the subjection of Italian fishermen to local regulation was specifically stated. Whether the Tribunal was or was not impressed by the analogy and the express reservation of the right to regulate does not appear, as there is ro mention of the Austro-Hungarian Treaty in the award.” To repeat, as, however, the Treaty of 1783 and the Convention of 1818 granted a liberty without specifying terms of enjoyment or reserv- ing the right of regulation, it is necessary to examine whether any prin- ciples of law exist which would, by implication, interpret the British grant as a restriction upon British sovereignty to the extent of the grant, and exempt, as contended by the United States, the exercise of fishing rights from British regulation. Counsel for the United States believed that such a principle of law exists, that it is deeply imbedded in the practice of nations, that -it is recognized by an overwhelming majority of writers on international law, that the Convention of 1818 was drawn 1 Final protocol annexed to the Treaty of Commerce and Navigation concluded De- cember 27, 1878, between Austria-Hungary and Italy, to be found in De Martens, Nouveau Recueil Général, 23 Series, Vol. 4, p. 414; Latour. Mer Territoriale, pp. 159-167 (1889). 2 Mr. Root also called particular attention to the recent Russo-Japanese Convention, con- cerning fisheries, dated July 15 (28), 1907, in which Russia and Japan expressly agreed that Japanese subjects fishing within Russian jurisdiction were to be subject to local regulations. For the text of the Convention, see Oral Argument, Vol. II, pp. 1403-1408; American Journal of International Law, 1908, Supplement, pp. 274-285. INTRODUCTION Ixxxiii up with a knowledge of the principle, and that the principle itself was expressly stated in the course of the negotiations.! Mr. Albert Gallatin, one of the negotiators of the Convention of 1818, mentions this principle of law in his supplementary report to the Secretary of State, written within a fortnight of the negotiations and while the matter was uppermost in his mind. He says, under date of November 6, 1818 (the Convention was signed on the 20th of the preceding month), speaking for his colleague, Mr. Rush, as well as for himself: “We applied those principles to fisheries which, independent of the special circum- stances of our treaty of peace of 1783, were always considered as partaking in their nature of territorial rights. . . . Although our arguments were not answered, it appeared 1 See the following references to treatises on international law, in all of which the doctrine of servitudes is recognized and treated with varying degrees of fullness and detail: Bluntschli: Das Moderne Vélkerrecht der civilisirten Staten (1868, French translation by Lardy, sth ed., 1895), Secs. 353-359, Pp. 212-215; Bonfils: Manuel de Droit International Public, sth ed. edited by Fauchille (1908), secs. 339-344, pp. 189-192; Calvo: Dictionnaire de Droit Inter- national (1885), Vol. II, pp. 214-215; idem: Droit International, sth ed. (1890), Vol. III, sec. 1583, pp. 356-357; Chrétien: Principes de Droit International Public (1893), secs. 259-263, pp. 268-273; Clauss: Die Lehre von den Staatsdienstbarkeiten (1894); Creasy: First Plat- form of International Law (1876), secs. 256-261; Despagnet: Cours de. Droit International Public, 3d ed. (1905), secs. 190-192, pp. 204-207; Diena: Principi di Diritto Internazionale (1908), pp. 125-129; Fiore: Diritto Internazionale Codificato, 4th ed. (1909), secs. 1095-1097, pp. 428-429; idem: French translation by Chrétien (1890), secs. 615-619; idem: Nouveau Droit International Public (French translation by Antoine, 1885), Vol. I, secs. 380-381, Pp. 336-338; Vol. II, secs. 829-830, pp. 116-118; Fabre: Des Servitudes dans le Droit Inter- national (1901); Gareis: Institutionen des Vélkerrechts, 2d ed. (1901), sec. 71, pp. 205-206; Hall, International Law, 5th ed. (1904), pp. 159-160; Halleck: International Law (1861), ch. IV, sec. 20, pp. 92-93; Hartmann: Institutionen des praktischen Vélkerrecht (1874), sec. 62, pp. 179-181; Heffter: Europdisches Volkerrecht der Gegenwart (1844), French edition edited by Geffcken (1883), secs. 43, 64, 67, pp. 104-108, 154, 158; Heilborn: System des Vélkerrechts (1896), pp. 30-34; Hollatz: Begriff und Wesen der Staatsservituten (1908); Holtzendorff: Handbuch des Vélkerrechts (1887), Vol. II, sec. 52, pp. 246-252; Kliiber: Droit des Gens Moderne de l'Europe (1819, cited from Ott’s 2d ed., 1874), secs 137-139, Pp. 194-198; Lomonaco: Trattato di Diritto Internazionale Pubblico (1905), p. 248; G. F. de Martens: Précis du Droit des Gens Moderne.de l'Europe, edited by Vergé (1864), Vol. I, sec. 115, pp. 313-315; F. de Martens: Traité de Droit International (French translation by Léo, 1883), Vol. I, secs. 93-95, pp. 479-491; Mérignhac: Traité de Droit International Public (1907), Vol. II, pp. 366-370; Neumann: Grundriss des heutigen Europiischen Volkerrechts, 3d ed. (1885), sec. 13, pp. 31-33; Olivart: Tratado de Derecho Internacional Publico, 4th ed. (1903), sec. 53, pp. 368-372; H. B. Oppenheim: System des Vélkerrechts, 2d ed. (1866), secs. 9-10, pp. 140-145; L. Oppenheim: International Law (1905), Vol. I, secs. 203-208, pp. 257-263; Phillimore: International Law, 3d ed. (1879), Vol. I, secs. 277-283, pp. 388-392; Piédeliévre: Précis de Droit International Public (1894), sec. 288, p. 259; Pradier-Fodéré: Traité de Droit International Public (1885), Vol. II, secs. 834-845, pp. 395-406; Rivier: Lehrbuch des Vélker- rechts, 2d ed., 1899, pp. 192-194; idem: Principes du Droit des Gens, 1896, Vol. I, sec. 23, Pp. 296-303; Taylor: International Public Law (1901), secs. 217, 252, 346, Pp. 263, 299-301, 369; Twiss: Law of Nations, 2d ed. (1884), Vol. I, sec. 245, pp. 423-424; Ullmann: Vélker- recht, 2d ed. (1908), secs. 99-100, pp. 319-324; Vattel: Droit des Gens, 1758 (Chitty’s English translation, edited by Ingraham, 1852), Bk. II, ch. 7, sec. 89, p. 168; Westlake: International Law (1904), Vol. I, pp. 60-62; Wharton: Commentaries on American Law (1884), secs. 149- 150, pp. 228-229; Wheaton: International Law (Dana’s ed., 1866), sec. 268; Wilson and Tucker: International Law, sth ed. (1909), pp. 123, 152-153. The above authorities were cited and relied upon in the Argument of the United States, P. 19, footnote a. lxxxiv INTRODUCTION to me that two considerations operated strongly against the admission of our right. That right of taking and drying fish in harbours within the exclusive jurisdiction of Great Britain, particularly on coasts now inhabited, was extremely obnoxious to her, and was considered as what the French civilians call @ servitude... . Iam satis- fied that we could have obtained additional fishing ground in exchange of the words ‘forever.’” 1 The American commissioners, for Mr. Gallatin uses the plural, con- sidered the fishing rights acquired by the Treaty of 1783, as well as the Convention of 1818, which they had just negotiated, as “partaking in their nature of territorial rights.” That is to say, the United States: was obtaining a right to enter the territory of Great Britain to enjoy a right which, without treaty, American fishermen could not claim. He calls attention to the fact that the right acquired by the Convention of 1818 was to be perpetual, not for a term of years, and he then designates the right thus acquired, territorial in its nature and perpetual in its dura- tion, as “what the French civilians call a servitude.” Taking, therefore, as our starting point, the view of the American negotiators first expressed in Mr. Gallatin’s report, it is necessary to consider the doctrine of servitude in international law, its essentials and its consequences, for Mr. Gallatin says expressly that the right obtained was a servitude.” In speaking of servitude, Professor Rivier, a recent and highly esteemed authority on international law, says: “Two sovereign States are presupposed, of which one is dominant and the other servient. The servitude consists in non faciendo, in such a manner that the servient state renounces the exercise of a determined right of sovereignty, within its territory, in favor of the entitled state, or, i patiendo, in which the entitled state exercises within the territory of the servient state a determined right of sovereignty as its own and independently of the servient state.” ® Just as the servitude of private law presupposes two estates, the international servitude presupposes two states, and by means of con- vention one state renounces the exercise of the right of sovereignty within its territory which, but for the convention, it might perform, or grants to another state the right within the territory of the grantor to exercise a sovereign right in its own behalf independently of the grantor. The private law of Rome, from which system of jurisdiction the doctrine has been taken, required that the grant should be perpetual, and the right created was real as distinct from personal, because when created, 1 Appendix, pp. 413, 414; Appendix, U. S. Counter Case, p. 619; Appendix British Case, p. 97. ? The practice of nations with numerous continental and English precedents is briefly stated in Rivier’s Principes du Droit des Gens, Vol. I, pp. 296-302. 3 Rivier, Lehrbuch des Vélkerrechts, 2d ed., p. 192. Quoted by Mr. Turner, Oral Argu- ment, Vol. I, p. 414. INTRODUCTION Ixxxv it attached to the land and followed it into whose hands soever it might pass, irrespective of the person temporarily invested with ownership of the property. The real nature of the international servitude was recognized by Lord Salisbury, who, in discussing the nature of the French right, stated in the House of Lords, that the claim of France to fishing rights in New- foundland would not be “in the slightest degree affected if they” [inhab- itants of Newfoundland] “ were now at liberty to tender their allegiance to any sovereign or state in the world. The rights of the French would attach to that part of the coast, under whatever allegiance they might rest.” } In the more elaborate treatment of servitudes in his French treatise, published in 1896, Rivier states the doctrine at very considerable length, and his views, based upon theory and the practice of nations, may be briefly summarized as follows: International servitudes are relations of state to state; they are real as distinguished from personal rights burdening the territory of one state for the benefit of another state, and pass with the territory to the successors of the servient and dominant states; they have a permanent character and are a permanent restriction of territorial sovereignty and not of independence in general; the contiguity required for servitudes of private law is not indispensable in the case of states, for sov- ereign states are none the less neighbors although distant; and finally international servitudes are to be exercised with care and consideration. It is not necessary that the right granted be exclusive in its nature, for if susceptible of use by the grantor without depriving the grantee of his right to beneficial enjoyment, use by the grantor is presumed. The servitude is a grant from one sovereign to another sovereign state, but the right so granted may be exercised by the subjects, citizens, or in- habitants of the grantee by virtue of the grant to the state, or if the grant specified the inhabitants as beneficiaries it is none the less a grant to the sovereign state for the benefit of its inhabitants. The French right, whether exclusive or not, would thus be a servi- tude, provided the other essentials were present. The expression “in common,” under the Convention of 1818, is not fatal to the existence of the servitude, because in the absence of the expression the right of the grantor to fish within Newfoundland waters would be presumed without an express statement to that effect. It is thus seen that the liberty secured by the Convention of 1818 possesses the essential characteristics 1Hansard’s Parliamentary Debates, Vol. CCCLXI, pp. 113, 114. Quoted in Mr. Turner’s Argument, Oral Argument, Vol. I, p. 347. Ixxxvi INTRODUCTION of a servitude, because, first, it is a grant from one sovereign to another sovereign state by virtue of which the grantee exercises rights which it could not otherwise exercise within the territorial jurisdiction of the grantor; second, the grant is perpetual, the Convention declaring that the liberty is to be enjoyed “forever”; third, it restricts the sovereignty of the grantor to the extent of the grant, as is evidenced by admissions of Lord Salisbury which have been frequently referred to; fourth, it is a real right as distinct from a personal obligation, in that it inheres in the land and passes to the successors of the grantor and grantee alike. In arguing on behalf of the United States, Mr. Turner expressed in the following measured language the contention of the United States and insisted that the numerous authorities which he cited establish: “First. That the international servitude is a recognized and established insti- tution in international law. “Sreconp. That an international servitude is a real right, as distinguished from a mere obligation. “Tarp. That the essential features of an international servitude are three: “t. The right must belong to a nation. ‘2. It must be a permanent right. “3. The right must be one to make the territory on one State serve the uses and purposes of another State. “Connected with this third proposition, and subsidiary to it, are the two further propositions, and these subsidiary propositions are: “7, If these three elements are present in a grant from one nation to another, the law attaches to it the character of an international servitude. The term servitude is avoided in most treaties, and any expression implying a derogation of sovereignty is avoided. Whether there is or is not a servitude is made to depend on the essential character of the right granted. “9, While the right must be a national right, it is wholly immaterial that it is taken by the nation in the name of and for the benefit of its citizens or its subjects. “Tf we establish in the judgment of this Tribunal that this treaty right is a servi- tude, the fourth proposition is a controlling one. “FourtH. An international servitude restricts the territorial sovereignty of the servient state so that it cannot limit or impair the servitude right in any way, and entitles the dominant state to exercise the servitude as a sovereign right of its own, with absolute independence, and free from interference and control of any kind by the servient state. 1 For the present purpose, four representative authorities will suffice. The first, a German publicist, not an international lawyer; the second, a great theorist whose work in Latin appealed to scholars and has profoundly influenced modern thought; the third, a practical diplomat whose word still carries weight; the fourth, a scholar and man of affairs, equally versed in constitutional and international law, who wrote within a year after the Convention of 1818 and before its terms were the subject of dispute. () Heinrich Backer, known as Artopaeus, writing in 1680, said: “The servient territory shall not hamper the dominant one in the exercise of the servitude or lessen the right by various dispositions. The right, created by the servitude, shall not be extended beyond the compass explicitly granted; this does not, however, impede the dominant INTRODUCTION Ixxxvii “Frets. The right created by the treaty of 1818 in favour of the United States, was an international servitude. It is a right belonging to the United States, it is one held in perpetuity, and is one to be enjoyed by the United States for its interest and profit in the territories of Great Britain. The majority of the writers speak of it, and of cognate rights such as the French fishery right, the English right to cut log-wood in the Bay of Honduras, and other similar rights as undoubted servitudes. “Srxta. While servitude rights are exercised as sovereign rights by the domi- nant state, the mode of exercise, in order that it may be civiliter, and not interfere too much with the internal administration of the servient state, is, unless the mode of exercise is prescribed in the treaty establishing the right, necessarily reserved for subsidiary treaties. These are called, by some writers, ‘modalities.’ Of this char- acter were the declarations of the two Monarchs concerning the manner of carrying on the French fisheries attached to the French-English treaty of 1783. The right claimed by the United States here is in effect that its servitude cannot be interfered with except by and through such a subsidiary treaty or other similar arrangement, which shall prescribe the mode of carrying it on, and the extent and manner in which the one or the other nation may interfere in its exercise.” 2 British counsel did not meet the issue thus squarely raised. They objected that the doctrine of international servitude was dangerous; that the Convention of 1818 was the origin and measure of the right and that its terms should be interpreted without invoking principles of inter- national law; that the doctrine is of Roman origin and in its modern form is based upon the peculiar conditions of the Holy Roman Empire; that it was not universally recognized by writers on international law; party from taking the measures necessary for the exercise of its right. For, when a certain right is granted, the measures necessary for its exercise must also be given.”” (Diss. de juris publici servitutibus, section 34, Strassburg, 1689, quoted from Clauss’ Die Lehre von den Staatsdienstbarkeiten, p. 53.) (2) Writing in 1743 and 1745, the celebrated Christian Wolf cited examples of servitude, and stated as a fundamental principle the freedom from local regulation in their exercise: “The fishing rights in foreign rivers or occupied parts of the sea, rights of fortification on alien soil, right of garrisoning a foreign fortified place, jurisdiction in certain localities of a foreign territory or for certain legal actions or over certain persons, etc.” In the matter of jurisdiction of a state over foreigners entitled to the exercise of the servi- tude, Wolf says: “For the exercise of his right is absolutely independent of the will of the sovereign of the territory, since he is not subject to the laws of the land with regard to acts connected with the exercise of his right; but as to other acts he cannot be regarded otherwise than as a foreigner residing in foreign territory.”’ (Jus Naturae, Vols. IV and V, quoted from Clauss, pp. 72, 199.) (3) Vattel, the Swiss publicist, said in 1758: “We may in the same manner grant the right of fishing in a river, or on the coast, that of hunting in the forests, etc., and, when once these rights have been validly ceded, they con- stitute a part of the possessions of him who has acquired them, and ought to be respected in the same manner as his former possessions.”’ (Droit des Gens, Vol. I, Bk. 2, ch. 7, sec. 89.) (4) In 1819, Kliiber said: “Tt is likewise essential that the state to which the right belongs shall be, as to its exer- cise, independent of the state burdened with the servitude.’ (Droit des Gens Moderne de l'Europe, sec. 138.) For other and more recent authorities on this point, holding that the grantee of the right is free from the local restriction of the grantor in its exercise, see Senator Root’s argument, Pp. 243-254. To this list should be added Heffter, Droit International de L’Europe, secs. 64, 76. 2 Oral Argument, Vol. I, pp. 336-337. Ixxxvili INTRODUCTION that no English writer had discussed the subject before the Convention of 1818; that the doctrine, however prevalent in modern treatises, was not before the negotiators, who could not, therefore, be taxed with its recognition or consequences; that the French right, if a servitude, was so because it was exclusive, whereas the American right was by express terms a right in common; that the liberty was a grant to the inhabitants of the United States, not to the United States as a nation, and that, therefore, the relation of state to state was lacking. In reply to these objections it may briefly be said that there is cer- tainly no valid objection to a doctrine of international law, recognized by writers of authority and sanctioned by the practice of civilized states merely because it is derived from the private law of Rome, for much of international law is of Roman origin, and the first systematic treatise on the law of nations, published by Grotius in 1625, will be searched in vain for evidences that the principles there enunciated were based upon common law conceptions; that authoritative writers on international law, with but few exceptions, acknowledge the international servitude as a constituent part of the law of nations and as the common practice of nations during the past three centuries; that the failure of English writers of authority to discuss the doctrine before 1818 is due to the fact that there were then no such writers of authority,! but the doctrine was discussed by such masters of international law as Wolf, Vattel, and G. F. de Martens; that Vattel’s treatise on the law of nations, published in 1758, was translated into English in 1760; that de Martens’ treatise of 1788, translated into English by William Cobbett and published at Philadelphia in 1795,? discussed the doctrine of servitude and based it 1In the case of Triquet v. Bath (3 Burrow’s Reports, 1479), decided by Lord Mansfield in 1764, that eminent judge referred to the case of Buvot v. Barbut as decided by Lord Chancellor Talbot upon ‘the authority of Grotius, Barbeyrac, Binkershoek, Wiquefort, etc.; there being no English writer of eminence upon the subject.” ; It is believed that this condition continued until the appearance of Manning’s Commen- taries on the Law of Nations, published in 1839. “There was then no English treatise on the subject (though there were two by Americans), and Manning’s book was noticeable for its historical methods, its appreciation of the com- bination of the ethical and customary elements in international law, as well as for the exact- ness of its reasoning and its artistic completeness.” (Dictionary of National Biography, article Manning.) As a matter of fact, Rutherford’s Institutes of Natural Law, published at London in 1754 —a work relied upon by British counsel on another point —treats services (servitudes) at con- siderable length as restrictions upon the use of property. (Rutherford’s Institutes, 2d Ameri- can edition, pp. 35-37.) 2In speaking of de Martens’ work and its popularity in the United States, Cobbett says, in the advertisement of the English edition of 1802: “A French copy of this work was received in America in the year 1794. It came into the hands of the government, who, impressed with a high opinion of its utility, were very anxious that it should obtain a general circulation; for which purpose it was necessary that it should be translated into English, a task which it happened to fall to my lot to discharge. The trans- lation met with great success. The President, the Vice-President, and every member of the Con- INTRODUCTION Ixxxix upon the practice of nations; that these two works were the familiar guides and authorities of diplomatists from the date of their appearance; that the supplementary report of Mr. Gallatin to his government, dated November 6, 1818 —that is, a fortnight after the negotiation of the convention —states specifically that the rights secured by the Americans were what the French civilians called a servitude;! that exclusiveness is not essential to the conception of servitude;? that the Convention of 1818 was a grant to the United States for the benefits of its inhabitants; that such a grant creates a servitude according to the authorities on international law, and that the parties to the Convention of 1818 were Great Britain and the United States, not the inhabitants thereof, so that the relation of state to state existed in fact as it did in law. The doctrine, however, may have led to the admission that Great Britain could not determine for itself the reasonableness of rules and regulations, an admission wholly inconsistent with the Case, Counter Case, and Written Argument of Great Britain. The Tribunal may have been inclined to attach greater importance to the form of submission gress, became subscribers to it; and, I believe, there are few law-libraries in the United States in which it is not to be found.” 1¥For text of this supplementary report, see Appendix, pp. 413-415; Appendix U. S. Counter Case, p. 619; Appendix, British Case, p. 97. 2 Thus Heffter (in a passage quoted with approval by Pradier-Fodéré, Traité de Droit International Public, Vol. II, Sec. 843), says: “Tn case of doubt, the burdened State should not be inconvenienced in any manner in the coexercise of the right granted, unless the latter be entirely exclusive or of a nature only to be exercised by one State or the other State has renounced the coenjoyment.” (Le Droit Inter- national de L’Europe, Sec. 43.) So Rivier: “Unless the contrary intention is expressed, and if the nature of things permits it, the servient state is free to do by itself or by its subjects the acts which form the object of the servitude concurrently with the dominant state, or to concede the same servitude to other states.” (Principes du Droit des Gens, Vol. I, Sec. 58, p. 3or.) 3 Thus Heffter says: “Tt is a matter of little importance whether it be the State itself or its citizens or subjects which may be entitled to enjoy a servitude. Thus, for example, the right of cutting dyewoods in certain countries for the benefit of British subjects formed an express provision of the Treaty of Paris of 1763 (Article 17).”” (Le Droit International de L’Europe, Sec. 43.) Hollatz, the most recent writer quoted during the arbitration, says: “In practice the actual conditions are in many cases such that the state servitude and its exercise are of no direct advantage to the State itself but only to its subjects; thus, for instance, Art. 13 of the Treaty of Utrecht of April 11, 1713, reads: “*French subjects shall be allowed to catch and dry fish on the coast of Newfoundland.’ “ Article 15 of the peace of Paris of February 10, 1763, reads: “The French subjects have the liberty to fish and to dry fish.’ “This does not change the character of the servitude, provided always that two States, two international subjects, are the contracting parties.” (Begriff und Wesen der Staatsser- vituten, p. 49, 1908.) That the authorities are generally in accord, see Chrétien, Principes de Droit Interna- tional Public, Sec. 260; Clauss, Die Lehre von den Staatsdienstbarkeiten, p. 205; Fiore, Nouveau Droit International Public, Vol. II, Sec. 829; Neumann, Grundriss des heutigen europdischen Vélkerrechts, 3rd ed., Sec. 13; Pradier-Fodéré, Droit International Public, Vol. II, Sec. 837; Rivier, Lehrbuch des Vélkerrechts, 2nd ¢d., p. 192. XC INTRODUCTION and the admission of British counsel, even although it rejected the doc- trine advanced and maintained with great earnestness by American counsel. Among the reasons which led the Tribunal to reject the doctrine of servitudes and its consequences three may be mentioned. The first is that “there is no evidence that the doctrine of inter- national servitudes was one with which either American or British statesmen were conversant in 1818, no English publicists employing the term before 1818, and mention of it in Mr. Gallatin’s report being insufficient;”’ the second that the doctrine is “but little suited to the principle of sovereignty which prevails in states under a system of con- stitutional government,” the third that it “has received little, if any, support from modern publicists... It could, therefore, in the general interest of the community of nations, and of the Parties to this Treaty be affirmed by this Tribunal only on the express evidence of an inter- national contract.” ? To this positive statement it may be replied that British statesmen had opportunity to familiarize themselves with the doctrine before 1818, for Great Britain had acquired servitudes and been a party to treaties creating them concluded before that date; that Mr. Gallatin’s report of 1818, made at the time when the negotiations of 1818 were fresh within his mind, and before controversies had arisen upon the subject, shows that the question was discussed and that the American negotiators were familiar not merely with the doctrine and its consequences, but with its technical name. However unsuited the doctrine of servitudes and the burdens it imposes may be to states enjoying the priceless boon of constitutional government; there are, however, several recent instances of interna- tional servitudes to be found in treaties between constitutional states. Thus, by the treaty of June 30, 1899, Germany burdened the Caroline Islands, which Spain had just ceded, with a servitude in favor of Spain. Again, by the Treaty of Portsmouth of September 5, 1905, between Russia and Japan, the contracting parties mutually agreed not to construct 1 Notwithstanding this statement of the tribunal the. Doctrine like Banquo’s ghost will not down. As this volume is passing through the press, the doctrine is restated and defended by Pierre Labrousse, Des Servitudes en droit International Public, 1911. 2 Appendix, p. 496; Oral Argument, p. 1440. 3 (Art. 1) “Spain cedes to Germany the full sovereignty over, and property of the Caroline, Pellew, and Mariana islands (except Guam), in return for a pecuniary indemnity of 25,000,000 Pea, 2) “Spain will be allowed to establish and to keep, even in time of war, deposits of coal for her war and merchant fleets; one in the archipelago of the Carolines, another in the archipelago of the Pellew Islands, and a third in the archipelago of the Mariana Islands.” (British and Foreign State Papers, 1899-1900, Vol. 92, pp. 113-114.) INTRODUCTION xcl in their respective possessions upon the Island of Sakhaline and the adjacent islands any fortifications or military works, thus burdening the territories in question with a servitude. Finally, in the course of the same year, on October 26, 1905, Norway and Sweden signed the Convention of Stockholm, by the terms of which they agreed to main- tain neutrality within their frontiers, to dismantle existing fortifications, and not to construct fortifications, forts, or military depots.? ' But the question referred to the Tribunal was not whether the doc- trine of servitudes is unsuited to modern theories of sovereignty and constitutional government or whether states should or should not grant servitudes in the future, but solely whether Great Britain and the United States actually did create an international servitude by the Convention of 1818. In regard to the next point made by the Tribunal, it is a fact that “modern publicists”? overwhelmingly support the doctrine and that there is very little opposition to it, as a cursory, not to say a careful, examination of the authorities, cited on a previous page, will show. A further reason advanced by the Tribunal for the rejection of the American claim to a voice in the regulation of the fishery was that the fishery of 1783, in which Americans were admitted to participate, was a regulated fishery, which is only true so far as British subjects were con- cerned. The French fishery secured by treaty with Great Britain in terms identical with the American right never was a regulated fishery from the date of its acquisition in 1713 until the right to regulate was created by the Convention of 1904, between France and Great Britain. The finding of the Tribunal that the French and American rights, identical in terms, were not identical in fact, deprives the augument of analogy of the weight which it would otherwise have. The state- ment of the Tribunal that the fisheries granted by the Convention of 1818 were regulated by Great Britain without protest from the United States appears to be unsupported by the facts.* The Tribunal seemed to be aware of the weakness of this part of its award, for it says that “the fact that Great Britain rarely exercised the right of regulation in the period immediately succeeding 1818 is to be explained by various circumstances, and is not evidence of the non-existence of the right.” ¢ The Tribunal rejected in form the principle of law upon which Ameri- 1 British and Foreign State Papers, 1904-1905, Vol. 98, p. 735. 2 British and Foreign State Papers, 1904-1905, Vol. 98, pp. 821, 824. 3 For this much disputed question, see for British contention Sir Robert Finlay’s Argument, Oral Arguments, Vol. I, pp. 192-200; Mr. William Robson’s Argument, ib. II, Pp. 876-982; and for the American contention, Mr. Turner’s Argument, ib. Vol. II, pp. 449- 454; Senator Root’s Argument, ib. Vol. II, pp. 1190-1201, infra, pp. 48-72. 4 Appendix, p. 497; Oral Argument, p. 1441. xcli INTRODUCTION can counsel based the right to enjoy the liberty of fishing, free from local regulation or to have a voice in any regulation found advisable or neces- sary, but the Tribunal granted in substance the consequences which would have followed from the establishment of the principle for which they contended. To the uninitiated this would seem to suggest a com- promise, and we know on the highest authority that the award of the Tribunal was in some points, at least, a compromise. Thus, the learned President of the Tribunal, Dr. Lammasch, recently published an article in which he says that some of the Hague awards “contained keen and penetrating holdings of a juridical nature. Especially was this the case in the three awards in which the writer of this article was Presi- dent of the Tribunal: The Mascat case between Great Britain and France, the Orinoco case between the United States of America and Venezuela, and the Newfoundland and Canadian Fisheries case between Great Britain and the United States of America. -To be sure the judgment in the last named case also contained elements of a compromise for which, however, the Tribunal had received special and exceptional authorization.” * Viewing the award of the Tribunal upon Question I, considered as a whole, it may be said that in form the award is opposed to the conten- tions of the United States on every position advanced by American counsel. In substance, by virtue of the form of submission and the admission of British counsel, the award is favorable to the contention of the United States, because it holds that neither Great Britain nor Newfoundland can alone determine the reasonableness of any reg- ulation, and that if the reasonableness be contested it ‘‘must be decided not by either of the Parties, but by an impartial authority in accordance with the principles hereinabove laid down, and in the manner proposed in the recommendations made by the Tribunal in virtue of Article IV of the agreement.” ® Without discussing this procedure in detail, it is sufficient to say that the Tribunal held that future municipal laws, ordinances, or rules 1 Das Recht, March 10, tort, p. 148. 2“ Was aber die Schiedsspriiche betrifft, so enthielten einige sehr eingehende Begriin- dungen juristischer Art. Insbesondere war dies der Fall bei den drei Spriichen, bei denen der Verfasser dieses Aufsatzes als Vorsitzender fungierte. (Maskatfall zwischen Gross- britannien und Frankreich, Orinocofall zwischen den Vereinigten Staaten von Amerika und Venezuela, Fall der neufundlandischen und kanadischen Fischereien zwischen Gross- britannien und den Vereinigten Staaten von Amerika; freilich enthielt das Urteil im letst- genannten Fall auch Elemente eines Vergleiches ; hierzu hatte das Schiedsgericht aber besondere, ausserordentliche Vollmacht erhalten.)” A careful reading and rereading of the special agreement of January 27, 10909 fails to disclose to the present writer the slightest foundation for any “special and exceptional authorization” to compromise a legal question. 3 Appendix, p. 502; Oral Argument, p. 1446. INTRODUCTION Xciii for the regulation of the fisheries of Great Britain or its colonies, affecting the time and manner or other regulations of a similar character, should be published two months before going into effect; that the United States possesses the right to object to such laws or regulations as inconsistent with the Convention of 1818; that such regulations should not go into effect “with respect to inhabitants of the United States until the Per- manent Mixed Fishery Commission [to be established, as provided by the award] has decided that the regulation is reasonable within the meaning of this award.” The commission here referred to is to be composed of a representative of Great Britain and the United States under the presidency of a citizen or subject of a third power. The meaning of this is perfectly clear. Great Britain cannot regulate the fisheries without the consent of the United States. If the United States does not protest, it is presumed to agree. If it does protest, the regula- tion shall not go into effect. The reasonableness of the regulation no longer depends upon the sovereign pleasure of Great Britain or its colonies, but upon the decision of an arbitral commission, in which Great Britain and the United States are represented, but in which an umpire of a foreign country has the casting vote. It is difficult to see wherein this arrangement is not a restriction upon British sovereignty or its exercise. Sovereignty may indeed remain intact, but its exercise is in the hands of a commission, whose deter- minations Great Britain does not control. Admission of counsel would seem to be a slender foundation upon which to erect such a structure. A substructure of law is a more secure foundation, but perhaps uncon- sciously the Tribunal was influenced by these principles of law just as the British counsel were influenced by them in making the admission which the Tribunal felt justified in adopting. The statement that British sovereignty is unimpaired seems to be a source of gratification to Great Britain, Canada, and Newfound- land. The fact that the award establishes a commission is doubtless a relief to Great Britain in its dealings with its colonies, for the holding of the commission may relieve Great Britain of the embarrass- ment of forcing its will upon a dominion which is independent in all but name and a colony which regards intervention with ill-concealed displeasure. The result will probably be, however, that whenever a resort could be had to the commission, the parties in interest will agree upon rules and regulations concerning the fishery, so as to obviate a reference to a commission whose proceedings will involve delay and expense. Indi- rectly the contention of the United States will be accepted, for the regu- XCIV INTRODUCTION lations will be drawn up by the mutual consent of the parties in interest, although their enforcement will be delegated to the local sovereign. Question II The second question submitted to the determination of the Tribunal was one of recent origin, but to which Newfoundland attached very great importance. In form it is simple; namely, “have the inhabitants of the United States, while exercising the liberties referred to in said Article [of the Convention of 1818], a right to employ as members of the fishing crews of their vessels persons not inhabitants of the United States ?” The Foreign Fishing Vessels Act of .1893 authorized the Governor of Newfoundland to issue licenses “to foreign fishing vessels, enabling them to enter any port on the coasts of this Island for the following purposes: The purchase of bait, ice, seines, lines, and all other supplies and outfits for the fishery and for the shipping of crews.” ! Failure to procure the license specified in the Act made the vessels and their crews trespassers and subjected them to severe penalties. As American fishermen invariably took out licenses they neither felt nor minded the stringent provisions of the Act. The failure of the United States Senate to approve the Hay-Bond Treaty of 1904 annoyed Sir Robert Bond, then Premier of Newfoundland, and in 1905 the permis- sion to purchase licenses was withdrawn. The Act of 1893 was repealed, but its main provisions were incorporated in the Foreign Fishing Vessels Act of June 15, 1905, and applied generally to foreign vessels found within Newfoundland waters, although Article 7 contained the proviso that “nothing in this Act shall affect the rights and privileges granted by Treaty to the subjects of any State in amity with His Majesty.’”? Mr. Root, then Secretary of State, took exception to this Act and out of this correspondence arose the recent fishery controversy which was by special agreement submitted to arbitration at The Hague in 1910. The Act of 1905 was modified by the Act of May 10, 1906, but as it con- tained additional provisions, strenuously objected to by the United States, Great Britain refused to permit its enforcement against American fishermen.’ 1An Act respecting Foreign Fishing Vessels (Art. I) passed May 24, 1893. (Appendix, British Case, p. 730.) 2 An Act respecting Foreign Fishing Vessels, passed June 15, 1905. (Appendix, p. 468; Appendix, British Case, p. 757; Appendix, U. S. Case, p. 197. 3 “Tt is understood that His Majesty’s Government will not bring into force the Newfound- land Fishery Vessels Act of 1906 which imposes on American fishing vessels certain restrictions in addition to those imposed by the Act of 1905, and also that the provisions of the first part of Section I of the Act of 1905, as to boarding and bringing into port, and also the whole of Sec- INTRODUCTION XCV The last part of Section I of the Act of 1905 contained a provision (repeated in the Act of 1906) forbidding foreign vessels from engaging or attempting to engage crews within Newfoundland waters. The Act of 1906 forbade aliens to fish within the waters of the colony (Article 5); it also forbade British subjects to fish from a foreign vessel within New- foundland waters and penalized the master as well as the vessel for violation of the provisions of the Act (Article 6); it further imposed a fine upon residents of Newfoundland who should leave the colony “for the purpose of engaging in foreign fishing vessels” (Article 7), or who should furnish supplies to‘ foreign fishermen, as well as upon the master procuring supplies in Newfoundland ports (Article 8), or convey- ing residents of the colony beyond Newfoundland waters to enable them to engage in fishing from foreign fishing vessels (Article 9) '. The United States objected to these provisions because it held that American fishermen could properly employ non-inhabitants of the United States to take fish within treaty waters, but admitted that Great Britain could forbid residents of Newfoundland from fishing within Newfoundland waters. American counsel contended that the question submitted to arbitra- tion was simply whether American inhabitants could employ non- inhabitants to fish from American vessels in the treaty waters, not whether they could employ residents of Newfoundland contrary to the provisions of local statute. British counsel maintained that two ques- tions were involved; namely: (1) “That article one means what in terms it says, that it confers the liberty to take fish on the inhabitants of the United States, and not on the inhabitants of other countries. (2) “That the Colonial legislature and the Imperial Parliament retain the power of prohibiting any of His Majesty’s subjects from engaging as fishermen in American vessels, and that the exercise of this power is in no way inconsistent with the treaty.” ? The Convention of 1818, although concluded between Great Britain and the United States, grants the liberty to inhabitants of the United States, and Great Britain insisted that the terms of the treaty were to be strictly construed, so that non-inhabitants of the United States could not participate in the fisheries, as the treaty in speci- fying one class excluded all others. But the British contention was much broader and read into the question the further questions, did the Treaty of 1818 confer rights on American fishing vessels, and could tion 3 of the same Act, will not be regarded as applying to American fishing vessels.” (Modus Vivendi of 1907. Appendix, British Case, p. 510.) 1 Appendix, p. 470; Appendix, British Case, p. 758: Appendix, U.S. Case, p. 199. 2 British Case, p. 59; Sir Robert Finlay, Oral Argument, Vol. I, p. 226. Xcvi INTRODUCTION the American fishermen employ Newfoundlanders on their fishing vessels contrary to the prohibitions of the Newfoundland law? These contentions were based upon the fact that the liberty granted to the United States was a liberty to inhabitants and conveyed no rights to American fishing vessels as such, whereas the American contention was that the fishery, from its very nature, was a vessel fishery, that there- fore the vessels should be permitted to visit the fishing grounds; that the American vessel derived its right to participate in the fisheries from the United States, not from British authorities; that the American character was determined by the United States; that the ship’s papers certifying its American nationality were final and conclusive; that the vessel so certified was American and as such had a right to visit Newfoundland waters without obtaining a license from the Newfoundland authorities or complying with the local custom regula- tions of entering and clearing, provided the vessel did not trade as well as fish. In the course of the discussion between Sir Edward Grey and Mr. Root it was practically admitted that the fishery was a vessel fishery.! The British Government, however, was unwilling to accept the nation- ality of the vessel as a safe guarantee of the nationality of the venture and insisted upon a right to examine each vessel in order to see whether or not the crew actually engaged in taking fish out of the water were or were not inhabitants of the United States. In other words, the vessel might be American and the members of the crew non-inhabitants of the United States, but only those members of the crew could take part in the manual act of fishing who complied with the terms of the treaty; that is to say, who were bona fide inhabitants of the United States.? The American contention was that if the vessel was American, owned by Americans and registered as such, the venture was an American ven- ture and the inhabitancy or non-inhabitancy of the crew became immaterial, because the transaction was prosecuted for the benefit of 1“ As the Newfoundland fishery, however, is essentially a ship fishery, they [Great Britain] consider that it is probably quite unimportant which form of expression is used.” (Sir Edward Grey’s note, dated June 20, 1907, to Mr. Whitelaw Reid, Appendix, pp. 450, 460; Appendix, British Case, p. 507; Appendix, U. S. Case, p. 1003.) ““As this is conceded to be essentially ‘a ship fishing,’ and as neither in 1818 nor since could there be an American ship, not owned and officered by Americans, it is probably quite unimportant which form of expression is used.” (Mr. Root’s instruction, dated June 30, 1906, to Mr. Whitelaw Reid, Appendix, p. 453; Appendix, U.S. Case, p.978; Appendix, British Case, p. 498.) 2“Flis Majesty’s Government do not contend that every person on board an American vessel fishing in the Treaty waters must be an inhabitant of the United States, but merely that no such person is entitled to take fish unless he is an inhabitant of the United States.” (Sir Edward Grey’s letter, dated June 20, 1907, to Mr. Whitelaw Reid, A bpendix, p. 459, 460; Appendix, British Case, 507; Appendix, U. S. Case, p. 1003.) INTRODUCTION XCVIi Americans entitled by the treaty to fish in Newfoundland waters. In the next place Newfoundland Statutes of 1905 and 1906 contained pro- hibitions against the employment upon foreign fishing vessels of any persons not entitled by the treaty to fish in Newfoundland waters. As local sovereign Newfoundland could undoubtedly regulate fishing opera- tions within its own waters, unless restrained by treaty, and Newfound- land could likewise forbid Newfoundlanders from engaging as members of the crew of a foreign vessel within Newfoundland waters, provided a treaty or convention did not forbid such enactments.! American fisher- men have been in the habit of employing Newfoundlanders as members of the crew and a regulation of this kind would interfere with the profit- able prosecution of the fishery. It might deprive Newfoundlanders of their means of livelihood, — a question for Newfoundland, not for the * United States, — but restrictions placed upon American fishing might lead to concessions from the United States, and it would appear that the policy of Sir Robert Bond was, by regulation of the fisheries, to force the United States into concessions advantageous to Newfoundland. Indeed, in a much quoted speech in the Newfoundland Parliament, he declared his purpose to be to make Newfoundland the mistress of the seas and to bring the United States to terms? The matters at issue, therefore, in Question II were first, the nature and extent of the question submitted, and second, the right of American fishermen to employ upon their fishing vessels as members of the fishing crew “persons not inhabitants of the United States.” In the view of American counsel inhabitants of the United States possessed not merely the liberty to fish, but the right to employ non- 1“The State Department believes that Newfoundland has the right to prohibit its own citizens from engaging in our crews unless they are inhabitants of the United States. If they areinhabitants of the United States we are entitled to have them fish from our vessels regard- less of their citizenship. The views expressed above, if correct, should permit our vessels to go purse seining with crews shipped in American waters, but our right to secure such crews by advertisement in the Newfoundland papers would undoubtedly be contested by Great Britain.” (Mr. Root’s letter, dated July 7, 1906, to Mr. Gardner, M.C., Appendix, British Case, p. 502.) 2 Thus in supporting the Foreign Fishing Vessels Bill of x905, Sir Robert said: “This bill is framed specially to prevent the American fishermen from coming into the bays, harbors, and creeks of the coasts of Newfoundland for the purpose of obtaining herring, caplin, and squid for fishery purposes. . . . “This communication is important evidence as to the value of the position we occupy as mistress of the northern seas so far as the fisheries are concerned. Herein was evidence that it is within the power of the legislature of this colony to make or mar our competitors to the North Atlantic fisheries. Here was evidence that by refusing or restricting the necessary bait supply we can bring our foreign competitors to realize their dependence upon us. One of the objects of this legislation is to bring the fishing interests of Gloucester and New England to a realization of their dependence upon the bait supplies of this colony. No measure could have been devised having more clearly for its object the conserving, safeguarding, and protecting of the interests of those concerned in the fisheries of the colony.” (Appendix, U. S. Counter Case, pp. 446, 448.) xcviii INTRODUCTION inhabitants to aid them in their fishing; that the right to employ non- inhabitants was general, and that the right of Newfoundland to forbid Newfoundlanders from engaging as members of an American fishing crew was not necessarily involved in the question. To determine the question it was necessary to consider the parties to the grant and the purpose of the treaty. It would seem reasonably clear that the contracting parties were Great Britain and the United States; that the grant was made by Great Britain, and that the United States took the grant. The inhabitants of the United States were the beneficiaries, but they were not the con- tracting parties. The question, therefore, was a national question and it was intended not merely for the benefit of citizens, but of inhabitants of the United States—a much broader term. Great Britain admitted that American inhabitants might fish, but that the benefits of the treaty ° were limited to inhabitants. This raises the further question, when are inhabitants fishing? For while the liberty is a grant to inhabitants generally, its terms apply specifically only to inhabitants who avail themselves of the treaty right; that is to say, who are actually fishing within British waters. Attention was called to the fact that the various French treaties granted the liberty to fish not to France, but to the sub- jects of His Most Christian Majesty, and that, during the entire history of the French right, French subjects did not appear to be restricted in their employees to French subjects. The reply of Great Britain to this was the assertion that only French subjects had engaged in fishing and that French subjects engaged in fishing had not employed foreigners.! The French treaties, therefore, throw no light on the subject, and the matter must be considered by itself. The fundamental question seems to be who derives benefit from the act of fishing. If the vessel be an American vessel and the profit of the expedition accrues to American inhabitants, it would seem that the entire venture is American, or is the venture of American inhabitants, and that on familiar principles a person entitled to a right may exercise it either by himself or through his agent. This might not always be the case, but it seems to be a well-settled principle of the common law from the time of the Year Books to the present day that a right in the nature of a license to the grantee, provided it be for profit and not for pleasure, may be exercised by the servant or agent of the person entitled, whereas if the 1“Tt may be well to mention incidentally in regard to Mr. Root’s contention that no claim to place such restriction on the French right of fishery was ever put forward by Great Britain; that there was never any occasion to advance it, for the reason that foreigners other than French- men were never employed by French fishing vessels.” (Sir Edward Grey’s note, dated June 20, 1907, to Mr. Whitelaw Reid, Appendix, pp. 459, 461; Appendix, British Case, p. 570; Appendix, U.S. Case, p. 1003.) INTRODUCTION xclx right be one of pleasure, the specified beneficiary may alone exercise it. In the argument of the United States it is stated that “by the municipal law common to the two countries, if a fishery right is one of profit and not of pleasure, it carries with it the right of exercise by his servants. If of pleasure alone, it can be exercised only by the master.” } For this position, the Duchess of Norfolk’s Case, decided in the twelfth year of the reign of Henry VII, is cited, as is also the very authoritative case of Wickham v. Hawker, following the Duchess case, and decided by Baron Parke in the year 1840.” The law common to the two countries would seem to favor the American contention, if the liberty to fish was for profit, not for pleasure, and the fishermen obtained property in the fish. While admitting that the master might fish by his servant, British counsel insisted that the servant should be chosen from the same class; namely, from inhabitants of the United States. We must, therefore, revert to the original ques- 1U. S. Argument, p. go. 2“The authorities upon this subject take this distinction: that if there be @ personal license of pleasure, it extends only to the individual, and it cannot be exercised with or by ser- vants; but if there is @ license of profit, and not for pleasure, it may. This will be found so laid down in the case of The Duchess of Norfolk v. Wiseman, which appears to be the leading case on the subject. “The Duchess of Norfolk’s case was this: —The Duchess brought an action for chasing in her park, against Wiseman and others. They pleaded that the Duchess licensed the Earl of Suffolk to hunt at his pleasure in the park, and they showed, at the time of the trespass, the Earl came into the park, and the defendants with him, to hunt; and it was moved that the plea was bad, for by the license given to the Earl, which was only for pleasure and extended only to him, and no other could justify by that license; for if I give license to a man to eat with me, none of his servants can justify the entry into my house by reason of that license, for it is a license of pleasure; and so if I give leave to another to go at his pleasure into my orchard, none of his servants can justify by that license: but if it is a license of profit, and not of pleasure, it is otherwise; for if one give leave to me to carry over his land with my cart, my servants can justify by his license; and so if one gives me license to have a tree in his wood, my servants may justify the cutting of the wood, and the entry, for I shall have profit by that: and so was the opinion of the Court: and then the defendants said that the Duchess gave license to the Earl to hunt, kill, and take with him the deer atShis pleasure, and then they said that the Earl came there and they with him, and by his command, hunted and took away; and that was held good.” The learned Baron then says: “This case is cited with others, in Manwood, t. 18, s. 3, p. 107, and the result is, that, if there be a personal.license to an individual to hunt at his pleasure, he cannot take away to his own use the game killed, or go with servants, still less send servants to kill for him, or assign his license to another: but if the person is meant to have a property in the game which he kills, it is otherwise; and therefore if the license is to hunt, kill and carry away, he may hunt with servants or by servants. And e converso, if there be a license for him and his servants to hunt, “by these words, for him and his servants, shall be understood a license of profit; for these words imply that the grantee hath a property in the thing hunted, because that by such a license the grantee may justify for his servant to hunt, which is more than a license of pleasure.’” The learned judge then held, that the liberties to hawk, hunt, fish, and fowl granted to one, his heirs and assigns “are interests, or profits 4 prendre, and may be exercised by servants in the absence of the master; and further, we think that the addition ‘with servants or other- wise’ does not limit the privilege, and exclude the exercise of it by servants. ‘Words tending to enlarge are not (unless the intention is very plain) to be taken to restrain.”” — Wickham v. Hawker, 7 Meeson and Welsby’s Reports, 63, at 77-79. (Oral Argument, Vol. I, p. 230.) c INTRODUCTION tion; namely, who fishes? Because, if the employer reaps the benefit of the fishery he may well be considered as the fisherman whether he or his servant draws the fish from the water. The contention that the crew might be foreigners and man the ship, but that the person who drops the line or throws the net into the water and extracts the fish from the water should be an inhabitant of the United States and could not within the treaty be a non-inhabitant did not appeal to the Tribunal, which squarely held that “the inhabitants of the United States while exercising the liberties referred to in the said article have a right to employ, as members of the fishing crews of their vessels, persons not inhabitants of the United States.” + The Tribunal, however, seems to have been much influenced by the British Argument that Great Britain could forbid aliens as well as its subjects from serving upon foreign vessels within Newfoundland waters. For example, the Tribunal expressed the opinion “that non-inhabitants employed as members of the fishing crews of the United States vessels derive no benefit or immunity from the treaty, and it is so decided and awarded.” In order to make this part of the award clear it is necessary to quote a clause which, while not the actual holding of the Tribunal, nevertheless is specifically mentioned as one of the reasons which led it to pronounce the award; namely, “the Treaty does not affect the sover- eign right of Great Britain as to aliens, non-inhabitants of the United States, nor the right of Great Britain to regulate the engagement of British subjects, while these aliens or British subjects are on British territory.””? In view of the first part of the award, that the United States may employ non-inhabitants, it is not quite clear why the Tribunal decided that such non-inhabitants so employed “derive no benefit or immunity from the treaty,” because were it not for the treaty they could not engage in fishing within Newfoundland waters. This declaration, however, cannot be looked upon as general in its nature, because the Tribunal was interpreting a particular treaty and felt it necessary to define the status of aliens and the right of Great Britain to regulate their conduct, as well as the conduct of British subjects. A distinction was drawn between the American who employs non- inhabitants and the non-inhabitants actually employed; the first class being protected by the treaty, the latter class deriving no benefit or immunity from it. In other words, the American may employ the non- inhabitant. He is protected by the treaty in his person and his property 1 Appendix, p. 506; Oral Argument, p. 1449. 2 Appendix, p. 506; Oral Argument, p. 1449. INTRODUCTION ci from arrest or confiscation, but the alien has no such protection. If Great Britain or Newfoundland should be minded to pass a local ordi- nance forbidding him from fishing on foreign vessels within British waters his violation of the local statute might apparently be punished, because he derives no benefit or immunity from the treaty, and in the same way a British subject fishing upon an American vessel, in violation of a statute forbidding British subjects so to fish, might apparently be punished because ‘‘the treaty does not affect the sovereign right of Great Britain as to aliens, non-inhabitants of the United States, nor of the right of Great Britain to regulate the engagement of British subjects, while these aliens or British subjects are on British territory.” The Tribunal may perhaps have been influenced by Sir William Robson’s illustration of undesirable aliens! and sought to preserve the sovereign right of Great Britain to prevent undesirable aliens from fish- ing within its waters. But however that may be, the passing of an act which would prevent an ordinary alien from fishing upon an American fishing vessel within British waters would undoubtedly be regarded by the United States as in conflict with the right of American inhabitants to employ non-inhabitants within British waters, and it seems necessary, in the interest of good faith and fair dealing, to consider that the Tribunal had in mind exceptional conditions of a sanitary or a protective nature; otherwise the Tribunal would have taken away with one hand that which it gave with the other, and would have stultified itself in holding that American inhabitants possessed a right which practically they could not exercise. It would seem that the award of the Tribunal on Question ITI is both in form and in substance favorable to the contention of the United States, unless the reserved right of British sovereignty may be exercised in such a way as to penalize aliens engaged on American fishing vessels. The alien fishing upon an American fishing vessel should be protected, otherwise he will not fish. If, however, Great Britain retains the right to penalize the alien for violation of local ordinances in such a case, the form is favorable to the United States, but the substance is favorable to Great Britain. Question III It will be recalled that the first question submitted to arbitration concerned the reasonable regulation of the fishery in the matter of time and manner by “municipal laws, ordinances, or rules” without the 1¥For example, Malays, used by Sir William, because Malays are “not likely to trouble us if they are afterwards offended.” (Oral Argument, Vol. II, p. 106s.) cli INTRODUCTION consent previously had of the United States. The third question, while similar to the first, deals with the more specific question whether Ameri- can fishermen can be subjected, without the consent of the United States, ‘‘to the requirements of entry or report at custom houses or the payment of light or harbor or other dues, or to any other similar require- ment or condition or exaction.” The first question went to the nature and extent of the American fishing right as such. The second question presupposes the existence of the right to take, dry, and cure fish within: Newfoundland waters. The third question considers whether regula- tions not necessarily or exclusively related to fishing as such may be imposed upon American fishermen without the consent of the United States. That is to say, whether an American fishing vessel before beginning to fish should make formal entry or report at custom houses, whether such vessels should pay light, harbor, or other dues as a condi- tion precedent to remaining in Newfoundland waters, and finally, whether American fishing vessels should be subjected to other similar requirements or conditions or exactions, which, however beneficial and proper in themselves, are not necessarily involved in the taking, drying, and curing of fish. Questions I and III are, therefore, distinct, and while they both involve the right of the local sovereign to regulate American fishing vessels within Newfoundland waters, they are yet so distinct as to justify separate treatment. If the right of the United States to fish within Newfoundland waters be a servitude, and if one of the consequences of a servitude be exemption from restriction in the exercise of the right granted, unless the right to regulate be expressly reserved, it would follow that the right to fish being granted specifically should not be subjected to rules or regulations which clog its exercise without the consent of the grantee. The United States in its printed argument took this view, but also argued the question elaborately upon general principles... The Tribunal was evidently impressed by the general contention of the United States, because the award is favorable to the American position. “The requirement,” it says, “that an American fishing vessel should report, if proper conveniences for doing so are at hand, is not unrea- sonable, for the reasons stated in the foregoing opinion. There should be no such requirement, however, unless there be reasonably con- venient opportunity afforded to report in person or by telegraph, either at a custom-house or to a customs official. “But the exercise of the fishing liberty by the inhabitants of the United States should not be subjected to the purely commercial formali- 1U. S. Argument, pp. 99-100, 101-112. INTRODUCTION clii ties of report, entry, and clearance at a custom-house, nor to light, harbour, or other dues not imposed upon Newfoundland fishermen.”’! An examination of the award on this question which has been quoted in full shows that the duty to report is based upon the prerequisite that “proper conveniences for doing so are at hand” and that in such a case the requirement is not unreasonable. In the next place, the Tribunal, true to its conception that the expression “in common” meant equality in the right and in its exercise, held that no regulations should bind American fishermen unless local fishermen were likewise bound, for equality is inconsistent with discrimination. The text of the award is explained by the reasoning of the Tribunal, which precedes it, and would seem to be incorporated in the award itself, because the decision on this point is justified by the Tribunal by “the reasons stated in the foregoing opinion.” An examination of the reason which led the Tribunal to its conclusion discloses the fact that it considered the third question under discussion as relating exclusively to fishing, not to commercial operations, and that regulations eminently proper for commercial transactions might be inappropriate to fishing and might, indeed, interfere seriously with its successful exercise. The exact language is brief and to the point. “The exercise of these liberties . . . has no reference to any commercial privileges which may or may not attach to such vessels by reason of any supposed authority outside the treaty, which itself confers no commercial privileges. . . . It follows, there- fore, that when the inhabitants of the United States are not seeking to exercise the commercial privileges accorded to trading-vessels for the vessels in which they are exercising the granted liberty of fishing, they ought not to be subjected to require- ments as to report and entry at custom-houses that are only appropriate to the exercise of commercial privileges. The exercise of the fishing liberty is distinct from the exer- cise of commercial or trading privileges and it is not competent for Great Britain or her colonies to impose upon the former exactions only appropriate to the latter. The reasons for the requirements enumerated in the case of commercial vessels, have no relation to the case of fishing vessels.” 2 To this clear statement of the distinction between fishing and com- mercial vessels and the necessary difference between regulations affecting each, little can be added. Experience shows, however, that the desire for profit frequently leads to abuse and, therefore, it seems eminently proper that the Government of Newfoundland should be informed of the presence of American fishing vessels in Newfoundland waters, in order to prevent violation of the fishing liberty and to prevent the presence for one purpose being used for another and distinct purpose. Therefore the Tribunal very properly was of the opinion that it was 1 Appendix, p. 506; Oral Argument, p. 1450. 2 Appendix, p. 506; Oral Argument, p. 1450. civ INTRODUCTION neither unreasonable nor inappropriate “that American fishing vessels should report, if proper conveniences and an opportunity for doing so are provided. ... Sucha report, while serving the purposes of a notification of the presence of a fishing-vessel in the treaty waters for the purpose of exercising the treaty liberty, while it gives an opportunity for a proper surveillance of such vessel by revenue officers, may also serve to afford to such fishing vessel protection from interference in the exercise of the fishing liberty.” ! This requirement might be beneficial both to American fishermen and the local authorities, but it should not be insisted upon if it would interfere with the legitimate exercise of American fishing rights. There- fore the Tribunal stated that the requirement should not exist ‘‘unless reasonably convenient opportunity therefor be afforded in person or by telegraph, at a custom-house or to a customs official.””? The distinction between a mere report upon entering the fishing waters and formal clearance at a custom house involving delay and fric- tion was observed, and it is fair to presume that the finding of the Tribu- nal on this point sufficiently protects American fishermen in the exercise of their liberty, while informing the local authorities of the presence of American fishermen and enabling the authorities to prevent the abuse of the treaty right. The question at issue, so happily decided by the Tribunal, was the subject of much correspondence and no little friction between the two countries. In Mr. Root’s letter to Sir Mortimer Durand, dated October 19, 1905,° the distinction between fishing vessels as such and trading vessels was carefully drawn, and from the difference thus noted Mr. Root insisted that the treatment to be accorded to each should be dif- ferent; that is to say, that American fishing vessels in the exercise of the treaty liberty should not be subject to the formalities of reporting, entry and clearing, which might properly be required from vessels engaged in ordinary trade. The memorandum submitted by Sir Edward Grey, dated February 2, 1906, takes issue with Mr. Root’s classification and insists that “the only ground on which the application of any provisions of the Colonial Law to American vessels engaged in the fishery can be objected to is that it unreasonably interferes with the exercise of the American right of fishery.” 4 Sir Edward then argues that the local regulations were both reason- able and beneficial; that the payment of light dues “involves no 1 Appendix, p. 506; Oral Argument, p. 1450. 2 Appendix, p. 507; Oral Argument, p. 1450. 3 Appendix, p. 442; Appendix, U. S. Case, p. 966; Appendix,, British Case, p. 491. 4 Appendix, pp. 446, 449; Appendix, British Case, p. 494; Appendix, U.S. Case, p. 971. INTRODUCTION cv unreasonable interference” and that such dues are payable by all except coasting and fishing vessels owned and registered in the Colony.! In Mr. Root’s reply, dated June 30, 1906, issue is squarely taken with Sir Edward Grey’s contention that American vessels in the exercise of their treaty right “are bound to enter and clear in the Newfoundland custom-houses, to pay light dues, even the dues from which coasting and fishing-vessels owned and registered in the Colony are exempt.” ? Mr. Root quoted a passage from Lord Salisbury’s note to Mr. Welsh, then American Minister, in which his Lordship admitted that American fishermen were subjected only to the restrictions imposed by municipal law at the date of the signature of the treaty of Washington of May 8, 1871, and Mr. Root considered Lord Salisbury’s admission equally applicable to the Convention of 1818. Mr. Root said: “Under the view thus forcibly expressed, the British Government would be con- sistent in claiming that all regulations and limitations upon the exercise of the right of fishing upon the Newfoundland coast, which were in existence at the time when the Treaty of 1818 was made, are now binding upon American fishermen. “Farther than this, His Majesty’s Government cannot consistently go, and, farther than this, the Government of the United States cannot go.’ 3 Sir Edward Grey’s note of June 20, 1907, reasserted that the obligation to report at a custom house and the requirement of entry and clearance of American vessels did not interfere with the fishing liberty, and that such regulations were necessary to prevent smuggling and to ascertain whether they really were fishing vessels and not smugelers.* It is evident from this brief survey of the correspondence that the two countries felt themselves unable to agree without sacrificing a principle which involved the right to regulate the fishery. Sir Edward Grey, however made a slight concession in his note last quoted in regard to light dues, for as Newfoundland vessels “are under certain conditions exempt either wholly or in part from payment” of light dues, Great Britain considered American fishing vessels as entitled to like treatment.® Lord Salisbury’s statement that American fishermen were only bound to obey municipal laws in force at the signature of the Treaty and the 1 Appendix, pp. 446, 450; Appendix, British Case, p. 494; Appendix, U. S. Case, - pale p. 453; Appendix, U.S. Case, p. 978; Appendix, British Case, p. 408. 3 Appendix, pp. 453, 457; Appendix, U.S. Case, p. 978; Appendix, British Case, p. 498. 4 Appendix, p. 459; Appendix, British Case, p. 507; Appendix, U.S. Case, p. 1003. 5 Appendix, pb. 459, 462; Appendix, British Case, p. 507; Appendix, U. S. Case, P. 1003. cvi INTRODUCTION use made of this statement by Mr. Root evidently influenced the British Government to examine the laws and regulations in effect at the signature of the Convention of 1818 as appears from the following passage of a telegram, dated August 8, 1906, from Lord Elgin, Secretary of State for the Colonies to the Governor of Newfoundland: “Light dues were presumably not levied in 1818, . . . and fishing-ships were exempted from entry at Custom-house, and required only to make a report on first arrival and on clearing (see same Act). United States vessels could, on the basis of the status quo in 1818, only be asked to make report at custom-house on arrival and on clearing.” } The controversy was fortunately ended by the decision of the Tribunal which apparently safeguards the legitimate rights of American fishermen in Newfoundland waters without depriving ‘the local authori- ties of the opportunity to prevent by appropriate supervision the abuse of the treaty right. Question IV It will not have escaped attention that Questions I, II, and III related to fishing within what are commonly called the treaty waters. The next question deals with the right of American fishermen to use for certain specific purposes the waters in which, by the Convention of 1818, the United States renounced, for its inhabitants, the fishing liberty of 1783. The reason for the renunciatory clause of the Convention of 1818 has already been explained. The United States surrendered liberties which it possessed under the Treaty of 1783 in order to secure forever the liberty to take, dry, and cure fish within certain specified portions of the British coast in North America, and the renunciation was the con- sideration for the grant of 1818. The question of regulation did not arise within non-treaty waters, because by express provision the United States renounced on behalf of its inhabitants the right to fish on the non- treaty coast, and the right cannot exist to regulate the exercise of a non- existent liberty. It was foreseen, however, that American fishermen in distress, removed from the basis of supplies and far away from home, might find it necessary to enter the bays or harbors of the non-treaty coasts “‘for the purpose of shelter and of repairing damages therein, or purchasing wood, and of obtaining water.”” The American negotiators sought to obtain the right to purchase bait, but the British commissioner rejected the proposal. Great Britain was unwilling to grant American fishermen the right to enter the non-treaty waters whenever it should 1U. S. Counter Case, p. 9. INTRODUCTION cvii appear advantageous or advisable, because fishermen, it seems, are prone to take fish wherever found, notwithstanding the terms of a convention, and such action would give rise to a controversy which it was the purpose of the convention to prevent. In order to remove any doubt about the nature and extent of the permission, the purposes were enumerated and followed by the express statement that American fishermen were to be admitted within the non-treaty waters “‘for no other purposes whatever.” But the right to regulate the entry and sojourn of American fishermen within the Treaty waters for the four specified purposes was, in con- tradistinction from the exercise of the fishing liberty within treaty waters, expressly reserved, and this express provision seemed to American counsel to indicate that the liberty to fish within treaty waters was to be free from British regulation, as otherwise they would have reserved the right to regulate as in the case of admission to non-treaty waters. The clause in question is that American fishermen “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.” An examination, however, of this clause shows that the purpose of the negotiators was two-fold: first, to prevent American fishermen from “taking, drying, or curing fish therein”; second, or in any other manner to abuse the four specified privileges. The right of Great Britain to issue regulations is too clear for argument, but it would seem equally clear that the regulations should not be of such a character as to render the grant nugatory. American fishermen could only properly enter the non-treaty waters when in distress or to obtain supplies regarded as indispensable to the prosecution of the fishing liberty. That is to say, to obtain shelter, to repair damages; to purchase wood and obtain water. In such cases delay might render entrance impossible and to impose restrictions upon vessels in distress might deprive the fishermen of the benefit which the convention evidently meant to convey. Such a provision was largely of a humanitarian nature and should be inter- preted in the broad and generous spirit of the grant. This is evident in the matter of shelter, and it would seem that entry to repair damages should be generously construed. It may be that the fisherman might have foreseen such circumstances and supplied himself with material necessary to make repairs. But to compel him to do so might interfere with the successful prosecution of the voyage, and in any case if repairing was necessary the right to resort to the bays and harbors of the non- treaty coast should be granted. In the same way a narrow and literal construction might deny the right to enter to purchase wood, for the cviii INTRODUCTION wood necessary for the voyage might have been taken on board in some home port.! Refusal to permit the vessel in Newfoundland waters to enter the bays and harbors to obtain wood when and as it was necessary would subject the vessel and its crew to a hardship which was none the less real even though it might have been provided against. In the same way the presence on board of an adequate supply of fresh water is essential and its lack would be a very great hardship, even although the water necessary for the venture might have been provided before leaving port. But even supposing the greatest degree of prudence and foresight the various supplies might have been lost by accident and the vessel forced into the bays and harbors of the non-treaty coast in sheer distress. Admitting that the vessel is forced by distress into the harbors and bays of the non-treaty coast, it would seem to be inequitable to compel a vessel under such circumstances to pay light, harbor, or other dues, or to enter or report at custom houses, or to comply with any similar conditions, because delaying for any or all of these matters might pre- vent it from entering and involve the loss and the breaking up of the venture. This interpretation, reasonable in itself, is enforced by consideration of the fact that in the year 1818 there were but four lighthouses on the entire coast and custom houses were few and far between.? So far the case of the American fishermen has been considered without taking into note the legitimate interests of the local authorities to protect the privilege from abuse; that is to say, to prevent American fishermen from making the non-treaty coast the basis of operations and to prevent 1“ By the Convention, the liberty of entering the Bays and Harbors of Nova Scotia for the purpose of purchasing wood and obtaining water, is conceded in general terms, unrestricted by any condition expressed or implied, limiting it to vessels duly provided at the commence- ment of the voyage; and we are of opinion that no such condition can be attached to the enjoy- ment of the liberty.” (Opinion of J. Dodson and Sir Thos. Wilde, law officers of the Crown on Case stated, U. S. Case, p. 107.) 2 “The non-treaty coasts, to which the privileges under consideration applied, had but few settlements in 1818; there were only four light-houses on the entire coast, two of them within the Bay of Fundy and two on the outside coast of Nova Scotia south of Halifax; and the small and scattered settlements forbid the idea that there could have been an extensive trade or that an extensive customs service had then been organized. Throughout the entire extent of the non-treaty coast of Newfoundland, and from the Bay of Fundy to Blanc Sablon on the coast of Labrador, embracing thousands of miles of deeply indented shores, there were not a score of custom-houses or ports of entry in the year 1818. Furthermore, with the considerable popu- lation of today and the extensive trade on these coasts, the ports of entry at which vessels must call, if required to report at custom-houses, are still comparatively few in number and widely separated. The cost of maintaining a customs officer in every bay or harbor on such a coast would far outmeasure the value of any possible protection to the revenues; and this fact, as well as the physical character of the coasts, could not have escaped the attention of the negotiators of the treaty of 1818.” (U.S. Argument, p. 114.) INTRODUCTION cix smuggling. The issue is clearly drawn — humanity versus revenue laws. ‘ The Tribunal very happily and justly decided the question in favor of humanity, without, however, overlooking the important legitimate interest which local authorities would have in receiving knowledge of the presence of American fishermen in the non-treaty waters. The Tribunal expressed the opinion that the permission to enter non-treaty waters for the four specified purposes ‘sis an exercise in large measure of those duties of hospitality and humanity which all civilized nations impose upon themselves and expect the performance of from others. The enumerated purposes for which entry is permitted all relate to the exigencies in which those who pursue their perilous calling on the sea may be involved. The pro- viso which appears in the first article of the said treaty immediately after the so- called renunciation clause, was doubtless due to a recognition by Great Britain of what was expected from the humanity and civilisation of the then leading commercial nation of the world. To impose restrictions making the exercise of such privileges conditional upon the payment of light, harbor, or other dues, or entering and report- ing at custom-houses, or any similar conditions, would be inconsistent with the grounds upon which such privileges rest and therefore is not permissible.” + This provision certainly safeguards the legitimate interest of Ameri- can fishermen in the non-treaty waters and places it upon its proper basis — humanitarianism. The Tribunal was equally successful in protecting the legitimate interests of Great Britain, for it stated that, in order to prevent the abuse of hospitality and humanity, “American fishermen entering such bays for any of the four purposes aforesaid and remaining more than forty-eight hours therein should be required, if thought necessary by Great Britain or the Colonial Government, to report, either in person or by telegraph, at a custom-house or to a customs official, if reasonably convenient opportunity therefor is afforded.” ? While, therefore, American fishermen are free to enter the non-treaty waters for the four specified purposes, they are not permitted to make these waters the basis of their operations, and if they remain longer than forty-eight hours it is incumbent upon them to inform the local authori- ties of their presence, always supposing that it may be done without unreasonable inconvenience. QUESTION V The Convention of 1818 was an attempt to adjust differences which had arisen between Great Britain and the United States “respecting the liberty claimed by the United States for the inhabitants thereof {under Article III of the Treaty of 1783], to take, dry, and cure fish on 1 Appendix, p. 507; Oral Argument, p. 1450. 2 Appendix, p. 508; Oral Argument, p. 1451. cx INTRODUCTION certain coasts, bays, harbors, and creeks of His Britannic Majesty’s dominions in America.” The convention secured forever the right of inhabitants of the United States to take, dry, and cure fish within cer- tain specified limits, which may, for the present purpose, be termed the treaty coasts, and in consideration for the liberty thus recognized, con- firmed, or granted, the United States renounced forever certain rights granted by the Treaty of 1783. This clause, ordinarily called the renunciatory clause, is as follows: “And the United States hereby renounce forever, 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 the above-mentioned 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.” ! The convention which was intended to settle differences has itself been the source of differences. Great Britain and the United States disagreed both as to the extent and effect of the renunciation and sub- mitted to arbitration the question “from where must be measured the ‘three marine miles of any of the coasts, bays, creeks, or harbours,’ referred to in the said Article.” The differences arising under the Treaty of 1783 which led to the “Convention of 1818 were occasioned by the War of 1812, which Great Britain insisted abrogated the liberty to take, dry, and cure fish, secured to the United States, whereas the United States insisted that the liberty, while suspended by the war, was not abrogated by it and that upon the conclusion of peace the liberty revived ex proprio vigore. The differences under the Convention of 1818 in the matter of the renunciation relate chiefly to bays, Great Britain claiming that the United States gave up for its inhabitants the right to enter bays on the non-treaty coast, except for four specified purposes; whereas the United States maintained that a proper construction of the Convention of 1818 excluded its inhabitants merely from the smaller, that is to say the territorial bays ‘‘of His Britannic Majesty’s dominions in America” not included within the treaty coast. In other words, Great Britain insisted that the bays renounced were bays in the geographical sense— that is to say, bays whether large or small indenting the non-treaty coast; whereas the United States contended that the bays from which 1 Appendix, p. 380; Appendix, U. S. Case, p. 24; Appendix, British Case, p. 30. INTRODUCTION cxi its inhabitants were excluded and to which they could not approach within three miles were territorial bays — that is to say, bays so assimi- lated to the land as to be properly subject to the exclusive territorial or local jurisdiction of Great Britain. In simplest terms, Great Britain maintained that a bay is a bay, whether large or small; that a line should be drawn from headland to headland, and that American fishermen were forbidden by the con- vention to approach within three miles of the line so drawn. The United States insisted that there are bays and bays; large bays in the geographical sense which are high seas and without the jurisdiction of any one nation; that the bays contemplated by the Convention of 1818 were the small territorial bays within the exclusive jurisdiction of Great Britain — that is to say, bays six miles or less at the point of entrance; that in bays of such dimensions a line should be drawn where the width was six miles or less and that American fishermen were only forbidden to approach, except for the four specified purposes, within three miles of this line; that bays whose mouths were larger than six miles across were not bays of His Britannic Majesty’s dominions and that American fishermen could enter such bays to take, dry, and cure fish within three miles of a line drawn from shore to shore where the opposing points were more than six miles apart. On the issue thus raised the Tribunal held that the convention em- ployed the term bays in the geographical sense and that the United States renounced the liberty to take, dry, or cure fish within three miles of the bays on the non-treaty coast, and that the United States retained the right only to enter such bays for the four specified purposes. In the case of bays it said “the three marine miles are to be measured from a straight line drawn across the body of water at the place where it ceases to have the configuration and characteristics of a bay. At all other places the three marine miles are to be measured following the sinuosities of the coast.’”! The Tribunal evidently felt that its holding was unsatisfactory from a practical point of view, because each bay must be examined in order to determine where “it ceases to have the configuration and character- istics of a bay.” It therefore recommended, by a somewhat strained and artificial construction of Article IV of the Special Agreement, the acceptance of the ten mile rule prescribed by treaties between Great Britain and France, the North German Confederation and the German Empire, and the North Sea Convention of 1882, that ‘only bays of ten 1 Appendix, p. 54; Oral Argument, p. 1454. cxii INTRODUCTION miles width should be considered as those wherein the fishing is reserved to nationals.” After establishing the general principle and recommending the ten mile rule the Tribunal delimited, in general accordance with the unrati- fied Bayard-Chamberlain Treaty of 1888, various important bays of the non-treaty coast and recommended that the lines thus drawn be accepted by the two governments. In presenting the case for Great Britain to the Tribunal Sir Robert Finlay stated that “the language of the treaty must of course be read by the light of all-the circumstances as they existed at the time when it was entered into, and the history at that time is, for that purpose, very material.’’! Accepting this statement as a just canon of interpretation, it will be necessary to examine not merely the language of the renunciatory clause, but the differences between the two countries which gave rise to it and which it was intended to adjust; the acts of the two governments between the conclusion of the War of 1812 and the negotiations of the Conven- tion of 1818; the views of the statesmen charged with the problem between these two periods; the intent of the negotiators as it appears in the convention itself, in their official reports to their respective governments and as they may be collected from subsequent discussions of the convention, and finally the official interpretation placed upon the convention by the two governments when the nature and extent of the renunciatory clause were the subject of discussion. The language of the renunciatory clause is at least upon the surface favorable to the contention of Great Britain, because the United States expressly renounced “any liberty heretofore enjoyed or claimed [under the Treaty of 1783] to take, dry, or cure fish on, or within three marine miles of any of the coasts, bays, creeks, or harbors of His Britannic Majesty’s dominions in America not included within” the treaty coasts. That is to say, the United States renounced the right to fish on bays or within three miles of bays on the non-treaty coasts. Great Britain maintained that the language was clear; that it meant what it said and that it said what the negotiators meant, and that there was no need for interpretation. Indeed, it must be admitted that the language means what it says. But it does not follow, however, that it says what the negotiators meant. The United States maintained that a careful reading of the clause led to a different conclusion; that while the United States renounced the right to fish on or within three marine miles of bays the renunciation was not general but specific, for the bays 1 Oral Argument, Vol. I, p. 3. INTRODUCTION cxiii were not bays generally, but bays within His Majesty’s dominions in America not included within the treaty coast; that the language of the treaty, to quote Sir Robert Finlay’s canon of interpretation, must be “read in the light of all the circumstances as they existed at the time when it was entered into”; that the “history of that time is, for that purpose, very material,” and that the attending circumstances and the history of the time show that the negotiators had in mind not all bays, but only those bays and those waters subject to the jurisdiction of Great Britain. Counsel for the United States laid, and it would seem properly laid, great stress upon the intention of the parties and quoted with approval the following view of Chancellor Kent: “The intention is to be collected from the occasion and necessity of the law, from the mischief felt, and the remedy in view, and the intention is to be taken or presumed according to what is consonant to reason and good discretion.” ! Great Britain insisted that the War of 1812 abrogated the fishing liberty of 1783, a contention strenuously denied by the United States, and Great Britain was unwilling to regrant the fishing liberty in its full extent, although it was willing to grant the liberty subject to modifi- cations. But, to quote Lord Bathurst’s elaborate note to Mr. John Quincy Adams, : “Great Britain can only offer the concession in a way which shall effectually protect her own subjects from such obstructions to their lawful enterprises as they too frequently experienced immediately previous to the late war, and which are, from the very nature, calculated to produce collision and disunion between the two States.’’? In the very next place, Lord Bathurst, speaking as one of His Majesty’s principal Secretaries of State, formulated the objections to a regrant of the liberty in the terms of 1783: “Tt was not of fair competition that His Majesty’s Government had reason to complain, but of the preoccupation of British harbours and creeks, in North America by the fishing vessels of the United States, and the forcible exclusion of British vessels from places where the fishery might be most advantageously conducted. They had, likewise, reason to complain of the clandestine introduction of prohibited goods into the British Colonies by American vessels ostensibly engaged in the fishing trade, to the great injury of the British revenue.” ? In this passage Lord Bathurst stated the ‘“‘mischief felt” just as in the previous passage he had stated the remedy; namely, a regrant under modifications. In the next two paragraphs of his very important note 1Oral Argument, Vol. I, p. 723. 2 Note of October 30, 1815. (Appendix, pp. 309, 403; Appendix, British Case, pp. 69-72; Appendix, U. S. Case, p. 273.) 5 Appendix, pp. 309, 403; Appendix, British Case, pp. 69-72; Appendix, U. S. Case, P. 273.) cxiv INTRODUCTION he intimated the willingness of Great Britain “to enter into negotia- tions with the Government of the United States for the modified renewal of the liberties in question,” and expressed the hope that the United States might be induced by a consideration of these obstructions “ami- cably and cordially, to co-operate with His Majesty’s Government in devising such restrictions as shall prevent the recurrence of similar incon- veniences.” It is thus seen that Great Britain, while regarding the liberty of 1783 as abrogated, was nevertheless willing to consent to its renewal with such modifications as would prevent the ‘“‘inconveniences”’; namely, the preoccupation of British harbors and creeks — that is to say, of British waters close to the shore, and the introduction of chattels and goods in violation of the revenue laws. If the language of Lord Bathurst had been incorporated in the renun- ciatory clause there would have been little or no difficulty, because the meaning of harbors and creeks would have been sufficiently clear. The introduction of the word “bays” complicates the matter, and unless bays be used in the restrictive sense and is analogous to harbors or creeks, it may well be presumed that the easy terms upon which Lord Bathurst was willing to regrant the liberty were modified by a subse- quent consideration of the advantages or disadvantages of the proposed renewal. The Treaty of 1783 throws little light upon the subject of bays, because they are not defined in the treaty. It is evident, however, that the United States only renounced by the Convention of 1818 what it acquired by the Treaty of 1783, because the American negotiators were very careful to place in juxtaposition the liberty of 1783, modified in extent though not in nature by the convention, and the renunciation by the Convention of 1818 of part of the liberty acquired by the Treaty of 1783. The British negotiators objected to the renunciation clause as seeming to admit the American contention that the liberty of 1818 was, except as modified, a continuation of the liberty of 1783, but they yielded to the insistence of the American negotiators, who expressly state in their official report to their government, written on the very day of the signing of the treaty that “we insisted on it with the view — 1st. Of preventing any implication that the fisheries secured to us were a new grant, and of placing the permanence of the rights secured and those renounced precisely on the same footing. 2d. Of its being expressly stated that our renunciation extended only to the distance of three miles from the coasts.” } Contemporaneous interpretation is ordinarily considered the best, 1 Appendix, U. S. Case, Vol. I, p. 307. INTRODUCTION CXV and while the statement of the American negotiators may be open to the criticism or objection of partiality it is, nevertheless, quoted as showing what the American negotiators believed they had obtained by the con- vention. They evidently thought that the renunciation which “ex- tended only to the distance of three miles from the coasts” involved the surrender of the inshore fisheries and which, according to the under- standing of both parties, were subject to the territorial jurisdiction of Great Britain, for they thus continue: “This last point was the more important, as, with the exception of the fishery in open boats within certain harbors, it appeared, from the communications above men- tioned, that the fishing-ground, on the whole coast of Nova Scotia, is more than three miles from the shores; whilst, on the contrary, it is almost universally close to the shore on the coasts of Labrador. It is in that point of view that the privilege of entering the ports for shelter is useful, and it is hoped that, with that provision, a considerable portion of the actual fisheries on that coast (of Nova Scotia) will, not- withstanding the renunciation, be preserved.””4 That they had only in mind the inshore fisheries within three miles of the coast, whether the coast were washed by the open sea or indented by bays, appears from another passage from their report, in which they interpret “the exclusive rights of the Hudson Bay Company,” which were to be unaffected by the treaty. This exception they say “applies only to the coasts and their harbors, and does not affect the right of fish- ing in Hudson’s Bay beyond three miles from the shores, a right which could not exclusively belong to, or be granted by, any nation.” ? It would thus appear that the American negotiators had in mind two kinds of bays: geographical bays, within which no nation could have exclusive jurisdiction and could not be the subject of grant, and terri- torial bays; that is to say, bays of small extent subject to local jurisdic- tion, which, by virtue of their territoriality, might be the proper subject of grant. Unfortunately, the views of the British commissioners can only be ascertained from an examination of the language of the conven- tion, from the views of their statesmen in charge of the difficulty, and by the attending circumstances, because Great Britain, although taking advantage of the official reports of the American negotiators, has never published the official report of their commissioners, Messrs. Robinson and Goulburn. What is the justification of the views of Messrs. Gallatin and Rush, American negotiators, as expressed in their official report, drawn up by them and sent to their government on the very day the treaty was signed ? 1 Appendix, U. S. Case, Vol. I, p. 307. 2 Appendix, U. S. Case, Vol. I, p. 306. cxvi INTRODUCTION The North Atlantic fisheries are regulated by Article III of the Treaty of 1783, and it is important to note that the article consists of two sentences, the first confirming the right of American citizens to con- tinue to fish upon the high seas adjoining the British possessions, whereas the second sentence of the article deals with those portions of the British dominions in America in which American fishermen would not have the right to take, dry, or cure fish without an express grant or a confirmation of a right previously enjoyed as British subjects. In the first sentence Great Britain agreed that the people of the United States “shall continue to enjoy unmolested the right to take fish of every kind on the Grand Bank and on all the other Banks of New- foundland, also in the Gulph of St. Lawrence, and at all other places in the sea where the inhabitants of both countries used at any time hereto- fore to fish.” That is to say, Great Britain formally recognized the right of Americans to fish in the high seas. It cannot be said that the United States needed an acknowledgment of this right, because, as an independ- ent member of the family of nations, it possessed it independently of grant or recognition, but as France and Spain had by treaty contracted away certain of their rights in the specified waters the formal recognition of the right was a matter of some consequence. The right as recognized exists at the present day and Great Britain has always admitted that this clause of the treaty article of 1783 has been unaffected by subse- quent war between the two countries. The second sentence is a grant in the technical sense of the word, additional to the right recognized as continuous in the first sentence. Repeating the introduction, it is also agreed “that the inhabitants of the United States shall have the liberty to take fish of every kind on such Part of the Coast of Newfoundland as British fishermen shall use (but not to dry or cure the same on that Island), and also on the Coasts, Bays and Creeks of all other of His Britannic Majesty’s Dominions in America, and that the American Fishermen shall have liberty to dry and cure Fish in any of the unsettled Bays, Harbours and Creeks of Nova Scotia, Magdalen Island, and Labra- dor, so long as the same shall remain unsettled but so soon as the same or either of them shall be settled, it shall not be lawful for the said Fishermen to dry or cure Fish at such Settlement, without a previous Agreement for that purpose with the Inhabitants, Proprietors or Possessors of the Ground.” It is important to note that in the first sentence the word “right” is used and that the continuance of the right is recognized. There is no grant, whereas the second sentence is a grant; namely, the grant of a liberty to take, dry, and cure fish. The difference in language between these two sections was not accidental. The negotiations of the Treaty of 1783 show that the expression “liberty” was used in the second sentence INTRODUCTION cxvii at the request of the British negotiators and properly, because Great Britain was granting to the inhabitants of the United States a right to fish within British jurisdiction, and the term “liberty” is the appropriate term to convey a right vested in the grantor. It was not necessary to define coasts, bays, creeks, and harbors, because the inhabitants of the United States were granted the liberty to fish on all the coasts and in all the bays, creeks, and harbors. The Convention of 1818 did not renounce the right to fish in those waters which were considered high seas, for notwithstanding the renunciation, the rights acknowledged by the first sentence of the Third Article of the Treaty of 1783 were as unaffected by the renunciation as they were by the War of 1812. . What, then, did the American commissioners renounce by the Con- vention of 1818? The answer of the United States always has been the liberty to take, dry, and cure fish within the territorial waters of British North America, not specifically retained by the Convention, and counsel for the United States argued that the understanding of the American negotiators was confirmed by the acts of the British Government and the authoritative expressions of statesmen of both countries prior to the year 1818, when engaged in considering the question of maritime juris- diction in general or the fisheries in particular. Attention is first called to the Treaty of 1806 between Great Britain and the United States, which the United States failed to ratify, because it did not include the matter of impressment, then of fundamental importance to the United States. By means of this treaty the United States sought the permis- sion and co-operation of Great Britain to extend maritime jurisdiction from three to five miles, an extension which appears in Article XII of the proposed treaty.!. The United States also endeavored, but unsuc- cessfully, to obtain an article extending the jurisdiction of the contracting parties to “the harbours or the chambers formed by headlands, or any- where at sea, within the distance of four leagues from the shore, or from a right line from one headland to another.” ? It is obvious that a clause for this purpose would be unnecessary, if Great Britain and the United States exercised as of right jurisdiction within harbors or chambers formed by headlands beyond the ordinary: three mile limit. Great Britain refused such an article in the proposed treaty because it did not wish to renounce at that time the right to visit and search American vessels for British deserters within the sphere of the proposed exclusion.? 1 Appendix, p. 378; Appendix, U. S. Counter Case, p. 18; Appendix, British Case, p. 24. 2 Appendix, British Case, p. 60. : 3“The distance of a cannon shot from shore is as far as we have been able to ascertain cxviii INTRODUCTION Again, in 1818, the American negotiators proposed, in practically identical terms, to insert the rejected provision of 1806 in the Convention of 1818, as appears from a paper submitted by the American plenipo- tentiaries at the conference of September 17, 1818. This “very interesting” proposal, as Senator Root aptly termed it in his argument, is in the following language: “(d) In all cases where one of the high contracting parties shall be at war, the armed vessels belonging to such party shall not station themselves, nor rove or hover, nor stop, search, or disturb the vessels of the other party, or the unarmed vessels of other nations, within the chambers formed by head-lands, or within five marine miles from the shore belonging to the other party, or from a right line from one head-land to another.” ! The proposition was again rejected, a fact which justifies Mr. Root’s comment that “Great Britain not merely refrained from asserting jurisdiction over bays generally, however large, however small, unless they came within the territorial zone measured from the shore; but she refused, both in the negotiations of 1806 and in the negoti- ations of 1818, to accept the proposal of the Americans which would include cham- bers between headlands within the limits of the maritime jurisdiction of Great Britain.” ? the general limit of maritime jurisdiction and that distance is for the sake of convenience prac- tically construed into three miles or a league. All independent nations possess such jurisdic- tion on their coasts; and the right to it is not only generally contained in the acknowledgment of the independence of the United States, but seems to have been specifically alluded to in the 25th article of the treaty of 1794. Particular circumstances resulting from immemorial usage, geographical position or stipulations of treaty have sometimes led to an extension of jurisdic- tion, and may therefore when applicable, be urged as a justification of sucha pretension.” . . . “The space between headlands is more generally laid down, and admitted by Grotius him- self, as subject to the exclusive jurisdiction of the power to whom the land belongs. But neither in theory nor in practice do we find the distance between the headlands to which such a rule must exclusively apply accurately defined.” .. . “Té your Lordship should deem it expedient on other grounds to concede any extension of jurisdiction to the United States beyond that which their independence necessarily implies, the American commissioners have more than once assured us that they are ready in the article itself to acknowledge it as an exception to the general rule arising from the particular circum- stances of their situation and peculiar nature of their coast. We shall also observe that their utmost expectation after our conversations on the subject, is two marine leagues.” . . . “We might on the other hand derive some little advantage from the claim it would justify of an extended jurisdiction and consequent protection of revenue and commerce on the coasts of our colonial possessions.” . .. (Letter dated November 14, 1806, from Lord Holland and Lord Auckland, British Commissioners, to Lord Howick, Appendix, British Case, pp. 61, 62.) The British Government was, however, very unwilling to grant the requested extension of maritime jurisdiction. “This Government [Great Britain] contended that three miles was the greatest extent to which the pretension could be carried by the law of nations, and resisted, at the instance of the Admiralty and the law officers of the Crown, in Doctors’ Commons, the concession, which was supposed to be made by this arrangement [Article 12] with great earnestness. The Minis- try seemed to view our claim in the light of a dangerous innovation whose admission, especially at the present time might be deemed an act unworthy of the Government.” (Messrs. Monroe and Pinkney’s note, dated January 3, 1807, to Mr. Madison, Appendix, British Case, p. 62.) 1 Oral Argument, Vol. II, p. 1311. ? Oral Argument, Vol. II, p. 1311. INTRODUCTION Cx1x Passing from the unratified Treaty of 1806 and the ineffectual attempt of the United States to extend the maritime jurisdiction of Great Britain as well as of the United States to bodies of water beyond the ordinary three mile limit, the statements of British statesmen, made between 1814 and 1818, are quoted as showing their opinion that as between Great Britain and the United States the maritime jurisdiction of Great Britain did not extend beyond a marine league from the shores. In an interview between John Quincy Adams and Lord Bathurst, as recorded by the former.in an official dispatch to Mr. Monroe, then Secre- tary of State, Lord Bathurst is reported as saying that “as, on the one hand, Great Britain could not permit the vessels of the United States to fish within the creeks and close upon the shores of the British territories, so, on the other hand, it was by no means her intention to interrupt them in fish- ing anywhere in the open sea, or without the territorial jurisdiction, a marine league from the shore.” + Mr. Adams properly deemed the matter of very great importance and in a note dated September 25, 1815, addressed to Lord Bathurst, he referred to the interview and Lord Bathurst’s statement in the follow- ing passage: “Your lordship did also express it as the intention of the British Government to exclude the fishing vessels of the United States, hereafter, from the liberty of fishing within one marine league of the shores of all the British territories in North America, and from that of drying and curing their fish on the unsettled parts of those territories.” ? It is important to know that Lord Bathurst, in his reply dated October 30, 1815, took no exception to this language and, while offering to make a modified grant of the liberty, stated that “Tt was not of fair competition that His Majesty’s Government had reason to complain, but of the preoccupation of British harbors and creeks, in North America, by the fishing vessels of the United States, and the forcible exclusion of British vessels from places where the fishery might be most advantageously conducted.” Lord Bathurst, it would appear, had in mind the competition and inconvenience occasioned by the presence of American vessels within coastal waters close on shore. In the interview stated as taking place between Mr. Adams and Lord Bathurst, and which was reported in Mr. Adams’ dispatch to Mr. Monroe, Lord Bathurst said that he had recently sent instructions to Mr. Baker, at that time in charge of the British Legation at Washington, and in reply to Mr. Adams’ request 1Mr. Adams to Mr. Monroe, September 19, 1815. (Appendix, p. 396; Appendix, U. S. Case, pp. 264-265; Appendix, British Case, pp. 64-66.) 2Mr. Adams to Lord Bathurst, September 25, 1815. (Appendix, U. S. Case, p. 268; Appendix, British Case, p. 66.) 3 Lord Bathurst to Mr. Adams, October 30, 1815. (Appendix, 399; Appendix, British Case, pp. 69-72; Appendix, U. S. Case, p. 273.) Cxx INTRODUCTION for the substance of the instruction Lord Bathurst replied in the passage quoted in Mr. Adams’ letter to Mr. Monroe. In this passage there is no reference to bays, whereas in the letter to Mr. Baker, and trans- mitted by him to Mr. Monroe, bays were specifically mentioned. In the argument British counsel laid great stress upon the mention of bays in Mr. Baker’s letter and the omission of the word “bays” from Mr. Adams’ report. The matter probably was not regarded by Lord Bathurst as serious, if a mistake had been made. The Baker letter, however, is the best evidence of its terms. “Vou will,” said Lord Bathurst, under date of September 7, 1815, “take an early opportunity of assuring Mr. Monroe that, as, on the one hand, the British Government cannot acknowledge the right of the United States to use the British territory for the purpose connected with the fishery, and that their fishing vessels will be excluded from the bays, harbours, rivers, creeks, and inlets of all his Majesty’s possessions: so, on the other hand, the British Government does not pretend to interfere with the fishery in which the subjects of the United States may be engaged, either on the Grand Bank of Newfoundland, the Gulf of St. Lawrence, or other places in the sea, without the jurisdiction of the marine league from the coasts under the dominion of Great Britain.”* A careful perusal of this document tends rather to confirm than to confute the American contention, for the Americans are to be permitted, as formerly, to fish off the Grand Banks, in the Gulf of St. Lawrence “or other places in the sea . . . without the jurisdiction of the marine league from the coasts under the dominion of Great Britain.’ That is to say, the Americans can fish within non-territorial waters, but they are to be kept a marine league from the bays, harbors, rivers, creeks and inlets of all His Majesty’s possessions in so far as these coasts are “under the Dominion of Great Britain.” The Baker letter is a help rather than a hindrance, because, if the waters referred to as bays, harbors, rivers, creeks, and inlets can be considered, geographically speaking, as waters of His Majesty’s possessions, the concluding sentence makes it clear that American fishermen are entitled to fish in any waters of His Majesty’s possessions, provided that they do so at a distance of a marine league from the coasts, not of His Majesty’s possessions, but under the domin- ion of Great Britain.? 1 Appendix, British Case, p. 64. ? As the Tribunal laid great stress upon the Baker letter (see the President’s question to Mr. Warren, Oral Argument, Vol. I, pp. 628-629), it is perhaps important to note that a careful reading and consideration of the exact language of this document, regarded as funda- mental by British counsel, would have thrown light on the distinction, sought to be drawn by the Tribunal in the following passage of its award between “Dominion” and “Dominions’’: “The United States also contend that the term ‘bays of His Britannic Majesty’s Domin- INTRODUCTION CXXi Expressions of like import are to be found in the correspondence of the period between the conclusion of the War of 1812 and the negotiation of the Convention of 1818, and these expressions become material when it is learned that the various documents in which they were contained passed between the two governments and were submitted to the com- missioners of both countries for their guidance.! In a letter from Lord Castlereagh to the British commissioners at Ghent, dated July 28, 1814, His Lordship stated that “the third Article of the Treaty [of 1783] consists of two distinct branches: The first, which relates to the open sea fishery, we consider a permanent obligation, being a recognition of the general right which all nations have to frequent and take fish in the high seas.” In speaking of the second branch of the fishery he stated that Great Britain did not feel called upon “to concede to the Americans any accommodation within the British sovereignty; . . . it being quite clear that, by the law of nations, the subjects of a foreign State have no right to fish within the maritime jurisdiction, much less to land on the coasts belonging to His Britannic Majesty, without an express permission to that effect.’’? In a note from Lord Bathurst, who acted for the Foreign Office in the absence of Lord Castlereagh, Lord Bathurst instructed the com- missioners at Ghent as follows: “You are to state that Great Britain admits the right of the United States to fish on the high seas without the maritime jurisdiction of the territorial possessions of Great Britain in North America; that the extent of the maritime jurisdiction of the two contracting parties must be reciprocal; that Great Britain is ready to enter into an arrangement on that point; and that, until any arrangement shall be made to the contrary, the usual maritime jurisdiction of one league, shall be common to. both con- tracting parties.”’* In a subsequent instruction, dated December 6, 1814, Lord Bathurst, ions’ in the renunciatory clause must be read as including only those bays which were under the territorial sovereignty of Great Britain. “But the Tribunal is unable to accept this contention: “‘(a@) Because the description of the coast on which the fishery is to be exercised by the inhabitants of the United States is expressed throughout the treaty of 1818 in geographical terms and not by reference to political control; the treaty described the coast as contained between capes. ; “(b) Because to express the political concept of dominion as equivalent to sovereignty, the word ‘dominion’ in the singular would have been an adequate term and not ‘dominions’ in the plural; this latter term having a recognized and well settled meaning as descriptive of those portions of the earth which owe political allegiance to His Majesty, e.g., ‘His Britannic Majesty’s Dominions beyond the Seas.’ (Appendix, p. 509; Oral Argument, p. 1452.) 1 Appendix, U. S. Case, p. 304; Appendix, British Case, p. 85. 2 Oral Argument, Vol. II, p. 1356. a 3 Lord Bathurst to the Commissioners at Ghent, October 18, 1814. (Oral Argument, Vol. OT, p. 1358.) Cxxli INTRODUCTION still acting for Lord Castlereagh, who was absent at the Congress of Vienna, characterized the liberty of taking, drying, and curing fish under the Treaty of 1783 as a liberty which the United States enjoyed “of taking, drying, and curing fish within the exclusive jurisdiction of the pos- sessions belonging to His Majesty in North America.” 4 Under date of December 19, 1814, Lord Bathurst again refers to the privileges, accorded by the Treaty of 1783, “of fishing within the limits of British sovereignty.” * The above extracts relating to the fishery are taken from corre- spondence between British statesmen. The exchange of views between Lord Bathurst and Mr. Adams is between responsible statesmen dealing with the fishery dispute and specially authorized by their respective countries to discuss the matter. The Baker letter has been referred to as indicating the deliberate views of the British Government, and there are like expressions in the further correspondence between accredited representatives of the two nations which reinforced the statement that both countries had in mind the inshore fishery; that is to say, the fishery within the territorial waters of Great Britain and properly regarded as subject to its exclusive jurisdiction. Some further expressions of like import deserve quotation. The preliminary negotiations had been at London between Lord Bathurst and Mr. Adams.* Further consideration of the subject was removed to Washington following the arrival of Mr. Bagot as first Minister from Great Britain accredited to the United States after the unfortunate War of 1812. Following a conversation with Mr. Monroe, then Secretary of State, Mr. Bagot, the British Minister, addressed him a note, in which he expressed the willingness of the British Government to enter into nego- tiations “for the purpose of affording the citizens of the United States 1 Oral Argument, Vol. II, p. 1359. 2 Oral Argument, Vol. II, p. 1360. 3 “Since my last of the roth of December, I have had the honor to receive your letter of November 21, with those of the rath, roth, 26th and 3oth of September, the 7th and 3zst of October, and 8th of November. With the latter, a copy of Lord Bathurst’s reply to your note of September 25, on the fisheries, was likewise received. “Tt appears by these communications that, although the British Government denies our right of taking, curing and drying fish within their jurisdiction, and on the coast of the British provinces in North America, it is willing to secure to our citizens the liberty stipulated by the treaty of 1783, under such regulations as will secure the benefit to both parties, and will like- wise prevent the smuggling of goods into the British provinces by our vessels engaged in the fisheries. “It is hoped that the reply which you intimate you intended giving to Lord Bathurst’s note may have produced some change in the sentiments of the British Government on this interesting subject; it is nevertheless, thought proper to enclose you an instruction, to be shown to the British Government, authorizing you to negotiate a convention providing for the object contemplated.” (Mr. Monroe’s instruction, dated February 27, 1816, to Mr. Adams. Appendix, U. S. Case, Vol. I, p. 287.) INTRODUCTION cxxili such accommodation for their fishery, within the British jurisdiction, as may be consistent with the proper administration of His Majesty’s dominions.” !_ Mr. Bagot then states that it is not necessary to “advert to the discussion which has taken place between Earl Bathurst and Mr. Adams” and refers to Lord Bathurst’s notes as “a full expression of the grounds upon which the liberty of drying and fishing within the British limits . . . was considered to have ceased with the war.” Mr. Bagot regards the renewal of the fishery liberty as a concession “within the British sovereignty, to a foreign state,’ and informs Mr. Monroe that “it has not been thought necessary to furnish me [Bagot] with addi- tional argument upon this point.” In other words, the reasons advanced by Lord Bathurst against fishing within British waters close upon the shore were considered as a correct and authoritative expression of the views of the British Government. In the subsequent portion of the same note the British Minister speaks of an offer he had made conditioned upon the fact ‘that all pretensions to fish or dry within the maritime limits . . . should be abandoned.”’? Mr. Bagot, it would appear, had used these expressions advisedly, because Lord Castlereagh, then in charge of the Foreign Office, had transmitted to him “copies of the notes which had been exchanged between the American Minister in London and His Majesty’s Govern- ment,” and Mr. Bagot was directed to conform his language in his inter- course with the American Secretary of State “to the principles which had been brought forward in this correspondence on the part of your {his] Court.” Lord Castlereagh did not content himself, however, with a general reference to Lord Bathurst’s notes. He refers to them specifi- cally as containing the “grounds fully explained upon which the liberty of fishing and drying within our limits . . . was considered to have ceased with the war,’’ and Lord Castlereagh further stated that Lord Bathurst’s notes “detailed the serious considerations affecting not only the prosperity of our own fishery, but the general interest of the British dominions in matters of revenue as well as of Government, which made it incumbent upon His Majesty’s Government to oppose the renewal of so extensive and injurious a concession within the British sovereignty to a foreign state, founded upon no principle of reciprocity or adequate compensation whatever.” ® Lord Castlereagh further said: “The object of the Americans being, that in addition to the right of fishing de- clared by the first branch of Article IV [III] of the Treaty of 1783, permanently to 1 Appendix, U. S. Case, Vol. I, p. 289. 2 Appendix, U. S. Case, Vol. I, p. 201. : 3 Viscount Castlereagh’s letter, dated April 16, 1816, to Mr. Bagot. (Appendix, British Counter Case, p. 175.) CXXiV INTRODUCTION belong to them, they should enjoy the privilege of having an adequate accommodation both in point of harbours and drying ground on the unsettled coasts within the British Sovereignty. It has been the endeavour of His Majesty’s Government to assign this accommodation with sufficient liberality, without abandoning that control within the entire of their own harbours and coasts, which the essential interests and the principles of their Colonial system require.” ! Lord Castlereagh then authorizes Mr. Bagot to propose what he believed to be an adequate fishing ground upon “their distinctly agreeing to confine themselves to the unsettled parts of the coast so assigned, abandoning all pretensions to fish or dry within our maritime limits on any other of the coasts of British North America.”? Mr. Bagot’s proposal was declined by Mr. Monroe. In a letter dated May 7, 1817, from Lord Castlereagh to Mr. Adams, His Lordship, expressing regret at the failure of the negotiations, refers to Mr. Bagot as having been authorized to arrange “the manner in which American citizens might be permitted to carry on the fisheries within the British limits.” § It would thus appear that in the instructions dealing with the fisheries addressed to the British commissioners at Ghent, in the various notes exchanged between Lord Bathurst and Mr. Adams, in the Baker letter, in Lord Castlereagh’s instructions to Mr. Bagot, and in Mr. Bagot’s official offer to Mr. Monroe, then Secretary of State, the right of Ameri- can fishermen to take and dry fish within the exclusive jurisdiction of Great Britain was elaborately and exhaustively discussed and that the limit of the exclusive British jurisdiction, until it should be changed by mutual agreement, was invariably laid down as a maritime league or three miles. When it is recalled that these various communications were deliv- ered to both the American and British commissioners in negotiating the Convention of 1818, the conclusion would seem to be that the Ameri- can commissioners were animated by the desire to obtain a recognition of the liberty to fish within the exclusive jurisdiction of Great Britain, which liberty they obtained in part, and that the British negotiators were animated by the desire to exclude the American fishermen from the waters close upon the shores; that is to say, three miles from waters under British sovereignty —a purpose which they achieved in part by the renunciatory clause. It is important to bear in mind in this connection the rejection of the American proposal made in 1806 and repeated in a modified form in 1818, to extend the jurisdiction of the contracting parties within the “chambers 1 Appendix, British Counter Case, p. 176. 2 Appendix, British Counter Case, p. 176. 3 Appendix, U. S. Case, Vol. I, p. 295. INTRODUCTION CXXV formed by headlands, or within five marine miles from the shore belong- ing to the other party, or from a right line from one headland to another.” It would seem that the rejection of this proposal by the British com- missioners can properly be taken as a denial of jurisdiction within such chambers and as an intimation that Great Britain did not at that time either desire or have in mind such jurisdiction. In view of these facts it would seem that the bays contemplated by the negotiators were the small territorial bays, whose entrances were not greater than double the three miles so often mentioned in the correspondence as the limit of British jurisdiction, and that bays, “formed by headlands, or within five marine miles from the shore belonging to the other party, or from a straight line from one headland to another” were not the bays within the contemplation of the British negotiators, for the proposition to extend jurisdiction to headlands between bays was specifically rejected by the duly authorized negotiators of Great Britain. From the report of the American commissioners it is evident that they regarded the renuncia- tion only as a renunciation of the right to fish within three miles of the territorial waters of the non-treaty coast, as is indicated by their refer- ence to the right to fish within Hudson Bay, three miles from the coast, and the right as secured by the convention, to fish within three miles from the Nova Scotia coast. As previously stated, we do not have the report of the British com- missioners, although such a report was doubtless prepared, and it is, therefore, impossible, until the British Government shall publish the report of its commissioners, to state the views of Messrs. Robinson and Goulburn upon the nature, extent, and effect of the renunciatory clause. It is fair to presume that if the report of the British negotiators favored the subsequent contentions of the British Government it would have been submitted to the Tribunal, for British counsel were careful to print in the Appendix to their Case both the original report of Messrs. Gallatin and Rush and the supplementary Report of Mr. Gallatin to the Secretary of State, dated November 6, 1818. Mr. Gallatin’s supplemental report is exceedingly valuable as showing that the right acquired by the United States to fish within British terri- torial waters was considered a servitude, and Mr. Rush’s various expres- sions of opinion subsequent to the convention are important as showing that in his mind at least only the right was renounced to approach within three miles of the territorial waters of the British Dominions in North America. In a work entitled “Memoranda of a Residence at the Court of London,” published in 1833, Mr. Rush stated that the renunciatory CXXVI INTRODUCTION clause was proposed and insisted upon by the American negotiators in order “that it might expressly appear, that our renunciation was limited to three miles from the coasts. This last point we deemed of the more. consequence from our fishermen having informed us, that the whole fishing ground on the coast of Nova Scotia, extended to a greater distance than three miles from land; whereas, along the coasts of Labrador it was almost universally close in with the shore.”! It will be observed that the right to fish within the territorial waters of Labrador was obtained by the American negotiators as a part of the treaty coast. Consulted in 1853 by Mr. Marcy, then Secretary of State, Mr. Rush stated in positive and unequivocal terms that the renun- ciation clause did not exclude American fishermen from the larger bodies of water of His Britannic Majesty’s dominions and that the British understanding at the time of the negotiation of the Convention of 1818 was the same as the American. In this very important document Mr. Rush quotes from the letters which he had received from his countrymen in the early part of the year 1818 regarding the fishery and states that he was fully aware of the circumstances and negotiations leading up to the conclusion of the convention. “Forewarned by information of this nature and much more not now in my possession,” Mr. Rush writes in 1853 to Secretary Marcy, “it ought not to be lightly supposed that the negotiators of the Convention would sign away the right of entering the fishing grounds im any of the large outer bays or gulfs. It would have been a blow upon all the fishermen of New England. It would have been to forget the whole spirit and object of our instructions; to disregard the information which in part dictated them; and to yield up or endanger great public interests, naval and national. The Senate of the United States could never have ratified such a convention.’’? In another passage he says: “The negotiators of that convention had before them therefore, supposing they could have been negligent themselves, the prospect of rebuke from their government if, by the use of incautious words, or omission of apt ones, they became the means of depriving American fishermen of the right to resort to any bay off that coast and take fish at pleasure. There was, in fact, but the single exception you mention: they were not to go within three miles from the shore, which would barely imply of course a width of over six miles at the entrance of such bays. You will gather from this remark that, as the surviving negotiator of the convention, I coincide in the con- struction of its first article which our government puts upon it.’’3 Again: “In signing it, we believed that we retained the right of fishing in the sea, whether 1 Appendix, U. S. Case, Vol. I, p. 323. 2 Appendix, U. S. Case, Vol. I, p. 552. 3 Appendix, U. S. Case, Vol. I, p. 550. INTRODUCTION cxxvli called a bay, gulf, or by whatever other term designated, that washed any part of the coast of the British North American Provinces, with the single exception that we did not come within a marine league of the shore. We had this right by the law of nations. Its confirmation was in the treaty of :83. We retained it undiminished, unless we gave it up by the first article of the convention of 1818. This we did not do. The article warrants no such construction.” 4 In a subsequent passage of the same letter Mr. Rush says: “Tn conformity with our construction, was the practise of Britain after the con- versation [convention] was ratified. Our fishermen had been waiting for the word not of exclusion, but admission, to those large outer bays. They had been shut out, some -of them captured, and all warned away, after the treaty of Ghent. The interval was an anxious and painful one to them. Accordingly as soon as the convention went into operation, they eagerly hastened to their ancient resorts; reinstated by the provident care of their Government. No complaint was made or whispered by any member of the British Government of that day, of which I ever heard. “T remained minister at that court seven years after the signing of the convention. Opportunities of complaint were therefore never wanting. If intimated to me, it would have been my duty to transmit at once every such communication to our gov- ernment. Nor did I ever hear of complaint through the British Legation in Wash- ington. It would have been natural to make objections when our misconstruction of the instrument was fresh, if we did misconstrue it.” ? Finally, Mr. Rush says: “Tt is impossible for me to doubt that. the convention as we now construe it, and have always construed it, was entirely acceptable to the British Government at the time of its adoption.” ® There does not seem to have been any controversy upon the nature and extent of the renunciation until some twenty years after its negotia- tion. The fishing had largely been upon the Grand Banks. About the year 1828 mackerel forsook the waters of the United States and were found in considerable quantities off the non-treaty coast, especially in the Bay of Fundy, a bay of large size extending well into British territory. The American fishermen were anxious to take mackerel wherever found, and believing that they had a right to enter large bays, their vessels fre- quented in considerable numbers the Bay of Fundy. ‘The presence of the American fishermen meant competition with the colonial fisher- men and the Convention of 1818 was carefully examined and scruti- nized in order to see if a strict and literal interpretation of the renunciatory clause would exclude American fishermen from the larger ' bays of the non-treaty coasts. Nova Scotia took the initiative. In 1841 Lord Falkland, Lieutenant Governor of the province, re- 1 Appendix U. S. Case, Vol. I, p. 554. 2 Appendix, U. S. Case, Vol. I, p. 555. 3 Appendix, U. S. Case, Vol. I, p. 555. cxxvili INTRODUCTION quested, on behalf of Nova Scotia, the opinion of the Crown officers of Great Britain on a series of points, of which only numbers 2 and 3 are material for the present purpose. They are as follows: ‘od. — Have American citizens the right under that Convention [of 1818], to enter any of the Bays of this Province to take Fish; if after they have so entered they prosecute the Fishery more than three marine miles from the shores of such Bays; or should the prescribed distance of three marine miles be measured from the headlands, at the entrance of such Bays, so as to exclude them. 3d.— Is the distance of three marine miles to be computed from the indents of the coast of British America, or from the extreme headlands, and what is to be considered a headland.” ! On this issue, thus clearly raised, the law officers of the Crown, Sir J. Dodson and Sir Thomas Wilde, delivered the following opinion, dated August 30, 1841, which, however, was neither transmitted nor called to the attention of the United States: “od. — Except within certain defined limits to which the query put to us does not apply, we are of opinion that by the terms of the Treaty, American citizens are excluded from the right of fishing within three miles of the Coast of British America, and that the prescribed distance of three miles is to be measured from the headlands or extreme points of land next the sea of the coast, or of the entrance of the Bays, and not from the interior of such Bays or Indents of the coast, and consequently that no right exists on the part of American citizens to enter the Bays of Nova Scotia there to take fish, although the fishing being within the Bay may be at a greater distance than three miles from the shore of the Bay, as we are of opinion the term headland is used in the Treaty to express the part of land we have before mentioned, excluding the interior of the Bays and the indents of the coast.’’2 The carelessness with which this opinion is drawn would deprive it of serious consideration were it not for the fact that it seems to be repeatedly referred to as justifying the subsequent interpretation and conduct of Great Britain based upon it. The law officers do not seem to have examined the exact language of the convention, which they were called upon to interpret, and they read into it language it does not contain, and upon this language, not to be found in the convention, they based their opinion. The term “headland,” to which they refer, is not used in the convention, although it appears in the Convention of 1839 between Great Britain and France,’ and the interpretation 1U. S. Case, p. 105. 2 Case of the United States, p. 106. “This opinion was never officially communicated to the United States Government, but some ten years later, having been published at Halifax, it came to the attention of Mr. Everett, then Secretary of State.” (U.S. Case, p. 107.) “Tt will be noted that the paragraphs of the opinion are numbered to correspond with the numbers of the questions in the ‘case’ to which they refer, and that the reprint of this opinion found in the Journal of the Legislative Assembly of Nova Scotia does not contain a 3d paragraph, but whether or not the opinion as originally rendered contained a 3d paragraph specifically answering the 3d question does not appear.” (U.S. Case, Pp. 107, footnote a.) 3“It is equally agreed that the distance of three miles fixed as the general limit for INTRODUCTION CXXIX based upon its use obviously falls to the ground when attention is called to this fact. Nevertheless, this interpretation, founded upon a misconception and positive error, has been the official interpreta- tion of the Government of Great Britain since the year of 1841. It is unfortunate that the opinion was not made known to the United States, because the fatal mistake of the law officers would have been pointed out and the interpretation placed upon non-existent words might have been corrected by Great Britain before Her Majesty’s Government had committed itself.to the interpretation of the ques- tion. Although the opinion was not called to the attention of the United States, the headland theory was and became the subject of animated correspondence between Great Britain and the United States from 1841 to 1845, when Lord Aberdeen repudiated the headland theory as far as the Bay of Fundy was concerned, although he refused to extend it to the other bays of the non-treaty coast.! The question had ceased to be academic by the seizure of two Ameri- can vessels, one the Washington, in 1843, while fishing within the Bay of Fundy, some ten miles from the coast, and the other, the Argus, in 1844, while fishing off the coast of Cape Breton at a distance of not less than fifteen miles from land ‘‘and more than three miles to the eastward the exclusive right of fishing upon the coasts of the two countries, shall, with respect to Bays the mouths of which do not exceed ten miles in width, be measured in a straight line drawn from Headland to Headland.” 1“Her Majesty’s government must still maintain, and in this view they are fortified by high legal authority, that the Bay of Fundy is rightfully claimed by Great Britain as a Bay within the meaning of the treaty of 1818. And they equally maintain the position which was laid down in the note of the undersigned, dated the 1sth of April last, that, with regard to the other bays on the British American coasts, no United States’ fisherman has, under that con- vention, the right to fish within three miles of the entrance of such bays as designated by a line drawn from headland to headland at that entrance. “But while Her Majesty’s government still feel themselves bound to maintain these posi- tiéns as a matter of right they are nevertheless not insensible to the advantages which would accrue to both countries from a relaxation of the exercise of that right; to the United States as conferring a material benefit on their fishing trade; and to Great Britain and the United States, conjointly and equally, by the removal of a fertile source of disagreement between them. ; g “Her majesty’s government are also anxious, at the same time that they uphold the just claims of the British crown, to evince by every reasonable concession their desire to act liberally and amicably towards the United States. “The undersigned has accordingly much pleasure in announcing to Mr. Everett, the determination to which her Majesty’s government have come to relax in favor of the United States fishermen, that right which Great Britain has hitherto exercised, of excluding those fishermen from the British portion of the Bay of Fundy, and they are prepared to direct their colonial authorities to allow henceforward the United States fishermen to pursue their avoca- tions in any part of the Bay of Fundy, provided they do not approach, except in the cases speci- fied in the treaty of 1818, within three miles of the entrance of any bay on the coast of Nova Scotia or New Brunswick.” (Letter from Lord Aberdeen to Mr. Everett, dated March to, 1845. Appendix, British Case, pp. 141-142.) See also Lord Aberdeen’s letter to Mr. Everett, dated April 21, 1845, refusing to ex- tend to other bays the relaxation conceded to the Bay of Fundy. (Appendix, British Case, P. 145.) CXXX INTRODUCTION of a line drawn from the headlands of Cow Bay to Cape North, a dis- tance of fifty miles.” From a careful examination of all seizures of vessels while fishing within the larger bays of the non-treaty coast for alleged violation of the renunciatory clause, the cases of the Washington and the Argus are believed to be the only ones in which the seizures took place at a point more than three miles from a line following the sinuosities of the coast. They were regarded as cases calculated to test the correctness of the British or American interpretation.and were submitted to the Anglo- American Commission, for the determination of British and American claims, provided for by the Claims Convention of February 8, 1853. They were argued before this commission upon the headland theory, and the theory was rejected and the seizures of both vessels were pronounced illegal under the Convention of 1818.! The opposition of the United States to the headland theory, pro- pounded by the Province of Nova Scotia and justified by the opinion of the Crown officers, evidently led the British Ministry to a careful reconsideration of the entire question, the first fruits of which were the rejection of the headland theory as applied to the Bay of Fundy, made as a concession by Great Britain in 1845, but claimed as a right by the United States. The question, however, seems to have worried the Cabinet, and Lord Aberdeen, then Secretary of Foreign Affairs, directed Lord Stanley, then Secretary for the Colonies, to inform the Lieutenant Governor of Nova Scotia that Her Majesty’s Government would henceforth interpret the Convention of 1818 in accordance with the American contention. This important action was taken in 1845, as is evident from the following note, dated May 19, 1845: “H. M. Govt having frequently had before them the complaints of the Minister of the U. States in this country on account of the capture of vessels belonging to fisher- men of the U. States by the provincial cruisers of N. Scotia and N. Brunswick for alleged infractions of the Convention of the 20th Oct. 1818 between G. Britain and the U. States, I have to acquaint your Lordship that, after mature deliberation, H. M. Govt deem it advisable for the interest of both countries to relax the strict rule of exclusion exer- cised by G. Britain over the fishing vessels of the U. States entering the bays of the sea on the B. N. American coasts. H. M. Govt therefore henceforward propose to regard as bays, in the sense of the treaty, only those inlets of the sea which measure from headland to headland at their entrance the double of the distance of 3 miles, within which it will still be prohibited to the fishing vessels of the United States to approach the coast for the purpose of fishing. I transmit to your Lordship herewith the copy of a letter, together with its enclosures, which I have received from the For- eign Office upon this subject, from which you will learn the general views entertained 1For the Case of the Washington, see Moore’s International Arbitrations, Vol. IV, pp. 4342-4344. For the Argus, ibid., pp. 4344-4345. INTRODUCTION CXxxi by H. M. Govt as to the expediency of extending to the whole of the coasts of the Brit- ish possessions in N. America, the same liberality with respect to the U. States fishing boats as H. M. Govt have recently thought fit to apply to the Bay of Fundy; and I have to request that your Lordship would inform me whether you have any objections to offer, on provincial or other grounds, to the proposed relaxation of the construction of the Treaty of 1818 between this country and the U. States.”} There are four points worthy of note in this remarkable communica- tion: first, the British Government was forced to a consideration of the question by the frequent complaints of improper seizure of American vessels by provincial authorities of Nova Scotia and New Brunswick. The question was thus put in a concrete form and in a way which not only facilitated interpretation, but which required a justification for deeds actually committed; second, the British Government reached its conclusion “after mature deliberation”; third, Great Britain proposed to regard as bays not in any general sense, but “‘in the sense of the Treaty only those inlets of the sea which measured from headland to headland at their entrance the double of the distance of three miles”; fourth, the action taken was at the instance of the Foreign Office. Lord Stanley evidently regarded the determination of the govern- ment as an interpretation, not as a modification of the treaty. He requested objections to the proposal on other grounds; that is to say, on political and economic as distinct from local reasons. The provin- cial authorities regarded the proposal as involving consequences “both immediate and remote, most injurious to British Colonial interests,” and the home government withdrew the proposal. Lord Stanley, in a note dated September 17, 1845, addressed to Lord Falkland, Lieutenant Governor of Nova Scotia, stated “from your statements that any such general concession would be injurious to the interests of the British North American Provinces we have abandoned the intention we had entertained upon the subject, and shall adhere to the’strict letter of the Treaties, which exist between Great Britain and the U. States relative to the fisheries in North America, except in so far as they may relate to the Bay of Fundy which has been thrown open to the Americans under certain restrictions.”’* If Lord Stanley’s proposal be regarded as a concession it nevertheless must be considered as a concession based upon the treaty, not as an abrogation of its terms. An examination of the various instructions issued to naval officers on duty in North American waters shows that they were invariably directed not to seize American vessels, unless 1Dispatch from Lord Stanley to Viscount Falkland, dated May 19, 1845. (Appendix, British Case, pp. 145, 146.) 2 Appendix, British Case, p. 151. Cxxxii INTRODUCTION engaged in fishing within three miles of the shore or of the land, to employ an expression frequently used, and that whenever a greater extent than three miles was found either in instructions from the home government or in the provincial instructions, the limit of seizure was invariably reduced to three miles under protest from the United States. These various compliances with American requests cannot be considered as an acceptance of the American view, because they were no doubt dictated by a spirit of conciliation to avoid future conflict, but in 1886 Lord Rose- bery, as Secretary of Foreign Affairs, used language which is incon- sistent with concession and is only consistent with an acceptance of the American view. The United States objected to a Canadian customs circular, dated March 5, 1886, which excluded foreign vessels from fishing ‘‘ within three marine miles of any of the coasts, bays, creeks and harbors in Canada.” By reason of the protests of the United States the expression “within three marine miles of any of the coasts, bays, creeks and harbors in Canada” was modified and replaced by the inhibition to fish “within three marine miles of the shore.” That is to say, the British interpreta- tion was disregarded for the American interpretation, and in communi- cating the revised circular Lord Rosebery stated to the British Minister at Washington, in a note dated July 23, 1886: “T have to acquaint you that these documents have now been amended so as to bring them into exact accordance with treaty stipulations; and I enclose, for com- munication to the United States Government printed copies of these documents as amended.” 1 It is important to note that this interpretation is not stated by Lord Rosebery to be a concession, but as in “exact accordance with treaty stipulations.” The two cOuntries thereafter engaged in negotiations for the settle- ment of outstanding questions, which resulted in the Bayard-Chamber- lain Treaty of 1888, which, however, was not ratified by the United States. No further discussion of the right to exclude from bays under the renunciatory clause seems to have taken place from that period until the arbitration, and Lord Rosebery’s statement may, therefore, be taken as the last word on the subject from an authoritative British source, an interpretation in accord with the view of the United States. The negotiations for the unratified Treaty of 1806, the expressions of British and American statesmen employed in discussing the fishery question immediately preceding the Treaty of Ghent, and the conclusion 1 Earl of Rosebery to Sir L. West. (Appendix, U. S. Case, Vol. II, p. 823.) INTRODUCTION cxxxili of the Convention of 1818, the language of the convention as examined in the light of the diplomatic correspondence and the evil to be corrected, the views of the negotiators as far as they can be ascertained from official reports and subsequent statements, the constant interpretations of the United States, and the acts of both parties, terminating with Lord Rose- ' bery’s measured statement in 1886 as to the meaning of the convention, would seem to suggest that irrespective of any question of international law involved or supposed to be involved in the negotiation and con- struction of the convention, an understanding existed between the two governments regarding the limits of British sovereignty within His Majesty’s dominions in America, within which Americans were permitted to fish, by the Convention of 1818, and from which they were excluded by the renunciatory clause of the same convention, except for four specified purposes. , If the inhabitants of the United States were free to fish irrespective of treaty ‘‘without the jurisdiction of the marine league from the coasts under the dominion of Great Britain,” to quote the exact language of the Baker letter, it could only be because the maritime jurisdiction of Eng- land was confined to a marine league of the coasts under the dominion of Great Britain, and that, therefore, waters beyond the marine league of the coasts under the dominion of Great Britain were considered by this power as high seas. Both Great Britain and the United States appear to accept, in the absence of treaty stipulations and special circumstances, the marine league as bounding their coasts, whether indented or not. Thus in 1907, when considering the jurisdiction of Great Britain over the waters of Moray Firth, where the distance between the opposite shores is greater than double the marine league, Lord Fitzmaurice, speaking officially as Under-Secretary of Foreign Affairs, said: “T pass to the position of the Foreign Office. The jurisdiction which is exercised by a State over its merchant or trading vessels upon the high seas is conceded to it in virtue of its ownership of them as property in a place where no local jurisdiction exists. Therefore, the first thing that, in these cases, the Foreign Office has to ask is Was there or was there not, territorial jurisdiction in the place where the alleged events occurred? In regard to that I can certainly say that according to the views hitherto accepted by all the Departments of the Government chiefly concerned — the Foreign Office, the Admiralty, the Colonial Office, the Board of Trade, and the Board of Agri- culture and Fisheries — and apart from the provisions of special treaties, such as, for instance, the North Sea Convention, within the limits to which that instrument applies, territorial waters are: First, the waters which extend from the coastline of any part of the territory of a State to three miles from the low-water mark of such coastline; secondly, the waters of bays the entrance to which is not more than six miles in width, and of which the entire land boundary forms part of the territory of a State. By custom Cxxxiv INTRODUCTION however and by Treaty and in special convention the six-mile limit has frequently been extended to more than six miles.” ! This statement was not academic, for it was intended to justify the release of various Norwegian subjects who had been arrested at a point more than three miles from either shore, by British officials for fishing within the Moray Firth, whose entrance is more than double the six miles. It is also worthy of note that Lord Fitzmaurice referred to past as well as present practice of the government; for he refers to the law he is about to state as hitherto accepted by all the departments of the government chiefly concerned. Lord Fitzmaurice’s language is carefully worded because he speaks of the provisions of special treaties, which may be modified as between the parties, and jurisdiction rightfully claimed and exercised; in addition to modification by treaty of the six-mile limit in the matter of bays, he ‘refers to custom as frequently extending the limit of maritime jurisdiction. He specifies the North Sea Convention of 1882 as one which extends maritime jurisdiction as between contract- ing parties to bays not more than ten miles wide at their entrance; an earlier and indeed classic example of the ten-mile rule is the Treaty of 1839 between Great Britain and France. The attitude of the United States has been likewise solemnly and authoritatively stated in a concrete case dealing with fisheries and involv- ing the very point at issue. Thus, in the leading case of Manchester . Massachusetts (139 U.S. 240), decided in 1890, the Supreme Court used the following unmistakable language: “The limits of the right of a nation to control the fisheries on its seacoasts, and in the bays and arms of the sea within its territory, have never been placed at less than a marine league from the coast on the open sea; and bays wholly within the terri- tory of a nation, the headlands of which are not more than two marine leagues, or six geographical miles, apart, have always been regarded as a part of the territory of the nation in which they lie.” .. . “We think it must be regarded as established that, as between nations, the mini- mum limit of the territorial jurisdiction of a nation over tide-waters is a marine league from its coast; that bays wholly within its territory not exceeding two marine leagues in width at the mouth are within this limit; and that included in this territorial juris- diction is the right of control over fisheries, whether the fish be migratory, free-swim- ing fish, or free-moving fish, or fish attached to or embedded in the soil. The open sea within this limit is, of course, subject to the common right of navigation; and all governments, for the purpose of self-protection in time of war or for the prevention of frauds on its revenue, exercise an authority beyond this limit.” 2 Great Britain and the United States seem thus to be in accord after the year 1818 that the three mile limit follows the sinuosities of the coast but that in the case of bays the three miles measured from shores 1 Oral Argument, Vol. II, p. 1309. 2 139 U. S. 240, at pp. 257, 258. INTRODUCTION CXXXV of the bay rendered it territorial if its entrance be six miles or less in width. The two countries were apparently in accord before the con- clusion of the Convention of 1818, as appears from the decisions of the great Lord Stowell and the hardly less celebrated Justice Story. Thus, in the case of the Twee Gebroeders, decided in 1800 (3 Rob. Reports, 162), Lord Stowell, then Sir William Scott, had to decide whether a body of water from which a capture had been made was within “the limits of the Prussian territory.” “On this point,” he said, “I am inclined to think, on an inspection of the charts, and on hearing what has been urged, that she was lying within the limits to which neutral immunity is usually conceded... . She was lying in the eastern branch of the Eemes, within what may, I think, be considered as a distance of three miles, at most, from East Friesland.” 4 Lord Stowell, holding that the preparation made within the three mile limit to capture a vessel without the three-mile limit was a viola- tion of neutral jurisdiction, ordered the release of the vessel. In the case of the Anna, decided in 1805 (5 Rob. Reports, 373), the same learned judge said: “The capture was made, it seems, at the mouth of the River Mississippi, and as it is contended in the claim, within the boundaries of the United States. We all know that the rule of law on this subject is, ‘terrae dominium finitur, ubi finitur armorum vis, and since the introduction of fire-arms, that distance has usually been recognized to be about three miles from the shore.” ? The language of the American jurist Story is to the same effect. In 1812, in deciding the case of the Amn, he said: “All the writers upon public law agree that every nation has exclusive jurisdiction of the distance of a cannon shot, or marine league, over the waters adjacent to its shores (Bynk. Qu. Pub. Juris. 61; 1 Azuni. 204, s. 15; 2d. 185, s. 4); and this doctrine has been recognized by the Supreme Court of the United States (2 Cranch, 187, 231). Indeed such waters are considered as a part of the territory of the sovereign.” 3 These decisions are based upon the law of nations as understood by these distinguished judges. The common law, the law of England and the United States, seems to agree with the law of nations in this respect. Thus, in the case of the United States v. Grush, Mr. Justice Story, sit- ting as Circuit Justice, said: “The general rule, as it is often laid down in the books, is, that such parts of rivers, arms, and creeks of the sea are deemed to be within the bodies of counties, where persons can see from one side to the other. Lord Hale uses more guarded language, 13 Rob. Reports, 162, at p. 163. 25 Rob. Reports, 373, at p. 385c. 4 Gallison’s Reports, 62. CXXXVI INTRODUCTION and says, in the passage already cited, that the arm or branch of the sea, which lies within the fauces terrae, where a man may reasonably discern between shore and shore, is, or at least may be, within the body of a county. Hawkins (Pl. Cr. b. z, ch. 9, § 14) has expressed the rule in its true sense, and confines it to such parts of the sea, where a man standing on the one side may see what is done on the other.” ! In explanation of this passage the learned justice said: “T do not understand by this expression, that it is necessary, that the shores should be so near, that all that is done on one shore could be discerned, and testified to with certainty, by persons standing on the opposite shore; but that objects on the oppo- site shore might be reasonably discerned, that is, might be distinctly seen with the naked eye, and clearly distinguished from each other.” 2 A scarcely less distinguished judge, Chief Justice Shaw, said in a case involving the right of fishing: “We suppose the rule to be, that these limits extend a marine league, or three geographical miles, from the shore; and in ascertaining the line of shore this limit does not follow each narrow inlet or arm of the sea; but when the inlet is so narrow that persons and objects can be discerned across it by the naked eye, the line of terri- torial jurisdiction stretches across from one headland to the other of such inlet.” # If the language used by the Chief Justice Cockburn in Regina », Cunningham (Bell’s Crown Cases, 72), decided in 1859, be inconsistent with the common law as interpreted by such competent judges as Story and Shaw, it is to be noted that the point involved in that case was whether the common law court or the court of admiralty should take jurisdiction of a purely municipal question; for Great Britain could, under international law, properly exercise jurisdiction, as in this case, of an offense against its laws, committed within “a quarter of a mile of land which is left dry by the tide.” The statesmen and jurists of Great Britain and the United States thus seem to be in substantial accord upon the jurisdiction which each country could rightfully exercise within the waters washing their respec- tive shores and place this jurisdiction, in the absence of agreement or treaty, at a marine league from the shore. Lord Fitzmaurice, in the extract quoted, speaks of the jurisdiction as modified by custom or treaty, and the great Lord Stowell indicated, in a case decided before him in the year 1801, how the ordinary jurisdiction may be modified. Thus, in the second Twee Gebroeders (3 Rob. Reports, 336), he said: “The law of rivers flowing entirely through the provinces of one state is perfectly clear. In the sea, out of the reach of cannon shot, universal use is presumed. In rivers flowing through conterminous states, a common use to the different states is presumed. Yet, in both of these, there may, by legal possibility, exist a peculiar property, exclud- 1U. 5S. v. Grush, 5 Mason, 290, 300 (1820). 2Tbid., pp. 301, 302. ? Dunham v. Lamphere, 3 Gray’s Reports 268, 270 (1855). INTRODUCTION CXXXVIi ing the universal or the common use. Portions of the sea are prescribed for; so are rivers flowing through contiguous states: the banks on one side may have been first settled, by which the possession and property may have been acquired, or cessions may have taken place upon conquests, or other events. But the general presumption certainly bears strongly against such exclusive rights, and the title is a matter to be established, on the part of those claiming under it, in the same manner as all other legal demands are to be substantiated, by clear and competent evidence.” ! The case before Lord Stowell is a careful analysis of the various methods by which jurisdiction may be extended, and the case of Delaware Bay, frequently referred to in oral argument before the Tribunal, is an excellent instance of the way in which greater jurisdiction than double three miles in the case of a bay may be acquired. This principle, in ultimate analysis, seems to be assertion of enlarged jurisdiction and acquiescence in the assertion. The reasons which lead to the assertion may be many and varied. The assertion, however, is a fact to be proved, like any other fact, and acquiescence is to be established; other- wise unlimited assertion may trench upon the freedom of the seas. The proof of assertion may be comparatively easy, because the assertion is a fact whether it is established by local ordinances or diplomatic agree- ment. The case of acquiescence may be more difficult. It may be express, in which case there is no doubt, or it may result from inaction or lack of protest, when the assertion is clearly made known and brought home to the state whose acquiescence is desired. In 1793 the English Frigate the Grange was captured within Dela- ware Bay, the entrance to which is approximately nine miles and a frac- tion in width; that is to say, more than double the three mile limit. The Grange was a British vessel and was captured by the French Frigate L’Embuscade, and Great Britain, alleging that the neutrality of the United States was violated by the capture, demanded that the United States procure the return of the vessel. France complied with the request of the United States and the vessel was delivered to British authorities. The United States asserted jurisdiction, as appears from an elaborate opinion of Mr. Randolph, then Attorney General, which was transmitted to the French Minister and upon which the action of the United States was based. The acquiescence of Great Britain was express, because it requested the return of the vessel, and as between Great Britain and the United States we thus have a clear case of asser- tion followed by acquiescence, or indeed the “acquiescence” preceded the assertion.? Tt is unnecessary to consider whether nations other than Great 13 Rob. Reports, 336, 339. 2 Opinions of the Attorneys-General, Vol. I, pp. 33-38. (Appendix, British Case, pp. 54-59.) CXXxxviii INTRODUCTION Britain and France would be bound by this assertion of jurisdiction. It is sufficient for the present case to state that the acquiescence of Great Britain in the assertion of jurisdiction over Delaware Bay, by the United States, binds Great Britain, and that so far as it is concerned the juris- diction of the United States over Delaware Bay is established. The assertion in this case was diplomatic, not by municipal ordinance or decree. Counsel for Great Britain laid great stress upon the case of the Direct United States Cable Company »v. Anglo-American Telegraph Company (2 Appeal Cases, 394), decided in 1877 before the Judicial Committee of the Privy Council. The case involved Conception Bay on the non-treaty coast of Newfoundland, the average width of which is about fifteen miles and which enters Newfoundland for a distance of some forty or fifty miles. Lord Blackburn discussed the question of jurisdiction in the light of international law, saying: “Tt seems generally agreed that where the configuration and dimensions of the bay are such as to show that the nation occupying the adjoining coasts also occupies the bay it is part of the territory; and with this idea most of the writers on the subject refer to defensibility from the shore as the test of occupation; some suggesting there- fore a width of one cannon shot from shore to shore, or three miles; some a cannon shot from each shore, or six miles; some an arbitrary distance of ten miles. All these are rules which, if adopted, would exclude Conception Bay from the territory of Newfound- land.” » He then eliminated as unnecessary to the decision the question of international law, stating that “Tt seems to them that, in point of fact, the British Government has for a long period exercised dominion over this bay, and that their claim has been acquiesced in by other nations, so as to show that the bay has been for a long time occupied exclu- sively by Great Britain, a circumstance which in the tribunals of any country would be very important. And moreover (which in a British tribunal is conclusive), the British Legislature has by Acts of Parliament declared it to be part of the British territory, and part of the country made subject to the Legislature of Newfoundland. “To establish this proposition, it is not necessary to go further back than to the 59 Geo. 3, c. 38, passed in 1819, now nearly sixty years ago... . “And as this assertion of dominion has not been questioned by any nation from 1819 down to 1872, when a fresh convention was made, this would be very strong in the tribunals of any nation to show that this bay is by prescription part of the exclusive territory of Great Britain. As already observed, in a British tribunal it is decisive.” 2 The act specifically referred to is the Act of 1819, passed by Parlia- ment to put into effect the Convention of 1818 and to secure to American 1 Law Reports, Appeal Cases, Vol. II, p. 419. 2 Law Reports, Appeal Cases, Vol. II, p. 420-421. INTRODUCTION CXxxix fishermen the fishing rights granted by the convention.! The language of the statute is the language of the treaty, and it is difficult to see how such a statute confers any greater right than the treaty. The con- stant protest of the United States against exclusion from the larger bays of the non-treaty coast negatives the acquiescence of the United States in such a contention; the decision therefore is on a statute, and the interpretation of that statute was not acquiesced in by the United States. The distinction between acquiescence of jurisdiction in the case of Delaware Bay and Conception Bay is at once obvious. In the course of the argument Great Britain claimed that jurisdiction had been asserted by municipal ordinances over the Bay of Chaleur and Mirimishi Bay, both on the non-treaty coast. The United States contended that the assertion of jurisdiction in these instances was not made out and that in any event acquiescence was lacking. In the passage quoted from Lord Fitzmaurice the territorial juris- diction is stated to extend “from the coast line of any part of the terri- tory of a state to three miles from the low-water mark of such coast line,” and “the waters and bays the entrance to which is not more than six miles in width and to which the entire land boundary forms part of the territory of a state.” The rule is simple: three miles from unin- dented coasts and double the distance in case of bays six miles wide at the point of entrance, the reason being that in the first case we deal with a single case, whereas in the second we deal with a double case. What is the reason for the first rule, upon which the second depends ? In the middle ages nations claimed and asserted jurisdiction over large and undetermined portions of the high seas, and such assertions were injurious to commerce and productive of international controver- sies. Grotius asserted the freedom of the seas in his tractate published in 1608, entitled ‘“‘Mare Liberum,” and insisted that the seas were not capable of occupation, as is land. In his systematic treatise, published in 1625 and entitled “Jure Belli ac Pacis,” he receded somewhat from the doctrine of the earlier work and admitted that certain portions of the sea are subject to occupation. Thus, in speaking of rivers, Grotius says that “a portion of the sea also may be occupied by him who possesses the land on each side; although it be open at one end, as a bay, or at both, as a strait; provided it be not such a portion of the sea as is too large to appear part of the land.” ? In a subsequent passage Grotius states the principles upon which he bases his revised doctrine. Thus: 1For the statute, see Appendix, p. 466; Appendix, British Case, p. 565; Appendix, U.S. Case, p. 112. on Jure Belli ac Pacis, Bk. II, ch. III, sec. 7. (Quoted in Oral Argument, Vol. I, D. 736. cxl INTRODUCTION “The empire of a portion of the sea, is, it would seem, acquired in the same way as other lordships: that is, as above stated, as belonging to a person, or as belonging to a territory; belonging to a person, when he has a fleet which commands that part of the sea; belonging to a territory, in so far as those who sail in that part of the sea can be compelled from the shores as if they were on land.”’? That is to say, a small body of water forming part of the sea may be considered as territorial if it is so small as in extent “to appear part of the land” and the jurisdiction is determined by the power to command from the shores. The principle thus announced by Grotius was developed by Bynkershoek, who says, in his De Dominio Maris, published in 1702: “My opinion is that the territorial sea should extend only as far as it can be con- sidered subject to the mainland.. Hence I concede no further dominion over the territorial sea than that which can be exercised from the land; and there is no reason why a portion of the sea under the control and power of the state should not be called its property as well as any other body of water within its territory. It is, therefore, right to extend the land power and the right of dominion and possession as far as the range of cannon. I speak of our times when cannons are in use; otherwise the gen- eral principle should be; the sovereignty of the land ends where the force of arms ends, for this, as I said, is considered possession.” 2 The principle thus stated has made its way into international law, and the exercise of jurisdiction over adjacent waters is made dependent upon the exercise of force from the shores whether measured by the range of cannon, which in Bynkershoek’s time, as in the year 1818, was something less than three miles, or stated in express terms as three marine miles or a marine league. In discussing the nature and extent of maritime jurisdiction Mr. Hall aptly says: “The true key to the development of the law is to be sought in the principle that maritime occupation must be effective in order to be valid. This principle may be taken as the formal expression of the results of the experience of the last two hundred and fifty years, and when coupled with the rule that the proprietor of territorial waters may not deny their navigation to foreigners, it reconciles the interests of a particular state with those of the body of states. As a matter of history, in proportion as the due limits of these conflicting interests were ascertained, the practical rule which represented the principle became insensibly consolidated, until at the beginning of the present century it may fairly be said that though its application was still rough it was definitively settled as law.” 3 The principles thus established by Bynkershoek and declared by Mr. Hall to represent international practice at the beginning of the nine- teenth century were clearly stated by two authorities with which it is 1 Bk. II, ch. III, sec. XIII. (Quoted in Oral Argument, Vol. I, p. 737.) 2 Edition of 1767, Bk. II, ch. 2, p.127. (Oral Argument, Vol. I, p. 729.) 3 Hall’s International Law, Fourth Edition (1895), sec. 40, pp. 157, 158. INTRODUCTION cxli safe to assume the negotiators of the Convention of 1818 were familiar and by a distinguished German publicist whose work appeared in 18109, a year after the negotiation of the convention. Thus Vattel, writing in 1758, and whose book has been the companion and guide of diploma- tists since its publication, said: “All we have said of the parts of the sea near the coast may be said more par- ticularly, and with much greater reason, of the roads, bays, and straights, as still more capable of being occupied, and of greater importance to the safety of the country. But I speak of the bays and streights of small extent; and not of those great parts of the sea to which these names are sometimes given, as Hudson’s Bay and the Streights of Magellan, over which the empire cannot extend, and still less a right of property. A bay whose entrance may be defended, may be possessed and reridered subject to the laws of the sovereign. . . .”1 In the next place, G. F. de Martens, who, with Vattel, is regarded as one of the founders of international law, says in his Law of Nations, published in 1788 and translated by William Cobbett in 1795: “What has been said of lakes and rivers, holds good also with respect to straits, which are not in general wider than the great rivers? and lakes. So also all those parts of the sea which are near land, may be looked on as lawfully acquired, and main- tained as the property, and under the dominion of, the nation who is master of the coast. “A custom, generally acknowledged, extends thé authority of the possessor on the coast to a common shot from the shore.’ ? Finally, Kliiber says, in his Droit des Gens, published in 1819: “Within the maritime territory of a state are included those maritime districts or regions susceptible of exclusive possession, over which the state has acquired (by occupation or convention), and retained sovereignty. To these districts belong: . . . Those parts of the ocean which extend into the continental territory of a state, if they can be commanded by cannon from the two shores, or the entrance of which may be forbidden to vessels; that is gulfs, bays, and creeks.” 4 It is thus seen that the most authoritative writers on international law before the year 1818 (for Grotius, Bynkershoek, Vattel, and de Martens are regarded as among the founders of international law) based the jurisdiction over portions of the sea upon the power of effective con- trol; that is to say, small bodies of water adjacent to or extending within the coast, whose entrance could be commanded by cannon. It is fair to presume that the negotiators of the Convention of 1818 had in mind 1Vattel’s Droit des Gens, Liv. I, ch. XXIII, p. 251. (English Edition of 1760 quoted in Oral Argument, Vol. I, p. 729.) , 2T mean by great rivers such as those the middle of which may be reached by cannon shot, fired from the shore.” (De Marten’s note.) 3 Martens’ Law of Nations, Cobbett’s translation (First English Edition, 1802), p. 160. 4Droit des Gens Moderne de VEurope, Vol. I, sec. 130, pp. 216-217. cxlii INTRODUCTION such bodies of water and that their knowledge of international law was based upon general statements contained in the works of authority most widely known. It is not asserted that the rules of international law concerning such bodies of water were universally accepted, that the various writers on the subject are in exact accord, or that the practice of nations at the time of the convention was so clear and unmistakable as to free the subject from doubt; for “of practice,” as Hall says, “there is a curious deficiency.” A safer guide would seem to be the understanding of the parties to the convention, as evidenced by the correspondence between the two coun- tries, the instructions to the negotiators of the Treaty of Ghent and the Convention of 1818, the report of the American negotiators and the sub- sequent positive statements of Mr. Rush. If these various documents established an understanding between the two countries that the bays renounced by the Convention of 1818 were territorial, then it would seem that, irrespective of international law and the practice of states generally, the contention of the United States should have prevailed in the arbitration; whereas, if the various documents, to which reference has been made, failed to establish such an understanding between the contracting parties, then the British contention that the bays of the treaty coast were geographical—that is to say, bays in general — might properly have been accepted. The Tribunal rejected the American and accepted the British contention. The question was not free from doubt, for the expressions used in the renunciatory clause were clearly susceptible of the British interpretation, but an examination of the clause in the light of its history and the attending circumstances would un- doubtedly have justified the Tribunal in holding that the bays renounced by the Convention of 1818 were small territorial bays, not greater than six miles in width at their entrance, and that the United States only renounced the right to approach within three miles of such bays except for the four specified purposes; namely, for shelter, repairing damages, purchase of wood, and obtaining water therein. The Tribunal was not unanimous on this point and Dr. Drago filed an elaborate dissenting opinion in which he held that the bays on the non-treaty coast renounced by the Convention of 1818 were territorial bays properly so-called, not geographical bays, as held by the majority,! and that the Tribunal would be justified in regarding as territorial bays all bays whose entrances did not exceed ten miles in width. Had the Tribunal concurred in Dr. Drago’s opinion, Question V would have been decided. As it is, the Tribunal held that a bay was a bay, and 1 Appendix, p. 516; Oral Argument, p. 1457. INTRODUCTION cxliii that it ceased to be a bay when it lost the configuration and character- istics of a bay, thus leaving each bay to stand as it were upon its own bottom. If Great Britain and the United States agree that a particular bay ceases to be a bay at such and such a point, then the rights of each within its waters are ascertained. Should, however, they disagree, confusion is sure to result, for the language of the court is vague and indefinite. The Tribunal recommended that Great Britain and the United States adopt the ten-mile rule and delimited many of the bays on the non-treaty coast in accordance with the unratified Bayard- Chamberlain Treaty of 1888. A comparison of the award and this treaty shows, however, that the determination of the Tribunal was slightly more favorable to the United States. Should Great Britain and the United States, or either of them, reject the ten-mile rule as recom- mended by the Tribunal, confusion would result because the holding of the Tribunal would be reduced to the bare statement that the bays of His Britannic Majesty’s dominions in America are geographical, not territorial bays, without specifying when a bay is, or ceases to be, geographical. QUESTION VI In the debate upon the Foreign Fishing Vessels Bill of 1905, Sir Robert Bond, then Premier of Newfoundland, announced as a discovery of his own, unthought of by any lawyer, unsuspected by the sharp-eyed and astute statesmen of Great Britain and the United States who for a century had examined and discussed the rights of American fishermen within Newfoundland waters, that upon the correct interpretation of the Convention of 1818 as advanced by a layman the fishermen of the United States had no right to ply their calling within the harbors, creeks, or coves of the so-called treaty coast of Newfoundland extending from the Rameau Islands, on the south, and following the coast of Newfound- land westerly to Cape Ray, and northerly to the Quirpon Islands; that the liberty of American fishermen under the Convention of 1818 to take fish in the harbors, bays, and creeks of Newfoundland was limited “to that portion of our dependency from Mount Joly, on the southern coast of Labrador, to and through the straits of Belle Isle, and thence north- wardly indefinitely.” Sir Robert opined that this interpretation was “of vast importance to the people of this country.” If well taken the point was indeed, as Sir Robert says, of vast importance. Impressed by the importance of the discovery, and desirous that he should reap the benefit of it, he was naturally unwilling that his astute- hess or priority should be questioned. cxliv INTRODUCTION “T believe,” he said, “I am correct in saying that it is the first time that this position has been taken, and, if I am correct in my interpretation of the Treaty of 1818, the whole winter herring fishery of the west coast has been carried on for years by the Americans simply at the sufferance of the Government of this Colony.”! The value of Sir Robert’s discovery and the correctness of his inter- pretation did not, however, pass unchallenged, for during the very debate in which Sir Robert advanced his novel and unexpected con- struction, Mr. Morine, while admitting the originality of the interpre- tation, questioned its correctness, and it would seem answered it in a manner which deprives it of any claim to serious consideration. Mr. Morine stated that “however desirous the house might be to accept that interpretation, because it would very much narrow American rights and increase our own in our waters, he did not think that any lawyer would for a moment believe the Premier’s point was well taken. The very fact that it had not been taken since 1818 was at once an argument and an answer. If there had been anything in that interpretation it would not have been left to the discovery of a layman in the year 1905, almost one hundred years after the making of the treaty. And furthermore, the‘fact that this interpretation had not been acted on for upwards of one hundred years would be a sufficient answer. In fact, if there had been, originally, any meaning in such a petty interpretation of the words, the advantage had long been lost by the custom in usage of the two countries. The fact that such an interpretation had never been made before, but left until that date to be discovered by a layman, however eminent, would agree with the contention that there was nothing in it. The statesmen of the United States, Canada, or Great Britain had never placed such an interpretation upon it. The interpretation of the Premier as to rights of the Americans was based on the fact that in one place the Treaty referred to the rights on the Newfoundland coast between Ramea and Quirpon; and later on, when speaking of Labrador, it said not only coast, but further added the words bays, harbors and creeks, words which had not been put in with reference to Newfoundland. The Premier would argue, from the fact that the word coast if followed by the words bays, harbors and creeks, when referring to Labrador, the right to fish on the coast of Newfoundland did not imply the right to use the bays, harbors and creeks of the said coast... . To argue that the Ameri- cans were to be deprived, under the treaty of 1818, of the right of fishing in any of the bays, harbors and creeks, of the coast, because only the coast itself was mentioned, was to argue falsely. The larger word included the smaller — the word coast included bays, harbors and creeks, and though, when referring to the Labrador coast, the words bays, harbors and creeks were used in addition, they might just as well been left out — they were merely a lawyer-like repetition, having the same meaning. He was surprised that the Premier, after having made such a deep study of the case, and after having read that very excellent summary, quoting facts and dates, did not see the futility of his argument.” 2 The fact that the novel interpretation made by Sir Robert Bond was 1 Sir Robert Bond’s speech on second recording of Foreign Fishing Vessels Bill, April 7, 1905. (Appendix, U. S. Counter Case, p. 414.) 2 Appendix, U. S. Counter Case, pp. 425, 426. INTRODUCTION cxlv first proclaimed in 1905; that it had never been suggested, much less acted upon by any of the parties to the Treaty, would justify no further reference to the matter — indeed, Mr. Root contemptuously dismissed the subject by an anecdote!— were it not for the fact that Great Britain and the United States agreed to submit the question to the Tribunal for its decision; that it was argued in the various pleadings and that the Tribunal found it necessary to consider it and actually passed upon the question in its award. The discussion, however, will be very brief, because the question was political rather than legal, although presented as a question of law, and the judgment of the Tribunal repudiated the attempted construc- tion in the following clear and unmistakable language: “American inhabitants are entitled to fish in the bays, creeks and harbors of the treaty coast of Newfoundland and the Magdalen Islands and it is so decided and awarded.” 2 There is a passage in the negotiations of the Convention of 1818 which would seem to negative Sir Robert Bond’s contention. Ina propo- sition made by the British commissioners, by which the liberty was granted to take fish of every kind “on that part of the western coast of Newfoundland which extends from Cape Ray to the Quirpon Islands,” a part of Newfoundland covered by Sir Robert Bond’s interpretation, the British negotiators said that ‘‘nothing contained in this article shall be construed to give to the inhabitants of the United States any liberty to take fish within the rivers of His Britannic Majesty’s territories, as above described.”# This would indicate that American fishermen were to use the coastal waters, but not to enter the rivers for the purpose of fishing. The matter is made clearer, if possible, by the reply of Messrs. Gallatin and Rush, American commissioners, which says that “the liberty of taking fish within rivers is not asked. A positive clause to except them is unnecessary, unless it be intended to comprehend under that name waters which might otherwise be considered as bays or creeks.” 4 The British negotiators did not insist upon the proposed clause, and it would seem that the understanding of both parties to the convention was that while American fishermen were excluded from the rivers as such, they were nevertheless permitted to fish in coastal waters up to but not within the rivers emptying into the sea. Such was the understanding of both countries until 1905, and it 1P. 350. 2 Appendix, p. 514; Oral Argument, p. 1456. 3 Appendix, British Case, p. 89. 4 Appendix, British Case, p. 91. cxlvi INTRODUCTION would appear that Great Britain only permitted Sir Robert’s question to be arbitrated from an unwillingness to overrule the colony or to delay the conclusion of the special agreement, for Sir Robert made the accept- ance of the modus vivendi of 1907 conditional “on the receipt of an assurance from His Majesty’s Government that the terms of reference to the Hague Tribunal shall include the question of the right of American vessels to fish or trade in any of the bays, harbours or creeks of that portion of the Newfoundland Coast between Cape Ray and the Quirpon Islands, together with alt other questions that may be raised under the Treaty.” ! In considering the question the Tribunal stated that “the evidence seems to show that the intention of the parties to the Treaty of 1818, as indicated by the records of the negotiations and by the subsequent attitude of the Governments, was to admit the United States to such fishery,” and the Tribunal, therefore, very properly declared it to be “incumbent on Great Britain to produce satisfactory proof that the United States are not entitled under the Treaty.”2 The Tribunal examined and rejected the arguments advanced by Great Britain, based upon the technical and descriptive meaning supposed to result from the use of the words ‘“‘coast” and “shore” in different connections, declared them to be untenable and found as a fact that in the year 1823, just five years after the conclusion of the Convention of 1818, and when its terms were fresh in the minds of both parties, ‘Americans were fishing in Newfoundland bays and that Great Britain when summoned to pro- tect them. against expulsion therefrom by the French [who claimed an exclusive right] did not deny their right to enter such bays.” 3 The decision of the Tribunal on this point was of very great impor- tance to American fishermen as it involved their right to share in the valuable winter herring fisheries on the treaty coast. The question was political rather than legal and seems to rest on no substantial basis of law or fact. Question VII The seventh and last question submitted to the Tribunal for its decision raised the question ‘“‘are the inhabitants of the United States, whose vessels resort to the treaty coast for the purpose of exercising the liberties referred to in Article I of the Treaty of 1818, entitled to have for those vessels, when duly authorized by the United States in that behalf, the commercial privileges on the treaty coasts accorded by agreement or otherwise for United States trading vessels generally ?” 1 Appendix, U. S. Case, p. 1013. 2 Appendix, p. 513; Oral Argument, p 1455. 3 Appendix, p. 514; Oral Argument, p. 1456. INTRODUCTION cxlvii It will be observed that the question is restricted to the treaty coasts because American fishermen are only entitled to fish in the waters specified in the Convention of 1818. The liberty of taking, drying, and curing fish is alone secured by the convention, and although the grant is to American inhabitants, the fishery is usually considered a vessel fishery, because it can only be carried on by means of vessels. In the correspondence between Great Britain and the United States it was repeatedly asserted that American vessels as such had no rights under the convention, and the contention of Great Britain was con- stantly denied by the United States because without permission to use vessels the grant is useless. Insistence upon technicalities of this nature seems objectionable. It is no doubt true that American vessels as such obtained no rights under the convention, but American vessels employed by the inhabitants of the United States are the instrumentalities of fishing, and as fishing vessels they could not well be excluded from the treaty waters. The right of American fishermen to frequent the treaty coast arises from the treaty, and the right of the vessel, from which the fishery is conducted, to enter the treaty waters depends upon the United States, because it and it alone can properly determine American char- acter. An American fisherman, on board an American vessel provided with a fishing license, enters as of right the fishing waters and needs no local certificate or license for the fishing venture. But the right under the Treaty of 1818 is the liberty to fish, not to trade, for the Treaty of 1818 is the measure of the right, and the right to trade is not granted in express terms, nor is the right necessary to enable the American vessel to accomplish its object. Indeed, the right to trade under the treaty would seem to be negatived by the negotiations leading to the treaty, because the proposal that the Americans might purchase bait within British jurisdiction was expressly rejected by the British commissioners. Again, the British negotiators wished it to be understood that the fishing liberty was separate and distinct from permission to trade, saying in a proposed article: “Tt is further well understood that the liberty of taking, drying, and curing fish . . Shall not be construed to extend to any privilege of carrying on trade with any of His Britannic Majesty’s subjects residing within the limits hereinbefore assigned for the use of the fishermen of the United States, for any of the purposes aforesaid.” t If American vessels frequenting the treaty waters possessed the tight to trade it is evident that they did not enjoy such right by virtue of the convention. 1 Appendix, British Case, p. 89. cxlvili INTRODUCTION As a matter of fact the right to touch and trade was acquired by the British Order in Council, dated November 5, 1830,! taken in connection with the Act of Congress of May 29, 1830, and President Jackson’s Proclamation of October 5, 1830, relative to trading with the British Colonies.” It is evident, therefore, that under the Order in Council American vessels possessed the right to touch and trade within Newfoundland waters, and as the license is general, American vessels were free to enter both the treaty and non-treaty coasts for the purpose of trade. But American vessels are not merely provided with licen$es to fish, they are furnished with an American registry which includes the right to fish and in addition the right to trade. The question arose whether a vessel entitled under the Convention of 1818 to fish within the treaty waters might, at one and the same time, be licensed to trade and actually engage in trading, or whether the fishing vessel should be limited to taking, drying, and curing fish, or whether such vessel might, during the same voyage, by virtue of the Order in Council of 1830, trade as well as fish? The United States maintained that the Convention of 1818 was silent on the question; that while it gave American fishermen and their vessels engaged in the fishery the right to enter the treaty waters in the pursuit of their calling, there was nevertheless nothing in the con- vention which would forbid a fishing vessel to trade as well as fish. In trading, however, the vessel would derive no aid whatever from the convention, its right to trade resting upon an independent and specific authorization. The form of the question is rather unfortunate, because it is evident from what has been said that the treaty does not entitle American vessels to trade. There is, however, nothing:in the convention to prevent fishing vessels from trading if, by virtue of a subsequent treaty, American vessels obtained the right to enter Newfoundland ports for purposes of trade. The issue presented to the court would have, been clearer had the word “‘disentitled”’ been used instead of “entitled,” because if American fishing vessels obtained no right to trade under the Convention of 1818 they were not prevented, for the matter is not discussed. The question, however, is not academic and is of very considerable importance, because a fishing vessel entering the treaty waters might, if allowed to trade, purchase bait and proceed to the Grand 1“And His Majesty doth further, ... declare that the ships of and belonging to the said United States of America, may import from the United States aforesaid, into the British possessions abroad, goods the produce of those States, and may export goods from the British possessions abroad to be carried to any foreign country whatever.” (Appendix, British Case, PP. 570, 571.) ? For the text of these documents, see Appendix, U. S. Case, Vol. II, Pp. 1123-1126. INTRODUCTION cxlix _Banks in order to continue its fishing operations. If, however, a fishing vessel is not entitled to commercial privileges, this would be unlawful. It would, therefore, appear to be of advantage to the United States that fishing vessels, by virtue of the reciprocal agreement of 1830, be invested with commercial privileges. On the other hand, it would be of advan- tage to the local authorities to know in what capacity the vessel really presents itself, whether as a fishing or a commercial vessel. If the con- tention of the United States were correct that the fishing vessel in the exercise of the treaty rights is not subject to local regulation, neverthe- less the vessel entering as a trader by virtue of the reciprocal agreement might well be subject to local statutes, and it might embarrass the authorities of Newfoundland if the fishing and commercial character were present simultaneously in one and the same ship. The Tribunal evidently noted the conflict of interests and in its decision endeavored to preserve the rights of American fishermen accruing under the treaty and the reciprocal agreement of 1830, without losing sight of the interest of the local authorities so that the two-fold character of the American vessel should not produce hardship or confusion. The Tribunal held that “the inhabitants of the United States are so entitled in so far as concerns this treaty, there being nothing in its provisions to disentitle them, provided the treaty liberty of fishing and the commercial privileges are not exercised concurrently.” 4 It will be noted that by this decision a vessel cannot at one and at the same time exercise the liberty of fishing and the commercial privi- leges. In the reasons prefixed to the award the Tribunal says that Americans “cannot at the same time and during the same voyage exer- cise their treaty rights and enjoy their commercial privileges, because treaty rights and commercial privileges are submitted to different regulations and restraints.” ? It would seem that the award is satisfactory and based upon sound reasons. During the fishing venture the vessel is to be a fishing vessel, that is to say, if it leave Gloucester for the purpose of fishing it cannot convert itself during the same voyage into a trading vessel so as to trade and enjoy commercial privileges. But if it leaves Gloucester as a com- mercial vessel, bound for a Newfoundland treaty port, and deposit its cargo, the commercial voyage is finished. It may then engage in fishing, because it would not, during one and the same voyage, exercise different and inconsistent rights and privileges. 1 Appendix, p. 514; Oral Argument, p. 1457. 2 Appendix, p. 514; Oral Argument, p. 1457. cl INTRODUCTION CoNncLUSION Considered as a whole, the award of the Tribunal has given very general satisfaction to all parties concerned. Great Britain retains its sovereignty within British waters. Newfoundland is acknowledged to possess the right to regulate fishing within its waters, provided such regulations are reasonable, and the Canadian and Newfoundland bays on the non-treaty coast are geographical, not territorial bays. The United States is likewise satisfied with the award because its legitimate interests are safeguarded and protected. It is true that regulations affecting the time and manner of fishing are presumed to be reasonable unless there be actual discrimination, but the reasonableness of any regulation is not a question solely for Great Britain or its colonies to determine. If the United States objects to a regulation as unreason- able, the issue is to be determined by a commission in which Great _Britain and the United States will be represented, and in which a foreigner will hold the casting vote. Great Britain, indeed, retains its sovereignty and its right to legislate, but the exercise of sovereignty seems to be vested in commission, and the Convention of 1818 is, to this extent, as admitted by Lord Salisbury and maintained by Mr. Root, a qualification of British sovereignty. In the next place, American fisher- men are permitted by the award to employ non-inhabitants generally, and their persons and their property are not, on this account, to be arrested, seized, or confiscated. The holdings on Questions ITI and IV are favorable to the contentions of the United States, yet recognize and protect the interest which New- foundland and Canada have, to be notified of the presence of American fishermen within the fishing grounds or upon the non-treaty coast. The historic contention of the United States in the matter of bays was re- jected by the Tribunal, but if the ten mile rule, as recommended by the Tribunal, be accepted by Great Britain and the United States, the loss will be but four miles; that is to say, the difference between six and ten miles. Had Sir Robert Bond’s contention prevailed that American fisher- men were excluded from the bays and harbors of the treaty coast, the consequences would have been very serious because the winter herring fishery would have been lost to American fishermen. The contention was political rather than legal, and was advanced, it would seem, to secure concessions to Newfoundland products within the United States. And finally, the award of the Tribunal on Article VII, while favorable to the United States, nevertheless protects Newfoundland from the abuse of the fishing liberty. INTRODUCTION cli But in a larger sense, the award must be very gratifying to partisans of arbitration in all parts of the world, because an historic controversy, coincident with the independence of the United States, and which at times seemed not unlikely to result in war, was decided by a tribunal at a single session of little more than three months, and the question removed from the field of controversy. Small questions, it is said, are only submitted to arbitration; and it is well that important cases, such as the Alabama claims and the North Atlantic Fisheries dispute, in- volving delicate and intricate questions of alleged national honor in the former, questions of internal and external sovereignty in the latter, be pointed to in order to make it appear, even to the unwilling, that there is no limit to the scope of arbitration if only nations wish to settle their controversies by an appeal to reason rather than by an appeal to the sword. May the example of Great Britain and the United States be one of many precedents in the gradual substitution of law for force. JAMES Brown Scott ARGUMENT OF THE HONORABLE ELIHU ROOT ON BEHALF OF THE UNITED STATES OF AMERICA SENATOR Root: Mr. President and gentlemen of the Tribunal: I beg you to accept my congratulation upon the approach of the end of this long task which has been imposed upon you, to listen attentively and laboriously to the arguments of counsel. It has been, necessarily, a severe tax, not only upon the time, but upon the powers of the members of the Tribunal, for so long a period to listen and not to act. Yet I cannot doubt that you will feel that the dignity and importance of the controversy which is sub- mitted to you justifies the demands that have been made upon you. It is not alone a controversy that, through lapse of time, has acquired historic interest, that, through the participation of many of the ablest and most honored statesmen of two great nations through nearly a century, has acquired that sanctity which the sentiment of a nation gives to the assertion of its rights, but it is a controversy which involves substantial and, in some respects, vital interests to portions of the people of each nation. The fishermen on the coast of Massachusetts and of Maine are poor and simple folk. They live upon the fruit that, with hard toil and danger, they win from the waves. They are not as important a part of the United States to-day as they were in 1783 or in 1818; but, while their comparative weight and importance have declined, their positive importance is as great now as it was then, and greater still, Every consideration that moves a sovereign nation to regard and maintain the interests of its own people urges the United States to press upon you this view of its controversy. The Attorney-General has pointed out that behind these fish- ing communities upon the New England coast stand the eighty-five millions of people of the United States. Ah! yes. But behind the fishing communities and traders of Newfoundland stand the I 2 FISHERIES ARBITRATION AT THE HAGUE hundreds of millions of people of the British Empire — that great Empire whose pride and honor it is ever to have safeguarded and maintained the interests of every citizen. And when two great nations, bound to protect the interests of their citizens, however humble, find themselves differing in their views of rights which are substantial, find themselves differing so radically that each conceives itself to have a right which it cannot abandon without humiliation, and cannot maintain without force, a situation arises of the gravest importance and the first dignity. No function can be assumed by any tribunal upon this earth of higher consequence than that which you have now assumed, to substitute your judg- ment for the war which alone, without such a judgment, could settle the questions of right between these two great countries. I cannot doubt that you will feel, as I feel, that the long, and laborious, and patient, and inconspicuous work of such a proceed- ing as this is of greater value in the cause of peace among men than a multitude of speeches in congresses and conventions, laud- ing peace and arbitration to the ears of men who are already satis- fied to have peace and arbitration. The patient attention, the manifest interest of the Tribunal, and the acute and instructive observations which have fallen from the lips of the members of the Tribunal during this argument can- not fail to inspire counsel with a strong desire to contribute some- thing that may be useful to the attainment of a just judgment, as the result of so many and such arduous labors. I shall hope to contribute something. If I fail, it will be my misfortune and not the fault of my intention. The statement of the first question presents, in authentic form, the real attitude of the two nations in respect of its subject-matter. The form is unusual, peculiar. I have not seen it employed in the presentation of questions to arbitral tribunals. I will read the article of the treaty to which the question relates, and the question itself. The article is: “ARTICLE I “Whereas differences have arisen respecting the Liberty claimed by the United States for the Inhabitants thereof, to take, dry and cure Fish on Certain Coasts, Bays, Harbors and Creeks of His Britannic Majesty’s Dominions in ARGUMENT OF MR. ROOT 3 America, it is agreed between the High Contracting Parties, that the Inhabi- tants of the said United States shall have forever, in common with the Subjects of His Britannic Majesty, the Liberty to take Fish of every kind on that part of the Southern Coast of Newfoundland which extends from Cape Ray to the Rameau Islands, on the Western and Northern Coast of Newfoundland, from the said Cape Ray to the Quirpon Islands, on the shores of the Magdalen Islands, and also on the Coasts, Bays, Harbors, and Creeks from Mount Joly on the Southern Coast of Labrador, to and through the Straits of Belleisle and thence Northwardly indefinitely along the Coast, without prejudice, however, to any of the exclusive Rights of the Hudson Bay Company; and that the American Fishermen shall also have the liberty forever, to dry and cure Fish in any of the unsettled Bays, Harbors, and Creeks of the Southern part of the Coast of Newfoundland hereabove 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 such Portion so settled without previous agreement for such purpose with the Inhabitants, Proprietors, or Possessors of the ground. And the United States hereby renounce forever, 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 Harbors of His Britannic Majesty’s Dominions in America not included within the above mentioned limits; provided, however, that the American Fishermen shall be admitted to enter such Bays or Harbors for the purpose of Shelter and of repairing Damages therein, of purchasing Wood, and of 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.” The question is: “QUESTION ONE “To what extent are the following contentions or either of them justified ? “Tt is contended on the part of Great Britain that the exercise of the liberty to take fish referred to in the said article, which the inhabitants of the United States have forever in common with the subjects of His Britannic Majesty, is subject, without the consent of the United States, to reasonable regulation by Great Britain, Canada, or Newfoundland in the form of municipal laws, ordinances, or rules, as, for example, to regulations in respect of (1) the hours, days, or seasons when fish may be taken on the treaty coasts; (2) the method, means and implements to be used in the taking of fish or in the -carry- ing on of fishing operations on such coasts; (3) any other matters of a similar character relating to fishing; such regulations being reasonable, as being, for instance — “(a) Appropriate or necessary for the protection and preservation of such fisheries and the exercise of the rights of British subjects therein and the 4 FISHERIES ARBITRATION AT THE HAGUE liberty which by the said Article 1 the inhabitants of the United States have therein in common with British subjects; “(6) Desirable on grounds of public order and morals; “(c) Equitable and fair as between local fishermen and the inhabitants of the United States exercising the said treaty liberty, and not so framed as to give unfairly an advantage to the former over the latter class. “Tt is contended on the part of the United States that the exercise of such liberty is not subject to limitations or restraints by Great Britain, Canada, or Newfoundland in the form of municipal laws, ordinances, or regulations in respect of (1) the hours, days, or seasons when the inhabitants of the United States may take fish on the treaty coasts, or (2) the method, means, and implements used by them in taking fish or in carrying on fishing opera- tions on such coasts, or (3) any other limitations or restraints of similar character — “‘(a) Unless they are appropriate and necessary for the protection and preservation of the common rights in such fisheries and the exercise thereof and ““(b) Unless they are reasonable in themselves and fair as between local fishermen and fishermen coming from the United States, and not so framed as to give an advantage to the former over the latter class; and , “(c) Unless their appropriateness, necessity, reasonableness, and fairness be determined by the United States and Great Britain by common accord and the United States concurs in their enforcement.” The Tribunal will already have observed, of course, that instead. of framing the question, the makers of the special agreement, the compromis, have stated separately the contention of each party, and have asked the Tribunal to say to what extent these conten- tions are justified. It may fairly be inferred that neither party to the agreement was willing to state the question in terms of the other’s choosing; and that, therefore, there are two separate statements. An examination of the statement of the contentions indicates the reason. The two parties approached the subject of the first question from different points of view. Great Britain approached it from the standpoint of her sovereignty. The United States approached it from the standpoint of her granted right. Great Britain states the question as a question relating to the exercise of her sovereign rights. The United States states the question as relating to the inviolability of her granted right. And the two approaching the subject thus from different points, there comes a line between the two, and it rests with the Tribunal to draw that line. ARGUMENT OF MR. ROOT 5 At the outset of the consideration as to where that line is to be drawn, and how it is to be drawn, there is plainly to be seen one fact, unquestionable, agreed to on all hands: that the contention of the United States does not in any degree whatever thrust the assertion of its right into the field of British sovereignty in general. It does not question the full and unimpeded exercise of the sovereign rights of Great Britain over her territory, and the people within her territory, in all the general affairs of life. It does not question her control, without accountability, over the conduct of all persons who are within the spatial sphere of her sovereignty. It is a familiar method of dealing with the arguments of an ad- versary to overstate them, for the purpose of destroying them; and when the claims of the United States are stated as being claims to an abdication of British sovereignty, I cannot help feeling that the statement trenches a little upon that method of argument. It constructs a man of straw, easily overthrown. It creates a certain degree of prejudice against the claim which, stated in such a form, is to remain during the period of a long argument characterized by such a description. We make no such claim. We admit unre- stricted and unquestioned sovereignty by Great Britain over persons and their conduct; but our claim questions whether that sovereignty, since the grant to us, extends to a modification of our right. The American inhabitant who goes to the treaty coast for the exercise of his right is absolutely and in the fullest extent subject to the sovereignty of Great Britain; but what is his right? Can Great Britain change his right? His conduct in exercising the right, yes; he must obey the laws. But can it change his right? It is conceded — for certain purposes of argument asserted — asserted in the printed documents, asserted by the counsel for Great Britain here, and repeated over and over again, with emphasis, that there is a line beyond which Great Britain cannot go. Where is the line? Let me call attention to three expressions as to the existence of the line beyond which Great Britain cannot go, which appear in the record, and which are progressively definitive. I will begin with the circular of Mr. Marcy, with which the Tribunal is very familiar, fand which appears in the British Case Appendix at P. 207. ne Tribunal will remember that Mr. Marcy, the American 6 FISHERIES ARBITRATION AT THE HAGUE Secretary of State, upon the revival of the atternpt to put into force the temporary and reciprocal treaty of 1854, issued a circular letter to the Collectors of Customs of the United States in which he said that there were certain acts of the colonial legislatures “intended to prevent the wanton destruction of the fish which frequent the coasts of the colonies and injuries to the fishing.” And he said: “There is nothing in the Reciprocity Treaty between the United States and Great Britain which stipulates for the observance of these regulations by our fishermen; yet, as it is presumed, they have been framed with a view to pre- vent injuries to the fisheries, in which our fishermen now have an equal interest with those of Great Britain, it is deemed reasonable and desirable that both should pay a like respect to those regulations, which were designed to preserve and increase the productiveness and prosperity of the fisheries themselves. It is, consequently, earnestly recommended to our citizens to direct their pro- ceedings accordingly.” That was issued upon the submission to him of the statutes to which he refers, with a statement that they contained no provision inconsistent with the full enjoyment of the American citizens’ rights of fishing secured by the treaty. That statement appears in a series of preceding letters, notably the letter of Mr. Crampton to Mr. Manners Sutton, which is to be found on pp. 205 and 206 of the British Case Appendix. It appears from this circular that Mr. Marcy, after examining these statutes, found nothing which he considered to be inconsistent with the full enjoyment of the Amer- ican citizens’ rights of fishing, and he approved the statutes and recommended their observance. Thereupon the British Minister represented to Mr. Marcy that a statement in his circular that there was nothing in the treaty which stipulated for the observance of these regulations would be apt to make trouble with the fishermen; that the American fishermen would not be likely to observe the recommendation which had been made to them, in the face of the statement that there was no stipulation requiring them to obey. That representation appears in the letter of Mr. Crampton of the 25th April, 1856, which is to be found on p. 210 of the British Case Appendix. And the British Minister asked Mr. Marcy to amend his circular by putting in other words in place of the observation that there was no stipulation requiring obedience. These are the ARGUMENT OF MR. ROOT q words that the British Minister wished included —I am reading from p. 211 of the British Case Appendix, the italicized words near the foot of the page: “American citizens would indeed, within British jurisdiction, be liable equally with British subjects to the penalties prescribed by law for a willful infraction of such regulations, but nevertheless should these be so framed or executed as to make any discrimination in favor of the British fishermen or to impair the rights secured to American fishermen by the Reciprocity Treaty, those injuriously affected by- them will appeal to this Government for redress.”” Mr. Marcy apparently declined to substitute those words for his own. At all events, he did not substitute them, but instead of that he put in a statement, which is the first example of the drawing of the line between what Great Britain could do and what Great Britain could not do, to which I ask your attention. What he put into his circular, in place of the denial of his own first circular, and in the place of the declaration of binding obligation which the British Minister wanted to put in, was: first a statement of this very general jurisdiction, general sovereign right of Great Britain to which I have already referred; and, secondly, a statement of the limitation in regard to the treaty. What he said was — and I now read from the final circular, on p. 209 of the British Appendix: “By granting the mutual use of the inshore fisheries neither party has yielded its right to civil jurisdiction over a marine league along its coast. Its laws are as obligatory upon the citizens or subjects of the other as uponits own.” To that proposition we fully subscribe, with the addition which he makes of the particular situation in which the treaty places laws relating to the subject-matter of the treaty. That addition was in these words: “The laws of the British Provinces not in conflict with the provisions of the Reciprocity Treaty would be as binding upon citizens of the United States within that jurisdiction as upon British subjects.” There is the first statement. It is first in point of being gen- eral, and it is first historically. General jurisdiction untouched; laws of the jurisdiction binding upon American citizens as fully as upon British subjects; laws not inconsistent with the 8 FISHERIES ARBITRATION AT THE HAGUE treaty, binding; laws that are inconsistent with the treaty, not binding. But Mr. Marcy does not undertake to point out, indeed the situation did not call upon him to point out, what laws would be consistent and what laws would be inconsistent with the treaty. I now beg to pass to a second instance which proceeded some- what further in drawing the line, and that is the letter of Lord Salisbury, to which attention has so often been drawn, in his correspondence with Mr. Evarts regarding Fortune Bay. THE PRESIDENT: May I ask you, Senator Root, whether you consider that the following sentences in this circular have no bearing upon the preceding sentences, the sentences: “Should they be so framed or executed as to make any discrimination in favor of the British fishermen, or to impair the rights secured to American fishermen by the Reciprocity Treaty, those injuriously affected by them will appeal to this government for redress. In presenting complaints of this kind, should there be cause for doing so, they are requested to furnish the Depart- ment of State with a copy of the law or regulation which is alleged injuriously to affect their rights or to make an unfair discrimination” ? SENATOR Root: I do not consider, Mr. President, that they have any bearing at all upon the precise proposition which I am now presenting; that is to say, upon the existence of the line between what Great Britain can do and what she cannot do. But they do have a bearing upon another closely allied question, to which I shall turn my attention in a moment, and that is the procedure which should follow, and the method of determining, practically, the line, as matters stood before this submission, before the making of the treaty of arbitration, or this special agreement. They have a very important bearing upon that. Lord Salisbury, the Tribunal will remember, became involved in a correspondence with Mr. Evarts regarding the claim of the United States for compensation for certain acts of violence which had been done to American fishermen in Fortune Bay by the British fishermen there. The claim having been made, the British Government answered it in the manner which is ordinarily used in dealing with mere claims, an answer not indicating special con- sideration, but such as would naturally come from the claims ARGUMENT OF MR. ROOT 9 department of a Foreign Office, that this claim could not be allowed because the American fishermen who suffered the injury were guilty of three distinct violations of the laws of Newfoundland; that they were on shore when they had no right to be on shore; that they were in-barring herring when the law prohibited it; and that they were taking herring with a seine during the period between October and May, when the statute prohibited it. In response to that, Mr. Evarts called attention to the fact that these laws were, in his view, not binding upon American fishermen, and he said, in a letter of the 28th September, 1878, which appears in the United States Case Appendix at p. 652, from which I read on p. 655: “Tn transmitting to you a copy of Captain Sulivan’s report, Lord Salisbury says: ‘You will perceive that the report in question appears to demonstrate conclusively that the United States fishermen on this occasion had committed three distinct breaches of the law.’ “In this observation of Lord Salisbury, this Government cannot fail to see a necessary implication that Her Majesty’s Government conceives that in the prosecution of the right of fishing accorded to the United States by Article XVIII of the treaty our fishermen are subject to the local regulations which govern the coast population of Newfoundland in their prosecution of their fishing industry, whatever those regulations may be, and whether enacted before or since the Treaty of Washington.” And he said, in the third paragraph below the one which I have read: “Tt would not, under any circumstances, be admissible for one government to subject the persons, the property, and the interests of its fishermen to the unregulated regulation of another government upon the suggestion that such ‘authority will not be oppressively or capriciously exercised, nor would any government accept as an adequate guaranty of the proper exercise of such authority over its citizens by a foreign government, that, presumptively, fegulations would be uniform in their operation upon the subjects of both governments in similar case. If there are to be regulations of a common enjoyment, they must be authenticated by a common or joint authority.” And he concluded his letter by some paragraphs which I will read from p. 657: “So grave a question, in its bearing upon the obligations of this Govern- ment under the treaty makes it necessary that the President should ask from . Her Majesty’s Government a frank avowal or disavowal of the paramount Io FISHERIES ARBITRATION AT THE HAGUE authority of Provincial legislation to regulate the enjoyment by our people of the inshore fishery, which seems to be intimated, if not asserted, in Lord Salisbury’s note. “Before the receipt of a reply from Her Majesty’s Government, it would be premature to consider what should be the course of this Government should this limitation upon the treaty privileges of the United States be insisted upon by the British Government as their construction of the treaty.” In response to that plain challenge, Lord Salisbury proceeded to draw the line which, as I conceive, it is to be your function to draw. In his reply of the 7th November, 1878, United States Case Appendix, p. 657, he said, in a paragraph which I shall read from p. 658: “T hardly believe, however, that Mr. Evarts would in discussion adhere to the broad doctrine which some portion of his language would appear to con- vey, that no British authority has a right to pass any kind of laws binding Americans who are fishing in British waters; for if that contention be just, the same disability applies a fortiori to any other power, and the waters must be delivered over to anarchy.” There he stated what I have stated, and what Mr. Marcy had stated, as to the general jurisdictional power of Great Britain over her colony. And subsequently, Mr. Evarts, rather sharply and with language which indicated that no such idea ought to be imputed to him or suggested as conceived by him, repudiated any such view. Lord Salisbury went on to state the other side of the question. Having stated in this form what, clearly, Great Britain can do, and having been challenged in due form to make a frank avowal or disavowal of the paramount authority of provincial legislation to regulate the enjoyment by our people of the inshore fisheries, he proceeded to state what Great Britain cannot do. » “On the other hand,” he said, ““Her Majesty’s Government will readily admit — what is, indeed, self-evident — that British sovereignty, as regards those waters, is limited in its scope by the engagements of the Treaty of Wash- ington, which cannot be modified or affected by any municipal legislation.” And, in his further correspondence, after arguing that Acts passed before the treaty was made did not come within this limi- tation, he supplemented his former statement in his letter of the ARGUMENT OF MR. ROOT II 3rd April, 1880 (United States Case Appendix, p. 683), by a further statement which I read from that letter on p. 687: “Mr. Evarts will not require to be assured that Her Majesty’s Government, while unable to admit the contention of the United States Government on the present occasion, are fully sensible of the evils arising from any difference of opinion between the two governments in regard to the fishery rights of their respective subjects. They have always admitted the incompetence of the colonial or the imperial legislature to limit by subsequent legislation the advan- tages secured by treaty to the subjects of another power.” It still remains, however, after the drawing of this line by Lord Salisbury declaring on the one hand what Great Britain clearly could do, and on the other hand what Great Britain clearly could not do, to further define the position of the line beyond the generality of the terms used by Lord Salisbury. And, that further definition was made in the correspondence relating to the Newfoundland treaty legislation of 1873 and 1874. You will remember that the Treaty of Washington of 1871 provided that it should apply to Newfoundland, in case the Legis- lature of Newfoundland passed a law making it applicable, and they did pass a law in 1873. It appears in the British Case Appen- dix at p. 705, “An Act relating to the Treaty of Washington, 1871.” In the first article of that statute they include a proviso (p. 706): “Provided that such Laws, rules and regulations, relating to. the time and manner of prosecuting the Fisheries on the Coast of this Island, shall not be in any way affected by such suspension.” A very definite claim, a distinct assertion: “Provided that such Laws, rules and regulations, relating to the time and manner of prosecuting the Fisheries on the Coasts of this Island, shall not be in any way affected by such suspension.” When that was called to the attention of the American Govern- ment, Mr. Fish, the American Secretary of State, wrote a letter, dated the 25th June, 1873, which appears on p. 252 of the British Case Appendix, in which, concerning the Treaty of Washington, he said, as we say of this treaty of 1818: “The Treaty places no limitation of time, within the period during which the Articles relating to the fisheries are to remain in force, either upon the right 12 FISHERIES ARBITRATION AT THE HAGUE of taking fish on the one hand, or of the exemption from duty of fish and fish oil (as mentioned therein). “T regret, therefore, that the Act of the Legislature of Newfoundland which reserves a right to restrict the American right of fishing within certain periods of the year, does not appear to be such consent on the part of the Colony of Newfoundland to the application of the stipulations and provisions of Articles 18 to 25 of the Treaty, as is contemplated by the Act of Congress to which you refer, and in accordance with which the Proclamation of the President is to issue.” There Mr. Fish stated the proposition which we press upon you here. “The treaty places no limitation of time within the period during which the articles relating to the fisheries are to remain in force,” and “‘the Act which reserves a right to restrict the American right of fishing within certain periods of the year is not such a con- sent as is contemplated by the Act of Congress,” and so on. That is supplemented by the conversation with Mr. Fish, reported by Sir Edward Thornton, the British Minister in Wash- ington, in which he said on p. 253 of the British Case Appendix: “Mr. Fish replied that he could state confidentially his understanding that the jurisdiction gave the right of laying down reasonable police regulations, and that as a matter of course such regulations would be observed by all who fished in the waters in question;” That is the general jurisdiction as I have stated it; as Mr. Marcy stated it; and as Lord Salisbury stated it; “but? — He proceeded to say— “the permission to fish granted by the treaty was accompanied by no restric- tion except so far as to define the localities in which the fishing was to be carried on.” That is the basis. And upon that the Legislature of Newfoundland passed a new enactment omitting the attempted reservation of the right to regulate in respect of the time and manner of fishing which had been declared contrary to the treaty, and substituted in place of it their Act of the 28th March, 1874, which appears at p. 706 of the British Appendix, and which says the articles of the Treaty of Washington ARGUMENT OF MR. ROOT . 13 “shall come into full force, operation and effect, in this Colony, so far as the same are applicable, and shall thenceforth so continue in full force, operation and effect, during the period mentioned in Article thirty-three of the said Treaty, recited in the Schedule to this Act, any law of this Colony to ae contrary notwithstanding.” Both of these correspondences I shall refer to again for. other purposes. I refer to them now with the sole purpose of attempting to give definition to the line which I conceive must be drawn between what it is competent for Great Britain to do in the exercise of her general sovereignty and what it is incompetent for Great Britain to do in respect of the modifica- tion of our right. Now, to return to the question which the President asked as to the concluding words of Mr. Marcy’s circular advising the fisher- men to appeal to their own government in case they found discrimi- nation or interference with their right. Of course it follows from the fact that Great Britain has the general right of sovereignty, and the general right to pass laws within that jurisdiction, that there may be, as Lord Salisbury justly ob- serves, an inadvertent overstepping of the line. That is always possible, wherever you draw the line, and of course those lines are not to be passed upon by fishermen, the statutes are to be respected, and, as Mr. Marcy instructs the fishermen, appeal must be made to their own government; as Lord Salisbury says in the letter to which I have referred, the subject is to be taken up by the govern- ments. No one on the part of the United States has ever been so lost to all considerations of the way in which government must be conducted as to claim anything to the contrary of that. Wherever there is doubt as to whether a law is within or not within the competency of the government which has general sovereignty over the territory in which the law is to be applied that doubt must be resolved in a decent and orderly manner, in -accordance with the customs of nations, not by having individuals take the law into their own hands and say, I will obey or I will not obey. That is true, wherever the line is drawn. But, there still remains the question, when the two govern- ments come to consider whether a law that has been passed does 14 FISHERIES ARBITRATION AT THE HAGUE overstep the line of competency, where are they to find the line of competency, what rule are they to apply? If you were to find, as I hope you will, that it is competent for Great Britain to make police regulations to control the conduct of persons within this territory, although it is not competent for her to modify our right, or the rights which Americans go there to exercise, nevertheless there must always be a question, what is a police regulation? We have had a good illustration here, in this subject of net interference. That was referred to in some one of the American printed papers as not being a police regulation. Mr. Turner stated in his opening argument for the United States that he thought it was. Sir Robert Finlay said he thought it was. I agree with both of them that it is a police regulation; but suppose a fisherman in Newfoundland had been of the opinion that that was not a police regulation, it was not his business to determine his conduct according to his view: that is a matter the govern- ment must consider: “Is it a police regulation ?” And so, wherever the line is drawn, the question as to which side of the line statutes fall must be raised, not by individuals, but by the government whose rights may be or are alleged to be affected., THE PRESIDENT: May I ask, Mr. Senator Root, would there be any difference in the decision of the question whether the laws have been overstepped in regard to this treaty, or in regard to any other treaty? Is this treaty in a peculiar situation or of a peculiar character in this respect ? SENATOR Root: I think, Mr. President, it belongs to a special class of treaties, and the considerations regarding it must proceed upon somewhat different principles from the treaties of any other class; and assigning to this treaty its proper place in the class to which I think it belongs will be the function of another portion of my argument. Let me state what I think is the question involved in the drawing of this line. Granted that all laws of a general character, controlling the conduct of men within the territory of Great Britain, are effective, binding, and, beyond objection by the United States, competent ARGUMENT OF MR. ROOT 15 to be made upon the sole determination of Great Britain or her colony, without accountability to anyone whomsoever; granting that there is somewhere a line beyond which it is not competent for Great Britain to go, or beyond which she cannot rightfully go, because to go beyond it would be an invasion of the right granted to the United States in 1818; was the legal effect of the grant of 1818 to leave the determination as to where that line is to be drawn to the uncontrolled judgment of the grantor, either upon the gran- tor’s consideration as to what would be a reasonable exercise of its sovereignty over the British Empire, or upon the grantor’s consideration of what would be reasonable towards the grantee? Or, was the legal effect of the grant to establish a right which by its own terms drew the line beyond which the grantor could not rightfully go with statutes modifying or restricting the right, or the exercise of the right, without consulting the grantee whose rights were to be affected? I have said, in stating this question, that it was whether the line was to be drawn upon the uncontrolled judgment of the grantor, either upon what would be a proper exercise of the grantor’s sov- ereignty over the British Empire, or upon what would be reasonable towards the grantee, as coming under both heads, both branches, in both aspects, under the category of uncontrolled judgment. It seems that no argument is necessary to sustain that. I must, however, revert to the statement of the British conten- tion, which appears to impose upon Great Britain in express terms the limitation of reasonableness. That certainly does impose a limitation. And the limitation is the limitation of what is reasonable. It is, what is reasonable, what is appropriate or necessary for the protection and preservation of the fishery, what is desirable on grounds of public order and morals, what is equitable and fair as between local fishermen and the inhabitants of the United States, andso on. And so Sir Robert Finlay, in his most comprehensive and able argument, assumed it to be, at one point in the argument; for he says “‘it never has for one moment been contended by Great Britain that regulations of the kind indicated there giving a preference to British fishermen as against fishermen of the United States would be defensible. The liberty given by the treaty cannot be taken away by regulation, 16 FISHERIES ARBITRATION AT THE HAGUE and Great Britain could not so contend; Great Britain never contended that regulations might be framed which would put the natives of the dominion concerned in a better position than the United States fishermen who have been admitted to share in the benefits of the fishefy.” But, when the counsel for Great Britain are confronted by the manifest unfairness of having a right vested in us which cannot be affected or modified by any legislation or regulation on the part of the grantor of the right which is not reasonable, fair, appropriate, and necessary, and at the same time arrogating to the grantor the right itself alone to determine what is reasonable, fair, appropriate, and necessary, he seeks refuge from the consequence by the prop- osition which I will now read from the copy of his argument at p. 176: “Tt is not claimed for the British Government, or for the Colonial Govern- ments, that they can determine the question whether any regulation is reason- able. All that they claim is the right to make reasonable regulations, and if the point is raised as to whether any regulation is reasonable or not, it is not for the Colonial Government, it is not for the British Government, it is not for the United States Government to determine whether that regulation is or is not reasonable. It is for this Tribunal, to which the parties can, if such a difference arises, come.” Where did the right stand before the year 1908 ? What are you to adjudge the rights to be under the treaty of ' 1818? Under any arbitration proceeding, in any determination which you may make under the articles of this treaty following the ones submitting the question in any determination which may be made under the rules of procedure which you may frame and which may possibly be accepted, or under the short form of procedure at The Hague, provided for by Article 4, what must be the foundation but an ascertainment of the rights of the parties under the treaty of 1818, and a procedure based upon the award which determines those rights? And, in determining what those rights are under the treaty of 1818, of course you must proceed without any reference whatever to the fact that, recognizing the inequity of their own position, recognizing that that position would be revolting to the sense of justice of an international Tribunal, Great Britain has ARGUMENT OF MR. ROOT 17 recourse to the fact that under this recent agreement a Tribunal may do what it would have been unjust for Great Britain to do, that is to say, to pass herself alone upon the rights in which another was equally interested, to be the judge in her own case. Of course I need not argue that the asseftion of such anuncon- trolled right is in its legal effect wholly destructive of the limitation which is stated in the contention of Great Britain under the first question of the special agreement. How does Great Britain arrive at the conclusion that, while the grant of 1818 limits the scope of sovereignty, excludes her from legislation which modifies or affects our right, she alone is entitled to be the judge as to what is desirable, appropriate, necessary, and fair for her purposes to lead to a modification and restriction and limitation of our right? She does it by appealing to her sov- ereignty. It is not because there is any fairness as between two common owners of a right, that one should be the judge of limita- tions and modifications to be imposed upon the right; she does it by an appeal to her sovereignty. It is because she is sovereign there. I shall deal hereafter with the question as to whether there is any foundation for that appeal. I refer to it now, however, for the purpose of pointing to the practical effect of the ground on which she claims the right to decide. That is, the ground upon which she claims that she had the right to decide prior to the making of this special agreement, for the ninety years before the treaty of 1908 came into existence. What is the practical effect of Great Britain establishing her right to determine alone herself as to what limitations may and should be imposed upon our right, upon the ground of her sov- ereignty? Why, it is that the right granted to us is subject to her right of sovereignty. And what is the scope of the right of sovereignty ? It is to do what she pleases. It is that she‘may, if she will, go to any length whatever in restricting, limiting, impeding, or prac- tically destroying the right which has been granted, for there is no limitation upon the right of sovereignty, and whatever authority is to be inferred from that is an authority without limit. Now, I have endeavored to state what I think to be the attitude 18 FISHERIES ARBITRATION AT THE HAGUE of the two parties in regard to Question One, and to draw from the record definitions, in so far as seems to be useful for the moment, as to what Great Britain can do and what Great Britain cannot do. It is my purpose, as best I may, first, to dispose of certain rather narrow questions relating to the meaning of terms in the grant of 1818; second, to show the practical bearing of the decision of the first question on the substantial rights of the United States; third, to examine the nature of the right granted and the consequences and legal effect of that nature; fourth, to show the understanding and intent of the negotiators as to the meaning and effect of the article and the terms used in it; fifth, to show the construction that has been put upon the article of the treaty of 1818 in question by the parties — the construction that was put upon it for more than sixty years after it was made— and, sixth, to show the relations to this case, to this right created by this article, of the accepted rules of international law which have grown up in the consideration and treatment of cases embodying the same fundamental characteristics and having a generic relation to the grant of the right under the treaty of 1818, as I hope to make it plain to you. First, as to the meaning of some of the terms in the C. Fogo fx \_ Mantkuagan pete C.Marsouln Bouth west Pt s ae | \ Bec parkiu ids | | t h arde B. ve Chat I ¢ ae Deadman i 4 € Freel b + CABOT 1. Ss East C, 2. South Pr G, Heath Pt. fj Pn —t | CiGaspe "rang my, | Boy | SI 8 UL F Ze a. O.Bonavista | eBONAVENTURy. ff Ri e Bonavista | Anse a Be. . = Aly’ \ 7a fc Hh So eaten OF enc D (ua fhe taquereay Pt. Ss T | (7 a pov “ert Daniel J agit C.Loup Mari -LA ry ge" | Grates Pt i AWRENCE MIBCou {, { | GM isoon Hh. AH te AH . YBACABEU eas (<= re a (Bay de Verde a ~ Boy ‘SHIPPIGAN 1, Bigp noc Brion IHD ROCK, é }008B 1, RADELLE MAGDALEN iP ease | | Y S : ay | Nk: cn SEANDS Gorm Port fux Basques > a we \ INDBTONE x A ove’ Hr. e pors® Ramea Is, per™ 7. \ ampenst 1, gal yee So, Connait™ 5 a} th Pt South W.C, ee aT.PAUL Lg S, BRUNETTE 1. > ct fe GREAT Le gxomn tt 6 "ts Miquelon C.Brosle — f (VAs St. Lawrence De es GRAND i (4, PRINCE EDWAR ) CAspy . | — C. Ballard BG White t aang ETE coc" ISLAND ee CAPE BRETON WER A g erin Lanze Pes Frenchman Cote i P ncetown vast ur. E™™p Pr 0 é CANE FRENCH ’ , mersi - Tia .Smdke se, EUS y — Sac teary pISLA ND ng p= RSOuris * \Wsr.40" * cee ty, leton OF piel BOMB aneeh OULARDERIE 1. : ee a Pe Ge oGeorgefown Gt : - Me elon ee, perterr Pe ledun Pt Po “ey oee:B . . { orth eats ito SE — Slope Boar! ‘ ‘~, 2 Diy PhilipP ie C.5ohn 7 Pieroo ic ZGet Epp e_| CS “i wericowss, ‘ Ne Gud nf ww ¥ > Te Oe xa Westville Port ¥ 5 . te Hawke ari tes - 3 ee ‘ Se jas, MIDDLE : 7? ° no ° e a 3B 52 Bo 50 49° 45° 7° &° 45° a | | | | | \ | | \ \ | | | | | \ le | | = \ | | ae \ | | eee \ NORTH ATLANTIC COAST FISHERIES ARBITRATION \ | \ . | Under Article I of the Treaty of ee i GG | October 20, 1818, the American fishermen \ LY", | | | have the right to take fish of every kind on \ Z J C-Bt. Anthony the coasts shown thus: GG S \ QW - Hare Bay and they have also the right to dry and \ so OD 2 enre fish in the unsettled bays, harbo \ ; Margar§ bo LY | year : ———— and creeks of the coasts shown thus: % Geox 1. ‘ piss yy Jom. Nautical Miles * Y Canada B | | i \ oe fe ¢ | | wo » © & 80 100 \ Je \ Aylmer Sd, Fourche Hr, | | | | See \ oeT-many is, Orange B. | | | | Prepared at the Office of the U. S. Coast e ASST RABEE | | and Geodetie Survey from British and = ‘ CaP a, 1? beta Canadian Maps, Washington, August 1909. \ Ese . mp Rock. | (-Anguille Lo | | | Larkin Pt. East { | C.Ray ‘corms: Ss an | Port pux Basques + 2 soe at Be Le APPENDIX TREATIES TREATY OF UTRECHT, MARCH 31-APRIL 11, 1713, BETWEEN FRANCE AND GREAT BRITAIN! Art. XIII. The island called Newfoundland, with the adjacent islands, shall from this time forward belong of right wholly to Britain; and to that end the town and fortress of Placentia and whatever other places in the said island are in the possession of the French, shall be yielded and given up, within 7 months from the exchange of the ratifications of this treaty, or sooner if possible, by the Most Christian King, to those who have a commission from the Queen of Great Britain for that purpose. Nor shall the Most Christian King, his heirs and successors, or any of their subjects, at any time hereafter lay claim to any right to the said island and islands, or to any part of it or them. - Moreover it shall not be lawful for the subjects of France to fortify any place in the said Island of Newfoundland, or to erect any buildings there, besides stages made of boards and huts necessary and usual for drying of fish; or to resort to the said island, beyond the time necessary for fishing and drying of fish. But it shall be allowed to the subjects of France to catch fish, and to dry them on land, in that part only, and in no other besides that of the said Island of Newfoundland, which stretches from the place called Cape Bonavista to the northern point of the said island, and from thence running down by the western side, reaches as far as the place called Point Riche. But the island called Cape Breton, as also all others, both in the mouth of the River St. Lawrence and in the gulf of the same name, shall hereafter belong of right to the French; and the Most Christian King shall have all manner of liberty to fortify any place or places there... . TREATY OF PARIS, FEBRUARY 10, 1763, BETWEEN FRANCE, GREAT BRITAIN, AND SPAIN? Art. V. The subjects of France shall have the liberty of fishing and drying on a part of the coasts of the Island of Newfoundland, such as it is specified in the XIIIth article of the treaty of Utrecht; which article is renewed and confirmed by the present treaty, (except what relates to the Island of Cape Breton, as well as to the other islands and coasts in the mouth and in the Gulf of St. Lawrence); And His Britannic Majesty consents to leave to the subjects of the Most Christian King the liberty of fishing in the Gulf of St. Lawrence, on condition that the subjects of France do not exercise the said fishery but at the distance of three leagues from all the coasts belonging to Great Britain, as well those of the continent as those of the islands situated in the said Gulf of St. Lawrence. And as to what relates to the fishery on the coasts of the Island of 1 Appendix, U. S. Case, p. 51; Appendix, British Case, pp. 6, 7. ? Appendix, U. S. Case, p. 52; Appendix, British Case, pp. 7, 8. 375 376 APPENDIX Cape Breton, out of the said gulf, the subjects of the Most Christian King shall not be permitted to exercise the said fishery but at the distance of 15 leagues from the coasts of the Island of Cape Breton; and the fishery on the coasts of Nova Scotia or Acadia, and everywhere else out of the said gulf, shall remain on the foot of former treaties. Art. VI. The King of Great Britain cedes the Islands of St. Pierre and Macquelon, in full right, to His Most Christian Majesty, to serve as a shelter to the French fisher- men; and his said Most Christian Majesty engages not to fortify the said islands; to erect no buildings upon them but merely for the conveniency of the fishery; and to keep upon them a guard of fifty men only for the police. Art. XVII. His Britannic Majesty shall cause to be demolished all the fortifica- tions which his subjects shall have erected in the Bay of Honduras, and other places of the territory of Spain in that part of the world, four months after the ratification of the present treaty: and His Catholic Majesty shall not permit His Britannic Majesty’s subjects, or their workmen, to be disturbed or molested under any pretense whatsoever in the said places, in their occupation of cutting, loading, and carrying away log-wood; and for this purpose, they may build, without hindrance, and occupy, without interruption, the houses and magazines necessary for them, for their families, and for their effects: and His Catho'ic Majesty assures to them, by this article, the full enjoyment of those advantages and powers on the Spanish coasts and territories, as above stipulated, immediately fter the ratification of the, present treaty. Art. XVIII. His Catholic Majesty desists, as well for himself as for his suc- cessors, from all pretension which he may have formed in favor of the Guipuscoans, and his other subjects, to the right of fishing in the neighborhood of the island of Newfoundland. TREATY OF VERSAILLES, SEPTEMBER 3, 1783, BETWEEN FRANCE AND GREAT BRITAIN! Art. IV. His Majesty the King of Great Britain is maintained in his right to the Island of Newfoundland, and to the adjacent islands, as the whole were assured to him by the thirteenth article of the treaty of Utrecht; excepting the Islands of St. Pierre and Miquelon, which are ceded in full right, by the present treaty, to His Most Chris- tian Majesty. Art. V. His Majesty the Most Christian King, in order to prevent the quarrels which have hitherto arisen between the two nations of England and France, consents to renounce the right of fishing, which belongs to him in virtue of the aforesaid article of the treaty of Utrecht from Cape Bonavista to Cape St. John, situated on the eastern coast of Newfoundland, in fifty degrees north latitude; and His Majesty the King of Great Britain consents on his part, that the fishery assigned to the subjects of His Most Christian Majesty, beginning at the said Cape St. John, passing to the north, and descending by the western coast of the Island of Newfoundland, shall extend to the place called Cape Raye, situated in forty-seven degrees, fifty minutes latitude. The French fishermen shall enjoy the fishery which is assigned to them by the present article, as they had the right to enjoy that which was assigned to them by the treaty of Utrecht. : Art. VI. With regard to the fishery in the Gulf of St. Laurence, the French shall continue to exercise it conformably to the fifth article of the Treaty of Paris. . . . 1 Appendix, U. S. Case, p. 53; Appendix, British Case, p. 11. TREATIES 377 BRITISH DECLARATION ACCOMPANYING THE TREATY OF VERSAILLES} DECLARATION The King having entirely agreed with His Most Christian Majesty upon the articles of the definitive treaty, will seek every means which shall not only insure the execu- tion thereof, with his accustomed good faith and punctuality, but will besides give, on his part, all possible efficacy to the principles which shall prevent even the least foundation of dispute for the future. To this end, and in order that the fishermen of the two nations may not give cause for daily quarrels, His Britannic Majesty will take the most positive measures for preventing his subjects from interrupting, in any manner, by their competition, the fishery of the French, during the temporary exercise of it which is granted to them upon the coasts of the Island of Newfoundland; and he will, for this purpose, cause the fixed settlements, which shall be formed there, to be removed. His Britannic Majesty will give orders, that the French fishermen be not incommoded, in cutting the wood necessary for the repair of their scaffolds, huts, and fishing vessels. The thirteenth article of the treaty of Utrecht, and the method of carrying on the fishery which has at all times! been acknowledged, shall be the plan upon which the fishery shall be carried on there; it shall not be deviated from by either party; the French fishermen building only their scaffolds, confining themselves to the repair of their fishing vessels, and not wintering there; the subjects of His Britannic Majesty, on their part, not molesting, in any manner, the French fishermen during their fishing, nor injuring their scaffolds during their absence. The King of Great Britain, in ceding the Islands of St. Pierre and Miquelon to France, regards them as ceded for the purpose of serving as a real shelter to the French fishermen, and in full confidence that these possessions will not become an object of jealousy between the two nations; and that the fishery between the said islands, and that of Newfoundland shall be limited to the middle of the channel. . . . FRENCH COUNTER DECLARATION ACCOMPANYING SAME TREATY? The principles which have guided the King, in the whole course of the negotiations, which preceded the re-establishment of peace, must have convinced the King of Great Britain, that His Majesty has had no other design than to render it solid and lasting, by preventing, as much as possible, in the four quarters of the world, every subject of discussion and quarrel. The King of Great Britain undoubtedly places too much . confidence in the uprightness of His Majesty’s intentions, not to rely upon his constant attention to prevent the Islands of St. Pierre and Miquelon from becoming an object of jealousy between the two nations. As to the fishery on the coasts of Newfoundland, which has been the object of the new arrangements settled by the two sovereigns upon this matter, it is sufficiently ascertained by the fifth article of the treaty of peace signed this day, and by the declaration likewise delivered to-day, by His Britannic Majesty’s Ambassador Extra- ordinary and Plenipotentiary; and His Majesty declares, that he is fully satisfied on this head. In regard to the fishery between the Island of Newfoundland and those of St. Pierre and Miquelon, it is not to be carried on, by either party, but to the middle of the channel; and His Majesty will give the most positive orders, that the French fisher- 1 Appendix, U. S. Case, p. 54; Appendix, British Case, p. 11. 2 Appendix, U. S. Case, p. 56; Appendix, British Case, p. 12. 378 APPENDIX men shall not go beyond this line. His Majesty is firmly persuaded that the King of Great Britain will give like orders to the English fishermen. . . . TREATY OF PARIS, SEPTEMBER 3, 1783, BETWEEN GREAT BRITAIN AND UNITED STATES! DEFINITIVE TREATY OF PEACE AND FRIENDSHIP BETWEEN His BRITANNIC MAJESTY AND THE UNITED STATES OF AMERICA.— SIGNED AT Paris, THE 3RD OF SEPTEMBER, 1783 Art. III. It is agreed, that the People of The United States shall continue to enjoy unmolested the right to take Fish of every kind on the Grand Bank and on all the other Banks of Newfoundland; also in the Gulph of St. Lawrence, and at all other places in the Sea, where the Inhabitants of both Countries used at any time heretofore to fish. And also that the Inhabitants of The United States shall have liberty to take fish of every kind on such part of the Coast of Newfoundland as British Fishermen shall use, (but not to dry or cure the same on that Island), and also on the Coasts, Bays, and Creeks of all other of His Britannic Majesty’s Dominions in America; and that the American Fishermen shall have liberty to dry and cure fish in any of the unsettled Bays, Harbors, and Creeks of Nova Scotia, Magdalen Islands, and Labrador, so long as the same shall remain unsettled; but so soon as the same, or either of them, shall be settled, it shall not be lawful for the said Fishermen to dry or cure fish at such Settlement, without a previous agreement for that purpose with the Inhabitants, Proprietors, or Possessors of the ground. UNRATIFIED TREATY OF AMITY, COMMERCE, AND NAVIGATION, DECEMBER 31, 1806, BETWEEN GREAT BRITAIN AND THE UNITED STATES? Art. 12. And whereas it is expedient to make special provisions respecting the maritime jurisdiction of the high contracting parties on the coast of their respective possessions in North America on account of peculiar circumstances belonging to those coasts, it is agreed that in all cases where one of the said high contracting parties shall be engaged in war, and the other shall be at peace, the belligerent Power shall not stop except for the purpose hereafter mentioned, the vessels of the neutral Power, or the unarmed vessels of other nations, within five marine miles from the shore belong- ing to the said neutral Power on the American seas. Provided that the said stipulation shall not take effect in favor of the ships of any nation or nations which shall not have agreed to respect the limits aforesaid, as the line of maritime jurisdiction of the said neutral State. And it is further stipulated, that if either of the high contracting parties shall be at war with any nation or nations, which shall not have agreed to respect the said special limit or line of maritime juris- diction herein agreed upon, such contracting party shall have the right to stop or search any vessel beyond the limit of a cannon shot, or three marine miles from the said coast of the neutral Power. for the purpose of ascertaining the nation to which such vessel shall belong; and with respect to the ships and property of the nation or nations not having agreed to respect the aforesaid line of jurisdiction, the belligerent Power shall exercise the same rights as if this article did not exist; and the several 1 Appendix, U. S. Case, p. 23; Appendix, British Case, p. 12 2 Appendix, U. S. Counter Case, p. 18; Appendix, British Case, p. 24. TREATIES , 379 provisions stipulated by this article shall have full force and effect only during the continuance of the present treaty. . .. Art. 19. It shall be lawful for the ships of war and privateers belonging to the said parties, respectively, to carry whithersoever they please the ships and goods taken from their enemies, without being obliged to pay any fees to the officers of the Admiralty, or to any judges whatever; nor shall the said prizes, when they arrive at and enter the ports of the said parties, be detained or seized; nor shall the searchers or other officers of those places visit such prizes, (except for the purpose of preventing the carrying of any part of the cargo thereof on shore in any manner contrary to the established laws of revenue, navigation, or commerce); nor shall such officers take cognizance of the validity of such prizes, but they shall be at liberty to hoist sail and depart as speedily as may be, and carry their said prizes to the places mentioned in their commissions or patents, which the commanders of the said ships of war or priva- teers shall be obliged to show. No shelter or refuge shall be given in their ports to such as have made a prize upon the subjects or citizens of either of the said parties; but, if forced by stress of weather or the dangers of the sea to enter them, particular care shall be taken to hasten their departure, and to cause them to retire as soon as possible. Nothing in this treaty contained shall, however, be construed to operate contrary to the former and existing public treaties with other Sovereigns or States; but the two parties agree that, while they continue in amity, neither of them will in future make any treaty that shall be inconsistent with this or the preceding article. Neither of the said parties shall permit the ships or goods belonging to the subjects or citizens of the other to be taken within cannon shot of the coast, nor within the jurisdiction described in Article 12, so long as the provisions of the said article shall be in force, by ships of war or others having commissions from any Prince, Republic, or State whatever. But in case it should so happen, the party whose territorial rights shall thus have been violated shall use his utmost endeavors to obtain from the offending party full and ample satisfaction for the vessel or vessels so taken, whether the same be vessels of war or merchant vessels. . . . CONVENTION OF OCTOBER 20, 1818, BETWEEN GREAT BRITAIN AND THE UNITED STATES?! The United States of America and His Majesty the King of the United Kingdom of Great Britain and Ireland, desirous to cement the good understanding which happily subsists between them, have, for that purpose, named their respective plenipoten- tiaries, that is to say: the President of the United States, on his part, has appointed Albert Gallatin, their Envoy Extraordinary and Minister Plenipotentiary to the Court of France; and Richard Rush, their Envoy Extraordinary and Minister Pleni- potentiary to the Court of His Britannic Majesty; and His Majesty has appointed the Right Honorable Frederick John Robinson, treasurer of His Majesty’s navy, and President of the Committee of Privy Council for Trade and Plantations; and Henry Goulburn, Esq., one of His Majesty’s Under Secretaries of State: who, after having exchanged their respective full powers, found to be in due and proper form, have agreed to and concluded the following articles: Art. 1. Whereas differences have arisen respecting the liberty, claimed by the United States for the inhabitants thereof, to take, dry, and cure fish on certain coasts, 1 Appendix, U. S. Case, p. 24; Appendix, British Case, p. 30. 380 APPENDIX bays, harbors, and creeks of His Britannic Majesty’s dominions in America, it is agreed between the high contracting parties that the inhabitants of the said United States shall have, forever, in common with the subjects of His Britannic Majesty, the liberty to take fish of every kind on that part of the southern coast of Newfound- land which extends from Cape Ray to the Ramea Islands, on the western and northern coast of Newfoundland; from the said Cape Ray to the Quirpon Islands; on the shores of the Magdalen Islands; and also on the coasts, bays, harbors, and creeks, from Mount Joli, on the southern coast of Labrador, to and through the Straits of Belleisle, and thence northwardly, indefinitely, along the coast, without prejudice, however, to any of the exclusive rights of the Hudson’s Bay Company: and that the American fishermen shall also have liberty, forever, to dry and cure fish in any of the unsettled bays, harbors, and creeks of the southern part of the coast of Newfound- land, hereabove 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 such portion so settled, without previous agreement for such purpose with the inhabitants, proprietors, or possessors of the ground. And the United States hereby renounce, forever, 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 harbors of His Britannic Majesty’s dominions in America, not included within the above-mentioned limits: Provided, however, that the American fishermen shall be admitted to enter such bays or harbors for the purpose of shelter and of repairing damages therein, of purchasing wood, and of obtain- ing water, and for no other purpose whatever. But they shall be under such restric- tions 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. . . . TREATY OF JUNE 5, 1854, BETWEEN GREAT BRITAIN AND THE UNITED STATES! The Government of the United States being equally desirous with Her Majesty the Queen of Great Britain to avoid further misunderstanding between their respective citizens and subjects in regard to the extent of the right of fishing on the coasts of British North America, secured to each by Article I of a convention between the United States and Great Britain, signed at London on the 2oth day of October, 1818; and being also desirous to regulate the commerce and navigation between their respec- tive territories and people, and more especially between Her Majesty’s possessions in North America and the United States, in such manner as to render the same recipro- cally beneficial and satisfactory, have, respectively, named Plenipotentiaries to confer and agree thereupon, that is to say: The President of the United States of America, William L. Marcy, Secretary of State of the United States, and Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, James, Earl of Elgin and Kincardine, Lord Bruce and Elgin, a peer of the United Kingdom, Knight of the most ancient and most noble Order of the Thistle, and Governor General in and over all Her Britannic Majesty’s provinces on the continent of North America, and in and over the island of Prince Edward; Who, after having communicated to each other their respective full powers, found in good and due form, have agreed upon the following articles: 1 Appendix, U. S. Case, p. 25; Appendix, British Case, p. 36. TREATIES 381 Art. I. It is agreed by the high contracting parties that in addition to the liberty secured to the United States fishermen by the above-mentioned convention of October 20, 1818, of taking, curing, and drying fish on certain coasts of the British North American Colonies therein defined, the inhabitants of the United States shall have, in common with the subjects of Her Britannic Majesty, the liberty to take fish of every kind, except shell-fish, on the sea-coasts and shores, and in the bays, harbors, and creeks of Canada, New Brunswick, Nova Scotia, Prince Edward’s Island, and of the several islands thereunto adjacent, without being restricted to any distance from the shore, with permission to land upon the coasts and shores of those colonies and the islands thereof, and also upon the Magdalen Islands, 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 same purpose. It is understood that the above-mentioned liberty applies solely to the sea fishery, and that the salmon and shad fisheries, and all fisheries in rivers and the mouths of rivers, are hereby reserved exclusively for British fishermen. Art. II. It is agreed by the high contracting parties that British subjects shall have, in-common with the citizens of the United States, the liberty to take fish of every kind, except shell-fish, on the eastern sea-coasts and shores of the United States north of the 36th parallel of north latitude, and on the shores of the several islands there- unto adjacent, and in the bays, harbors, and creeks of the said sea-coasts and shores of the United States and of the said islands, without being restricted to any distance from the shore, with permission to land upon the said coasts of the United States and of the islands aforesaid, 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 the fishermen of the United States, in the peaceable use of any part of the said coasts in their occupancy for the same purpose. It is understood that the above-mentioned liberty applies solely to the sea fishery, and that salmon and shad fisheries, and all fisheries in rivers and mouths of rivers, are hereby reserved exclusively for fishermen of the United States. . . . TREATY OF WASHINGTON, MAY 8, 1871, BETWEEN GREAT BRITAIN AND THE UNITED STATES! Art. XVIII. It is agreed by the high contracting parties that, in addition to the liberty secured to the United States fishermen by the convention between the United States and Great Britain, signed at London on the 20th day of October, 1818, of taking, curing, and drying fish on certain coasts of the British North American Colonies therein defined, the inhabitants of the United States shall have, in common with the subjects of Her Britannic Majesty, the liberty, for the term of years mentioned in Article XX XIII of this treaty, to take fish of every kind, except shell-fish, on the sea-coasts and shores, and in the bays, harbors, and creeks, of the Provinces cf Quebec, Nova Scotia, and New Brunswick, and the colony of Prince Edward’s Island, and of the several islands thereunto adjacent, without being restricted to any distance from the shore, with permission to land upon the said coasts and shores and islands, and also upon the Magdalen Islands, 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 coasts in their occupancy for the same purpose. 1 Appendix, U. S. Case, p. 28; Appendix, British Case, p. 39. 382 APPENDIX It is understood that the above-mentioned liberty applies solely to the sea fishery, and that the salmon and shad fisheries, and all other fisheries in rivers and the mouths of rivers, are hereby reserved exclusively for British fishermen. Art. XIX. It is agreed by the high contracting parties that British subjects shall have, in common with the citizens of the United States, the liberty, for the term of years mentioned in Article XX XIII of this treaty, to take fish of every kind, except shell-fish, on the eastern sea-coasts and shores of the United States north of the thirty- ninth parallel of north latitude, and on the shores of the several islands thereunto adjacent, and in the bays, harbors, and creeks of the said sea-coasts and shores of the United States and of the said islands, without being restricted to any distance from the shore, with permission to land upon the said coasts of the United States and of the islands aforesaid, 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 the fishermen of the United States in the peaceable use of any part of the said coasts in their occupancy for the same purpose. It is understood that the above-mentioned liberty applies solely to the sea fishery, and that salmon and shad fisheries, and all other fisheries in rivers and mouths of rivers, are hereby reserved exclusively for fishermen of the United States. Art. XXII. Inasmuch as it is asserted by the Government of Her Britannic Majesty, that the privileges accorded to the citizens of the United States under Article XVIII of this treaty are of greater value than those accorded by Articles XIX and XXI of this treaty to the subjects of Her Britannic Majesty, and this assertion is not admitted by the Government of the United States, it is further agreed that Com- missioners shall be appointed to determine, having regard to the privileges accorded by the United States to the subjects of Her Britannic Majesty, as stated in Articles XIX and XXI of this treaty, the amount of any compensation which, in their opinion ought to be paid by the Government of the United States to the Govern- ment of Her Britannic Majesty in return for the privileges accorded to the citizens of the United States under Article XVIII of this treaty; and that any sum of money which the said Commissioners may so award shall be paid by the United States Government, in a gross sum, within twelve months after such award shall have been given. Art. XXVI. The navigation of the river St. Lawrence, ascending and descending, from the forty-fifth parallel of north latitude, where it ceases to form the boundary between the two countries, from, to, and into the sea, shall forever remain free and open for the purposes of commerce to the citizens of the United States, subject to any laws and regulations of Great Britain, or of the Dominion of Canada, not incon- sistent with such privilege of free navigation. The navigation of the rivers Yukon, Porcupine, and Stikine, ascending and fecal ing, from, to, and into the sea, shall forever remain free and open for the purposes of commerce to the subjects of Her Britannic Majesty and to the citizens of the United States, subject to any laws and regulations of either country within its own territory, not inconsistent with such privilege of free navigation. Art. XXVII. The Government of Her Britannic Majesty engages to urge upon the Government of the Dominion of Canada to secure to the citizens of the United States the use of the Welland, St. Lawrence, and other canals in the Dominion on terms of equality with the inhabitants of the Dominion, and the Government of the United States engages that the subjects of Her Britannic Majesty shall enjoy the use of the St. Clair Flats canal on terms of equality with the inhabitants of the United States, and further engages to urge upon the State Governments to secure to the subjects of ’ TREATIES 383 Her Britannic Majesty the use of the several State canals connected with the navi- gation of the lakes or rivers traversed by or contiguous to the boundary-line between the possessions of the high contracting parties, on terms of equality with the inhab- itants of the United States. NORTH SEA FISHERIES CONVENTION, 1882 ConvENTION BETWEEN HeR Britannic Majesty, Tare GrrmMaAn Emperor, KING oF Prussia, THE KING OF THE BELGIANS, THE KinG or DENMARK, THE PRESIDENT OF THE FRENCH REPUBLIC, AND THE KING OF THE NETHERLANDS, FOR REGULATING THE POLICE oF THE NortH SEA FISHERIES! (Signed at The Hague, May 6, 1882) Art. I. The provisions of the present convention, the object of which is to regulate the police of the fisheries in the North Sea, outside territorial waters, shall apply to the subjects of the high contracting parties. Art. II. The fishermen of each country shall enjoy the exclusive right of fishery within the distance of 3 miles from low-water mark along the whole extent of the coasts of their respective countries, as weil as of the dependent islands and banks. As regards bays, the distance of 3 miles shall be measured from a straight line drawn across the bay in the part nearest the entrance, at the first point where the width does not exceed 10 miles. The present article shall not in any way prejudice the freedom of navigation and anchorage in territorial waters accorded to fishing boats, provided they conform to the special police regulations enacted by the powers to whom the shore belongs. Art. III. The miles mentioned in the preceding article are geographical miles, whereof 60 make a degree of latitude. . . . UNRATIFIED TREATY OF FEBRUARY 15, 1888, BETWEEN GREAT BRITAIN AND THE UNITED STATES, CONCERNING THE INTERPRETATION OF ARTICLE I OF THE CONVENTION OF OCTOBER 20, 1818? Whereas differences have arisen concerning the interpretation of Article I. of the Convention of October 20, 1818; the United States of America, and Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, being mutually desirous of removing all causes of misunderstanding in relation thereto, and of pro- moting friendly intercourse and good neighborhood between the United States and the Possessions of Her Majesty in North America, have resolved to conclude a Treaty to that end, and have named as their Plenipotentiaries, that is to say: The President of the United States, Thomas F. Bayard, Secretary of piel William L. Putnam, of Maine; and James B. Angell, of Michigan: And Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, The Right Hon. Joseph Chamberlain, M.P., The Honorable Sir Lionel Sackville Sackville West, K.C.M.G., Her Britannic Majesty’s Envoy Extraordinary and Minister Plenipotentiary to the United States of America; and Sir Charles Tupper, G.C.M.G., C.B., Minister of Finance of the Dominion of Canada; 1 Appendix, U. S. Counter Case, p. 53; Appendix, British Case, p. 41. 2 Appendix, U. S. Case, p. 39; Appendix, British Case, p. 42. 384 APPENDIX Who, having communicated to each other their respective Full Powers, found in good and due form, have agreed upon the following articles: Art. IJ. The High Contracting Parties agree to appoint a Mixed Commission to delimit, in the manner provided in this Treaty, the British waters, bays, creeks, and harbors, of the coasts of Canada and of Newfoundland, as to which the United States, by Article I. of the convention of October 20, 1818, between the United States and Great Britain, renounced ‘forever any liberty to take, dry, or cure fish. Art. II. The Commission shall consist of two Commissioners to be named by her Britannic Majesty, and of two Commissioners to be named by the President of the United States, without delay, after the exchange of ratifications of this Treaty. The Commission shall meet and complete the delimitation as soon as possible thereafter. In case of the death, absence, or incapacity of any Commissioner, or in the event of any Commissioner omitting or ceasing to act as such the President of the United States or Her Britannic Majesty, respectively, shall forthwith name another person to act as Commissioner instead of the Commissioner originally named. Art. III. The delimitation referred to in Article I. of this Treaty shall be marked -upon British Admiralty charts by a series of lines regularly numbered and duly described. The charts so marked shall, on the termination of the work of the Com- mission, be signed by the Commissioners in quadruplicate, one copy whereof shail be delivered to the Secretary of State of the United States, and three copies to Her Majesty’s Government. The delimitation shall be made in the following manner, and shall be accepted by both the High Contracting Parties as applicable for all pur- poses under Article I. of the Convention of October 20, 1818, between the United States and Great Britain. The three marine miles mentioned in Article I. of the Convention of October 20, 1818, shall be measured seaward from low water mark; but at every bay, creek, or harbor, not otherwise specially provided for in this Treaty, such three marine miles shall be measured seaward from a straight line drawn across the bay, creek, or harbor, ‘in the part nearest: the entrance at the first point where the width does not exceed ten marine miles. Art. IV. At or near the following bays the limits of exclusion under Article I. of the Convention of October 20, 1818, at points more than three marine miles from low-water mark, shall be established by the following lines, namely: At the Baie des Chaleurs the line from the Light at Birch Point on Miscou Island to Macquereau Point Light; at the Bay of Miramichi, the line from the Light at Point Escuminac to the light on the Eastern Point of Tabisintac Gully; at Egmont Bay, in Prince Edward Island, the line from the Light at Cape Egmont to the Light at West Point; and off St. Ann’s Bay, in the Province of Nova Scotia, the line from Cape Smoke to the Light at Point Anconi. At Fortune Bay, in Newfoundland, the line from Connaigre Head to the Light on the South-easterly end of Brunet Island, thence to Fortune Head; at Sir Charles Hamilton Sound, the line from the South-east point of Cape Fogo to White Island, thence to the North end of Peckford Island, and from the South end of Peckford Island to the East Headland of Ragged Harbor. At or near the following bays the limits of exclusion shall be three marine miles seaward from the following lines, namely: At or near Barrington Bay, in Nova Scotia, the line from the Light on Stoddart Island to the Light on the south point of Cape Sable, thence to the light at Baccaro TREATIES 385 Point; at Chedabucto and St. Peter’s Bays, the line from Cranberry Island Light to Green Island Light, thence to Point Rouge; at Mira Bay, the line from the Light on the East Point of Scatari Island to the North-easterly Point of Cape Morien; and at Placentia Bay, in Newfoundland, the line from Latine Point, on the Eastern mainland shore, to the most Southerly Point of Red Island, thence by the most Southerly Point of Merasheen Island to the mainland. Long Island and Bryer Island, on St. Mary’s Bay, in Nova Scotia, shall, for the purpose of delimitation, be taken as the coasts of such bay. Art. V. Nothing in this Treaty shall be construed to include within the common waters any such interior portions of any bays, creeks, or harbors as cannot be reached from the sea without passing within the three marine miles mentioned in Article I. of the Convention of October 20, 1818. Art. VI. The Commissioners shall from time to time report to each of the High Contracting Parties, such lines as they may have agreed upon, numbered, described, and marked as herein provided, with quadruplicate charts thereof; which lines so reported shall forthwith from time to time be simultaneously proclaimed by the High Contracting Parties, and be binding after two months from such proclamation. Art. VII. Any disagreement of the Commissioners shall forthwith be referred to an Umpire selected by the Secretary of State of the United States and Her Britannic Majesty’s Minister at Washington; and his decision shall be final. Art. VITI. Each of the High Contracting Parties shall pay its own Commis- sioners and officers. All other expenses jointly incurred, in connection with the performance of the work, including compensation to the Umpire, shall be paid by the High Contracting Parties in equal moieties. Art. IX. Nothing in this Treaty shall interrupt or affect the free navigation of the Strait of Canso by fishing vessels of the United States. Art. X. United States fishing vessels entering the bays or harbors referred to in Article I. of this Treaty shall conform to harbor regulations common to them and to fishing vessels of Canada or of Newfoundland. They need not report, enter, or clear, when putting into such bays or harbors for shelter or repairing damages, nor when putting into the same, outside the limits of established ports of entry, for the purpose of purchasing wood or of obtaining water; except that any such vessel remaining more than twenty-four hours, exclusive of Sundays and legal holidays, within any such port, or communicating with the shore therein, may be required to report, enter, or clear; and no vessel shall be excused hereby from giving due information to boarding officers. They shall not be liable in any such bays or harbors for compulsory pilotage; nor, when therein for the purpose of shelter, of repairing damages, of purchasing wood, or of obtaining water, shall they be liable for harbor dues, tonnage dues, buoy dues, light dues, or other similar dues; but this enumeration shall not permit other charges inconsistent with the enjoyment of the liberties reserved or secured by the Convention of October 20, 1818. Art. XI. United States fishing vessels entering the ports, bays, and harbors of the Eastern and North-eastern coasts of Canada or of the coasts of Newfoundland under stress of weather or other casualty may unload, reload, transship, or sell, subject to customs laws and regulations, all fish on board, when such unloading, transship- ment, or sale is made necessary as incidental to repairs, and may replenish outfits, provisions and supplies damaged or lost by disaster; and in case of death or sickness shall be allowed all needful facilities, including the shipping of crews. 386 APPENDIX Licenses to purchase in established ports of entry of the aforesaid coasts of Canada or of Newfoundland, for the homeward voyage, such provisions and supplies as are ordinarily sold to trading vessels, shall be granted to United States fishing vessels in such ports, promptly upon application and without charge; and such vessels, having obtained licenses in the manner aforesaid, shall also be accorded upon all occasions such facilities for the purchase of casual or needful provisions and supplies as are ordinarily granted to the trading vessels; but such provisions or supplies shall not be obtained by barter, nor purchased for re-sale or traffic. Art. XII. Fishing vessels of Canada and Newfoundland shall have on the Atlantic coast of the United States all the privileges reserved and secured by this Treaty to United States fishing vessels in the aforesaid waters of Canada and Newfoundland. Art. XIII. The Secretary of the Treasury of the United States shall make regu- lations providing for the conspicuous exhibition by every United States fishing vessel, of its official number on each, bow; and any such vessel, required by law to have an official number, and failing to comply with such regulations, shall not be entitled to the licenses provided for in this Treaty. Such regulations shall be communicated to Her Majesty’s Government previously to their taking effect. Art. XIV. The penalties for unlawfully fishing in the waters, bays, creeks, and harbors, referred to in Article I of this Treaty, may extend to forfeiture of the boat or vessel, and appurtenances, and also of the supplies and cargo aboard when the offense was committed; and for preparing in such waters to unlawfully fish therein, penalties shall be fixed by the court, not to exceed those for unlawfully fishing; and for any other violation of the laws of Great Britain, Canada, or Newfoundland relating to the right of fishery in such waters, bays, creeks, or harbors, penalties shall be fixed by the court, not exceeding in all three dollars for every ton of the boat or vessel con- cerned. The boat or vessel may be holden for such penalties and forfeitures. The proceedings shall be summary and as inexpensive as practicable. The trial (except on appeal) shall be at the place of detention, unless the judge shall, on request of the defense, order it to be held at some other place adjudged by him more con- venient. Security for costs shall not be required of the defense, except when bail is offered. Reasonable bail shall be accepted. There shall be proper appeals available to the defense only; and the evidence at the trial may be used on appeal. Judgments of forfeiture shall be reviewed by the Governor-General of Canada in Council, or the Governor in Council of Newfoundland, before the same are executed. Art. XV. Whenever the United States shall remove the duty from fish-oil, whale-oil, seal-oil, and fish of all kinds (except fish preserved in oil), being the prod- uce of fisheries carried on by the fishermen of Canada and Newfoundland, including Labrador, as well as from the usual and necessary casks, barrels, kegs, cans, and other usual and necessary coverings containing the products above mentioned, the like products, being the produce of fisheries carried on by the fishermen of the United States, as well as the usual and necessary coverings of the same, as above described, shall be admitted free of duty into the Dominion of Canada and Newfoundland. And upon such removal of duties, and while the aforesaid articles are allowed to be brought into the United States by British subjects, without duty being reimposed thereon, the privilege of entering the ports, bays, and harbors of the aforesaid coasts of Canada and Newfoundland shall be accorded to United States fishing vessels by annual licenses, free of charge, for the following purposes, namely: TREATIES 387 1. The purchase of provisions, bait, ice, seines, lines, and all other supplies and outfits; 2. Transshipment of catch, for transport by any means of conveyance; 3. Shipping of crews. Supplies shall not be obtained by barter, but bait may be so obtained. The like privileges shall be continued or given to fishing vessels of Canada and of Newfoundland on the Atlantic coasts of the United States. Art. XVI. This Treaty shall be ratified by the President of the United States, by and with the advice and consent of the Senate; and by Her Britannic Majesty, having received the assent of the Parliament of Canada and of the Legislature of Newfoundland; and the ratifications shall be exchanged at Washington as soon as possible... . UNRATIFIED CONVENTION OF 1891 BETWEEN GREAT BRITAIN AND THE UNITED STATES, FOR THE IMPROVEMENT OF COMMERCIAL RELA- TIONS BETWEEN THE UNITED STATES AND HER BRITANNIC MAJESTY’S COLONY OF NEWFOUNDLAND? Art. I. 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 harbor regulations, but without other charge than the payment of such light, harbor, and Customs dues as are or may be levied on Newfoundland fishing vessels. Art. II. Dry codfish, cod oil, seal oil, sealskins, herrings, salmon, trout and salmon trout, lobsters, cod roes, tongues, and sounds, the product of the fisheries of New- foundland, shall be admitted into the United States free of duty. Also all hogsheads, barrels, kegs, boxes, or tin cans, in which the articles above named may be carried, shall be admitted free of duty. It is understood, however, that ‘‘green” codfish are not included in the provisions of this Article. - Art. III. The officer of the Customs at the Newfoundland port where a vessel laden with the articles named in Article II clears shall give to the master of said vessel a sworn certificate that the fish shipped were taken in the waters of Newfoundland; which certificate shall be countersigned by the Consul or Consular Agent of the United States, and delivered to the proper officer of Customs at the port of destination in the United States. Art. IV. When this convention shall come into operation, and during the con- tinuance thereof, the duties to be levied and collected upon the following enumerated merchandise imported into the Colony of Newfoundland from the United States shall not exceed the following amounts, viz.: 2s cents per barrel 14 cents per lb. Bacon and hams, tongues, smoked beef andsausage 2 cents per Ib. or $2.50 per 112 lbs. Beef, pigs’ heads, hocks, and feet, salted or cured .. 4 cent per Ib. Und tamn teal scscscavssscoray ssarevaceavsroct) abim ack musedveuesese mee 25 cents per barrel 1 Appendix, British Case, p. 45. This so-called Blaine-Bond Treaty was not ratified by Great Britain because of the opposition of Canada. 388 APPENDIX DEAS: civics digatay sedge aiid uinnwid-edGnee kee 30 cents per barrel WPRENIEGL cise Dhaai eek e demas 8 SAplaae ea ARS 30 cents per barrel of 200 lbs. Bran, Indian corn, and rice .................005 12} per cent. ad valorem Salt Cin Duley) osc canarias Aaa emanate 20 cents per ton of 2,240 lbs. KerOsGHG ON sc xcwansanacaayenaawas karan ann osx 6 cents per gallon And the following articles imported free from the Colony of Newfoundland from the United States shall be admitted free of duty: Agricultural implements and machinery imported by agricultural societies for the promotion of agriculture. Crushing mills for mining purposes. Raw cotton. Corn for the manufacture of brooms. Gas engines, when protected by patent. Plows and harrows. Reaping, raking, plowing, potato-digging and seed-sowing machines to be used in the colony. Printing presses and printing types. Art. V. It is understood that if any reduction is made by the Colony of New- ‘foundland, at any time during the term of this convention, in the rates of duty upon the articles named in Article IV of this convention, the said reduction shall apply to the United States. Art. VI. The present convention shall take effect as soon as the laws required to carry it into operation shall have been passed by the Congress of the United States on the one hand, and by the Imperial Parliament of Great Britain and the Provincial Legislature of Newfoundland on the other hand. Such assent having been given, the convention shall remain in force for five years from the date at which it may come into operation, and further, until the expiration of twelve months after either of the high contracting Parties shall give notice to the other of its wish to terminate the same; each of the high contracting parties being at liberty to give such notice to the other at the end of the said term of five years, or at any time afterwards. Art. VII. This convention shall be duly ratified by the President of the United States of America, by and with the advice and consent of the Senate thereof, and by Her Britannic Majesty; and the ratifications shall be exchanged at Washington on the 1st day of February, 1891, or as soon thereafter as practicable. In faith whereof, we, the respective Plenipotentiaries, have signed this convention and have hereunto affixed our seals. Done in duplicate, at Washington, this day of , in the year of our Lord one thousand eight hundred and UNRATIFIED CONVENTION OF NOVEMBER 8, 1902, BETWEEN GREAT BRITAIN AND THE UNITED STATES, FOR THE IMPROVEMENT OF COMMERCIAL RELATIONS BETWEEN THE UNITED STATES AND HIS BRITANNIC MAJESTY’S COLONY OF NEWFOUNDLAND! Art. I. 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 as New- foundland vessels. 1 Appendix, British Case, p. 46. This so-called Hay-Bond Treaty was not ratified by the Senate of the United States. TREATIES 389 They shall also have the privilege of touching and trading, buying and selling fish and oil, and procuring supplies in Newfoundland, conforming to the Harbor Regulations, but without other charge than the payment of such light, harbor, and customs dues as are, or may be, levied on Newfoundland fishing-vessels. Art. II. Codfish, cod oil, seal oil, whale oil, unmanufactured whalebone, seal- skins, herrings, salmon, trout, and salmon-trout, lobsters, cod roes, tongues, and sounds, being the produce of the fisheries carried on by the fishermen of Newfoundland, and ores of metals, the product of Newfoundland mines, and slates from the quarry un- trimmed, shall be admitted into the United States free of duty. Also all packages in which the said fish and oils may be exported shall be admitted free of duty. It is understood, however, that unsalted or fresh codfish are not included in the pro- visions of this Article. Art. IIT. The Officer of Customs at the Newfoundland port where the vessel clears shall give to the master of the vessel a sworn certificate that the fish shipped were the produce of the fisheries carried on by the fishermen of Newfoundland, which certifi- cate shall be countersigned by the Consul or Consular Agent of the United States. Art. IV. When this Convention shall come into operation, and during the con- tinuance thereof, the following articles imported into the Colony of Newfoundland from the United States shall be admitted free of duty: Agricultural implements and machinery imported by Agricultural Societies for the promotion of agriculture. , Cranes, derricks, fire clay, fire brick, rock drills, rolling mills, crushing mills, separa- tors, drill steel, machinery of every description for mining used within the mine proper or at the surface of the mine, smelting machinery of all kinds when imported directly by persons engaged in mining, or to be used in their mining operations and not for sale. Brick machines. Dynamite, detonators, blasting powder, and fuse. Raw cotton and cotton yarn. Corn for the manufacture of brooms and whisks. Chair cane, unmanufactured. Cotton seed oil, olive oil, boracic acid, acetic acid, preservantine, when imported by manufacturers to be used in the preservation of fish or fish-glue. Hemp, hemp yarn, coir yarn, sisal, manila, jute, flax, and tow. Indian corn. Oil cake, oil cake meal, cotton seed cake, cotton seed meal, pease meal, bran, and other preparations for cattle feed. Manures and fertilizers of all kinds, and sulphuric acid when imported to be used in the manufacture of manures. Lines and twines used in connection with the fisheries, not including sporting tackle. Ores to be used as flux. Gas engines when protected by patent. Plows, harrows, reaping, raking, potato-digging, and seed-sowing machines when imported by those engaged in agriculture, and not for sale. Engravers’ plates of steel, polished, for engraving thereon; photo-engraving machinery, viz.: Router, beveling, and squaring machines, screen-holders, cross line screens, and chemicals for use in engraving, wood for blocking, engraving tools, and process plates. Printing presses, printing paper, printing types, printers’ ink, when imported by bond fide printers for use in their business. 390 APPENDIX Salt, in bulk, when imported for use in the fisheries; and the duties to be levied and collected upon the following enumerated merchandise imported into the Colony of Newfoundland from the United States shall not exceed the following amounts, viz.: POUT taps atetetinis ony ema @ soe aartekie a esas 26 25 cents per barrel POT u's wosers & Ste Res GaatesS Ea eR eee 1 dol. 50 c. per barrel of 200 Ibs. Bacon and hams, tongues, smoked beef, andsausages 2} cents per lb. or 2 dol. soc. per 112 lbs. Beef, pigs’ heads, hocks, and feet, salted and cured 1 dollar per barrel of 200 lbs. ANN GNCR ee ca ca paaanGaemeee ae ie bade denes 20 cents per barrel PEGS. dete crc sant 8 dear soi aathakganseo ies 30 cents per barrel ROE, oo act 3k ek posh kadvamans dat ana 9 Baeiae eT wR Ses 30 cents per barrel of 200 lbs. PRICE: 3. deserted ceanswei ae ccxaraguiaun sans aterm eoare eae 4 cent per lb. RGvOSeNO ON caiwciciecius sen pewawen poewaw ees 6 cents per gallon Art. V. It is understood that if any reduction is made by the Colony of New- foundland, at any time during the term of this Convention, in the rate of duty upon the articles named in Article IV of this Convention, coming from any other Country, the said reduction shall apply to the United States, and that no heavier duty shall be imposed on articles coming from the United States than is imposed on such articles coming from elsewhere. Art. VI. The present Convention shall be duly ratified by His Britannic Majesty and by the President of the United States of America, by and with the advice and consent of the Senate thereof, and the ratifications shall be exchanged at Washington as soon thereafter as practicable. Its provisions shall go into effect thirty days after the exchange of ratifications, and shall continue and remain in full force for the term of five years from the date at which it may come into operation, and, further, until the expiration of twelve months after either of the Contracting parties shall give notice to the other at the end of the said term of five years, or at any time afterwards: In faith whereof we, the respective Plenipotentiaries, have signed this Convention and have hereunto affixed our seals. Done in duplicate at Washington, this 8th day of November, in the year of our Lord 1902. CONVENTION OF APRIL 8, 1904, BETWEEN GREAT BRITAIN AND FRANCE! SIGNED aT Lonpon, APRIL 8, 1904 [RatiFications EXCHANGED AT LonpoN, DECEMBER 8, 1904] His Majesty the King of the United Kingdom of Great Britain and Ireland and of the British Dominions beyond the Seas, Emperor of India, and the President of the French Republic, having resolved to put an end, by a friendly Arrangement, to the difficulties which have arisen in Newfoundland, have decided to conclude a Con- vention to that effect. . . . Art. J. France renounces the privileges established to her advantage by Article XIII of the Treaty of Utrecht, and confirmed or modified by subsequent provisions. Art. II. France retains for her citizens, on a footing of equality with British subjects, the right of fishing in the territorial waters on that portion of the coast of Newfoundland comprised between Cape St. John and Cape Ray, passing by the north; this right shall be exercised during the usual fishing season closing for all persons on the 2oth October of each year: 1 Appendix, U. S. Case, p. 83; Appendix, British Case, p. 48. TREATIES 301 The French may therefore fish there for every kind of fish, including bait and also shell fish. They may enter any port or harbor on the said coast and may there obtain supplies or bait and shelter on the same conditions as the inhabitants of New- foundland, but they will remain subject to the local Regulations in force; they may also fish at the mouths of the rivers, but without going beyond a straight line drawn between the two extremities of the banks, where the river enters the sea. They shall not make use of stake-nets or fixed engines without permission of the local authorities. On the above-mentioned portion of the coast, British subjects and French citizens shall be subject alike to the laws and Regulations now in force, or which may here- after be passed for the establishment of a close time in regard to any particular kind of fish, or for the improvement of the fisheries. Notice of any fresh laws or Regu- lations shall be given to the Government of the French Republic three months before they come into operation. The policing of the fishing on the above-mentioned portion of the coast, and for prevention of illicit liquor traffic and smuggling of spirits, shall form the subject of Regulations drawn up in agreement by the two Governments. Art. III. A pecuniary indemnity shall be awarded by His Britannic Majesty’s Government to the French citizens engaged in fishing or the preparation of fish on the “Treaty Shore,” who are obliged, either to abandon the establishments they possess there, or to give up their occupation, in consequence of the modification introduced by the present Convention into the existing state of affairs. This indemnity cannot be claimed by the parties interested unless they have been engaged in their business prior to the closing of the fishing season of 1903. Claims for indemnity shall be submitted to an Arbitral Tribunal, composed of an officer of each nation, and, in the event of disagreement, of an Umpire appointed in accordance with the procedure laid down by Article XXXII of The Hague Con- vention. The details regulating the constitution of the Tribunal and the conditions of the inquiries to be instituted for the purpose of substantiating the claims, shall ferm the subject of a special Agreement between the two Governments. CIRCULAR NOTE OF M. DELCASSE, MINISTER FOR FOREIGN AFFAIRS, TO FRENCH DIPLOMATIC AGENTS, APRIL 12, 19041 M. Detcassé, MINIsTER OF ForEIGN AFFAIRS, TO THE AMBASSADORS OF THE Frenc REPUBLIC AT BERLIN, BERNE, CONSTANTINOPLE, Maprip, ST. PETERSBURG, Vienna, WASHINGTON, TO His Majesty THE Kinc or ITALY, TO THE PopPE, TO THE MINISTER OF THE REPUBLIC AT TANGIER, AND TO THE DiIpLomaTIC AGENT AND ConsuL GENERAL OF FRANCE AT CAIRO “4 Paris, April 12, 1904. The great interests both of a moral and material nature which are involved in the entente between England and France called forth a peaceful settlement of the ques- tions upon which the two countries were divided and whence under certain cir- cumstances a conflict might have arisen. Both at London and in Paris the two governments took these matters into consideration. The visits exchanged last year between King Edward and the President of France showed that public opinion on both sides of the Channel was favorably disposed toward an arrangement. 1 Oral Argument, Vol. II, pp. 1425-1426. 392 APPENDIX In the course of the conversation which I had the honor to engage in with Lord Lansdowne on July 7th, the eminent Minister of Foreign Affairs of the King and I examined one by one all the problems which presented themselves before us. It was recognized that it was not impossible to find a solution equally advantageous to both parties in the case of all of them. Our common efforts which a like spirit of conciliation at all times directed, resulted in the agreements of April 8th of which I append hereto the authentic text, adding some explanations upon their nature and their import. NEWFOUNDLAND. — The affairs of Newfoundland were among those which on numerous occasions had given rise to discussions increasingly troublesome. Their origin lies in the remote past. Article XIII of the Treaty of Utrecht had abandoned to Great Britain Newfoundland and the adjacent islands. It was only on the western coast and on a portion of the eastern coast that we could take and dry fish and then only during the customary fishing season. Every permanent establishment was forbidden to us. The increasingly frequent difficulties to which the execution of the Treaty of Utrecht led necessitated a special clause in the Treaty of Versailles of 1783, which was completed by the declaration of King George of the same date, the object of which was the avoidance of daily quarrels between the fishermen of the two nations. In spite of all precautions taken it may be said that in the course of the last century hardly a year passed in which the exercise of our privilege was not the cause of complaints or collisions. The population of Newfoundland, which in the beginning numbered hardly four or five thousand souls, increased gradually to two hundred and ten thousand. In the desire of the latter to develop the resources of their island the French shore presented itself to them as closed to all progress; they could enjoy no benefits in a region in which they hoped to find mines and soil favorable to agri- culture and which we ourselves could not utilize. Thus hostile opinion began to arise against our privilege. The irresistible pressure of the necessities of existence in an uninviting and hard climate weakened in an increasing measure day by day the bar- riers of the ancient servitudes (servitudes anciennes) and in spite of our constant protest the inhabitants of the island established themselves gradually along a portion of the coveted shore. Our resistance to these invasions became the more difficult because while the island saw its population and its requirements increase, the number of our fishermen frequenting the French shore diminished year by year. From ten thousand, the number of fishermen in the middle of the last century, it decreased to four or five hundred, until it reached last year scarcely two hundred and thirty-eight. For the benefit of these few fishermen and for the few weeks in the year which they devoted to fishing in these regions the inhabitants of the country saw access to and enjoyment of almost half the coast of the island forbidden to them. It was this state of things, impatiently borne, which caused the Parliament of Newfoundland to reject the arrangements concluded between the Cabinets at Paris and at London in 1857 and 1885 for the purpose of bringing about a compromise between the rigor of ancient treaties and the exigencies of the present situation. The latter of these agreements contained a stipulation which accorded to us the right of purchasing bait, that is, herring, capelin, squid, etc., necessary for the cod fishery. This was the reason which induced the Parliament at St. John’s to reject TREATIES 393 the arrangement of 1885. In the following year they even voted the Bait Act, the object of which was to forbid the sale of bait to foreigners. This law ceased pro- visionally to be enforced from 1893 on, but the Newfoundland Parliament in 1898 imposed a tax upon the sale of bait which in default of an express stipulation, it was feared, might be applied along the French shore. At the same time, with the question raised by the Bait Act, a new element of conflict arose by reason of an industry of recent origin in Newfoundland — that of the lobster fishery, the exercise of which on our part on the French shore was con- tested because the lobster was a crustacean and the stipulations of the Treaty of Utrecht had in view fish only. In 1890 a modus vivendi was arranged on the basis of the state of affairs existing on July 1, 1889. This arrangement, essentially tem- porary, and first limited to the season of 1890, was, in default of a better, renewed thereafter, at times under great difficulty. A refusal on the part of the Parliament of Newfoundland would have sufficed to bring about inextricable complications. In this situation the urgent necessity was imposed of seeking a definitive solution. Our rights in Newfoundland were composed of two elements; the fishery, that is to say, the use of the territorial waters, and the drying of fish, that is, the use of the shore. By reason of its exclusive character. this latter right had become unbearable to the inhabitants. We consent to abandon it. But it must be observed that the circumstances are no longer the same as in the time of the Treaty of Utrecht, the drying being possible and being actually carried on either on board ship or, thanks to the rapidity of communication, at St. Pierre or Miquelon, or even in France. On the other hand, our right of fishing in territorial waters, which is the essential thing, remains intact. With reference to the fishery on the Grand Banks, which is infinitely more productive and consequently more sought after, this is facilitated by the right which is henceforth guaranteed to us to purchase bait along the entire extent of the French shore. It is precisely this deep sea fishery which the government has always sought to encourage as one of the most useful schools for our seamen and a valuable preparation for naval training. The lobster having become increasingly rare by consequence of the intensive fishery of which for some years it has been the object, it was agreed that general regu- lations might be enacted with a view to prohibiting the fishing of this crustacean or even of other fish during a definite time. These regulations will be communicated to us at least three months before coming into force. For the purpose of fostering the propagation of the species it was stipulated that permanent fishing gear could not be used without the permission of the local authorities. But in order to avoid all contest in this respect we have asked the British Government to inform us as to what they understood exactly by permanent gear. It results from an exchange of notes between our Ambassador and the Principal Secretary of State that according to British legislation these words apply only to permanent establishments. Thus our fisher- men will be able to continue to use nets attached to the shore for the duration of a fishery and which constitute only a transitory method. Nothing, likewise, prevents them from installing lobster traps and the right of taking this crustacean which had heretofore been denied to us and had given rise to long debates, is now definitely admitted in law as in practice. Besides the fishing properly so called, we also have other interests on the French shore which had to be taken into consideration, that is, those of the owners of drying sheds and lobster establishments who find themselves dispossessed by reason of the exploitation of the coast heretofore reserved exclusively to their industry. Article IIT 394 APPENDIX of the Convention of April 8th, assures to the proprietors of these establishments as well as to the sailors employed by them an indemnity the amount of which is to be determined by a commission of officers from the French and English navy, with even- tual recourse to an umpire whose choice will lie with the International Court at The Hague. Every guaranty is consequently foreseen for the equitable compensation of the various enterprises involved. It will thus be seen that to remove the risk of conflict which threatened to become a disturbing element, we are only abandoning in Newfoundland privileges defensible with difficulty and not at all necessary, while preserving the essential right, that is, fishing in territorial waters, and removing for the future from the field of possible conflict a valuable right — that of fishing freely or unhindered purchasing bait along the entire French shore. These compensations are not, moreover, the only ones to which we secured con- sent. ... [Livre Jaune, 1904, Accords Conclus, le 8 Avril zg04 entre la France et L’Angleterre au sujet du Moroc, de l’Egypte, de Terre-Neuve, etc., pp. 7-10.] CORRESPONDENCE I. CORRESPONDENCE RELATING TO CONVENTION OF 1818 EXTRACT FROM INSTRUCTION, SECRETARY OF STATE MONROE TO MR. JOHN QUINCY ADAMS, UNITED STATES MINISTER AT LONDON, JULY 21, 1815! Among the acts which we have to complain of with greatest earnestness is a late warning given by the commander of a British sloop of war to our fishermen near the coast of the British northern colonies to retire thence to the distance of twenty leagues. This, it is presumed, has been done under a construction of the late treaty of peace, which, by being silent on the subject, left that important interest to rest on the ground on which it was placed by the treaty of 1783. The right to the fisheries required no new stipulation to support it. It was sufficiently secured by the treaty of 1783. This important subject will claim your early attention. The measure thus promptly taken by the British Government, without any communication with this Government, notwithstanding the declaration of our Ministers at Ghent that our right would not be affected by the silence of the treaty, indicates a spirit which excites equal surprise and regret — one which by no means corresponds with the amicable relations established between the two countries by that treaty, or with the spirit with which it has been executed by the United States. As you are well acquainted with the solidity of our right to the fisheries in ques- tion, as well as to those on the Grand Bank, and elsewhere on the main ocean, to the limit of a marine league only from the coast, (for the pretension to remove us twenty leagues is too absurd to be discussed), I shall not dilate on it, especially at this time. It is sufficient to observe here, that the right of the United States to take fish on the coast of Newfoundland, and on the coasts, bays, and creeks of all other of His Britannic Majesty’s dominions in America, and to dry and cure fish in any of the unsettled bays, harbors, and creeks of Nova Scotia, Magdalen Islands, and Labrador — in short, that every right appertaining to the fisheries, which was secured by the treaty of 1783, stands now as unshaken and perfect as it then did, constituting a vital part of our political existence, and resting on the same solid foundation as our independence itself. In the act of dismemberment and partition, the rights of each party were distinctly defined. So much of territory and incidental rights were allotted to one, so much to the other; and as well might it be said, because our boundary had not been retraced in the late treaty, in every part, that certain portions of our territory had reverted to England, as that our right to fish, by whatever name secured, had experienced that fate. A liberty of unlimited duration, thus secured, is as much a right as if it had been stipulated by any other term. Being to be enjoyed by one, adjoining the territory allotted by the partition to the other party, it seemed to be the appropriate term. I have made these remarks to show the solid ground on which this right is deemed to rest by this Government, relying on your thorough knowledge of the subject to illustrate and support it in the most suitable manner. It can scarcely be presumed that the British Government, after the result of the 1 Appendix, U. S. Case, p. 263; Appendix, British Case, pp. 63-64. 395 396 APPENDIX late experiment, in the present state of Europe, and under its other engagements, can seriously contemplate a renewal of hostilities. But it often happens with nations, as well as with individuals, that a just estimate of its interests and duties is not an infallible criterion of its conduct. We ought to be prepared at every point to guard against such an event. You will be attentive to circumstances, and give us timely notice of any danger which may be menaced. . NOTE, LORD BATHURST TO MR. BAKER, BRITISH CHARGE D’AFFAIRES AT WASHINGTON, SEPTEMBER 7, 1815! ForeEIGN OFFICE, September 7, 1815 Sir: Your several dispatches to No. 25 inclusive have been received and laid before the Prince Regent. The necessity of immediately dispatching this messenger with my preceding num- bers prevents my replying to the various topics which your more recent communi- cations embrace. I shall therefore confine myself to conveying to you the sentiments of His Majesty’s Government on the one requiring the most immediate explanation with the Government of the United States, namely, the fisheries, premising the instruc- tions I have to give to you on the subject, with informing you that the line which you have taken in the discussion on that point, as explained in your No. 24, has met with the approbation of His Majesty’s Government. You will take an early opportunity of assuring Mr. Monroe that, as, on the one hand, the British Government cannot acknowledge the right of the United States to use the British territory for the purpose connected with the fishery, and that their fishing vessels will be excluded from the bays, harbours, rivers, creeks, and inlets of all His Majesty’s possessions: so, on the other hand, the British Government does not pretend to interfere with the fishery in which the subjects of the United States may be engaged, either on the Grand Bank of Newfoundland, the Gulf of St. Lawrence, or other places in the sea, without the jurisdiction of the maritime league from the coasts under the dominion of Great Britain. Upon these principles, therefore, the case against which the American Govern- ment has remonstrated, if well founded, was not authorized by His Majesty’s overnment. Cavern I am, etc. (Signed) . BatTHurst. EXTRACT FROM DISPATCH, MR. ADAMS TO MR. MONROE, STATING SUBSTANCE OF A CONVERSATION WITH LORD BATHURST, SEPTEMBER 19, 1815? Having formally renewed the claim for the restitution of the slaves carried away contrary to the engagements of the treaty of peace, or for payment of their value as the alternative, there were other objects which I deemed it necessary to present again to the consideration of this Government. In the first instance, it seemed advisable to open them by a verbal communication; and I requested of Lord Bathurst an interview, for which he appointed the 14th instant, when I called at his office in Down- ing Street. I said that, having lately received dispatches from you respecting several 1 Appendix, British Case, p. 64. 2 Appendix, U. S. Case, pp. 264-265; Appendix, British Case, pp. 64-66. CORRESPONDENCE 397 objects of some importance to the relations between the two countries, my first object in asking to see him had been to inquire whether he had received from Mr. Baker a communication of the correspondence between you and him relative to the surrender of Michilimackinac; to the proceedings of Colonel Nichols in the southern part of the United States; and to the warning given by the captain of the British armed vessel Jaseur to certain American fishing vessels to withdraw from the fishing grounds to the distance of sixty miles from the coast. He answered, that he had received all these papers from Mr. Baker about four days ago; that an answer with regard to the warning of the fishing vessels had immediately been sent; but, on the other subjects, there had not been time to examine the papers and prepare the answers. I asked him if he could, without inconvenience, state the substance of the answer that had been sent. He said, certainly: it had been that as, on the one hand, Great Britain could not permit the vessels of the United States to fish within the creeks and close upon the shores of the British territories, so, on the other hand, it was by no means her intention to interrupt them in fishing anywhere in the open sea, or without the territorial jurisdiction, a marine league from the shore; and, therefore, that the warning given at the place stated, in the case referred to, was altogether unauthorized. I replied that the particular act of the British commander in this instance being disavowed, I trusted that the British Government, before adopting any final determination upon the subject, would estimate, in_candor, and in that spirit of amity which my own Government was anxiously desirous of maintaining in our relations with this country, the considerations which I was instructed to present in support of the right of the people of the United States to fish on the whole coast of North America, which they have uniformly enjoyed from the first settlement of the country; that it was my intention to address, in the course of a few days, a letter to him on the subject. He said that they would give due attention to the letter that I should send him, but that Great Britain had explicitly manifested her intention concerning it; that this subject, as I doubtless knew, had excited a great deal of feel- ing in this country, perhaps much more than its importance deserved; but their own fishermen considered it as an excessive hardship to be supplanted by American fisher- men, even upon the very shores of the British dominions. I said that those whose sensibilities had been thus excited had probably not considered the question of right in the point of view in which it had been regarded by us; that they were the sensi- bilities of a partial and individual interest, stimulated by the passions of competition, and considering the right of the Americans as if it had been a privilege granted to them by the British Government. If this interest was to have weight in determining the policy of the Cabinet, there was another interest liable to be affected in the opposite manner, which would be entitled equally to consideration — the manufacturing interest. The question of right had not been discussed at the negotiation of Ghent. The British plenipotentiaries had given a notice that the British Government did not intend hereafter to grant to the people of the United States the right to fish, and to cure and dry fish within the exclusive British jurisdiction in America, without an equivalent, as it had been granted by the treaty of peace in 1783. The American plenipotentiaries had given notice, in return, that the American Government con- sidered all the rights and liberties in and to the fisheries on the whole coast of North America as sufficiently secured by the possession of them, which had always been enjoyed previous to the revolution, and by the recognition of them in the treaty of peace in 1783; that they did not think any new stipulation necessary for a further confirmation of the right, no part of which did they consider as having been forfeited 398 APPENDIX by the war. It was obvious that the treaty of peace of 1783 was not one of those ordinary treaties which, by the usages of nations, were held to be annulled by a sub- sequent war between the same parties: it was not simply a treaty of peace; it was a treaty of partition between two parts of one nation, agreeing thenceforth to be separated into two distinct sovereignties. The conditions upon which this was done constituted, essentially, the independence of the United States; and the preserva- tion of all the fishing rights, which they had constantly enjoyed over the whole coast of North America, was among the most important of them. This was no concession, no grant, on the part of Great Britain, which could be annulled by a war. There had been, in the same treaty of 1783, a right recognized in British subjects to navigate the Mississippi. This right the British plenipotentiaries at Ghent had considered as still a just claim on the part of Great Britain, notwithstanding the war that had intervened. The American plenipotentiaries, to remove all future discussion upon both points, had offered to agree to an article expressly confirming both the rights. In declining this, an offer had been made on the part of Great Britain of an article stipulating to negotiate in future for the renewal of both the rights, for equivalents, which was declined by the American plenipotentiaries, on the express ground that its effect would have been an implied admission that the rights had been annulled. There was, therefore, no article concerning them in the treaty, and the question as to the right was not discussed. I now stated the ground upon which the Government of the United States considered the right as subsisting and unimpaired. The treaty of 1783 was, in its essential nature, not liable to be annulled by a subsequent war. It acknowledged the United States as a sovereign and independent Power. It would be an absurdity, inconsistent with the acknowledgment itself, to suppose it liable to be forfeited by a war. The whole treaty of Ghent did constantly refer to it as existing and in full force, nor was an intimation given that any further confirmation of it was supposed to be necessary. It would be for the British Government ultimately to determine how far this reasoning was to be admitted as correct. There were, also, considerations of policy and expediency, to which I hoped they would give suitable attention, before they should come to a final decision upon this point. I thought it my duty to suggest them, that they might not be overlooked. The subject was viewed by my countrymen as highly important, and I was anxious to omit no effort which might possibly have an influence in promoting friendly sentiments between the two nations, or in guarding against the excitement of others. These fisheries afforded the means of subsistence to multitudes of people who were destitute of any other; they also afforded the’ means of remittance to Great Britain in payment for articles of her manufactures exported to America. It was well understood to be the policy of Great Britain that no unnecessary stimulus should be given to the manufactures in the United States, which would diminish the importation of those from Great Britain. But, by depriving the fishermen of the United States of this source of sub- sistence, the result must be to throw them back upon the country, and drive them at the present time, entitled to prosecute their fisheries within the limits of the British to the resort of manufacturing for themselves; while, on the other hand, it would cut off the means of making remittances in payment for the manufactures of Great Britain. I thought it best to urge every consideration which might influence a party having other views in that respect, to avoid coming to a collision upon it. I would even urge considerations of humanity. I would say that fisheries, the nature of which was to multiply the means of subsistence to mankind, were usually considered by civilised nations as under a sort of special sanction. It was a common practice to have them CORRESPONDENCE 399 uninterrupted even in time of war. He knew, for instance, that the Dutch had been, for centuries, in the practice of fishing upon the coasts of this island, and that they were not interrupted in this occupation even in ordinary times of war. It was to be inferred from this, that, to interdict a fishery, which has been enjoyed for ages, far from being a usual act in the peaceable relations between nations, was an indication of animosity, transcending even the ordinary course of hostility in war. He said that no such disposition was entertained by the British Government; that to show the liberality which they had determined to exercise in this case, he would assure me that the instructions which he had given to the officers on that station had been, not even to interrupt the American fishermen who might have proceeded to those coasts, within the British jurisdiction, for the present year; to allow them to complete their fares, but to give them notice that this privilege could no longer be allowed by Great Britain, and that they must not return the next year. It was not so much the fishing, as the drying and curing on the shores, that had been followed by bad consequences. It happened that our fishermen, by their proximity, could get to the fishing stations sooner in the season than the British, who were obliged to go from Europe, and who, upon arriving there, found all the best fishing places and drying and curing places pre-occupied. This had often given rise to disputes and quarrels between them, which in some instances had proceeded even to blows. It had disturbed the peace among the inhabitants on the shores; and, for several years before the war, the com- plaints to this Government had been so great and so frequent, that it had been impos- sible not to pay regard to them. I said that I had not heard of any such complaints before, but that, as to the disputes arising from the competition of the fishermen, a remedy could surely with ease be found for them, by suitable regulations of the Government; and with regard to the peace of the inhabitants, there could be little difficulty in securing it, as the liberty enjoyed by the American fishermen was limited to unsettled and uninhabited places, unless they could, in the others, obtain the consent and agreement of the inhabitants. The answer which was so promptly sent to the complaint relative to the warning of the fishing vessels, by the captain of the Jaseur, will probably be communicated to you before you will receive this letter. You will see whether it is so precise, as to the limits within which they are determined to adhere to the exclusion of our fishing vessels, as Lord Bathurst’s verbal statement of it to me, namely, to the extent of one marine league from their shores. Indeed, it is to the curing and drying upon the shore that they appear to have the strongest objection. But that, perhaps, is because they know that the immediate curing and drying of the fish, as soon as they are taken, is essential to the value, if not to the very prosecution of the fishery. I have no expec- tation that the arguments used by me either in support of our right, or as to the policy of Great Britain, upon this question, will have any weight here. Though satis- fied of their validity myself, I am persuaded it will be upon the determination of the American Government and people to maintain the right that the continuance of its enjoyment will alone depend... . NOTE FROM LORD BATHURST TO MR. ADAMS, OCTOBER 30, 18151 Foreicn OFFice, October 30, 1815. The undersigned, one of His Majesty’s Principal Secretaries of State, had the honour of receiving the letter of the Minister of the United States, dated the 25th 1 Appendix, British Case, pp. 69-72; Appendix, U. S. Case, p. 273. 400 APPENDIX ultimo, containing the grounds upon which the United States conceive themselves, at the present time, entitled to prosecute their fisheries within the limits of the British sovereignty, and to use British territories for purposes connected with the fisheries. A pretension of this kind was certainly intimated on a former occasion, but in a manner so obscure that His Majesty’s Government were not enabled even to conjecture the grounds upon which it could be supported. His Majesty’s Government have not failed to give to the argument contained in the letter of the 25th ultimo a candid and deliberate consideration; and, although they are compelled to resist the claim of the United States, when thus brought forward as a question of right, they feel every disposition to afford to the citizens of those States all the liberties and privileges connected with the fisheries which can consist with the just rights and interests of Great Britain, and secure His Majesty’s subjects from those undue molestations in their fisheries which they have formerly experienced from citizens of the United States. The Minister of the United States appears, by his letter, to be well aware that Great Britain has always considered the liberty formerly enjoyed by the United States of fishing within British limits, and using British terri- tory, as derived from the third article of the treaty of 1783, and from that alone; and that the claim of an independent State to occupy and use at its discretion any portion of the territory of another, without compensation or corresponding indulgence, cannot rest on any other foundation than conventional stipulation. . It is unnecessary to enquire into the motives which might have originally influenced Great Britain in conceding such liberties to the United States, or whether other articles of the treaty wherein these liberties are specified did, or did not, in fact, afford an equivalent for them, because all the stipulations profess to be founded on reciprocal advantages and mutual convenience. If the United States derived from that treaty privileges from which other independent nations not admitted by treaty were excluded, the duration of the privileges must depend on the duration of the instrument by which they were granted; and if the war abrogated the treaty, it determined the privileges. It has been urged, indeed, on the part of the United States, that the treaty of 1783 was of a peculiar character, and that, because it contained a recognition of American inde- pendence, it could not be abrogated by a subsequent war between the parties. Toa position of this novel nature Great Britain cannot accede. She knows of no excep- tion to the rule, that all treaties are put an end to by a subsequent war between the same parties: she cannot, therefore, consent to give to her diplomatic relations with one State a different degree of permanency from that on which her connection with all other States depends. Nor can she consider any one State at liberty to assign to a treaty made with her such a peculiarity of character as shall make it, as to duration, an exception to all other treaties, in order to found, on a peculiarity thus assumed, an irrev- ocable title to all indulgences, which have all the features of temporary concessions. The treaty of Ghent has been brought forward by the American Minister as sup- porting, by its reference to the boundary line of the United States, as fixed by the treaty of 1783, the opinion that the treaty of 1783 was not abrogated by the war. The undersigned, however, cannot observe in any one of its articles any express or implied reference to the treaty of 1783 as still in force. It will not be denied that the main object of the treaty of Ghent was the mutual restoration of all territory taken by either party from the other during the war. As a necessary consequence of such a stipulation, each party reverted to their boundaries as before the war, without reference to the title by which these possessions were acquired, or to the mode in which their boundaries had been previously fixed. In point of fact, the United States had CORRESPONDENCE 401 before acquired possession of territories asserted to depend on other titles than those which Great Britain could confer. The treaty of Ghent, indeed, adverted, as a fact of possession, to certain boundaries of the United States which were specified in the treaty of 1783; but surely it will not be contended that therefore the treaty of 1783 was not considered at an end. It is justly stated by the American Minister that the United States did not need a new grant of the boundary line. The war did not arise out of a contested boundary; and Great Britain, therefore, by the act of treating with the United States, recognized that nation in its former dimensions, excepting so far as the jus belli had interfered with them; and it was the object of the treaty of Ghent to cede such rights to terri- tory as the jus belli had conferred. Still less does the free navigation of the Mississippi, as demanded by the British negotiators at Ghent, in any manner express or imply the non-abrogation of the treaty of 1783 by the subsequent war. It was brought forward by them as one of many advantages which they were desirous of securing to Great Britain; and if in the first instance demanded without equivalent, it left it open to the negotiators of the United States to claim for their Government, in the course of their conferences, a correspond- ing benefit. The American Minister will recollect that propositions of this nature were at one time under discussion, and that they were only abandoned at the time that Great Britain relinquished her demand to the navigation of the Mississippi. If, then, the demand on the part of Great Britain can be supposed to have given any weight to the present argument of the United States, the abandonment of that demand must have effectually removed it. It is by no means unusual for treaties containing recognitions and acknowledg- ments of title, in the nature of perpetual obligation, to contain, likewise, grants of privileges liable to revocation. The treaty of 1783, like many others, contained provisions of different characters — some in their own nature irrevocable, and others ofatemporary nature. If it be thence inferred that, because some advantages specified in that treaty would not be put an end to by the war, therefore all the other advantages were intended to be equally permanent, it must first be shown that the advantages themselves are of the same, or at least of a similar character; for the character of one advantage recognized or conceded by treaty can have no connection with the character of another, though conceded by the same instrument, unless it arises out of a strict and necessary connection between the advantages themselves. But what necessary connection can there be between a right to independence and a liberty to fish within British jurisdiction, or to use British territory? Liberties within British limits are as capable of being exercised by a dependent, as by an independent State, and cannot, therefore, be the necessary consequence of independence. The independence of a State is that which cannot be correctly said to be granted by a treaty, but to be acknowledged by one. In the treaty of 1783, the independence of the United States was certainly acknowledged, not merely by the consent to make the treaty, but by the previous consent to enter into the provisional articles executed in November, 1782. The independence might have been acknowledged, without either the treaty or the provisional articles; but, by whatever mode acknowledged, the acknowledgment is, in its own nature, irrevocable. A power of revoking, or even of modifying it, would be destructive of the thing itself; and, therefore, all such power is necessarily renounced when the acknowledgment is made. The war could not put an end to it, for the reason justly assigned by the American Minister, because a nation could not forfeit its sovereignty by the act of exercising it; and for the further 402 APPENDIX reason, that Great Britain, when she declared war on her part against the United States, gave them, by that very act, a new recognition of their independence. The nature of the liberty to fish within British limits, or to use British territory, is essentially different from the right to independence, in all that may reasonably be supposed to regard its intended duration. The grant of this liberty has all the aspect of a policy temporary and experimental, depending on the use that might be made of it, on the condition of the islands and places where it was to be exercised, and the more general conveniences or inconveniences, in a military, naval, or com- mercial point of view, resulting from the access of an independent nation to such islands and places. When, therefore, Great Britain, admitting the independence of the United States, denies their right to the liberties for which they now contend, it is not that she selects from the treaty, articles, or parts of articles, and says, at her own will, this stipulation is liable to forfeiture by war, and that it is irrevocable; but the principle of her reason- ing, is that such distinctions arise out of the provisions themselves, and are founded on the very nature of the grants. But the rights acknowledged by the treaty of 1783 are not only distinguishable from the liberties conceded by the same treaty, in the foundation upon which they stand, but they are carefully distinguished in the treaty of 1783 itself. The undersigned begs to call the attention of the American Minister to the wording of the first and third articles, to which he has often referred, for the foundation of his arguments.. In the first article, Great Britain acknowledges an independence already expressly recognised by the Powers of Europe and by herself, in her consent to enter into provisional articles of November 1782. In the third article, Great Britain acknowledges the right of the United States to take fish on the banks of Newfoundland and other places, from which Great Britain has no right to exclude an independent nation. But they are to have the liberty to cure and dry them in certain unsettled places within His Majesty’s territory. If these liberties, thus granted, were to be as perpetual and indefeasible as the rights previously recog- nised, it is difficult to conceive that the plenipotentiaries of the United States would have admitted a variation of language so adapted to produce a different impression; and, above all, that they should have admitted so strange a restriction of a perpetual and indefeasible right as that with which the article concludes, which leaves a right so practical and so beneficial as this is admitted to be, dependent on the will of British subjects, in their character of inhabitants, proprietors, or possessors of the soil, to prohibit its exercise altogether. It is surely obvious that the word right is, throughout the treaty, used as applicable to what the United States were to enjoy, in virtue of a recognised independence; and the word liberty to what they were to enjoy, as concessions strictly dependent on the treaty itself. The right of the United States has been asserted upon other arguments, which appear to the undersigned not altogether consistent with those that had been previously advanced. It has been argued by the Minister of the United States that the treaty of 1783 did not confer upon the United States the liberty of fishing within British jurisdiction, and using British territory, but merely recognised a right which they previously had; and it has been thence inferred that the recognition of this right renders it as perpetual as that of their independence. If the treaty of 1783 did not confer the liberties in question, the undersigned cannot understand why, in their support, the point should have been so much pressed, that the treaty is in force notwithstanding the subsequent war. If, as stated by the Ameri- CORRESPONDENCE 403 can Minister, the time of the settlement of North America was the origin of the liberties of the United States in respect to the fisheries, and their independence, as recognised in 1783, was, as further argued by him, the mere recognition of rights and liberties previously existing, (which must have been in virtue of their independence), it would seem to follow that their independence was recognised from the time of the settlement of North America — for no other period can be assigned. The under- signed is totally unable to collect when the American Minister considers the inde- pendence of his country to have commenced; yet this is a point of no small importance, if other rights are to be represented as coeval with it, or dependent on it. As to the origin of these privileges, in point of fact, the undersigned is ready to admit that, so long as the United States constituted a part of the dominions of His Majesty, the inhabitants had the enjoyment of them, as they had of other political and commercial advantages, in common with His Majesty’s subjects. But they had, at the same time, in common with His Majesty’s other subjects, duties to perform; and when the United States, by their separation from Great Britain, became released from the duties, they became excluded also from the advantages of British subjects. They cannot, therefore, now claim, otherwise than by treaty, the exercise of privileges belonging to them as British subjects, unless they are prepared to admit, on the part of Great Britain, the exercise of the rights which she enjoyed previous to the separation. If it be contended, on the part of the United States, that, in consequence of having been once a part of the British dominions, they are now entitled, as of right, to all the privileges which they enjoyed as British subjects, in addition to those which they have as an independent people, the undersigned cannot too strongly protest against such a doctrine; and it must become doubly necessary for Great Britain to hesitate in conceding the privileges which are now the subject of discussion, lest, by such a concession, she should be supposed to countenance a principle not less novel than alarming. But, though Great Britain can never admit the claim of the United States to enjoy those liberties, with respect to the fisheries, as matter of right, she is by no means insensible to some of those considerations with which the letter of the American Minister concludes. Although His Majesty’s Government cannot admit that the claim of the American fishermen to fish within British jurisdiction, and to use the British territory for pur- poses connected with their fishery, is analogous to the indulgence which has been granted to enemy’s subjects engaged in fishing on the high seas, for the purpose of conveying fresh fish to market, yet they do feel that the enjoyment of the liberties, formerly used by the inhabitants of the United States, may be very conducive to their national and individual prosperity, though they should be placed under some modifications; and this feeling operates most forcibly in favor of concession. But Great Britain can only offer the concession in a way which shall effectually protect her own subjects from such obstructions to their lawful enterprises as they too fre- quently experienced immediately previous to the late war, and which are, from their very nature, calculated to produce collision and disunion between the two States. It was not of fair competition that His Majesty’s Government had reason to com- plain, but of the preoccupation of British harbours and creeks, in North America, by the fishing vessels of the United States, and the forcible exclusion of British vessels from places where the fishery might be most advantageously conducted. They had, likewise, reason to complain of the clandestine introduction of prohibited goods into 404 APPENDIX the British colonies by American vessels ostensibly engaged in the fishing trade, to the great injury of the British revenue. The undersigned has felt it incumbent on him thus generally to notice these obstruc- tions, in the hope that the attention of the Government of the United States will be directed to the subject; and that they may be induced, amicably and cordially, to co-operate with His Majesty’s Government in devising such regulations as shall prevent the recurrence of similar inconveniences. His Majesty’s Government are willing to enter into negotiations with the Govern- ment of the United States for the modified renewal of the liberties in question; and they doubt not that an arrangement may be made, satisfactory to both countries, and tending to confirm the amity now so happily subsisting between them. The undersigned avails himself of this opportunity of renewing to Mr. Adams the assurances of his high consideration. Batuursr. NOTE FROM MR. ADAMS TO VISCOUNT CASTLEREAGH, JANUARY 22, 1816} 13 CRAVEN STREET, January 22, 1816 The undersigned, Envoy Extraordinary and Minister Plenipotentiary from the United States of America, has received, and communicated to the Government of the United States, the answer of Lord Bathurst to a letter which he had the honour of addressing to his Lordship on the 25th September last, representing the grounds upon which the American Government consider the people of the United States entitled to all the rights and liberties in and connected with the fisheries on the coasts of North America, which had been enjoyed by them previously to the American revolu- tion, and which, by the third article of the treaty of peace of 1783, were recognised by Great Britain as rights and liberties belonging to them. The reply to Lord Bathurst’s note has been delayed by circumstances which it is unnecessary to detail. It is for the Government of the United States alone to decide upon the proposal of a negotiation upon the subject. That they will at all times be ready to agree upon arrangements which may obviate and prevent the recurrence of those inconveniences stated to have resulted from the exercise by the people of the United States of these rights and liberties, is not to be doubted; but as Lord Bathurst appears to have under- stood some of the observations in the letter of the undersigned as importing inferences not intended by him, and as some of his Lordship’s remarks particularly require a reply, it is presumed that, since Lord Castlereagh’s return, it will, with propriety, be addressed to him. It had been stated, in the letter to Lord Bathurst, that the treaty of peace of 1783 between Great Britain and the United States was of a peculiar nature, and bore in that nature a character of permanency, not subject, like many of the ordinary contracts between independent nations, to abrogation by a subsequent war between the same parties. His Lordship not only considers this as a position of a novel nature, to which Great Britain cannot accede, but as claiming for the diplomatic relations of the United States with her a different degree of permanency from that on which her connections with all other States depend. He denies the right of any one State to assign to a treaty made with her such a peculiarity of character as to make it in duration an exception to all other treaties, in order to found on a peculiarity thus assumed an irrevocable title to all indulgences which (he alleges) have all the features of temporary conces- sions; and he adds, in unqualified terms, that ‘Great Britain knows of no exception 1 Appendix, U. S. Case, p. 279; Appendix, British Case, pp. 72-76. CORRESPONDENCE 405 to the rule that all treaties are put an end to by a subsequent war between the same parties.” The undersigned explicitly disavows every pretense of claiming, for the diplo- matic relations between the United States and Great Britain, a degree of permanency different from that of the same relations between either of the parties and all other Powers. He disclaims all pretense of assigning to any treaty between the two nations any peculiarity not founded in the nature of the treaty itself. But he submits to the candor of His Majesty’s Government whether the treaty of 1783 was not, from the very nature of its subject-matter, and from the relations previously existing between the parties to it, peculiar? whether it was a treaty which could have been made be- tween Great Britain and any other nation? and, if not, whether the whole scope and objects of its stipulations were not expressly intended to constitute a new and perma- nent state of diplomatic relations between the two countries, which would not, and could not, be annulled by the mere fact of a subsequent war between them? And he makes this appeal with the more confidence, because another part of Lord Bathurst’s note admits that treaties often contain recognitions and acknowledgments in the nature of perpetual obligation, and because it implicitly admits that the whole treaty of 1783 is of this character, with the exception of the article concerning the naviga- tion of the Mississippi, and a small part of the article concerning the fisheries. The position that “Great Britain knows of no exception to the rule that all treaties are put an end to by a subsequent war between the same parties,” appears to the undersigned not only novel, but unwarranted by any of the received authorities upon the laws of nations; unsanctioned by the practice and usages of sovereign States; suited, in its tendency, to multiply the incitements to war, and to weaken the ties of peace between independent nations; and not easily reconciled with the admission that treaties not unusually contain, together with articles of a temporary character, liable to revocation, recognitions and acknowledgments 7m the nature of perpetual obligation. A recognition or acknowledgment of title, stipulated by convention, is as much a part of the treaty as any other article; and if all treaties are abrogated by war, the recognitions and acknowledgments contained in them must necessarily be null and void, as much as any other part of the treaty. If there be no exception to the rule that war puts an end to all treaties between the parties to it, what can be the purpose or meaning of those articles which, in almost all treaties of commerce, are provided expressly for the contingency of war, and which, during the peace, are without operation? On this point, the undersigned would refer Lord Castlereagh to the tenth article of the treaty of 1794 between the United States and Great Britain, where it is thus stipulated: ‘Neither the debts due from individuals of the one nation to the individuals of the other, nor shares, nor moneys, which they may have in the public funds, or in the public or private banks, shall ever, in any event of war, or national differences, be sequestered or confiscated.” If war puts an end to all treaties, what could the parties to this engagement intend by making it formally an article of the treaty ? According to the principle laid down, excluding all ex- ception, by Lord Bathurst’s note, the moment a war broke out between the two countries this stipulation became a dead letter, and either State might have sequestered or confis- cated those specified properties, without any violation of compact between the nations. The undersigned believes that there are many exceptions to the rule by which the treaties between nations are mutually considered as terminated by the inter-. vention of a war; that these exceptions extend to all engagements contracted with the understanding that they are to operate equally in war and peace, or exclusively 406 APPENDIX during war; to all engagements by which the parties superadd the sanction of a formal compact to principles dictated by the eternal laws of morality and humanity; and, finally, to all engagements which, according to the expressions of Lord Bathurst’s note, are in the nature of perpetual obligation. ‘To the first and second of these classes may be referred the tenth article of the treaty of 1794, and all treaties or articles of treaties stipulating the abolition of the slave trade. The treaty of peace of 1783 belongs to the third. The reasoning of Lord Bathurst’s note seems to confine this perpetuity of obliga- tion to recognitions and acknowledgments of title, and to consider its perpetual nature as resulting from the subject-matter of the contract, and not from the engagement of the contractor. While Great Britain leaves the United States unmolested in the enjoyment of all the advantages, rights, and liberties stipulated in their behalf in the treaty of 1783, it is immaterial to them whether she founds her conduct upon the mere fact that the United States are in possession of such rights, or whether she is governed by good faith and respect for her own engagements. But if she contests any one of them, it is to her engagements only that the United States can appeal as the rule for settling the question of right. If this appeal be rejected, it ceases to be a discussion of right; and this observation applies as strongly to the recognition of independence, and to the boundary line in the treaty of 1783, as to the fisheries. It is truly observed by Lord Bathurst, that in that treaty the independence of the United States was not granted, but acknowledged. He adds, that it might have been acknowl- edged without any treaty, and that the acknowledgment, in whatever mode made, would have been irrevocable. But the independence of the United States was pre- cisely the question upon which a previous war between them and Great Britain had been waged. Other nations might acknowledge their independence without a treaty, because they had no right, or claim of right, to contest it; but this acknowledgment, to be binding upon Great Britain, could have been made only by treaty, because it included the dissolution of one social compact between the parties, as well as the formation of another. Peace could exist between the two nations only by the mutual pledge of faith to the new social relations established between them; and hence it was that the stipulations of that treaty were in the nature of perpetual obligation, and not liable to be forfeited by a subsequent war, or by any declaration of the will of either party without the assent of the other. In this view, it certainly was supposed by the undersigned that Great Britain considered her obligation to hold and treat with the United States as a Sovereign and independent Power as derived only from the preliminary articles of 1782, as converted into the definitive treaty of 1783. The boundary line could obviously rest upon no other foundation. The boundaries were neither recognitions nor acknowl- edgments of title. They could have been fixed and settled only by treaty, and it is to the treaty alone that both parties have always referred in all discussions concern- ing them. Lord Bathurst’s note denies that there is in any one of the articles of the treaty of Ghent any express or implied reference to the treaty of 1783, as still in force. It says that, by the stipulation for a mutual restoration of territory, each party neces- sarily “reverted to their boundaries as before the war, without reference to the title by which their possessions were acquired, or to the mode in which their boundaries had been previously fixed.” There are four several articles of the treaty of Ghent, in every one of which the treaty of 1783 is not only named, but its stipulations form the basis of the new engage- ments between the parties for carrying its provisions into execution. These articles CORRESPONDENCE 407 are the fourth, fifth, sixth, and seventh. The undersigned refers particularly to the fourth article, where the boundaries described are not adverted to without reference to the title by which they were acquired; but where the stipulation of the treaty of 1783 is expressly assigned as the basis of the claims, both of the United States and of Great Britain, to the islands mentioned in the article. The words with which the article begins are, ‘Whereas it was stipulated by the second article in the treaty of peace of one thousand seven hundred and eighty-three between His Britannic Majesty and the United States of America, that the boundary of the United States should comprehend all islands,” etc. It proceeds to describe the boundaries as there stipulated; then alleges the claim of the United States to certain islands, as founded upon one part of the stipulation, and the claim of Great Britain as derived from another part of the stipulation; and agrees upon the appointment of two commissioners “to decide to which of the two contracting parties the islands belong, in conformity with the true intent of the said treaty of peace of 1783.” The same expressions are repeated in the fifth, sixth, and seventh articles; and the undersigned is unable to conceive by what construction of language one of the parties to those articles can allege that, at the time when they were signed, the treaty of 1783 was, or could be, considered at an end. When, in the letter of the undersigned to Lord Bathurst, the treaty of 1783 was stated to be a compact of a peculiar character, importing in its own nature a perma- nence not liable to be annulled by the fact of a subsequent war between the parties, the recognition of the sovereignty of the United States and the boundary line were adduced as illustrations to support the principle; the language of the above mentioned articles in the treaty of Ghent, and the claim brought forward by Great Britain, at the negotiation of it, for the free navigation of the Mississippi, were alleged as proofs that Great Britain herself so considered it, excepting with regard to a small part of the single article relative to the fisheries; and the right of Great Britain was denied thus to select one particular stipulation in such a treaty, and declare it to have been abrogated by the war. The answer of Lord Bathurst denies that Great Britain has made such a selection, and affirms that the whole treaty of 1783 was annulled by the late war. It admits, however, that the recognition of independence and the boundaries was in the nature of perpetual obligation; and that, with the single exception of the liberties in and connected with the fisheries within British jurisdiction on the coasts of North America, the United States are entitled to all the benefits of all the stipula- tions in their favor contained in the treaty of 1783, although the stipulations them- selves are supposed to be annulled. The fishing liberties within British jurisdiction alone are considered as a temporary grant, liable not only to abrogation by war, but, as it would seem from the tenor of the argument, revocable at the pleasure of Great Britain, whenever she might consider the revocation suitable’to her interest. The note affirms that “the liberty to fish within British limits, or to use British territory, is essentially different from the right to independence in all that can reasonably be supposed to regard its intended duration; that the grant of this liberty has all the aspect of a policy, temporary and experimental, depending on the use that might be made of it, on the condition of the islands and places where it was to be exercised, and the more general conveniences or inconveniences, in a military, naval, or com- mercial point of view, resulting from the access of an independent nation to such islands and places.” The undersigned is induced, on this occasion, to repeat his Lordship’s own words, because, on a careful and deliberate review of the article in question, he is unable 408 APPENDIX to discover in it a single expression indicating, even in the most distant manner, a policy, temporary or experimental, or having the remotest connection with military, naval, or commercial conveniences or inconveniences to Great Britain. He has not been inattentive to the variation in the terms, by which the enjoyment of the fisheries on the main ocean, the common possession of both nations, and the same enjoyment within a small portion of the special jurisdiction of Great Britain, are stipulated in the article, and recognised as belonging to the people of the United States. He con- siders the term right as importing an advantage to be enjoyed in a place of common jurisdiction, and the term /éberty as referring to the same advantage, incidentally leading to the borders of a special jurisdiction. But, evidently, neither of them imports any limitation of time. Both were expressions no less familiar to the understandings than dear to the hearts of both the nations parties to the treaty. The undersigned is persuaded it will be readily admitted that, wherever the English language is the mother tongue, the term /iberty, far from including in itself either limitation of time or precariousness of tenure, is essentially as permanent as that of right, and can, with justice, be understood only as a modification of the same thing; and as no limitation of time is implied in the term itself, so there is none expressed in any part of the article to which it belongs. The restriction at the close of the article is itself a confirmation of the permanency which the undersigned contends belongs to every part of the article. The intention was, that the people of the United States should continue to enjoy all the benefits of the fisheries which they had enjoyed theretofore, and, with the excep- tion of drying and curing fish on the Island of Newfoundland, all that British subjects should enjoy thereafter. Among them, was the liberty of drying and curing fish on the shores, then uninhabited, adjoining certain bays, harbours, and creeks. But, when those shores should become settled, and thereby become private and individual property, it was obvious that the liberty of drying and curing fish upon them must be conciliated with the proprietary rights of the owners of the soil. The same restric- tion would apply to British fishermen; and it was precisely because no grant of a new right was intended, but merely the continuance of what had been previously enjoyed, that the restriction must have been assented to on the part of the United States. But, upon the common and equitable rule of construction for treaties, the expression of one restriction implies the exclusion of all others not expressed; and thus the very limitation which looks forward to the time when the unsettled deserts should become inhabited, to modify the enjoyment of the same liberty conformably to the change of circumstances, corroborates the conclusion that the whole purport of the compact was permanent and not temporary — not experimental, but definitive. That the term right was used as applicable to what the United States were to enjoy in virtue of a recognised independence, and the word liberty to what they were to enjoy as concessions strictly dependent on the treaty itself, the undersigned not only cannot admit, but considers as a construction altogether unfounded. If the United States would have been entitled, ix virtue of a recognised independence, to enjoy the fisheries to which the word rights is applied, no article upon the subject would have been required in the treaty. Whatever their right might have been, Great Britain would not have felt herself bound, without a specific article to that effect, to acknowledge it as included among the appendages to their independence. Had she not acknowledged it, the United States must have been reduced to the alternative of resigning it, or of main- taining it by force; the result of which must have been war — the very state from which the treaty was to redeem the parties. That Great Britain would not have acknowledged these rights as belonging to the United States in virtue of their inde- CORRESPONDENCE 409 pendence, is evident; for, in the cession of Nova Scotia by France to Great Britain, in the twelfth article of the treaty of Utrecht, it was expressly stipulated that, as a consequence of that cession, French subjects should be thenceforth ‘excluded from all kind of fishing in the said seas, bays, and other places on the coasts of Nova Scotia; that is to say, on those which lie towards the east, within thirty leagues, beginning from the island commonly called Sable, inclusively, and thence stretching along towards the southwest.” The same exclusion was repeated, with some slight variation, in the treaty of peace of 1763; and, in the eighteenth article of the same treaty, Spain explicitly renounced all pretensions to the right of fishing “in the neighborhood of the Island of Newfoundland.” It was not, therefore, as a necessary result of their independence that Great Britain recognized the right of the people of the United States to fish on the banks of Newfoundland, in the “Gulf of St. Lawrence,” and at all other places in the sea where “the inhabitants of both countries used, at any time there- tofore, to fish.”” She recognized it, by a special stipulation, as a right which they had theretofore enjoyed as a part of the British nation, and which, as an independent nation, they were to continue to enjoy unmolested; and it is well known that, so far from considering it as recognized by virtue of her acknowledgment of independence, her objections to admitting it at all formed one of the most prominent difficulties in the negotiation of the peace of 1783. It was not asserted by the undersigned, as Lord Bathurst’s note appears to suppose, that either the right or the liberty of the people of the United States in these fisheries was indefeasible. It was maintained that, after the recognition of them by Great Britain, in the treaty of 1783, neither the right nor the liberty could be forfeited by the United States, but by their own consent; that no act or declaration of Great Britain alone could divest the United States of them; and that no exclusion of them from the enjoyment of either could be valid, unless expressly stipulated by themselves, as was done by France in the treaty of Utrecht, and by France and Spain in the peace of 1763. The undersigned is apprehensive, from the earnestness with which Lord Bathurst’s note argues to refute inferences which he disclaims, from the principles asserted in his letter to his Lordship, that he has not expressed his meaning in terms sufficiently clear. He affirmed that, previous to the independence of the United States, their people, as British subjects, had enjoyed all the rights and libertics in the fisheries, which form the subject of the present discussion; and that, when the separation of the two parts of the nation was consummated, by a mutual compact, the treaty of peace defined the rights and liberties which, by the stipulation of both parties, the United States, in their new character, were to enjoy. By the acknowledgment of the independence of the United States, Great Britain bound herself to treat them, thenceforward, as a nation possessed of all the prerogatives and attributes of sovereign power. The people of the United States were, thenceforward, neither bound in alle- giance to the sovereign of Great Britain, nor entitled to his protection, in the enjoy- ment of any of their rights, as his subjects. Their rights and their duties, as members of a State, were defined and regulated by their own constitutions and forms of govern- ment. But there were certain rights and liberties which had been enjoyed by both parts of the nation, while subjects of the same Sovereign, which it was mutually agreed they should continue to enjoy unmolested; and, among them, were the rights and liberties in these fisheries. The fisheries on the Banks of Newfoundland, as well in the open seas as in the neighboring bays, gulfs, and along the coasts of Nova Scotia and Labrador, were, by the dispensations and the laws of nature, in substance, only different parts of one fishery. Those of the open sea were enjoyed not as a common 410 APPENDIX - and universal right of all nations; since the exclusion from them of France and Spain, in whole or in part, had been expressly stipulated by those nations, and no other nation had, in fact, participated in them. It was, with some exceptions, an exclusive possession of the British nation; and in the treaty of separation it was agreed that the rights and liberties in them should continue to be enjoyed by that part of the nation which constituted the, United States; that it should not be a several, but, as between Great Britain and the United States, a common fishery. It was necessary, for the enjoyment of this fishery, to exercise it in conformity to the habits of the species of game of which it consisted. The places frequented by the fish were those to which the fishermen were obliged to resort, and these occasionally brought them to the borders of the British territorial jurisdiction. It was also necessary, for the prosecution of a part of this fishery, that the fish, when caught, should be immediately cured and dried, which could only be done on the rocks or shores adjoining the places where they were caught; the access to these rocks and shores, for those purposes, was secured to the people of the United States, as incidental and necessary to the enjoyment of the fishery; it was little more than an access to naked rocks and desolate sands; but it was as permanently secured as the right to the fishery itself. No limitation was assigned of time. Provision was made for the proprietary rights which might at a distant and future period arise by the settlement of places then uninhabited; but no other limitation was expressed or indicated by the terms of the treaty, and no other can, either from the letter or spirit of the article, be inferred. Far, then, from claiming the general rights and privileges belonging to British subjects within the British dominions, as resulting from the treaty of peace of 1783, while, at the same time, asserting their exemption from the duties of a British allegiance, the article in question is itself a proof that the people of the United States have renounced all such claims. Could they have pretended generally to the privileges of British subjects, such an article as that relating to the fisheries would have been absurd. There was in the treaty of 1783 no express renunciation of their rights to the pro- tection of a British Sovereign. This renunciation they had made by their declara- tion of independence on the 4th July, 1776; and it was implied in their acceptance of the counter-renunciation of sovereignty in the treaty of 1783. It was precisely because they might have lost their portion of this joint national property, to the acquisition of which they had contributed more than their share, unless a formal article of the treaty should secure it to them, that the article was introduced. By the British municipal laws, which were the laws of both nations, the property of a fishery is not necessarily in the proprietor of the soil where it is situated. The soil may belong to one individual, and the fishery to another. The right to the soil may be exclusive, while the fishery may be free, or held in common. And thus, while in the partition of the national possessions in North America, stipulated by the treaty of 1783, the jurisdiction over the shores washed by the waters where this fishery was placed was reserved to Great Britain, the fisheries themselves, and the accommoda- tions essential to their prosecution, were, by mutual compact, agreed to be continued in common. In submitting these reflections to the consideration of His Majesty’s Government, the undersigned is duly sensible to the amicable and conciliatory sentiments and dispositions towards the United States manifested at the conclusion of Lord Bathurst’s note, which will be met by reciprocal and corresponding sentiments and dispositions on the part of the American Government. It will be highly satisfactory to them to be assured that the conduciveness of the object to the national and individual pros- CORRESPONDENCE AIL perity of the inhabitants of the United States operates with His Majesty’s Govern- ment as a forcible motive to concession. Undoubtedly, the participation in the liberties of which their right is now maintained is far more important to the interests of the people of the United States than the exclusive enjoyment of them can be to the interests of Great Britain. The real, general, and ultimate interests of both the nations on this object, he is fully convinced, are the same. The collision of particular interests which heretofore may have produced altercations between the fishermen of the two nations, and the clandestine introduction of prohibited goods by means of American fishing vessels, may be obviated by arrangements duly concerted between the two Governments. That of the United States, he is persuaded, will readily co-operate in any measure to secure those ends compatible with the enjoyment by the people of the United States of the liberties to which they consider their title as unimpaired, inasmuch as it has never been renounced by themselves. The undersigned prays Lord Castlereagh to accept the renewed assurance of his high consideration. Joun Quincy ADAMS Ricut Hon. Lorp Viscount CASTLEREAGH, His Majesty’s Principal Secretary of State for Foreign Affairs EXTRACT FROM INSTRUCTION, SECRETARY OF STATE ADAMS TO MESSRS. GALLATIN AND RUSH, AMERICAN COMMISSIONERS, JULY 28, 18181 In the expectation that the Government of Great Britain have accepted the pro- posal which Mr. Rush was instructed to make, for negotiating a treaty of commerce, embracing the continuance of the convention of 3d July, 1815, for an additional term of years, and including other objects of interest to the two nations, I have now the honor of transmitting to you the President’s instructions to you for the conduct of the negotiation. 5. FISHERIES The proceedings, deliberations, and communications upon this subject, which took place at the negotiation of Ghent, will be fresh in the remembrance of Mr. Gallatin. Mr. Rush possesses copies of the correspondence with the British Government relat- ing to it after the conclusion of the peace, and of that which has passed here between Mr. Bagot and this Government. Copies of several letters received by members of Congress during the late session, from the parts of the country most deeply interested in the fisheries, are now transmitted. The President authorizes you to agree to an article whereby the United States will desist from the liberty of fishing, and curing and drying fish, within the British jurisdiction generally, upon condition that it shall be secured as a permanent right, not liable to be impaired by any future war, from Cape Ray to the Ramea Islands, and from Mount Joli, on the Labrador coast, through the strait of Belleisle, indefinitely north, along the coast; the right to extend as well to curing and drying the fish as to fishing. . .. These are the subjects to which the President is willing that your negotiation should be confined. With regard to the others of a general nature, and relating to the respective rights of the two nations in times of maritime war, you are authorized to treat of them, and to conclude concerning them, conformably to the 1 Appendix, U. S. Case, p. 304; Appendix, British Case, p 83. 412 APPENDIX instructions already in possession of Mr. Rush; or, if the difficulty of agreeing upon the principles should continue as great as it has been hitherto, you may omit them altogether. EXTRACT FROM INSTRUCTION, VISCOUNT CASTLEREAGH TO MESSRS. ROB- INSON AND GOULBURN, BRITISH COMMISSIONERS, AUGUST 24, 18181 ForreIcn OFFICE, August 24, 1818 The accompanying papers will bring the present state of the fishery question under your view. I refer you to the proceedings at Ghent for those arguments upon which the British plenipotentiaries maintained, as I conceive unanswerably, that the second branch of the IIIrd Article of the treaty of 1783 had expired with the war. The negative of this proposition was certainly contended, but very feebly, by the American plenipotentiaries, which is proved almost to the extent of an admission of the principles contended for on the part of this Government by their tendering an article in which the same privileges were, by a fresh stipulation, to be again secured to the subjects of the United States upon an equivalent offered on their part. The subsequent correspondence will show the nature of the claim put forward by the American Government soon after the peace. The orders issued to the British officers on the Halifax station to resist any encroachment on the rights of this country, and, finally, the friendly offer of a specified accommodation for the convenience of the American fishery, which Mr. Bagot was authorized to tender to the Government of the United States. You will see by that Minister’s correspondence that he suc- cessively tendered the two propositions with which he was charged, to which pro- posals the American Government, desiring to offer a counter-proposition, Mr. Bagot did not conceive himself authorized to negotiate, but only to make a specific offer of accommodation. He therefore declined to receive the American counter-projet, notifying to the admiral on the Halifax station that nothing had occurred in negotia- tion at Washington which should interfere with the execution of the instructions of which he was in possession. EXTRACTS FROM REPORT OF MESSRS. GALLATIN AND RUSH TO SECRE- TARY OF STATE ADAMS, OCTOBER 20, 1818? We have the honor to transmit a convention which we concluded this day with the British plenipotentiaries. Lord Castlereagh having expressed a wish that the negotiations might be opened before his departure for Aix-la-Chapelle, Mr. Gallatin left Paris as soon as he had received our full powers, and arrived here on the 16th of August. Our joint instructions contained in your dispatch of the 28th of July did not, however, reach us till the 3d of September. We had long conversations with Lord Castlereagh at his country seat, on the 22nd and 23d of August, but could not, owing to our instruc- tions not having arrived, discuss with him the question of the fisheries and of the West India intercourse. He left London on the ist of September. The official conferences had begun on the 27th of August, and, for the progress of the nego- tiation, we beg leave to refer to the enclosed copies of the protocol, and documents annexed to it, and of two unofficial notes sent by us to the British plenipoten- tiaries. We will add some observations on the several objects embraced by the convention. 1 Appendix, British Case, p. 85. * Appendix, U. S. Case, p. 306; Appendix, British Case, p. 94. CORRESPONDENCE 413 1. FisHertes. We succeeded in securing, besides the rights of taking and curing fish within the limits designated by our instructions, as a sine gua non, the liberty of fishing on the coasts of the Magdalen Islands, and of the western coast of Newfound- land, and the privilege of entering for shelter, wood, and water, in all the British harbors of North America. Both were suggested as important to our fishermen, in the com- munications on that subject which were transmitted to us with our instructions. To the exception of the exclusive rights of the Hudson’s Bay Company we did not object, as it was virtually implied in the treaty of 1783, and we had never, any more than the British subjects, enjoyed any right there; the charter of that company having been granted in the year 1670. The exception applies only to the coasts and their har- bors, and does not affect the right of fishing in Hudson’s Bay beyond three miles from the shores, a right which could not exclusively belong to, or be granted by, any nation. The most difficult part of the negotiation related to the permanence of the right. To obtain the insertion in the body of the convention of a provision declaring expressly that that right should not be abrogated by war, was impracticable. All that could be done was to express the article in such manner as would not render the right liable to be thus abrogated. The words ‘“‘forever” were inserted for that purpose, and we also made the declaration annexed to the protocol of the third conference, the princi- pal object of which was to provide in any event for the revival of all our prior rights. The insertion of the words “forever” was strenuously resisted. The British pleni- potentiaries urged that, in case of war, the only effect of those words being omitted, or of the article being considered as abrogated, would be the necessity of inserting in the treaty of peace a new article renewing the present one; and that, after all that had passed, it would certainly be deemed expedient to do it, in whatever manner the condition was now expressed. We declared that we would not agree to any article on the subject, unless the words were preserved, or in case they should enter on the protocol a declaration impairing their effect. It will also be perceived that we insisted on the clause by which the United States renounce their right to the fisheries relinquished by the convention, that clause having been omitted in the first British counter-project. We insisted on it with the view — 1st. Of preventing any implication that the fisheries secured to us were a new grant, and of placing the permanence of the rights secured and of those renounced precisely on the same footing. 2d. Of its being expressly stated that our renuncia- tion extended only to the distance of three miles from the coasts. This last point was the more important, as, with the exception of the fishery in open boats within certain harbors, it appeared, from the communications above mentioned, that the fishing-ground, on the whole coast of Nova Scotia, is more than three miles from the shores; whilst, on the contrary, it is almost universally close to the shore on the coasts of Labrador. It is in that point of view that the privilege of entering the ports for shelter is useful, and it is hoped that, with that provision, a considerable portion of the actual fisheries on that coast (of Nova Scotia) will, notwithstanding the renuncia- tion, be preserved. SUPPLEMENTAL REPORT OF MR. GALLATIN TO SECRETARY OF STATE ADAMS, NOVEMBER 6, 1818! No. 87. Paris, 6th November, 1818 Sir: Anxious from public considerations to return to Paris as soon as possible, T left London on the 22d ult. The convention had been signed on the 2oth, and the time left to write our joint dispatches was so short that, although I hope nothing ‘1 Appendix, U. S. Counter Case, p. 619; Appendix, British Case, p. 97. 414 APPENDIX material was omitted, it may be useful to add some further details and observations, On the subject of the fisheries, the abstract question of our right had been so ably discussed in your two notes to the British Government that we had nothing to add to that branch of the argument. We could only, and we did it with some effect, demonstrate that, with respect at least to territorial rights, Great Britain herself had not heretofore considered them as abrogated by the mere fact of an intervening war. Thus, Tobago, ceded by her to France by the treaty of 1783, taken during the ensuing war, and restored by the treaty of Amiens, had again been retaken by Great Britain during the last war. She was in actual possession when the treaty of 1814 tuok place, and if the treaties of 1783 and of Amiens were abrogated by the last war, the cession of that island by France had become null, and a retrocession was useless. Yet Great Britain did not reason in that manner, and did not consider her right good without a formal cession from France, which she accordingly obtained by the last Treaty of Paris. Thus, neither the treaty of 1763 generally, nor the cession of Canada to Great Britain particularly, having been renewed by the treaty of Amiens, if the treaty of 1763 was abrogated by subsequent wars she now held Canada by right of possession only, and the original right of France had revived. We applied those principles to fisheries which, independent of the special circumstances of our treaty of peace of 1783, were always considered as partaking in their nature of territorial rights. It is, however, true, although it was not quoted against us, that it had been deemed necessary to renew in every subsequent treaty the right of fishing on part of the coast of Newfoundland originally reserved to the French. Although our argu- ments were not answered, it appeared to me that two considerations operated strongly against the admission of our right. That right of taking and drying fish in harbors within the exclusive jurisdiction of Great Britain, particularly on coasts now inhabited, was extremely obnoxious to her, and was considered as what the French civilians call a servitude. And personal pride seems also to have been deeply committed, not perhaps the less because the argument had not been very ably conducted on their part. Jam satisfied that we could have obtained additional fishing-ground in exchange of the words “forever.” I am perfectly sensible of the motives which induced govern- ment to wish that the portion of fisheries preserved should be secured against the con- tingency of a future war. But it seems to me that no treaty stipulation can effectually provide for this. The fate of the fisheries in that case will depend on the result of the war. If they beat us (which God forbid), they will certainly try to deprive us of our fisheries on their own coasts. If we beat them, we will preserve them and probably acquire the country itself. Yet I will not conceal that this subject caused me more anxiety than any other branch of the negotiations, and that, after having participated in the Treaty of Ghent, it was a matter of regret to be obliged to sign an agreement which left the United States in any respect in a worse situation than before the war. It is true that we might have defeated the whole object by insisting that the words “not liable to be impaired by any future war” should be inserted in the article. But this course did not appear justifiable. It was impossible, after a counter-project formed on compromise had been once offered, that the United States could by negotiations alone be reinstated in their enjoyment of the fisheries to their full extent; and if a compromise was to take place, the present time and the terms proposed appeared more eligible than the chance of future contingencies. I became perfectly satisfied that no reliance could be placed on legal remedies; that no court in England would give to the treaty of 1783 a construction different from that adopted by their Government, and that if CORRESPONDENCE 415 an Act of Parliament was wanted, it would be obtained in a week’s time and without opposition. If the subject was not arranged, immediate collision must ensue, and, Great Britain proceeding under legal forms to condemn our vessels, no resource remained for us but to acquiesce or commence hostilities. With much reluctance I yielded to those considerations, rendered more powerful by our critical situation with Spain, and used my best endeavors to make the compromise on the most advan- tageous terms that could be obtained. After a thorough examination of the com- munications on the subject which you transmitted to us, I think that substantially we have lost very little, if anything; and I only wish that it had been practicable to give to the agreement the form of an exchange in direct terms; that is to say, that we give fishing rights in certain quarters in consideration of the right of curing fish on a part of Newfoundland and of the abandonment of the British claim to the naviga- tion of the Mississippi. This, however, could not be done in a positive manner, the British plenipotentiaries disclaiming any right to that navigation, and objecting, there- fore, to a renunciation of what they did not claim. The article which they proposed on this last subject was only, as they said, an equivalent for what they pretended to concede in agreeing that the boundary west of the Lake of the Woods should be fixed at the 49th degree of north latitude. The renewal of the commercial convention and the propositions relative to the colonial intercourse will make the subject of a distinct dispatch. I have the honor to be, with great respect, sir, your most obedient servant. II. CoRRESPONDENCE CONCERNING THE RIGHT OF GREAT BRITAIN TO REGULATE AMERICAN FISHING RIGHTS SECURED BY THE TREATY OF WASHINGTON, May 8, 1871 NOTE FROM SECRETARY OF STATE EVARTS TO SIR E. THORNTON, BRITISH MINISTER AT WASHINGTON, MARCH 2, 18781 DEPARTMENT OF STATE, WASHINGTON, March 2, 1878 Srr: I have the honor to bring to your notice the fact that complaints have been recently made to this Department of interference with American fishermen engaged in the herring fishery on the coast of Newfoundland. In some instances these complaints have been forwarded to the Department through the United States, Consuls at St. John’s and other ports of that Colony. The representations made by the Consuls are, however, of a general nature based upon statements made to them by the fishermen immediately interested, and consequently the officers in question have been instructed to collect and forward more detailed and specific information, and such further information I will do myself the honor to transmit to you so soon as the reports from the Consuls shall have been received. Still more recently similar complaints have been received through the collector of the port of Gloucester, Massachusetts, supported by the sworn statements of the masters of eight fishing schooners of that port, and from the statements thus forwarded it appears that in January of the present year those vessels had reached the neighbor- hood of Long Harbor, and were actively engaged in the herring fishery, and that most of the seines were full of fish and ready for landing, when, in one instance, two seines belonging to the schooners “Ontario” and ‘New England” respectively were cut by an enraged crowd of over 200 men, and the whole catch, estimated at not less than 1 Appendix, British Case, p. 268. 416 APPENDIX 5,000 barrels of herring suffered to run out to sea. Other instances are given, only less in quantity and value, the proceedings resulting in the vessels — eight in number — being obliged to abandon the fishing-grounds on that coast and return to their home port in ballast. When it is remarked at what considerable expense the prepara- tions are made for a season’s fishing in these waters, many of the men-mariners, as ‘weil as the masters, embarking their all in the enterprise, the serious character of their ‘losses may be partially understood. The President has deemed it proper, in view of the possible complications to which a continuance of these lawless proceedings might give rise, to bring the subject directly to the attention of Her Majesty’s Government with a view to an early investigation of the facts and the"adoption of such measures on its part as may be deemed advisable ‘to prevent a recurrence of the acts complained of; and the Minister of the United States at London has been accordingly instructed to take the necessary steps in that direction. Meantime, I have deemed it right to transmit the facts, so far as they are already known, for your information. I have, etc. (Signed) Wa. M. Evarts INSTRUCTION FROM MR. EVARTS TO MR. WELSH, UNITED STATES MINISTER AT LONDON, SEPTEMBER 28, 1878! DEPARTMENT OF STATE, WASHINGTON, September 28, 1878 Sir: I received in due course your dispatch of August 24th ultimo, inclosing Lord Salisbury’s reply of the British Government to the representations that had been made to it as early as March last by you, under instructions from the Department. I must understand Lord Salisbury’s note, accompanying the copy of Captain Suli- van’s report, which he communicates to this government, as adopting that naval officer’s ‘conclusions of fact respecting the violent injuries which our fishing fleet suffered at the hands of the Newfoundland fishing population at Fortune Bay, in Janu- ary of this year, as the answer which Her Majesty’s Government makes to the repre- ‘sentations laid before it on our part, verified by the sworn statements of numerous and respectable witnesses. His Lordship has not placed in our possession the proofs or depositions which form the basis of Captain Sulivan’s conclusions of fact, and I am unable, therefore, to say whether, upon their consideration, the view which this Government takes of these transactions, upon the sworn statements of our own respectable citizens, would be at all modified. In the absence of these means of correcting any mistakes or false impres- sions which our informants may have fallen into in their narrative of the facts, it is impossible to accept Captain Sulivan’s judgment upon undisclosed evidence as possessing judicial weight. You will, therefore, lay before Her Majesty’s Government the desire which this Government feels to be able to give due weight to this opposing evidence, before insist- ing upon the very rave view of these injuries which, at present, its unquestionable duty to the interests which have suffered them, and its confidence in the competency and sobriety of the proofs in our possession, compels this Government to take. Should Her Majesty’s Government place a copy of the evidence upon which Captain Sulivan bases his Report in your hands, you will lose no time in transmitting it for considera- tion. I regret that any further delay should thus intervene to prevent an immediate 1 Appendix, U. S. Case, p. 652; Appendix, British Case, p. 268. CORRESPONDENCE 417 consideration of the facts in the matter by the two governments in the presence of the same evidence of those facts for their scrutiny and judgment. But, a careful attention to Lord Salisbury’s note discovers what must be regarded as an expression of his views, at least, of the authority of Provincial legislation and administrative jurisdiction over our fishermen within the three-mile line, and of the restrictive limitations upon their rights in these fishing-grounds under the Treaty of Washington. Upon any aspect of the evidence, on one side and the other, as quali- fying the violent acts from which our fishing fleet has suffered at the hands of the New- foundland coast fishermen, the views thus intimated seem to this Government wholly inadmissible, and do not permit the least delay, on our part, in frankly stating the grounds of our exception to them. The report of Captain Sulivan presents, as a justificatory support of the action of the Newfoundland shore fishermen, in breaking up the operations of our fishing fleet inside the three-mile line, at the times covered by these transactions, the violation of certain municipal legislation of the Newfoundland Government which, it is alleged, our fishermen were in the act. of committing when the violent interruption of their industry occurred. I do not stop to point out the serious distinction between the official and judicial execution of any such laws and the orderly enforcement of their penalties after solemn trial of the right, and the rage and predominant force of a volunteer multitude driving off our peaceful occupants of these fishing grounds pursuing their industry under a claim of right secured to them by Treaty. I re- serve this matter for a complete examination when the conflicting proofs are in my possession. I shall assume, for my present purpose, that the manner of exerting this supposed provincia] authority was official, judicial, and unexceptionable. I will state these justifications for the disturbance of our fishing-fleet in Captain Sulivan’s own language, that I may not even inadvertently impute to Lord Salisbury’s apparent adoption of them any greater significance than their very language fairly imports. Captain Sulivan assigns the following violations of law by our fishermen as the grounds of rightful interference with them on the occasion in question: “rst. That the Americans were using seines for catching herring on the 6th January, 1878, in direct violation of Title XXVII, chapter 102 section 1 of the Consolidated statutes of Newfoundland, viz.: ‘No person shall haul or take herring by or in a seine, or other such contrivance, on or near any part of the coast of this Colony or of its dependencies, or in any of the bays, harbors, or other places therein, at any time between the 2zoth day of October and the 25th day of April.’ “ad. That the American captains were setting and putting out seines and hauling ‘and taking herring on Sunday, the 6th January, in direct violation of section 4, chapter 7 of the Act passed 26th April, 1876, entitled ‘An Act to amend the Law relating to the coast fisheries,’ viz.: ‘No person shall, between the hours of 12 o’clock on Saturday night and 12 o’clock on Sunday night, haul or take any herring, caplin, or squid with net seines, bunts, or any such contrivances for the purpose of such hauling or taking.’ “3d. That they were barring fish in direct violation of the continuance of the same act — Title XXVII, chapter 102, section 1 of the consolidated statutes of Newfoundland —‘or at any time use a seine or other contrivance for the catch- ing or taking of herrings, except by way of shooting and forthwith hauling the ‘same.’ 418 APPENDIX “4th. That, contrary to the terms of the Treaty of Washington, in which it is ex- pressly provided that they do not interfere with the rights of private property, or with British fishermen in the peaceable use of any part of the said coasts in their occupancy for the same purpose (see Article XVIII of the above-named Treaty), they were fishing illegally, interfering with the rights of British fishermen and their peaceable use of that part of the coast then occupied by them, and of which they were actually in pos- session, their seines and boats, their huts, gardens, and land granted by government, being situated thereon.” The facts which enter into the offenses imputed under the first, second, and third heads of Captain Sulivan’s statement, and such offenses thus made out, would seem to be the only warrant for his conclusion under his fourth head, that the United States fishermen have exceeded their Treaty right, and, in their actual prosecution of their fishing, were, when interrupted by the force complained of, interfering with the rights of private property or with British fishermen in the peaceable use of that part of the coast then being in their occupancy for the same purpose, contrary to the proviso of Article XVIII of the Treaty of Washington. It is no part of my present purpose to point out that this alleged infraction of the reserved rights of the local fishermen does not justify the methods of correction or redress used to drive off our fishermen and break up their prosecution of the fishing. This may be reserved also for discussion when both Governments have a fuller knowl- edge of the actual circumstances of the transaction. In transmitting to you a copy of Captain Sulivan’s Report, Lord Salisbury says: “You will perceive that the Report in question appears to demonstrate conclusively that the United States fishermen on this occasion had committed three distinct breaches of the law.” In this observation of Lord Salisbury, this government cannot fail to see a neces- sary implication that Her Majesty’s Government concedes that in the prosecution of the right of fishing accorded to the United States by Article XVIII of the Treaty our fishermen are subject to the local regulations which govern the coast population of Newfoundland in their prosecution of their fishing industry, whatever those regu- lations may be, and whether enacted before or since the Treaty of Washington. The three particulars in which our fishermen are supposed to be constrained by actual legislation of the province cover in principle every degree of regulation of our fishing industry within the three-mile line which can well be conceived. But they are, in themselves, so important and so serious a limitation of the right secured by the Treaty as practically to exclude our fishermen from any profitable pursuit of the right, which, I need not add, is equivalent to annulling or cancelling, by the Provincial Government, of the privilege accorded by the treaty with the British Government. If our fishing fleet is subject to the Sunday laws of Newfoundland, made for the coast population; if it is excluded from the fishing-grounds for half the year, from October to April; if our “seines and other contrivances” for catching fish are subject to the regulation of the Legislature of Newfoundland, it is not easy to see what firm or valuable measures for the privilege of Article XVIII as conceded to the United States, this government can promise to its citizens under the guaranty of the Treaty. Tt would not, under any circumstances, be admissible for one Government to subject the persons, the property, and the interests of its fishermen to the unregulated regula- tion of another government upon the suggestion that such authority will not be op- pressively or capriciously exercised, nor would any Government accept as an adequate guarantee of the proper exercise of such authority over its citizens by a foreign govern- CORRESPONDENCE AI ment, that, presumptively, regulations would be uniform in their operation upon the subjects of both governments in similar case. If there are to be regulations of a common enjoyment, they must be authenticated by a common or a joint authority. But, most manifestly, the subject of the regulation of the enjoyment of the shore fishery by the resident provincial population, and of the inshore fishery by our fleet of fishing-cruisers, doés not tolerate the control of so divergent and competing interests by the domestic legislation of the Province. Protecting and nursing the domestic inter- est at the expense of the foreign interest, on the ordinary motives of human conduct, necessarily shape and animate the local legislation. The evidence before the Halifax Commission makes it obvious that, to exclude our fishermen from catching bait, and thus compel them to go without bait, or buy bait at the will and price of the provincial fishermen, is the interest of the local fishermen, and will be the guide and motive of such domestic legislation as is now brought to the notice of this Government. You will therefore say to Lord Salisbury that this Government cannot but express its entire dissent from the view of the subject that his lordship’s note seems to indi- cate. This Government conceives that the fishery rights of the United States, con- ceded by the Treaty of Washington, are to be exercised wholly free from the restraints and regulations of the Statutes of Newfoundland, now set up as authority over our fishermen, and from any other regulations of fishing now in force or that may here- after be enacted by that Government. It may be said that a just participation in this common fishery by the two parties entitled thereto, may, in the common interest of preserving the fishery and preventing conflicts between the fishermen, require regulation by some competent authority. This may be conceded. But should such occasion present itself to the common appreciation of the two Governments, it need not be said that such competent authority can only be found in a joint convention, that shall receive the approval of Her Majesty’s Government and our own. Until this arrangement shall be consummated, this Government must regard the pretension that the legislation of Newfoundland can regulate our fishermen’s enjoyment of the treaty right as striking at the treaty itself. It asserts an authority on one side, and a submission on the other, which has not been proposed to us by Her Majesty’s Government, and has not been accepted by this Government. I cannot doubt that Lord Salisbury will agree that the insertion of any such element in the Treaty of Washington would never have been accepted by this Government, if it could reasonably be thought possible that it could have been proposed by Her Majesty’s Government. The insertion of any such proposition by construction now is equally at variance with the views of this Government. The representations made to this Government by the interests of our citizens affected, leave no room to doubt that this assertion of authority is as serious and extensive in practical relations as it is in principle. Zhe rude application made to the twenty vessels in Fortune Bay of this asserted authority, in January last, drove them from the profitable prosecution of their projected cruises. By the same reason, the entire inshore fishery is held by us upon the same tenure of dependence upon the parliament of the Dominion or the legislatures of the several Provinces. I cannot but regret that this vital question has presented itself so unexpectedly to this Government, and at a date so near the period at which this Government, upon a comparison of views with Her Majesty’s Government, is to pass upon the conformity of the proceedings of the Halifax Commission with the requirements of the Treaty of Washington. The present question is wholly aside from the considerations bearing upon that subject, and which furnishes the topic of my recent dispatch. 420 APPENDIX In the opinion of this Government, it is essential that we should at once invite the attention of Lord Salisbury to the question of Provincial control over the fisher- men of the United States, in their prosecution of the privilege secured to them by the treaty. So grave a question, in its bearing upon the obligations of this Government under the treaty, makes it necessary that the President should ask from Her Majesty’s Government a frank avowal or disavowal of the paramount authority of Provincial legislation to regulate the enjoyment by our people of the inshore fishery, which seems to be intimated, if not asserted, in Lord Salisbury’s note. Before the receipt of a reply from Her Majesty’s Government, it would be pre- mature to consider what should be the course of this Government should this limita- tion upon the treaty privileges of the United States be insisted upon by the British Government as their construction of the Treaty. You will communicate this dispatch to Lord Salisbury, by reading the same to him, and leaving with him a copy. I am, etc. (Signed) Wa. M. Evarts NOTE FROM MARQUIS OF SALISBURY, BRITISH FOREIGN SECRETARY, TO MR. WELSH, NOVEMBER 7, 18781 Foreicn OrricE, November 7, 1878 Sir: Her Majesty’s Government have had under their consideration the de- spatch from Mr. Evarts, dated the 28th September, and communicated to me on the 12th ultimo, respecting the complaints made by the Government of the United States of the injuries sustained by American fishermen in Fortune Bay in January last. This despatch is in reply to my letter of the 23rd August, in which I forwarded a copy of the Report furnished by Captain Sulivan, of Her Majesty’s ship “Sirius,” on the occurrences in question. Mr. Evarts now remarks that the United States’ Government have not been put in possession of the depositions which form the basis of that Report, and are unable, therefore, to say whether, upon their consideration, the view which the Government of the United States takes of these transactions upon the sworn statements of their own citizens would be at all modified. Her Majesty’s Government have not had the opportunity of considering the state- ments in question; but the depositions which accompanied Captain Sulivan’s Report, and which I now have the honor to forward, appeared to them, in the absence of other testimony, to be conclusive as regards the facts of the case. i Apart, however, from the facts, in respect to which there appears to be a material divergence between the evidence collected by the United States’ Government and that collected by the Colonial authorities, Mr. Evarts takes exception to my letter of the 23rd on the ground of my statement that the United States’ fishermen concerned have been guilty of breaches of the law. From this he infers an opinion on my part that it is competent for a British authority to pass laws, in supersession of the Treaty, binding American fishermen within the three-mile limit. In pointing out that the American fishermen had broken the law within the territorial limits of Her Majesty’s dominions, I had no intention of inferentially laying down any principles of inter- national law; and no advantage would, I think, be gained by doing so to a greater extent than the facts in question absolutely require. 1 Appendix, British Case, p. 271; Appendix, U. S. Case, p. 657. CORRESPONDENCE 421 I hardly believe, however, that Mr. Evarts would in discussion adhere to the broad doctrine which some portions of his language would appear to convey, that no British authority has a right to pass any kind of laws binding Americans who are fishing in British waters; for if that contention be just, the same disability applies a fortiort to any other Power, and the waters must be delivered over to anarchy. On the other hand, Her Majesty’s Government will readily admit — what is, indeed, self-evident — that British sovereignty, as regards those waters, is limited in its scope by the engagements of the Treaty of Washington, which cannot be modified or affected by any municipal legislation. I cannot anticipate that with regard to these principles any difference will be found to exist between the views of the two Governments. If, however, it be admitted that the Newfoundland Legislature have the right of binding Americans who fish within their waters by any laws which do not contravene existing Treaties, it must further be conceded that the duty of determining the existence of any such contravention must be undertaken by the Governments, and cannot be remitted to the discretion of each individual fisherman. For such a discretion, if exercised on one side can hardly be refused on the other. If any American fisherman may violently break a law which he believes to be contrary to Treaty, a Newfoundland fisherman may violently maintain it if he believes it to be in accordance with Treaty. As the points in issue are frequently subtle, and require considerable legal knowledge, nothing but confusion and disorder could result from such a mode of deciding the interpretation of the Treaty. Her Majesty’s Government prefer the view that the law enacted by the Legislature of the country, whatever it may be, ought to be obeyed by natives and foreigners alike who are sojourning within the territorial limits of its jurisdiction; but that if a law has inadvertently been passed which is in any degree or respect at variance with rights conferred on a foreign Power by Treaty, the correction of the mistake so com- mitted, at the earliest period after its existence shall have been ascertained and recog- nized, is a matter of international obligation. It is not explicitly stated in Mr. Evarts’ despatch that he considers any recent Acts of the Colonial Legislature to be inconsistent with the rights acquired by the United States under the Treaty of Washington. But if that is the case, Her Majesty’s Government will, in a friendly spirit, consider any representations he may think it right to make upon the subject, with the hope of coming to a satisfactory under- standing. I have, etc. (Signed) SALISBURY INSTRUCTION, MR. EVARTS TO MR. WELSH, AUGUST 1, 18791 DEPARTMENT OF STATE, WASHINGTON, August 1, 1879 Sir: You will readily understand that the pressure of current business, especially during the regular and special sessions of Congress, has prevented so immediate attention to the claims of the Fortune Bay fishermen, as definitely laid before me in their proofs completed during the session, as would enable me to give in reply a full consideration to the dispatch of Lord Salisbury of the date of November 7, 1878, in reply to mine to you of 28th September, 1878. But other and stronger reasons have also induced me to postpone until now any discussion of the questions, arising out of the occurrences to which those dispatches referred. 1 Appendix, U. S. Case, p. 661; Appendix, British Case, p. 272. 422 APPENDIX . It so happened that the transactions of which certain citizens of the United States complain, were brought fully to the attention of the Government about the same time at which it became my duty to lay before Her Britannic Majesty’s Government the views of the United States Government as to the award then recently made by the Commission on the Fisheries, which had just closed its sittings at Halifax. While the character of the complaint and the interests of the citizens of the United States rendered it necessary that the subject should be submitted to the consideration of Her Britannic Majesty’s Government at the earliest possible moment, in order to the prevention of any further and graver misunderstanding and the avoidance of any serious interruption to an important industry, I was exceedingly unwilling that the questions arising under the award and those provoked by the occurrences in Newfound- land should be confused with each other, and least of all would I have been willing that the simultaneous presentment of the views of this Government should be construed as indicating any desire on our part to connect the settlement of these complaints with the satisfaction or abrogation of the Halifax award. I also deemed it not inadvisable, in the interests of such a solution as I am sure is desired by the good sense and good temper of both Governments, that time should be allowed for the extinguishment of the local irritation, both here and in Newfound- land, which these transactions seem to have excited, and that another fishing season should more clearly indicate whether the rights to which the citizens of the United States were entitled under the Treaty were denied or diminished by the pretensions and acts of the Colonial authorities, or whether their infraction was accidental and temporary. As soon as the violence to which citizens of the United States had been subjected in Newfoundland, was brought to the attention of this Department, I instructed you, on 2d March, 1878, to represent the matter to Her Britannic Majesty’s Government, and upon such representation you were informed that a prompt investi- gation would be ordered for the information of that Government. On August 23, 1878, Lord Salisbury conveyed to you, to be transmitted to your Government, the result of that investigation, in the shape of a report from Captain Sulivan, of Her Majesty’s ship Sirius. In furnishing you with this report, Lord Salisbury, on behalf of Her Britannic Majesty’s Government, said: “You will perceive that the report in question appears to demonstrate conclusively that the United States fishermen on this occasion had committed three distinct breaches of the law, and that no violence was used by the Newfoundland fishermen, except in the case of one vessel whose master refused to comply with the request which was made to him, that he should desist from fishing on Sunday, in violation of the law of the colony and of the local custom, and who threatened the Newfoundland fishermen with a revolver, as detailed in para- graphs five and six of Captain Sulivan’s Report.” The three breaches of the law thus reported by Captain Sulivan, and assumed by Lord Salisbury as conclusively established, were: 1. The use of seines, and the use of them also at a time prohibited by a colonial statute; 2. Fishing upon a day — Sunday — forbidden by the same local law; and 3. Barring fish, in violation of the same local legislation. In addition Captain Sulivan reported that the United States fishermen were, contrary to terms of the Treaty of Washington — “fishing illegally, interfering with the rights of British fishermen and their peaceable use of that part of the coast then occupied by them, and of which they were actually in possession — their seines and boats, their huts and gardens, and land granted by government, being situated thereon.” Yours, containing this dispatch and the accompanying report was received on 4th September, 1878, and on the 28th of the same month you were CORRESPONDENCE 423 instructed that it was impossible for this Government duly to appreciate the value of Captain Sulivan’s report, until it was permitted to see the testimony upon which the conclusions of that report professed to rest. And you were further directed to say that, putting aside for after examination the variations of fact, it seemed to this government that the assumption of the report was, that the United States fisher- men were fishing illegally, because their fishing was being conducted at a time and by methods forbidden by certain colonial statutes; that the language of Lord Salis- bury, in communicating the report with his approval, indicated the intention of Her Britannic Majesty’s Government to maintain the position, that the treaty privileges secured to United States fishermen by the treaty of 1871 were held subject to such limitations as might be imposed upon their exercise by colonial legislation; and “that so grave a question, in its bearing upon the obligations of this Government under the treaty, makes it necessary, that the President should ask from Her Majesty’s Government a frank avowal or disavowal. of the paramount authority of provincial legislation to regulate the enjoyment by our people of the inshore fishery, which seems to be intimated, if not asserted, in Lord Salisbury’s note.” In reply to this communication, Lord Salisbury, 7th November, 1878, trans- mitted to you the depositions which accompanied Captain Sulivan’s report, and said: “In pointing out that the American fishermen had broken the law within the territorial limits of Her Majesty’s domains, I had no intention of inferentially laying down any principles of international law, and no advantage would, I think, be gained by doing so to a greater extent than the facts in question absolutely require... . Her Majesty’s Government will readily admit — what is, indeed, self evident — that British sovereignty, as regards those waters, is limited in its scope by the engage- ments of the Treaty of Washington, which cannot be modified or affected by any municipal legislation.” It is with the greatest pleasure that the United States Government receives this language as “the frank disavowal” which it asked, “of the paramount authority of provincial legislation to regulate the enjoyment by our people of the inshore fishery.” Removing, as this explicit language does, the only serious difficulty which threatened to embarrass this discussion, I am now at liberty to resume the consideration of these differences in the same spirit and with the same hopes so fully and properly expressed in the concluding paragraph of Lord Salis- bury’s dispatch. He says: “Tt is not explicitly stated in Mr. Evarts’ dispatch that he considers any recent acts of the colonial legislature to be inconsistent with the rights acquired by the United States under the Treaty of Washington. But, if that is the case, Her Majesty’s Government will, in a friendly spirit, consider any representations he may think it right to make upon the subject, with the hope of coming to a satisfactory under- standing.” It is the purpose, therefore, of the present dispatch to convey to you, in order that they may be submitted to Her Britannic Majesty’s Government, the conclu- sions which have been reached by the Government of the United States as to the rights secured to its citizens, under the Treaty of 1871, in the herring fishery upon the New- foundland coast, and the extent to which those rights have been infringed by the transactions in Fortune Bay on January 6, 1878. Before doing so, however, I deem it proper, in order to clear the argument of all unnecessary issues, to correct what I consider certain misapprehensions of the views of this Government contained in Lord Salisbury’s dispatch of 7th November, 1878. The Secretary for Foreign Affairs of Her Britannic Majesty says: 424 APPENDIX “Tf, however, it be admitted that the Newfoundland Legislature have the right of binding Americans who fish within their waters by any laws which do not contra- vene existing treaties, it must be further conceded that the duty of determining the existence of such contravention must be undertaken by the Governments, and cannot be remitted to the discretion of each individual fisherman. For such discretion, if exercised on one side, can hardly be refused on the other. If any American fisher- man may violently break a law which he believes to be contrary to treaty, a Newfound- land fisherman may violently maintain it if he believes it to be in accordance with treaty.” His Lordship can scarcely have intended this last proposition to be taken in its literal significance. An infraction of law may be accompanied by violence which affects the person or property of an individual, and that individual may be warranted in resisting such illegal. violence, so far as it directly affects him, without reference to the relation of the act of violence to the law which it infringes, but simply as a forcible invasion of his rights of person or property. But that the infraction of a general municipal law, with or without violence, can be corrected and punished by a mob, without official character or direction, and who assume both to interpret and administer the law in controversy, is a proposition which does not require the reply of elaborate argument between two Governments whose daily life depends upon the steady application of the sound and safe principles of English jurisprudence. How- ever this may be, the Government of the United States cannot for a moment admit that the conduct of the United States fishermen in Fortune Bay was in any — the remotest — degree a violent breach of law. Granting any and all the force which may be claimed for the colonial legislature, the action of the United States fishermen was the peaceable prosecution of an innocent industry, to which they thought they were entitled. Its pursuit invaded no man’s rights, committed violence upon no man’s person, and if trespassing beyond its lawful limits could have been promptly and quietly stopped by the interference and representation of the lawfully constituted authorities. They were acting under the provisions of the very statute which they are alleged to have violated, for it seems to have escaped the attention of Lord Salis- bury that section 28 of the title of the consolidated acts referred to contains the provision that “Nothing in this chapter shall affect the rights and privileges granted by treaty to the subjects of any state or power in amity with Her Majesty.” They were engaged, as I shall hereafter demonstrate, in a lawful industry, guaranteed by the Treaty of 1871, in a method which was recognized as legitimate by the award of the Halifax Commission, the privilege to exercise which their Government had agreed to pay for. They were forcibly stopped, not by legal authority, but by mob violence. They made no resistance, withdrew from the fishing grounds, and represented the outrage to their Government, thus acting in entire conformity with the principle so justly stated by Lord Salisbury himself that — “Gf it be admitted, however, that the Newfoundland legislature have the right of binding Americans who fish within their waters by any laws which do not contravene existing treaties, it must be further conceded that the duty of determining the ex- . istence of such contravention must be undertaken by the Governments, and can- not be remitted to the judgment of each individual fisherman.” There is another passage of Lord Salisbury’s dispatch to which I should call your attention. Lord Salisbury says: “T hardly believe, however, that Mr. Evarts would in discussion adhere to the broad doctrine, which some portion of his language would appear to convey, that CORRESPONDENCE 425 no British authority has a right to pass any kind of laws binding Americans who are fishing in British waters; for if that contention be just, the same disability applies a fortiort to any other powers, and the waters must be delivered over to anarchy.” I certainly cannot recall any language of mine, in this correspondence, which is capable of so extraordinary a construction. I have nowhere taken any position larger or broader than that which Lord Salisbury says: “Her Majesty’s Government will readily admit, what is, indeed, self-evident, that British sovereignty, as regards those waters, is limited in its scope by the engage- ments of the Treaty of Washington, which cannot be affected or modified by any municipal legislation.” I have never denied.the full authority and jurisdiction either of the imperial or colonial governments over their territorial waters, except so far as by treaty that authority and jurisdiction have been deliberately limited by these zovernments themselves. Under no claim or authority suggested or advocated by me, could any other Government demand exemption from the provisions of British or colonial law, unless that exemption was secured by treaty, and if these waters must be delivered over to anarchy, it will not be in consequence of any pretensions of the United States Government, but because the British Government has, by its own treaties, to use Lord Salisbury’s phrase, limited the scope of British sovereignty. I am not aware of any such treaty engagements with other powers, but if there are, it would be neither my privilege nor duty to consider or criticise their consequences, where the interests of the United States are not concerned. After a careful comparison of all the depositions furnished to both govern- ments, the United States Government is of opinion that the following facts will not be disputed: 1. That twenty-two vessels belonging to citizens of the United States, viz., Fred. P. Frye, Mary and M., Lizzie and Namari, Edward E. Webster, W. E. McDonald, Crest of the Wave, F. A. Smith, Hereward, Moses Adams, Charles E. Warren, Moro Castle, Wildfire, Maud and Effie, Isaac Rich, Bunker Hill, Bonanza, H. M. Rogers, Moses Knowlton, John W. Bray, Maud B. Wetherell, New England, and Ontario. went from Gloucester, a town in Massachusetts, United States, to Fortune Bay, in Newfoundland, in the winter of 1877-78, for the purpose of procuring herring. 2. That these vessels waited at Fortune Bay for several weeks (from about December 15, 1877, to January 6, 1878), for the expected arrival of shoals of herring in that harbor. 3. That on Sunday, January 6, 1878, the herring entered the Bay in great numbers, and that four of the vessels sent their boats with seines to commence fishing operations, and the others were proceeding to follow. 4. That the parties thus seining were compelled by a large and violent mob of the inhabitants of Newfoundland, to take up their seines, discharge the fish already inclosed, and abandon their fishery, and that in one case at least the seine was abso- lutely destroyed. 5. That these seines were being used in the interest of all the United States vessels waiting for cargoes in the harbor, and that the catch undisturbed would have been sufficient to load all of them with profitable cargoes. The great quantity of fish in the harbor, and the fact that the United States vessels if permitted to fish would all have obtained full cargoes, is admitted in the British depositions. “Tf the Americans had been allowed to secure all the herrings in the Bay for them- selves, which they could have done that day, they would have filled all their vessels, 426 APPENDIX and the neighboring fishermen would have lost all chance on the follow week-days.” (Deposition of James Searwell.) “The Americans, by hauling herring that day, when the Englishmen could not, were robbing them of their lawful and just chance of securing their share in them; and, further, had they secured all they had barred, they would, I believe, have filled every vessel of theirs in the bay.” (Deposition of John Chuett.) See also affidavits of the United States Captains. 6. That in consequence of this violence all the vessels abandoned the fishing grounds, some without cargoes, some with very small cargoes purchased .from the natives, and their voyages were a loss to their owners. 7. That the seining was conducted at a distance from any land or fishing privilege or the occupation of any British subject. (See affidavits of Willard G. Rode, Charles Doyle, and Michael B. Murray.) 8. That none of the United States vessels made any further attempts to fish; but three or four, which were delayed in the neighborhood, purchased small supplies of herring. (See British depositions of John Saunders and Silas Fudge, wherein is stated that the United States vessels only remained a few days, and that after January 6 no fish came into the harbor.) All the United States affidavits show that the United States vessels were afraid to use their seines after this, and that they left almost imme- diately, most of them coming home in ballast. The provisions of the Treaty of Washington (1871), by which the right to prose- cute this fishery was secured to the citizens of the United States, are very simple and very explicit. The language of the Treaty is as follows: XVIII. “It is agreed by the high contracting parties that in addition to the liberties secured to the United States fishermen by the convention between the United States and Great Britain, signed at London on the 20th day of October, 1818, of taking, curing, and drying fish on certain coasts of the British North American colonies, therein defined, the inhabitants of the United States shall have, in common with the subjects of Her Britannic Majesty, the liberty, for the term of years mentioned in Article XX XIII of this Treaty, to take fish of every kind, except shell fish, on the sea coast and shores and in the bays, harbors, and creeks of the provinces of Quebec, etc.” XXXII. “It is further agreed that the provisions and stipulations of Articles XVIII to XXV of this treaty, inclusive, shall extend to the colony of Newfoundland, so far as they are applicable.” Title XXVII, chapter 102, of the consolidated acts of Newfoundland, pro- vides: Section 1. That no person shall take herring on the coast of Newfoundland, by a seine or other such contrivance, at any time between the 20th day of October and the 12th day of April, in any year, or at any time use a seine except by way of shooting and forthwith hauling the same. Sec. 2. That no person shall, at any time, between the 20th day of December and the rst day of April, in any year, catch or take herring with seine of less than 23 inches mesh, etc. Sec. 4. No person shall, between the 2oth day of April and the zoth day of October in any year, haul, catch, or take herring or other bait, for exportation, within one mile measured by the shore or across the water of any settlement situated between Cape Chapeau Rouge and Point Emajer, near Cape Ray. CORRESPONDENCE 427 The act of 1876 provides that ‘‘no person shall, between the hours of twelve o’clock on Saturday night and twelve o’clock on Sunday night, haul or take any herring, caplin, or squid, with net, seine, bunts, or any such contrivance, for the purpose of such hauling or taking.” It seems scarcely necessary to do more than place the provisions of the treaty and the provisions of these laws in contrast, and apply the principle, so precisely and justly announced by Lord Salisbury as self-evident, “That British sovereignty, as regards these waters, is limited in its scope by the engagements of the Treaty of Wash- ington, which cannot be modified or affected by any municipal legislation.” For it will not be denied that the treaty privilege of ‘‘taking fish of every kind, except shell-fish, on the sea coast and shores, in the bays, harbors, and creeks” of Newfound- land, is both seriously ‘‘modified” and injuriously affected by “municipal legisla- tion,” which closes such fishery absolutely for seven months of the year, prescribes a special method of exercise, forbids exportation for five months, and in certain localities absolutely limits the three-mile area which it was the express purpose of the treaty to open. But this is not all. When the Treaty of 1871 was negotiated, the British Govern- ment contended that the privilege extended to United States fishermen, of free fishing within the three-mile territorial limit, was so much more valuable than the equiva- lent offered in the treaty, that a money compensation should be added to equalize the exchange. The Halifax Commission was appointed for the special purpose of determining that compensation, and, in order to do so, instituted an exhaustive examination of the history and value of the colonial fisheries, including the herring fishery of Newfoundland. Before that commission, the United States Government contended that the frozen-herring fishery in Fortune Bay, Newfoundland, the very fishery now under discussion, was not a fishery but a traffic; that the United States vessels which went there for herring always took out trading permits from the United States custom-houses, which no other fishermen did; that the herring were caught by the natives in their nets, and sold to the vessels, the captains of which froze the herring after purchase, and transported them to market; and that, consequently, this was a trade, a commerce beneficial to the Newfoundlanders, and not to be debited to the United States account of advantages gained by the Treaty. To this the British Government replied, that whatever the character of the business had been, the treaty now gave the United States fishermen the right to catch as well as purchase herring; that the superior character of the United States vessels, the larger capacity and more efficient instrumentality of the seines used by the United States fishermen, together with their enterprise and energy, would all induce the United States fishermen to catch herring for themselves, and thus the treaty gave certain privileges to the United States fishermen which inflicted upon the original proprietor a certain amount of loss and damage, from this dangerous competition, which, in justice to their interests, required compensation. The exercise of these privileges, therefore, as stated in the British Case, as evidenced in the British testimony, as maintained in the British argument, for which the British Government demanded and received compensation, is the British construction of the extent of the liberty to fish in common, guaranteed by the treaty. Mr. Whiteway, then Attorney-General of Newfoundland, and one of the British counsel before the commission, said in his argument: “And now one word with regard to the winter herring-fishery in Fortune Bay. It appears that from forty to fifty United States vessels proceed there between the 428 APPENDIX months of November and February, taking from thence cargoes of frozen herring of from 500 to 800 or 1,000 barrels. According to the evidence, these herrings have hitherto generally been obtained by purchase. It is hardly possible, then, to conceive that the Americans will continue to buy, possessing, as they now do, the right to catch.” The British case states the argument as to the Newfoundland fisheries in the following language: “Tt is asserted, on the part of Her Majesty’s Government, that the actual use which may be made of this privilege at the present moment, is not so much in ques- tion as the actual value of it to those who may, if they will, use it. It is possible, and even probable, that the United States fishermen may at any moment avail them- selves of the privilege of fishing in Newfoundland inshore waters, to a much larger extent than they do at present; but even if they should not do so, it would not relieve them from the obligation of making the just payment for a right which they have acquired subject to the condition of making that payment. The case may be not inaptly illustrated by the somewhat analogous one of a tenancy of shooting or fishing privileges; it is not because the tenant fails to exercise the rights, which he has acquired by virtue of his lease, that the proprietor should be debarred from the recovery of his rent. “There is a marked contrast to the advantage of the United States citizens between the privilege of access to fisheries the most valuable and productive in the world, and the barren right accorded to the inhabitants of Newfoundland of fishing in the exhausted and preoccupied waters of the United States north of the 39th parallel of north lati- tude, in which there is no field for lucrative operations, even if British subjects desired to resort to them; and there are strong grounds for believing that year by year, as United States fishermen resort in greater numbers to the coasts of Newfoundland, for the purpose of procuring bait and supplies, they will become more intimately acquainted with the resources of the inshore fisheries, and their unlimited capacity for extension and development. As a matter of fact, United States vessels have, since the Washington Treaty came into operation, been successfully engaged in these fisheries; and it is but reasonable to anticipate that, as the advantages to be derived from them become more widely known, larger numbers of United States fishermen will engage in them. “A participation by fishermen of the United States in the freedom of these waters must, notwithstanding their wonderfully reproductive capacity, tell materially on the local catch, and while affording to the United States fishermen a profitable employment, must seriously interfere with local success. The extra amount of bait, also, which is required for the supply of the United States demand for bank fishery must have the effect of diminishing the supply of cod for the inshores, as it is well known that the presence of that fish is caused by the attraction offered by a large quantity of bait fishes, and as this quantity diminishes the cod will resort in fewer number to the coast. “The effect of this diminution may not, in all probability, be apparent for some years to come, and whilst United States fishermen will have the liberty of enjoying the fisheries for several years in their present teeming and remunerative state, the effects of over fishing may, after their right to participate in them has lapsed, become seriously prejudicial to the interests of the local fishermen. CORRESPONDENCE 429 “TI. The privilege of procuring bait and supplies, refilling, drying, transshipping, etc. “Apart from the immense value to United States fishermen of participation in- the Newfoundland inshore fisheries, must be estimated the important privilege of procuring bait for the prosecution of the bank and deep-sea fisheries, which are capable of unlimited expansion. With Newfoundland as a basis of operations, the right of procuring bait, refitting their vessels, drying and curing fish, procuring ice in abundance for the preservation of bait, liberty of transshipping their cargoes, etc., an almost continuous prosecution of the bank fishery is secured to them. By means of these advantages, United States fishermen have acquired, by the Treaty of Washington, all the requisite facilities for increasing their fishing operations to such an extent as to enable them to supply the demand for fish food in the United States markets, and largely to furnish the other fish markets of the world, and thereby exercise a compe- tition which must inevitably prejudice Newfoundland exporters. It must be remem- bered, in contrast with the foregoing, that United States fishing craft, before the conclusion of the Treaty of Washington, could only avail themselves of the coast of Newfoundland, for obtaining a supply of wood and water, for shelter and for necessary Tepairs in case of accident, and for no other purpose whatever; they therefore prose- cuted the bank fishery under great disadvantages, notwithstanding which, owing to the failure of the United States local fisheries, and the consequent necessity of pro- viding new fishing grounds, the bank fisheries have developed into a lucrative source of employment to the fishermen of the United States. “That this position is appreciated by those actively engaged in the bank fishery is attested by the statements of competent witnesses, whose evidence will be laid be- fore the Commission.” ; And in the reply of the British Government, referring to the same Newfoundland fisheries, is the following declaration: ““As regards the herring fishery on the coast of Newfoundland, it is availed of to a considerable extent by the United States fishermen, and evidence will be adduced of large exportations of them in American vessels, particularly from Fortune Bay and the neighborhood, both to European and their own markets. “The presence of United States fishermen upon the coast of Newfoundland, so far from being an advantage, as is assumed in the answer, operates most prejudicially to Newfoundland fishermen. Bait is not thrown overboard to attract the fish, as asserted, but the United States bank fishing vessels, visiting the coast in such large numbers as they do for the purpose of obtaining bait, sweep the coast, creeks, and inlets, thereby diminishing the supply of bait for local catch and scaring it from the grounds, where it would otherwise be an attraction for cod.” In support of these views, the most abundant testimony was produced by the British Government showing the extent of the United States herring fishery, the character and construction of the seines used, the time when the vessels came and left, and the employment of the native fishermen by the United States vessels. And it follows unanswerably that upon the existence of that fishery between the months of October and April (the very time prohibited by the colonial law), and upon the use of just such seines as were used by the complainants in this case (the very seines forbidden by the colonial law), and because the increasing direct fishery of the United States vessels was interfering with native methods and native profits, the British Government demanded and received compensation for the damages thus alleged to 430 APPENDIX proceed from ‘‘the liberty to take fish of every kind” secured by the treaty. This Government cannot anticipate that the British Government will now contend that the time and the method for which it asked and received compensation are forbidden by the terms of the very treaty under which it made the claim and received the pay- ment. Indeed, the language of Lord Salisbury justifies the Government of the United States in drawing the conclusion that between itself and Her Britannic Majesty’s Government there is no substantial difference in the construction of the privilege of the treaty of 1871, and that in the future the colonial regulation of the fisheries with which, as far as their own interests are concerned, we have neither right nor desire to intermeddle, will not be allowed to modify or affect the rights which have been guaranteed to citizens of the United States. You will therefore say to Lord Salisbury, that the Government of the United States considers that the engagements of the treaty of 1871 contravened by the local legislation of Newfoundland, by the prohibition of the use of seines, by the closing of the fishery with seines between October and April, by the forbidding of fishing for the purpose of exportation between December and April, by the prohibition to fish on Sunday, by the allowance of nets of only a specified mesh, and by the limitation of the area of fishing between Cape Ray and Cape Chapeau Rouge. Of course, this is only upon the supposition that such laws are considered as applying to United States fishermen: as local regulations for native fishermen, we have no concern with them. The contravention consists in excluding United States fishermen during the very times in which they have been used to pursue this industry, and forbidding the methods by which alone it can profitably be carried on. The exclusion of the time from October to April covers the only season in which frozen herring can be procured, while the prohibition of the seines would interfere with the vessels, who, occupied in cod-fishing during the summer, go to Fortune Bay in the winter, and would consequently have to make a complete change in their fishing gear, or depend entirely upon purchase from the natives for their supply. The prohibition of work on Sunday is impossible under the conditions of the fishery. The vessels must be at Fortune Bay at a certain time, and leave for market at a certain time. The entrance of the shoals of herring is uncertain, and the time they stay equally so. Whenever they come they must be caught, and the evidence in this very case, shows that after Sunday, the 6th of January, there was no other influx of these fish, and that prohibition on that day would have been equivalent to shutting out the fishermen for the season. If I am correct in the views hitherto expressed, it follows that the United States Government must consider the United States fishermen as engaged in a lawful industry, from which they were driven by lawless violence, at great loss and damage to them; and that as this was in violation of rights guaranteed by the Treaty of Washington between Great Britain and the United States, they have reasonable ground to expect, at the hands of Her Britannic Majesty’s Government, proper compensation for the loss they have sustained. The United States Government, of course, desires to avoid an exaggerated estimate of the loss, which has actually sustained, but thinks you will find the elements for a fair calculation in the sworn statement of the owners, copies of which are herewith sent. You will find in the printed pamphlet which accompanies this, and which is the statement submitted to this Department on behalf of twenty of the vessels, the expense of each vessel in preparation for the fishery and her estimated loss and damage. The same statement with regard to the two vessels New England and Ontario not in- cluded in this list of twenty, you will find attached hereto, thus making a com- CORRESPONDENCE 431 plete statement for the twenty-two vessels which were in Fortune Bay on the 6th January, 1878, and the Government of the United States sees no reason to doubt the accuracy of these estimates. I find upon examining the testimony of one of the most intelligent of the Newfoundland witnesses called before the Halifax Commission by the British Government, Judge Bennett, formerly Speaker of the Colonial House, and himself largely interested in the business, that he estimates the Fortune Bay business in frozen herring, in the former years of purchase, at 20,000 to 25,000 barrels for the season and that it was increasing, and this is confirmed by others. The evidence in this case shows that the catch which the United States fishing fleet had on this occasion actually realized was exceptionally large, and would have supplied profitable cargoes for all of them. When to this is added the fact that the whole winter was lost, and these vessels compelled to return home in ballast, that this violence had such an effect upon this special fishery, that in the winter of 1878- 79 it has been almost entirely abandoned, and the former fleet of twenty-six vessels has been reduced to eight, none of whom went provided with seines, but were compelled to purchase their fish of the inhabitants of Newfoundland, the United States Government is of opinioin that $105,305.02 may be presented as an estimate of the loss as claimed, and you will consider that amount as being what this Gov- ernment will regard as adequate compensation for loss and damage. In conclusion, I would not be doing justice to the wishes and opinions of the United States Government if I did not express its profound regret at the apparent conflict of interests which the exercise of its treaty privileges appears to have de- veloped. There is no intention on the part of this Government that these privileges should be abused, and no desire that their full and free enjoyment should harm the Colonial fishermen. While the differing interests and methods of the shore fishery and the vessel fishery make it impossible that the regulation of the one should be entirely given to the other, yet if the mutual obligations of the treaty of 1871 are to be maintained, the United States Government would gladly cooperate with the Govern- ment of Her Britannic Majesty in any effort to make those regulations a matter of reciprocal convenience and right; a means of preserving the fisheries at their highest point of production, and of conciliating a community of interest by a just proportion of advantages and profits. I am, Sir, Your obedient servant, (Signed) Wm. M. Evarts NOTE FROM LORD SALISBURY TO MR. HOPPIN, AMERICAN CHARGE AT LONDON, APRIL 3, 1880! Foretcn OFrice, April 3, 1880 Str, — In the note which I had the honour to address to you on the 12th February last I explained the reason why a certain time has unavoidably elapsed before Her Majesty’s Government were in a position to reply to Mr. Welsh’s notes of the 13th August last, in which he preferred, on the part of your Government, a claim for 105,305 dols. 2 c. as compensation to some United States’ fishermen on account of losses stated to have been sustained by them through certain occurrences which took place at Fortune Bay, Newfoundland, on the 6th January, 1878. The delay which has arisen has been occasioned by the necessity of instituting a very careful inquiry into the cir- 1 Appendix, British Case, p. 278; Appendix, U. S. Case, p. 683. 432 APPENDIX cumstances of the case, to which, in all its bearings, Her Majesty’s Government were anxious to give the fullest consideration before coming to a decision. Her Majesty’s Government having now completed that inquiry so far as lies within their power, I beg leave to request you to be so good as to communicate to your Government the following observations on the case. In considering whether compensation can properly be demanded and paid in this case, regard must be had to the facts as established, and to the intent and effect of the Articles of the Treaty of Washington and the Convention of 1818 which are applicable to those facts. The facts, so far as they are known to Her Majesty’s Government, are disclosed by the affidavits contained in the incloséd printed paper, which, for convenience of reference, have been numbered in consecutive order. Nos. 1 and 2 were received by Her Majesty’s Government from his Excellency the Governor of Newfoundland; Nos. 3 to 10, inclusive, were attached to the Report made by Captain Sulivan, of Her Majesty’s ship ‘“‘Sirius,”” who was instructed to make an inquiry into the case. These were communicated to Mr. Welsh with my note of the 7th November, 1878. Nos. 11 to 16, inclusive, are the affidavits of the United States’ fishermen, printed in the ‘“‘New York Herald” of the 28th January, 1878, and were received from Her Majesty’s Minister at Washington. They have not been received officially from the Government of the United States, but Her Majesty’s Government see no reason to doubt their authenticity. Nos. 17 to 22 were annexed to Mr. Welsh’s note of the 13th August last. A careful examination of the above evidence shows that on the day in question a large number of the crews of the United States’ fishing vessels came on shore, and from the beach barred the herrings, the ends of their seines being secured to the shore. That the fishermen of the locality remonstrated against these proceedings, and upon their remonstrance proving unavailing, removed the nets by force. Such being the facts, the following two questions arise: — 1. Have United States’ fishermen the right to use the strand for purposes of actual fishing? 2. Have they the right to take herrings with a seine at the season of the year in question, or to use a seine at any season of the year for the purpose of barring herrings on the coast of Newfoundland? The answers to the above questions depend on the interpretation of the Treaties. With regard to the first question, namely, the right to the strand-fishery, I would observe that Article I of the Convention between Great Britain and the United States of the 20th October, 1818, secured to citizens of the United States the right, i common with British subjects, to take fish of every kind on certain specified portions of the coast of Newfoundland, and to use the shore for the purposes of purchasing wood and obtain- ing water, and for no other purpose whatever. Articles XVIII and XXXII of the Treaty of Washington superadded to the above- mentioned privileges the right for United States’ fishermen to take fish of every kind (with certain exceptions not relevant to the present case) on all portions of the coast of that island, and permission to land 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 same purpose.” Thus, whilst absolute freedom in the matter of fishing in territorial waters is granted, the right to use the shore for four specified purposes alone is mentioned in the Treaty CORRESPONDENCE 433 Articles from which United States’ fishermen derive their privileges, viz., to purchase wood, to obtain water, to dry nets, and cure fish. The citizens of the United States are thus by clear implication absolutely precluded from the use of the shore in the direct act of catching fish. This view was maintained in the strongest manner before the Halifax Commission by the United States’ Agent, who, with reference to the proper interpretation to be placed on the Treaty stipula- tions, used the following language: ‘‘No rights to do anything upon the land are conferred upon the citizens of the United States under this Treaty, with the single exception of the right to dry nets and cure fish on the shores of the Magdalen Islands, if we did not possess that before. No right to land for the purpose of sein- ing from the shore; no right to the ‘strand fishery’ as # has been called; no right to do anything except, water-borne on our vessels, to go within the limits which had been previously forbidden.” “So far as the herring trade goes, we could not, if we were disposed to, carry it on successfully under the provisions of the Treaty; for this herring trade is substan- tially a seining from the shore —a strand fishing, as it is called — and we have no right anywhere conferred by this Treaty to go ashore and seine herring any more than we have to establish fish-traps.” Her Majesty’s Government, therefore, cannot anticipate that any difference of opinion will be found to exist between the two Governments on this point. The incident now under discussion occurred on that part of the shore of Fortune Bay which is called Tickle Beach, Long Harbor. On this Beach is situated the fishing settlement of Mark Bolt, a British fisherman, who, in his evidence taken upon oath, deposed as follows: “‘The ground I occupy was granted me for life by Government, and for which I have to pay a fee. There are two families on the Beach; there were three in winter. Our living is dependent on our fishing off this settlement. If these large American seines are allowed to be hauled it forces me away from the place.” John Saunders, another British fisherman of Tickle Beach, deposed that the United States’ fishermen hauled their seine on the beach immediately in front of his property. The United States’ fishermen, therefore, on the occasion in question, not only exceeded the limits of their Treaty privileges by fishing from the shore, but they “‘inter- fered with the rights of private property and with British fishermen in the peaceable use of that part of the coast in their occupancy for the same purpose,” contrary to the express provisions of Articles XVIII and XXXII of the Treaty of Washington. ‘Further, they used seines for the purpose of in-barring herrings, and this leads me to the consideration of the second question, viz.: whether United States fishermen have the right to take herrings with a seine at the season of the year in question, or to use a seine at any season of the year for the purpose of barring herrings on the coast of Newfoundland. The in-barring of herrings is a practice most injuriotis, and, if continued, calcu- lated in time to destroy the fishery; consequently it has been prohibited by Statute since 1862. In my note to Mr. Welsh of the 7th November, 1878, I stated “that British sovereignty as regards these waters is limited in jits scope by the engagements of the Treaty of Washington, which cannot be modified or affected by any municipal legis- lation;” and Her Majesty’s Government fully admit that United States’ fishermen have the right of participation on the Newfoundland inshore fisheries, in common with British subjects, as specified in Article XVINI of that Treaty. But it cannot be claimed, consistently with this right of participation in common with the British 434 APPENDIX fishermen, that the United States’ fishermen have any other, and still less that they have greater, rights than the British fishermen had at the date of the ‘Preaty. If, then, at the date of the signature of the Treaty of Washington certain restraints were by the municipal law imposed upon the British fishermen, the United States’ fishermen were, by*the express terms of the Treaty, equally subjected to those restraints; and the obligation to observe, in common with the British, the then exist- ing local laws and regulations which is implied by the words “in common,” attached to the United States’ citizens as soon as they claimed the benefit of the Treaty. That such was the view entertained by the Government of the United States during the existence of the Reciprocity Treaty, under which United States’ fishermen enjoy precisely the same rights of fishing as they do now under the Treaty of Washington, is proved conclusively by the Circular issued on the 28th March, 1856, to the Collector of Customs at Boston, which so thoroughly expressed the views of Her Majesty’s Government on this point that I quote it here in extenso: “Mr. Marcy To Mr. PEASLEE “¢(Circular.) “DEPARTMENT OF STATE, WASHINGTON, March 28, 1856 “S1r,—It is understood that there are certain Acts of the British North American Colonial Legislatures, and also, perhaps, executive regulations intended to prevent the wanton destruction of the fish which frequent the coasts of the Colonies, and injuries to the fishing thereon. It is deemed reasonable and desirable that both United States’ and British fishermen should pay a like respect to such laws and regulations, which are designed to preserve and increase the productiveness of the fisheries on those coasts. Such being the object of these laws and regulations, the observance of them is enforced upon the citizens of the United States in the like manner as they are observed by British subjects. By granting the mutual use of the inshore fisheries, neither party has yielded its right to civic jurisdiction over a marine league along its coasts. “Its laws are as obligatory upon the citizens or subjects of the other as upon its own. The laws of the British provinces, not in conflict with the provisions of the Reciprocity Treaty, would be as binding upon the citizens of the United States within that jurisdiction as upon British subjects. Should they be so framed or executed as to make any discrimination in favor of British fishermen, or to impair the rights secured to American fishermen by that Treaty, those injuriously affected by them will appeal to this Government for redress. In presenting complaints of this kind, should there be cause for doing so, they are requested to furnish the Department of State with a copy of the law or regulation which is alleged injuriously to affect their rights, or to make an unfair discrimination between the fishermen of the respective countries, or with a statement of any supposed grievance in the execution of such law or regulation, in order that the matter may be arranged by the two Governments. “You will make this direction known to the masters of such fishing-vessels as belong to your port in such manner as you may deem most advisable. (Signed) “W.L. Marcy” I have the honour to inclose a copy of an Act passed by the Colonial Legislature of Newfoundland, on the 27th March, 1862, for the protection of the herring and salmon fisheries on the coast, and a copy of Cap. 102 of the Consolidated Statutes of New- foundland, passed in 1872. The first section of the Act of 1862 prohibited the taking of herrings with a seine between the 20th day of October and the 12th day of April, CORRESPONDENCE 435 and further prohibited the use of seines at any time for the purpose of barring herrings. These regulations, which were in force at the date of the Treaty of Washington, were not abolished, but confirmed by the subsequent Statutes, and are binding under the Treaty upon the citizens of the United States in common with British subjects. The United States’ fishermen, therefore, in landing for the’purpose of fishing at Tickle Beach, in using a seine at a prohibited time, and in barring herrings with seines from the shore, exceeded their Treaty privileges and were engaged in unlawful acts. Her Majesty’s Government have no wish to insist on any illiberal construction of the language of the Treaty, and would not consider it necessary to make any formal com- plaint on the subject of a casual infringement of the letter of its stipulations which did not involve any substantial detriment to British interests, and to the fishery in general. An excess on the part of the United States’ fishermen of the precise limits of the rights secured to them might proceed as much from ignorance as from wilfulness; but the present claim for compensation is based on losses resulting from a collision which was the direct consequence of such excess, and Her Majesty’s Government feel bound to point to the fact that the United States’ fishermen were the first and real cause of the mischief by overstepping the limits of the privileges secured to them, in a manner gravely prejudicial to the rights of other fishermen. For the reasons above stated Her Majesty’s Government are of opinion that, under the circumstances of the case as at present within their knowledge, the claim advanced by the United States’ fishermen for compensation on account of the losses stated to have been sustained by them on the occasion in question is one which should not be entertained. Mr. Evarts will not require to be assured that Her Majesty’s Government, while unable to admit the contention of the United States’ Government on the present occa- sion, are fully sensible of the evils arising from any difference of opinion between the two Governments in regard to the fishery rights of their respective subjects. They have always admitted the incompetence of the Colonial or the Imperial Legislature to limit by subsequent legislation the advantages secured by Treaty to the subjects of another Power. If it should be the opinion of the Government of the United States that any Act of the Colonial Legislature subsequent in date to the Treaty of Washing- ton has trenched upon the rights enjoyed by the citizens of the United States in virtue of that instrument, Her Majesty’s Government will consider any communication addressed to them in that view with a cordial and anxious desire to remove all just grounds of complaint. t oa, ae (Signed) SALISBURY NOTE FROM EARL GRANVILLE, BRITISH FOREIGN MINISTER, TO MR. LOWELL, AMERICAN MINISTER AT LONDON, OCTOBER 27, 18801 ForEIGN OFFIce, October 27, 1880 Str, Her Majesty’s Government have carefully considered the correspondence which has taken place between their predecessors and the Government of the United States respecting the disturbance which occurred at Fortune Bay on the 6th January, 1878, and they have approached this subject with the most earnest desire to arrive at an amicable solution of the differences which have unfortunately arisen between the two Governments on the construction of the provisions of the Treaties which regu- late the rights of United States’ fishermen on the coast of Newfoundland. 1 Appendix, British Case, p. 289; Appendix, U. S. Case, p. 712. 436 APPENDIX In the first place, I desire that there should be no possibility of misconception as to the views entertained by Her Majesty’s Government respecting the condict of the Newfoundland fishermen in violently interfering with the United States’ fisher- men, and destroying or damaging some of their nets. Her Majesty’s Government have no hesitation if admitting that this proceeding was quite indefensible, and is much to be regretted. No sense of injury to their rights, however well founded, could, under the circumstances, justify the British fishermen in taking the law into their own hands, and committing acts of violence; but I will revert by and by to this feature in the case, and will now proceed to the important question raised in this controversy, whether, under the Treaty of Washington, the United States’ fishermen are bound to observe the fishery regulations of Newfoundland in common with British subjects. Without entering into any lengthy discussion on this point, I feel bound to state that, in the opinion of Her Majesty’s Government, the clause in the Treaty of Wash- ington which provides that the citizens of the United States shall be entitled, “in common with British subjects,” to fish in Newfoundland waters within the limits of British sovereignty, means that the American and the British fishermen shall fish in these waters upon terms of equality; and not that there shall be an exemption of American fishermen from any reasonable regulations to which British fishermen are. subject. Her Majesty’s Government entirely concur in Mr. Marcy’s Circular of the 28th March, 1856. ‘The principle therein laid down appears to them perfectly sound, and as applicable to the fishery provisions of the Treaty of Washington as to those of the Treaty which Mr. Marcy had in view. They cannot, therefore, admit the accuracy of the opinion expressed in Mr. Evarts’ letter to Mr. Welsh of the 28th September, 1878, “that the fishery rights of the United States conceded by the Treaty of Washing- ton are to be exercised wholly free from the restraints and regulations of the Statutes of Newfoundland,” if by that opinion anything inconsistent with Mr. Marcy’s principle is really intended. Her Majesty’s Government, .however, fully admit that, if any such local Statutes could be shown to be inconsistent with the express stipulations, or even with the spirit of the Treaty, they would not be within the category of those reasonable regulations by which American (in common with British) fishermen ought to be bound; and they observe, on the other hand, with much satisfaction, that Mr. Evarts, at the close of his letter to Mr. Welsh of the rst August, 1879, after expressing regret at “‘the conflict of interests which the exercise of the Treaty privileges enjoyed by the United States appears to have developed,” expressed himself as follows: “There is no intention on the part of this [The United States’] Government that these privileges should be abused, and no desire that their full and free enjoyment should harm the colonial fishermen. “While the differing interests and methods of the shore fishery and the vessel fishery make it impossible that the regulation of the one should be entirely given to the other, yet if the mutual obligations of the Treaty of 1871 are to be maintained, the United States’ Government would gladly co-operate with the Government of Her Britannic Majesty in any effort to make those regulations a matter of reciprocal convenience and right, a means of preserving the fisheries at their highest point of production, and of conciliating a community of interest by a just proportion of advan- tages and profits.” Her Majesty’s Government do not interpret these expressions in any sense deroga- tory to the sovereign authority of Great Britain in the territorial waters of Newfound- land, by which only regulations having the force of law within those waters can be me CORRESPONDENCE 437 made. So regarding the proposal, they are pleased not only to recognize in it an indi- cation that the desire of Her Majesty’s Government to arrive at a friendly and speedy settlement of this question is fully reciprocated by the Government of the United States, but also to discern in it the basis of a practical settlement of the difficulty; and I have the honour to request that you will inform Mr. Evarts that Her Majesty’s Government, with a view to avoiding further discussion and future misunderstand- ings, are quite willing to confer with the Government of the United States respecting the establishment of regulations under which the subjects of both parties to the Treaty of Washington shall have the full and equal enjoyment of any fishery which under that Treaty is to be used in common. The duty of enacting and enforcing such regulations, when agreed upon, would, of course, rest with the Power having the sovereignty of the shore and waters in each case. As regards the claim of the United States’ fishermen to compensation for the injuries and losses which they are alleged to have sustained in consequence of the violent obstruction which they encountered from British fishermen at Fortune Bay on the occasion referred to, I have to state that Her Majesty’s Government are quite willing that they should be indemnified for any injuries and losses which upon a joint inquiry may be found to have been sustained by them, and in respect of which they are reasonably entitled to compensation; but on this point I have to observe that a claim is put forward by them for the loss of fish which had been caught, or which, but for the interference of the British fishermen, might have been caught by means of strand fishing, a mode of fishing to which, under the Treaty of Washington, they were not entitled to resort. z The prosecution by them of the strand fishery being clearly in excess of their Treaty privileges, Her Majesty’s Government cannot doubt that, on further considera- tion, the United States’ Government will not be disposed to support a claim in respect of the loss of the fish which they had caught, or might have caught, by that process. I am, etc. (Signed) GRANVILLE INSTRUCTION FROM MR. EVARTS TO MR. LOWELL, FEBRUARY 4, 18811 DEPARTMENT OF STATE, WASHINGTON, February 4, 1881 Smr—The communication from Her Britannic Majesty’s secretary of state for foreign affairs, Lord Granville, of October 27, 1880, respecting the disturbance which occurred at Fortune Bay on the 6th of January, 1878, was duly received in your dispatch No. 81 of October 28, 1880. As the separation of the questions raised by that occurrence and the method of their solution were general suggestions on the part of Her Britannic Majesty’s Govern- ment, I had naturally supposed that this dispatch would have been followed by such definite propositions as this Government could either accept or decline — the more so as I had (on June 12th, 1880), in reply to your telegraphic Report of a conversation with Lord Granville, authorized you to say that “the President will be quite ready to entertain any considerations which may be presented to the Secretary of State to relieve the question of the fisheries from its present difficulties.” If however, as circumstances would seem to indicate, I am to consider this com- munication as a preliminary inquiry from Lord Granville for the purpose of learning 1 Appendix, U. S. Case, p. 718; Appendix, British Case, p. 290. 438 APPENDIX whether such suggestion would be so favorably received by this government as to justify the opening of direct negotiation, it becomes my duty to put you in posses- sion of the impressions which this inquiry has made upon the Government of the United States. As I understand the purport of Lord Granville’s communication, Her Britannic Majesty’s Government desires to arrange the compensation due the United States fishermen for the disturbances at Fortune Bay, without the formal consideration or decision of any questions of treaty construction which the facts of that disturbance might seem to raise, resting the right of compensation solely upon the unlawful vio- lence exercised by British subjects in Newfoundland. The facts in this case are not complicated, and the calculations are simple. The United States Government does not see in its present condition or character sufficient grounds to require any very elaborate method of decision, such asa Commission, or the necessity for any protracted inquiry. If Her Britannic Majesty’s Government will propose the submission of the computation of damages to the summary award of the Secretary of State of the United States and Her Britannic Majesty’s representative at Washington (this function to be exercised either directly or by such delegation as may seem to them judicious), the Government of the United States will accept the proposition and close this controversy on the basis of that award. But in signifying to Her Britannic Majesty’s Government the willingness of the United States to accede to such a proposition, you will carefully guard against any admission of the correctness of those views of our treaty rights which are expressed, either explicitly or by implication, in Lord Granville’s communication of October 27th, 1880. The views of this government upon the proper construction of the rights of fishery guaranteed by the treaty of Washington, have been fully expressed in my former dispatches, and no reasons have been furnished to induce a change of opinion. The delay in the settlement of the Fortune Bay case has been already too long protracted. It has provoked a not unnatural feeling of irritation among the fishermen of the United States at what they conceive to be a persistent denial of their treaty rights, while it is to be feared that it has encouraged among the provincial fishermen the idea that their forcible resistance to the exercise of these rights is not without justification in their local law and the construction which Her Britannic Majesty’s Government is supposed to have placed upon the provisions of the treaty. It is now three years since twenty-two vessels belonging to the United States and engaged in what by them and their Government was considered a lawful industry, were forcibly driven from Fortune Bay under circumstances of great provocation and at very serious pecuniary loss. And this occurred at the very time when, under the award of the Halifax Commission, the Government of the United States were about paying to Her Britannic Majesty’s Government a very large amount for the privilege of the exercise of this industry by those fishermen. In March of the same year, 1878, this very grave occurrence of January was brought to the attention of the British Government, in the confident hope that compensation would be promptly made for the losses caused by what the United States Government was willing to believe was a local misconstruction of the treaty or a temporary and, from ignorance, perhaps an excusable popular excitement. It is unnecessary to do more than recall to your attention the long and unsatis- factory discussion which followed the presentation of this claim, and especially the ¢ CORRESPONDENCE 439 fact that in its progress the Government of the United States was compelled to express with emphatic distinctness the impossibility of accepting the subordination of its treaty rights to the provisions of local legislation, which was apparently put forward by Her Majesty’s Government as a sufficient ground for the rejection of the claim. And it was not until April, 1880 (a delay of two years, during which the importance of an early settlement was urged upon Her Majesty’s Government), that, after what this Government understood and accepted at least as a satisfactory modification of the assumption, we were informed by Lord Salisbury that, “Her Majesty’s Govern- ment are of opinion that under the circumstances of the case as at present within their knowledge, the claim advanced by the United States fishermen for compensation on account of the losses stated to have been sustained by them on the occasion in question, is one which should not be entertained.” This decision of Her Majesty’s Government terminated any further discussion, and the Government of the United States found itself compelled to protect the interests of its citizens by such methods as might commend themselves to its judgment. In addition to the Halifax Award which we had paid for the privileges and rights, the exercise of which is now denied our citizens, we were also continuously paying, in the shape of a remission of duties, some $300,000 per annum for this abortive right. Thus forced into position of antagonism, which it profoundly regretted, the Govern- ment of the United States was about to take such action as would at least suspend this annual payment, until the two governments were in accord upon the construction of the treaty, when Her Majesty’s Government, through the United States minister in London, suggested, June 9, 1880, that the consideration of the subject be resumed between the two governments, and that in such consideration, the two questions of the interpretation of the treaty and the attack upon the American fishermen be separated. To that suggestion I replied, June 12, 1880, communicating my great gratification at the friendly disposition of the British Cabinet, and saying that “the President would be quite ready to entertain any consideration which may be pre- sented to the Secretary of State to relieve the question of the fisheries from its present difficulties.” On October 27, 1880, Lord Granville addressed you the communication which is the subject of this dispatch. I regret to find in this communication a disposition to restrict a liberal compensation for an acknowledged wrong by limitations of the fishing rights accorded by the treaty to which this government cannot consent. The use of the strand, not as a basis of independent fishing, but as auxiliary to the use of the seine in these waters where seine-fishing is the only possible mode of taking herring, has been maintained by this government in my former dispatches, and would seem to be justified by the explicit declaration of Her Majesty’s Government in the ‘“‘case” submitted by them to the Halifax commission, in which, referring to the use of the shores, it is affirmed “without such permission the practical use of the inshore fisheries was impossible.”” But as Lord Granville distinctly refers the propriety and justice of these limitations to further negotiations, I will not now discuss them, reserving what I deem it right to say for a future dispatch in reference to the second of his lordship’s suggestions. T have recalled to your attention the history of the Fortune Bay outrage, in order that you may express to Her Britannic Majesty’s Government the great disappoint- ment which this long delay in its settlement has occasioned. The circumstances under which it occurred were such as to induce this government to anticipate prompt satisfaction, and it is impossible not to feel that the course which the British Govern- 2 440 : APPENDIX ment has thought fit to pursue has seriously affected public opinion as to the worth of the treaty which it was hoped by both countries had promoted an amicable solution of long-standing difficulties. The United States government cannot feel that justice has been done its citizens in the protracted discussion which this occurrence has provoked, and while perfectly willing to endeavor, in concert with Her Britannic Majesty’s Government, to find some practical and friendly solution of the differences of construction as to the treaty provisions which their application seems to have developed, this government cannot consent that, pending such discussion, its citizens shall be exposed to the indignity and loss which have been imposed upon them by these and like occurrences. You will intimate courteously but firmly to Lord Granville that in accepting what we understand to be the proposition of Her Majesty’s Government, it is understood as carrying the idea that the settlement suggested will be put in course of immediate execution, and that the determination of the amount of compensation will not be formally confined by any limitation arising from any construction of the treaty which may be matter of difference between the two governments. So useful to the great interests involved do I regard the prompt settlement of this incident in our fishery relations, that I should be glad to hear by telegraph that Lord Granville concurs in the simple form of award which I have proposed. In imparting to the British Government these views, you may in your discretion, read this dispatch to Lord Granville, and if he desires it leave him a copy. I am, Sir, Your obedient servant, (Signed) Wm. M. Evarts LETTER FROM EARL GRANVILLE TO LORDS COMMISSIONERS OF THE TREASURY FEBRUARY 26, 18811 * Foreicn Orrice, February 26, 1881 My Lorps,—Your Lordships are aware that a correspondence has taken place with the Government of the United States with regard to certain claims of American fishermen on account of the interruption of their fishing on the coast of Newfound- land, amounting to about 120,000 dollars, including interest. The Government of the United States suggested that these claims should be referred for assessment to the United States’ Secretary of State and Her Majesty’s Minister at Washington, or to. delegates named by them, but it appeared to Her Majesty’s Government that it was, for many reasons, desirable to avoid so dilatory a process of investigation, and I was accordingly authorized by the Cabinet to offer a sum of 15,000! or 75,000 dollars, in full settlement of the claims. The United States’ Minister has informed me to-day that this offer is accepted, and I have stated to him in reply that Her Majesty’s Government are ready to hold this sum of 15,000! at the disposal of the Government of the United States on receiving his assurance that it is accepted in full of all claims arising out of any interruption of American fishermen on the coasts of Newfoundland and its dependencies up to the present time, and without prejudice to any question of the rights of either Government under the Treaty of Washington. I have now therefore to request that your Tanditins will be good enough to give the necessary directions for this amount to be held in readiness. 1 Appendix, British Case, p. 292. CORRESPONDENCE 441 I have forwarded a copy of this letter to Her Majesty’s Secretary of State for the Colonies, with whom it will rest to make application to the Governor of Newfoundland for the ultimate refund of this payment. Tam, 2ie, (Signed) GRANVILLE NOTE FROM MR. LOWELL TO EARL GRANVILLE, MARCH 2, 1881} LEGATION OF THE UNITED StaTES, Lonpon, March 2nd, 1881 My Lorp, I have the honour to acquaint your Lordship that, having inquired of Mr. Evarts by telegraph of the nature of the assurance that I migh. give your Lordship upon the receipt of the proposed indemnity in the Newfoundland fishery transac- tions, I received from him an answer by cable late last evening to the following effect: The assurance I may give is this: that the sum paid is accepted in full of all claims arising out of any interruption of American fishermen on the coasts of Newfoundland and its dependencies up to this time presented to either Government and without prejudice to any question of the rights of either Government under the Treaty of Washington. I am also permitted to say to your Lordship in giving this assurance, that as a matter of fact no other claims than those embraced in the Fortune Bay list and those named in Mr. Evarts’ dispatch Number one hundred and nine, which I have shown to your Lordship, are within the knowledge of my Government for presentation or for its own consideration. I have already communicated to your Lordship orally the substance of this cable message, at the interview which I had the honor of having with you this morning. I understood your Lordship to say in answer to this communication that Her Majesty’s Government adhered to the terms they had finally offered: that is to say: that the sum of fifteen thousand pounds should be considered as received in full of all demands arising out of the interruptions of American fishermen on the coast of Newfoundland up to date: otherwise that you would prefer to fall back upon the plan of a reference already suggested. I sent a telegram to Mr. Evarts this morning informing him of your views. I have the honor to be with the highest consideration My Lord Your most obedient humble servant Tue Ricut HonouRABLE EARL GRANVILLE J. R. Lowezt etc. etc. etc. III. CorRESPONDENCE CONCERNING THE CONVENTION oF 1818 NOTE OF SECRETARY OF STATE ROOT TO SIR MORTIMER DURAND, BRITISH MINISTER AT WASHINGTON, OCTOBER 12, 1905? DEPARTMENT OF STATE, WASHINGTON, October 12, 1905 Dear Mr. AmpBassapor,—I have just telegraphed you at Lenox expressing my wish for an interview at your early convenience. The occasion for the request is a dispatch which I have just received from Senator Lodge, containing the following 1 Appendix, British Case, p. 292. 2 Appendix, U. S. Case, p. 964; Appendix, British Case, p. 491. 442 APPENDIX statement based, I assume, upon information received from his constituents in Massa- chusetts, who are interested in the fisheries: — “Newfoundland cruiser ‘Fiona’ has arrived in Bay of Islands, on Treaty Coast, with Minister of Marine and Fisheries on board. The Minister has forbidden all vessels on American register to fish on Treaty Coast, where they now are, and where they have fished unmolested since 1818.” The American boats are already upon the Treaty Coast. I have felt bound to advise Senator Lodge that I have no doubt of their right to proceed to take fish upon the ground where the Minister of Marine and Fisheries of Newfoundland has prohibited them from fishing. The history of the fisheries and the numerous difficulties which have arisen upon the Treaty Coast indicate that this conflict between the orders of the Newfoundland Government and the rights of our fishermen, as we conceive them to be, may lead to very serious and regrettable incidents. It seems unfortunate that the Government of Newfoundland should undertake to prohibit a practice justified by the construction of the various Treaties relating to the Newfoundland fisheries for more than a century without any suggestion by the Government of Great Britain that that Government proposes any change of construction, and without any exchange of views between the two Governments upon the subject. I shall wish to satisfy you that immediate representation should be made to the Government of Newfoundland, which will lead to a different way of raising and disposing of any questions which there may be regarding our fishermen’s rights under the existing Treaty I am, etc. (Signed) Exrau Root NOTE OF MR. ROOT TO SIR MORTIMER DURAND, OCTOBER 19, 19051 DEPARTMENT OF STATE, WASHINGTON, October 19, 1905 EXxcetLency: Mr. Gardner, the Representative in Congress of the Gloucester district, has placed in my hands a number of despatches received by him from masters of American vessels now on the Newfoundland coast. These despatches are answers to inquiries sent by him at my request for the purpose of ascertaining definitely, if possible, what is the precise difficulty there. These despatches agree in the statement that vessels of American registry are forbidden to fish on the Treaty Coast. One captain says that he was informed that he could not fish by the Inspector of the Revenue Protection Service of Newfoundland, and several of them that they have been ordered not to take herring by the Collector of Customs at Bonne Bay, Newfoundland. It would seem that the Newfoundland officials are making a distinction between two classes of American vessels. We have vessels which are registered, and vessels which are licensed to fish and not registered. The license carries a narrow and re- stricted authority; the registry carries the broadest and most unrestricted authority. The vessel with a license can fish, but cannot trade; the registered vessels can law- fully both fish and trade. The distinction between the two classes in the action of the Newfoundland authorities would seem to have been implied in the despatch from Senator Lodge which I quoted in my letter of the r2th, and the imputation of the prohibition of the Minister of Marine and Fisheries may perhaps have come from the 1 Appendix, U. S. Case, p. 966; Appendix, British Case, p. 491. CORRESPONDENCE 443 port officers, in conversation with the masters of American vessels, giving him as their authority for their prohibitions. , As the buying of herring and bait fish, which until recently has been permitted for a good many years in Newfoundland, is trading, the American fishing fleet have come very generally to take an American registry, instead of confining themselves to the narrower fishing license, and far the greater part of the fleet now in northern waters consists of registered vessels. The prohibition against fishing under an American register substantially bars the fleet from fishing. American vessels have also appar- ently been in the habit of entering at the Newfoundland custom-houses and applying for a Newfoundland license to buy or take bait, and I gather from all the information J have been able to get that both the American master and the Customs officials have failed to clearly appreciate the different conditions created by the practical withdrawal of all privileges on the part of Newfoundland and the throwing of the American fishermen back upon the bare rights which belong to them under the Treaty of 1818. I am confident that we can reach a clear understanding regarding those rights and the essential conditions of their exercise, and that a statement of this understanding to the Newfoundland Government, for the guidance of its officials on the one hand and to our American fishermen for their guidance on the other, will prevent causeless injury and possible disturbances, such as have been cause for regret in the past history of the north-eastern fisheries. I will try to state our view upon the matters involved in the situation, which now appears to exist upon the Treaty Coast. We consider that — 1. Any American vessel is entitled to go into the waters of the Treaty Coast and take fish of any kind. She derives this right from the Treaty (or from the conditions existing prior to the Treaty and recognized by it) and not from any permission or authority proceeding from the Government of Newfoundland. 2. An American vessel seeking to exercise the Treaty right is not bound to obtain a license from the Government of Newfoundland, and, if she does not purpose to trade as well as fish, she is not bound to enter at any Newfoundland custom-house. 3. The only concern of the Government of Newfoundland with such a vessel is to call for proper evidence that she is an American vessel, and, therefore, entitled to exercise the Treaty right, and to have her refrain from violating any laws of Newfound- land not inconsistent with the Treaty. 4. The proper evidence that a vessel is an American vessel and entitled to exercise the Treaty right is the production of the ship’s papers of the kind generally recognized in the maritime world as evidence of a vessel’s national character. 5. When a vessel has produced papers showing that she is an American vessel, the officials of Newfoundland have no concern with the character or extent of the privileges accorded to such a vessel by the Government of the United States. No question as between a registry and license is a proper subject for their consideration. They are not charged with enforcing any laws or regulations of the United States. As to them, if the vessel is American she has the Treaty right, and they are not at liberty to deny it. 6. If any such matter were a proper subject for the consideration of the officials of Newfoundland, the statement of this Department that vessels bearing an American Registry are entitled to exercise the Treaty right should be taken by such officials as conclusive. 444 APPENDIX If your Government sees no cause to dissent from these propositions, I am inclined to think a statement of them as agreed upon would resolve the immediate difficulty now existing on the Treaty Coast. I have, however, to call your attention to a further subject, which I apprehend may lead to further misunderstanding in the near future if it is not dealt with now. That is, the purposes of the Government of Newfoundland in respect of the treatment of American fishing-vessels as exhibited in a Law enacted during the past summer by the Legislature of that Colony, under the title ‘An Act respecting Foreign Fishing- Vessels.” This Act appears to be designed for the enforcement of laws previously enacted by Newfoundland, which prohibited the sale to foreign fishing-vessels of herring, caplin, squid, or other bait fishes, lines, seines, or other outfits or supplies for the fishery or the shipment by a foreign fishing-vessel of crews within the jurisdiction of Newfoundland. The Act of last summer respecting foreign fishing-vessels provides: “Section 1. Any Justice of the Peace, sub-collector, preventive officers, fishery warden, or constable, may go on board any foreign fishing-vessel being within any port of the coasts of this island, or hovering within British waters within 3 marine miles of any of the coasts, bays, creeks, or harbours in this island, and may bring such foreign fishing-vessel into port, may search her cargo and may examine the master upon oath touching the cargo and voyage, and the master or person in command, shall answer truly such questions as shall be put to him under a penalty not exceeding 500 dollars. And if such foreign fishing-vessel has on board any herring, caplin, squid, or other bait fishes, ice, lines, seines, or other oufits or supplies for the fishery purchased within any port on the coast of this island, or within the distance of 3 marine miles from any coasts, bays, creeks, or harbors of this island, or if the master of the said vessel shall have engaged or attempted to engage any person to form part of the crew of the said vessel in any port or on any part of the coasts of this island, or has entered such waters for any purpose not permitted by Treaty or Convention for the time being in force such vessel and the tackle, rigging, apparel, furniture, stores, and cargo thereof shall be forfeited.” “Section 3. In any prosecution under this Act the presence on board any foreign fishing-vessel in any port of this island, or within British waters aforesaid of any caplin, squid, or other bait fishes, of ice, lines, seines, or other outfits or supplies for the fishery shall be primd facie evidence of the purchase of the said bait, fishes, and supplies and outfits within such port or waters.” It seems plain that the provisions above quoted constitute a warrant to the officers named to interfere with and violate the rights of American fishing-vessels under the Treaty of 1818. The rst section authorizes any of the officers named to stop an American vessel while fishing upon the Treaty Coast and compel it to leave the fishing grounds, to prevent it from going to the places where the fish may be, to prevent it departing with the fish which it may have taken, and to detain it for an indefinite period during a search of the cargo and an examination of the master under oath under a heavy penalty. It is to be observed that this section does not require that the vessel shall have been charged with any violation of the laws of Newfoundland, or even that she shall have been suspected of having violated the laws of Newfoundland as a condition precedent to compelling it to desist from the exercise of its Treaty rights, and virtually seizing it and taking it into port. In the consideration of this provision, it is unneces- CORRESPONDENCE 445 sary to discuss any question as to the extent to which American vessels may be inter- fered with in the exercise of their Treaty rights pursuant to judicial proceedings based upon a charge of violation of law, or even upon reasonable ground to believe that any law has been violated, for the authority of the Acts authorized appears to be part of no such proceeding. When we consider that the minor officials named in the Act, invested with this extraordinary and summary power, are presumptively members of the fishing com- munities, in competition w-th wh’ch the American fishermen are following their calling, it is plain that in denying the right of he Government of Newfoundland to do what this section provides for we are not merely dealing with a theoretical question, but with the probability of serious injustice. The 3rd section of the Act, above quoted in full, makes the presence on board of an American vessel of the fish, gear—the implements necessary to the exercise of the Treaty right — primé facie evidence of a criminal off.nse against the laws of Newfoundland, and it also makes the presence on board the vessel of the fish which the vessel has a right to take under Treaty primd facie evidence of a criminal offense under the laws of Newfoundland. This certainly cannot be justified. It is, in effect, providing that the exercise of the Treaty right shall be primd facie evidence of a crime. I need not argue with the Government of Great Britain that the 1st section of this Act purports to authorize the very kind of official conduct which led to the estab- lishment in England of the rule against unreasonable searches and seizures, now firmly embedded in the jurisprudence of both nations. Nor need I argue that American vessels are of right entitled to have on them in the waters of the Treaty Coast both fish of every kind, and the gear for the taking of fish, and that a law undertaking to make that possession prima facie proof of crime deprives them of that presumption of innocence to which all citizens of Great Britain and America are entitled. When the Legislature of Newfoundland denies these rights to American fishing-vessels, it imposes upon them a heavy penalty for the exercise of their rights under the Treaty, and we may reasonably apprehend that this penalty will be so severe in its practical effect as to be an effectual bar to the exercise of the Treaty right. I feel bound to urge that the Government of Great Britain shall advise the New- foundland Government that the provisions of law which I have quoted are inconsistent with the rights of the United States under the Treaty of 1818, and ought to be repealed; and that, in the meantime, and without any avoidable delay, the Governor in Council shall be requested by a Proclamation which he is authorized to issue under the 8th sec- tion of the Act respecting Foreign Fishing-Vessels, to suspend the operation of the Act. There is still another phase of this subject to which I must ask your attention. I am advised that there is a very strong feeling among the Newfoundland fishermen on the Treaty Coast against the enforcement of the Newfoundland Act prohibiting the sale of bait, and that at a recent mass meeting of fishermen at the Bay of Islands, Resolutions were adopted urging the repeal or suspension of that Act, and containing the following clauses: “Tf our requests are not ened immediately we shall be compelled, in justice to ourselves and families, to seek other ways and means to engage with the Americans. “We would also direct the attention of his Excellency the Governor in Council to what took place in Fortune Bay a few years ago when Captain Solomon Jacobs seined herring against the wishes of the people, and the result. If a similar occur- tence should take place here, who will be responsible?” This Resolution indicates the existence of still another source from which, if not 446 APPENDIX controlled, may come most unfortunate results when the American fishermen proceed to the exercise of their Treaty rights, that is, the Newfoundland fishermen themselves acting independently of their Government. You are aware that for a considerable period American fishing-vessels, instead of themselves taking herring, caplin, and squid upon the Treaty Coast, have been in the habit of buying those fish from the Newfoundland fishermen. For many of the Newfoundland fishermen this trade has been a principal means of support. That has been especially so in and about the Bay of Islands. It has been profitable to the local fishermen, and it has been for the Americans a satisfactory substitute for the exercise of their Treaty right to catch the fish themselves. It is, indeed, not unnatural that these fishermen should struggle in every way open to them to prevent the loss of their means of support, and that if they cannot control their own Government so as to secure permission to sell herring and bait, they should seek to prevent the Ameri- cans from taking the bait, in the hope that as the result of that prevention, their profitable trade may be restored. The Resolution which I have quoted referring to the Fortune Bay case is a clear threat of violence to prevent the exercise of the Treaty right. If the threat should be carried out it is too much to expect that some at least of the American fishermen will not refuse to yield to lawless force which seeks to deprive them of their rights and of their means of livelihood. We shall do everything in our power to prevent such a collision, and we should indeed deeply deplore it, but the true and effective method of prevention plainly must be the exercise of proper control by the Government of Newfoundland over the fishermen of Newfoundland, and it seems to me that the danger is sufficiently real and imminent to justify me in asking that the Government of Great Britain shall take speedy steps to bring about the exercise of such control. I have, etc. (Signed) Extmu Root NOTE OF SIR EDWARD GREY, BRITISH MINISTER FOR FOREIGN AFFAIRS, TO MR. WHITELAW REID, AMERICAN AMBASSADOR AT LONDON, FEBRUARY 2, 1906, WITH MEMORANDUM! Forricn Orrice, February 2, 1906 Your ExcELteNcy,— The views of the United States’ Government with respect “to the position of affairs on the coast of Newfoundland, and to the rights of American fishing-vessels in those waters under the Treaty of the 2oth October, 1818, as set forth in Mr. Root’s note to His Majesty’s Ambassador at Washington of the roth October, 1905, have received the serious attention of His Majesty’s Government. I have how the honor to inclose a Memorandum dealing seriatim with the six propositions formulated by Mr. Root, and with his observations with regard to some of the provisions of recent Newfoundland legislation for the regulation of the fisheries. As, owing to the prompt measures adopted and’to the conciliatory spirit displayed by both Governments, the fishing season has now closed without any collision between the British and American fishermen, or the development of any such friction as was at one time anticipated, it is unnecessary to deal more particularly with the latter portion of Mr. Root’s note, which was devoted to that side of the question. I have, etc. (Signed) Epwarp GREY 1 Appendix, British Case, p. 494; Appendix, U. S. Case, p. 971. CORRESPONDENCE 447 [MEemoraNDUM ENCLOSED IN ABOVE] Mr. Root’s note to Sir M. Durand of the 19th October, 1905, on the subject of the United States’ fishery in the waters of Newfoundland under the Convention of the 2zoth October, 1818, may be divided into three parts. The first deals with complaints which had reached the United States’ Government to the effect that vessels of the United States’ registry had been forbidden by the Colonial authorities to fish on the Treaty Coast, the second with the provisions of “The Newfoundland Foreign Fishing-Vessels Act, 1905,” and the third with the possi- bility of a lawless and violent interruption of the United States’ fishery by the inhab- itants of the Bay of Islands The complaints referred to in the first part of Mr. Root’s note were at once brought to the notice of the Government of Newfoundland, and they replied that there had been no attempt to prevent American fishermen from taking fish. The complaints in question appear to have been based on some misunderstanding, and the subsequent course of the fishery proved that the apprehensions on the part of the United States’ Government to which they gave rise were, fortunately not well founded. His Majesty’s Government, however, agree with the United States’ Government in thinking that inasmuch as the privileges which citizens of the United States have for many years enjoyed of purchasing bait’and supplies and engaging men in New- foundland waters have recently been withdrawn and American fishermen have conse- quently, in Mr. Root’s words, been thrown back upon their rights under the Convention of 1818, it is desirable that a clear understanding should be reached regarding those rights and the essential conditions of their exercise, and they have ac- cordingly given the most careful consideration to the six propositions advanced in Mr. Root’s note as embodying the views of the United States’ Government on the subject. They regret, however, that they are unable to record their assent to these propo- sitions without some important qualifications. Proposition 1 states: “Any American vessel is entitled to go into the waters of the Treaty Coast and take fish of any kind. She derives this right from the Treaty (or from the conditions existing prior to the Treaty and recognized by it) and not from any permission or authority proceeding from the Government of Newfoundland.” The privilege of fishing conceded by Article I of the Conven‘ion of 1818 is conceded, not to American vessels, but to inhabitants of the United States and to American fishermen. His Majesty’s Government are unable to agree to this or any of the subsequent propositions if they are meant to assert any right of American vessels to prosecute the fishery under the Convention of 1818 except when the fishery, is carried on by inhabitants of the United States. The Convention confers no rights on American vessels as such. It inures for the benefit only of inhabitants of the United States. Proposition 2 states: “An American vessel seeking to exercise the Treaty right is not bound to obtain a license from the Government of Newfoundland, and, if she does not purpose to trade as well as fish, she is not bound to enter at any Newfoundland custom-house.” His Majesty’s Government agree that the Government of Newfoundland could not require that American fishermen seeking to exercise the Treaty right should take 448 APPENDIX out a license from the Colonial Government. No license is required for what is a matter of right, and no such license has, His Majesty’s Government are informed, been, in fact, required. With the last part of the proposition it will be more convenient to deal in conjunction with proposition 3: Proposition 3 states: 2 “The only concern of the Government of Newfoundland with such a vessel is to call for proper evidence that she is an American vessel, and therefore entitled to exer- cise the Treaty right, and to have her refrain from violating any laws of Newfoundland not inconsistent with the Treaty.” It has already been pointed out that the Convention of 1818 confers no rights on American vessels as such, and that the exercise of the right of fishing under the Con- vention is subject to the condition that the fishing is carried on by inhabitants of the United States. His Majesty’s Government, however, agree that no law of Newfound- land should be enforced on American fishermen which is inconsistent with their rights under the Convention. / Mr. Root’s note does not give any indication of what laws of the Colony would be regarded by the United States’ Government as inconsistent with the Convention if applied to American fishermen. The opinion of His Majesty’s Government on this point is as follows: . The American fishery, under Article I of the Convention of 1818, is one carried on within the British jurisdiction and ‘“‘in common with” British subjects. The two Governments hold different views as to the nature of this Article. The British Govern- ment consider that the war of 1812 abrogated that part of Article III of the Treaty of Peace of 1783 which continued to inhabitants of the United States “the liberty” (in the words used by Mr. Adams to Earl Bathurst in his note of the 25th September, 1815) “of fishing and drying, and curing their fish within the exclusive jurisdiction on the North American coasts to which they had beer. accustomed while themselves forming a part of the British nation,” and that consequently Article I of the Con- vention of 1818 was a new grant to inhabitants of the United States of fishing privi- leges within the British jurisdiction. The United States’ Government, on the other hand, contend that the war of 1812 had not the effect attributed to it by the British Government, and that Article I of the Convention of 1818 was not a new grant, but merely a recognition (though limited in extent) of privileges enjoyed by inhabitants of the United States prior, not only to the war, but to the Treaty of 1783. Which- ever of these views be adopted, it is certain that inhabitants of the United States would not now be entitled to fish in British North American waters but for the fact that they were entitled to do so when they were British subjects. American fisher- men cannot therefore rightly claim to exercise their right of fishery under the Con- vention of 4818 on a footing of greater freedom than if they had never ceased to be British subjects. Nor consistently with the terms of the Convention can they claim to exercise it on a footing of greater freedom than the British subjects “in common with” whom they exercise it under the Convention. In other words, the American fishery under the Convention is not a free but a regulated fishery, and, in the opinion of His Majesty’s Government, American fishermen are bound to comply with all Colonial Laws and Regulations, including any touching the conduct of the fishery, so long as these are not in their nature unreasonable, and are applicable to all fisher- men alike. One of these Regulations prohibits fishing on Sundays. His Majesty's Government have received information that several breaches of this Regulation were CORRESPONDENCE 449 committed by American fishermen during the past fishing season. This Regulation has been in force for many years, and looking to the insignificant extent to which American fishermen have exercised their right of fishery on the Treaty Coast in the past, it cannot be regarded as having been made with the object of restricting the enjoyment of that right. Both its reasonableness and its bona fides appear to His Majesty’s Government to be beyond question, and they trust that the United States’ Government will take steps to secure its observance in the future. As regards the treatment of American vessels from which American fishermen exercise the Treaty right of fishery, His Majesty’s Government are prepared to admit that, although the Convention confers no rights on American vessels as such, yet since the American fishery is essentially a ship fishery, no law of Newfoundland should be enforced on American fishing-vessels which would unreasonably interfere with the exercise by the American fishermen on board of their rights under the Conven- tion. The United States’ Government, on their part, admit, in Mr. Root’s note, that the Colonial Government are entitled to have an American vessel engaged in the fishery refrain from violating any laws of Newfoundland not inconsistent with the Convention, but maintain that if she does not purpose to trade, but only to fish, she is not bound to enter at any Newfoundland custom-house. Mr. Root’s note refers only to the question of entry inwards, but it is presumed that the United States’ Government entertain the same views on the question of clearing outwards. At all events, American vessels have not only passed to the fishing grounds in the inner waters of the Bay of Islands without reporting at a Colonial custom-house, but have also omitted to clear on returning to the United States. In both respects they have committed breaches of the Colonial Customs Law, which, as regards the obligations to enter and to clear, makes no distinction between fishing- and trading-vessels. His Majesty’s Government regret not to be able to share the view of the United States’ Government that the provisions of the Colonial Law which impose those obligations are inconsistent with the Convention of 1818, if applied to American vessels which do not purpose to trade, but only to fish. They hold that the only ground on which the application of any provisions of the Colonial Law.to American vessels engaged in the fishery can be objected to is that it unreasonably interferes with the exercise of the American right of fishery. It is admitted that the majority of the American vessels lately engaged in the fishery on the western coast of the Colony were registered vessels, as opposed to licensed fishing-vessels, and as such were at liberty both to trade and to fish. The produc- tion of evidence of the United States’ registration is therefore not sufficient to estab- lish that a vessel, in Mr. Root’s words, ‘‘does not purpose to trade as well as fish,” and something more would seem clearly to be necessary. The United States’ Govern- ment would undoubtedly be entitled to complain if the fishery of inhabitants of the United States were seriously interfered with by a vexatious and arbitrary enforce- ment of the Colonial Customs laws, but it must be remembered that, in proceeding to the waters in which the winter fishery is conducted, American vessels must pass in close proximity to severa' custom-houses, and that in order to reach or leave the grounds in the arms of the Bay of Islands, on which the fishery has been principally carried on during the past season, they have sailed by no less than three custom- houses on the shores of the bay itself. So that the obligation to report and clear need. not in any way have interfered with a vessel’s operations. It must also be remembered that a fishery conducted in the midst of practically the only centers of 450 APPENDIX population on the west coast of the Colony affords ample opportunities for illicit trade, and consequently calls for careful supervision in the interests of the Colonial revenue. The provisions in question are clearly necessary for the prevention of smuggling, and His Majesty’s Government are of opinion that exception cannot be taken to their application to American vessels as an unreasonable interference with the American fishery, and they entertain the strong hope that the United States’ Government will, on reconsideration, perceive the correctness of this view, and issue instructions accord- ingly for the future guidance of those in charge of American vessels. It is, moreover, to the advantage of the American vessels engaged in the winter fishery in the Bay of Islands that they should report at a Colonial custom-house. Owing to the extent and peculiar configuration of that bay, and owing to the prevalence of fogs, vessels that enter its inner waters may remain for days without the local officers becoming aware that they are on the coast unless they so report. In such circumstances it is difficult for the Colonial Government to insure to American fisher- men that protection against lawless interference for which Mr. Root calls in the con- cluding part of his note. His Majesty’s Government desire further to invite the attention of the United States’ Government to the fact that certain United States’ vessels engaged in the fishery refused to pay light dues. This is the first time, His Majesty’s Government are informed, that American vessels have refused to pay these dues, and it is presumed that the refusal is based on the denial by the Colonial Government of the trading privileges allowed in past years. His Majesty’s Government, however, cannot admit that such denial entitles American vessels to exempt on from light dues in the ports in which they fish. As already stated, American fishing-vessels engaged in the fishery under the Convention of 1818 have no Treaty status as such and the only ground on which, in the opinion of His Majesty’s Government, the application of any Colonial law to such vessels can be objected to is that such application involves an unreasonable interference with the exercise of the Treaty rights of the American fishermen on board. The payment of light dues by a vessel on entering a port of the Colony clearly involves no such interference. These dues are payable by all vessels of whatever description and nationalityeether than coasting- and fishing-vessels owned and registered in the Colony ‘(which are, on certain conditions, exempt either wholly or in part). His Majesty’s Government trust that in these circumstances such directions will be issued as will prevent further refusals in the future, and they would point out generally that it is the duty of all foreigners sojourning in the limits of the British jurisdiction to obey that law, and that, if it is considered that the local jurisdiction is being exercised in a manner not consistent with the enjoyment of any Treaty rights, the proper course to pursue is not to ignore the law, but to obey it, and to refer the question of any alleged infringement of their Treaty rights to be settled diplomatically between their Government and that of His Majesty. Propositions 4, 5, and 6 state: — Proposition 4. ‘‘The proper evidence that a vessel is an American vessel, and entitled to exercise the Treaty right, is the production of the ship’s papers of the kind generally recognized in the maritime world as evidence of a vessel’s national character.” Proposition 5. ‘When a vessel has produced papers showing that she is an Ameri- can vessel, the officials of Newfoundland have no concern with the character or extent of the privileges accorded to such a vessel by the Government of the United States. CORRESPONDENCE A5I No question as between a registry and license is a proper subject for their considera- tion. They are not charged with enforcing any Laws or Regulations of the United States. As to them, if the vessel is American she has the Treaty right, and they are not at liberty to deny it.” Proposition 6. “If any such matter were a proper subject for the consideration of the officials of Newfoundland, the statement of this Department that vessels bearing an American registry are entitled to exercise the Treaty right should be taken by such officials as conclusive.” His Majesty’s Government are unable to agree to these propositions, except with the reservations as to the status of American vessels under the Convention already indicated, and with reference to proposition 6, they would submit that the assurance to be given by the Department of State of the United States should be that the persons by whom the fishery is to be exercised from the American vessels are inhabitants of the United States. In point of fact the Colonial Government have informed His Majesty’s Govern- ment that they do not require an American vessel to produce a United States’ fishing license. The distinction between United States’ registration and the possession of a United States’ fishing license is however, of some importance, inasmuch as a vessel which, so far as the United States’ Government are concerned, is at liberty both to trade and to fish naturally calls for a greater measure of supervision by the Colonial Government than a vessel fitted out only for fishing and debarred by the United States’ Government from trading; and information has been furnished to His Majesty’s Government by the Colonial Government which shows that the proceedings of Ameri- can fishing-vessels in Newfoundland waters have in the past been of such a character as to make it impossible, from the point of view of the protection of the Colonial revenue, to exempt such vessels from the supervision authorized by the Colonial Customs Law. His Majesty’s Government now turn to that part of Mr. Root’s note which deals with “The Foreign Fishing-Vessels Act, 1905.” His Majesty’s Government would have viewed with the strongest disapproval any disposition on the part of the Colonial authorities to administer this Act in a manner not consistent with His Majesty’s Treaty obligations, but they are confident that the United States’ Government will readily admit that the fears expressed on this head in Mr. Root’s note have not been realized. They desire, however, to point out that, though the Act in question was passed to give effect to the decision of the Colonial Government to withdraw from American fishing-vessels the privileges which they had been allowed to enjoy for many years previously of purchasing bait and supplies and of engaging crews in the ports of the Colony, the provisions objectionable to the United States’ Government which it embodies are in no sense new. They will be found in “The Foreign Fishing-Vessels Act, 1893.” The present Act differs from the earlier Act in that it takes away, by omission, from the Colonial Government the power conferred upon them by the earlier Act of authorizing the issue of licenses to foreign fishing-vessels for the enjoyment of the privileges mentioned. Allowing for this change, the provisions of the two Acts are in all essential respects identical. The provisions as to boarding, bringing into port, and searching appear in both Acts, and also the provisions as to the possession of bait, outfits, and supplies being primd facie evidence of the purchase of the same in the Colonial jurisdiction, except that in the earlier Act there was a further pro- vision, consequential on the authority which it conferred on the Colonial Government 452 APPENDIX to issue licenses, directing that the failure or refusal to produce a license should be primé facie evidence of the purchase of such articles without a license. The position of any American fishing-vessel choosing to fish for herself on the Treaty Coast has consequently been since 1893 the same as it is to-day. His Majesty’s Government do not advance these considerations with the object of suggesting that the objections which the United States’ Government have taken to sections 1 and 3 of the Foreign Fishing-Vessels Act are impaired by the fact that these provisions have been on the Statute Book of the Colony since 1893 without protest, and they are ready to assume that no such protest has been lodged merely because the privileges accorded to Ameri- can vessels in the ports of the Colony up to the present have been such as to render it unnecessary for inhabitants of the United States to avail themselves of their right of fishing under the Convention of 1818. The object of His Majesty’s Government is simply to remove any impression which may have formed itself in the mind of the United States’ Government that the language of the Act of 1905 was selected with any special view of prejudicing the exercise of the American Treaty right of fishery, and to point out that, on the contrary, it dates back to 1893, that is, to a time when it was the policy of the Colonial Government to treat American vessels on a favored footing. A new Act was not necessary to give effect to the present policy of the Colonial Government. Effect to it could have been given under the Act of 1893 by the mere suspension of the issue of licenses to American vessels, and the only object of the new Act, as His Majesty’s Government understand the position, was to secure the express and formal approval of the Colonial Legislature for the carrying out of the policy of the Colonial Government. Having offered these general remarks, His Majesty’s Government desire to point out that, in discussing thé general effects of ‘‘The Foreign Fishing-Vessels Act, 1905,” on the American fishery under the Convention of 1818, the United States’ Government confine themselves to sections 1 and 3 and make no reference to section 7, which preserves “‘the rights and privileges granted by Treaty to the subjects of any State in amity with His Majesty.” In view of this provision, His Majesty’s Government are unable to agree with the United States’ Government in regarding the provisions of sections 1 and 3 as “constituting a warrant to the officers named to interfere with and violate’ American rights under the Convention of 1818. On the contrary, they con- sider section 7 as, in effect, a prohibition of any vexatious interference with the exer- cise of the Treaty rights whether of American or of French fishermen. As regards section 3, they admit that the possession by inhabitants of the United States of any fish and gear which they may lawfully take or use in the exercise of their rights under the Convention of 1818 cannot properly be made primé facie evidence of the commis- sion of an offense, and, bearing in mind the provisions of section 7, they cannot believe that a Court of Law would take a different view. They do not, however, contend that the Act is as clear and explicit as, in the cir- cumstances, it is desirable that it should be, and they propose to confer with the Govern- ment of Newfoundland with the object of removing any doubts which the Act in its present form may suggest as to the power of His Majesty to fulfil his obligations under the Convention of 1818. On the concluding part of Mr. Root’s note it is happily not necessary for His Majesty’s Government to offer any remarks, since the fishing season has come to an end without any attempt on the part of British fishermen to interfere with the peace- ful exercise of the American Treaty right of fishery. CORRESPONDENCE 453 INSTRUCTION FROM MR. ROOT TO MR. REID, JUNE 30, 1906! DEPARTMENT OF STATE, WASHINGTON, June 30, 1906 Sir,— The memorandum inclosed in the note from Sir Edward Grey to you of the 2nd February, 1906, and transmitted by you on the 6th February, has received careful consideration. The letter which I had the honor to address to the British Ambassador in Wash- ington on the roth October last stated with greater detail the complaint in my letter to him of the 12th October, 1905, to the effect that the local officers of Newfoundland had attempted to treat American ships as such, without reference to the rights of their American owners and officers, refusing to allow such ships sailing under register to take part in the fishing on the Treaty coast, although owned and commanded by Americans, and limiting the exercise of the right to fish to ships having a fishing licence. In my communications the Government of the United States objected to this treatment of ships as such — that is, as trading-vessels or fishing-vessels, and laid down a series of propositions regarding the treatment due to American vessels on the Treaty coast, based on the view that such treatment should depend, not upon the character of the ship as a registered or licensed vessel, but upon its being American; that is, owned and officered by Americans, and, therefore, entitled to exercise the rights assured by the Treaty of 1818 to the inhabitants of the United States. It is a cause of gratification to the Government of the United States that the prohibitions interposed by the local officials of Newfoundland were promptly with- drawn upon the communications of the fact to His Majesty’s Government, and that the Memorandum now under consideration emphatically condemns the view upon which the action of the local officers was based, even to the extent of refusing assent to the ordinary forms of expression which ascribe to ships the rights and liabilities of owners and masters in respect of them. It is true that the Memorandum itself uses the same form of expression when asserting that American ships have committed breaches of the Colonial Customs Law, and ascribing to them duties, obligations, omissions, and purposes which the Memorandum describes. Yet we may agree that ships, strictly speaking, can have no rights or duties, and that whenever the Memorandum, or the letter upon which it comments, speaks of a ship’s rights and duties, it but uses a convenient and customary form of describing the owner’s or master’s right and duties in respect of the ship. As this is conceded to be essentially “‘a ship fishing,” and as neither in 1818 nor since could there be an American ship not owned and officered by Americans, it is probably quite unimportant which form of expression is used. I find in the Memorandum no substantial dissent from the first proposition of my note to Sir Mortimer Durand of the 19th October, 1905, that any American vessel is entitled to go into waters of the Treaty coast and take fish of any kind, and that she derives this right from the Treaty and not from any authority proceeding from the Government of Newfoundland. Nor do I find any substantial dissent from the fourth, fifth, and sixth propositions, which relate to the method of establishing the nationality of the vessel entering the Treaty waters for the purpose of fishing, unless it be intended, by the comments on those propositions, to assert that the British Government is entitled to claim that, when an American goes with his vessel upon the Treaty coast for the purpose of fishing, or with his vessel enters the bays or harbours of the coast for the purpose of shelter and 1 Appendix, U. S. Case, p. 978; Appendix, British Case, p. 498. +TOT eae eae of repairing damages therein, or of purchasing wood, or of obtaining water, he is bound to furnish evidence that all the members of his crew are inhabitants of the United States. We cannot for a moment admit the existence of any such limitation upon our Treaty rights. The liberty assured to us by the Treaty plainly includes the right to use all the means customary or appropriate for fishing upon the sea, not only ships and nets and boats, but crews to handle the ships and the nets and the boats. No right to control or limit the means which Americans shall use in fishing can be admitted unless it is provided in the terms of the Treaty, and no right to question the nationality of the crews employed is contained in the terms of the Treaty. In 1818, and ever since, it has been customary for the owners and masters of fishing-vessels to employ crews of various nationalities. During all that period I am not able to discover that any suggestion has ever been made of a right to scrutinize the nationality of the crews employed in the vessels through which the Treaty right has been exercised. The language of the Treaty of 1818 was taken from the IJIrd Article of the Treaty of 1783. The Treaty made at the same time between Great Britain and France, the previous Treaty of the roth February, 1763, between Great Britain and France, and the Treaty of Utrecht of the 11th April, 1713, in like manner contained a general grant to “the subjects of France” to take fish on the Treaty coast. During all that period no suggestion, so far as I can learn, was ever made that Great Britain had a right to inquire into the nationality of the members of the crew employed upon a French vessel. ; Nearly two hundred years have passed during which the subjects of the French King and the inhabitants of the United States have exercised fishing rights under these grants made to them in these general terms, and during all that time there has been an almost continuous discussion in which Great Britain and her Colonies have endeavoured to restrict the right to the narrowest possible limits, without a suggestion that the crews of vessels enjoying the right, or whose owners were enjoying the right, might not be employed in the customary way without regard to nationality. I can- not suppose that it is now intended to raise such a question. I observe with satisfaction that the Memorandum assents to that part of my second proposition to the effect that “‘an American vessel seeking to exercise the Treaty right is not bound to obtain a license from the Government of Newfoundland,” and that His Majesty’s Government agree that “‘no law of Newfoundland should be enforced on American fishermen which is inconsistent with their rights under the Convention.” The views of His Majesty’s Government, however, as to what laws of the Colony of Newfoundland would be inconsistent with the Convention if applied to American fishermen, differ radically from the view entertained by the Government of the United States. According to the Memorandum, the inhabitants of the United States going in their vessels upon the Treaty coast to exercise the Treaty right of fishing are bound to enter and clear in the Newfoundland custom-houses, to pay light dues, even the dues from which coasting and fishing-vessels owned and registered in the Colony are exempt, to refrain altogether from fishing except at the time and in the manner pre- scribed by the Regulations of Newfoundland. The Colonial prohibition of fishing on Sundays is mentioned by the Memorandum as one of the Regulations binding upon the American fishermen. We are told that His Majesty’s Government “‘hold that the only ground on which the application of any provisions of Colonial law to American vessels engaged in the fishery can be objected to is that it unreasonably interferes with the American right of fishery.” CORRESPONDENCE 455 The Government of the United States fails to find in the Treaty any grant of right to the makers of Colonial law to interfere at all, whether reasonably or unreasonably, with the exercise of the American rights of fishery, or any right to determine what would be a reasonable interference with the exercise of that American right if there could be any interference. The argument upon which the Memorandum claims that the Colonial Government is entitled to interfere with and limit the exercise of the Ameri- can right of fishery, in accordance with its own ideas of what is reasonable, is based first upon the fact that, under the terms of the Treaty the right of the inhabitants of the United States to fish upon the Treaty coast is possessed by them “in common with the subjects of His Britannic Majesty’’; and, second, upon the proposition that “the inhabitants of the United States would not now be entitled to fish in British North American waters but for the fact that they were entitled to do so when they were British subjects,” and that ‘American fishermen cannot therefore rightfully claim any other right to exercise the right of fishery under the Treaty of 1818 than if they had never ceased to be British subjects.” Upon neither of these grounds can the inferences of the Memorandum be sustained. The qualification that the liberty assured to American fishermen by the Treaty of , 1818 they were to have “in common with the subjects of Great Britain” merely nega- tives an exclusive right. Under the Treaties of Utrecht, of 1763 and 1783, between Great Britain and France, the French had constantly maintained that they enjoyed an exclusive right of fishery on that portion of the coast of Newfoundland between Cape St. John and Cape Raye, passing around by the north of the island. The British, on the other hand, had maintained that British subjects had a right to fish along with the French, so long as they did not interrupt them. The dissension arising from these conflicting views had been serious and annoying, and the provision that the liberty of the inhabitants of the United States to take fish should be in common with the liberty of the subjects of His Britannic Majesty to take fish was precisely appropriate to exclude the French construction and leave no doubt that the British construction of such a general grant should apply under the new Treaty. The words used have no greater or other effect. The provision is that the liberty to take fish shall be held in common, not that the exercise of that liberty by one people shall be the limit of the exercise of that liberty by the other. It is a matter of no concern to the American fishermen whether the people of New- foundland choose to exercise their right or not, or to what extent they choose to exer- cise it. The statutes of Great Britain and its Colonies limiting the exercise of the British right are mere voluntary and temporary self-denying ordinances. They may be repealed to-morrow. Whether they are repealed, or whether they stand,: the British right remains the same, and the American right remains the same. Neither right can be increased nor diminished by the determination of the other nation that it will or will not exercise its right, or that it will exercise its right under any particular limitations of time or manner. The proposition that ‘the inhabitants of the United States would not now be entitled to fish in British North American waters but for the fact that they were entitled to do so when they were British subjects,” may be accepted as a correct statement of one of the series of facts which led to the making of the Treaty of 1818. Were it not for that fact there would have been no fisheries Article in the Treaty of 1783, no controversy between Great Britain and the United States as to whether that Article was terminated by the war of 1812, and no settlement of that controversy by the Treaty of 1818. The Memorandum, however, expressly excludes the suppo- 456 APPENDIX sition that the British Government now intends to concede that the present rights of American fishermen upon the Treaty coast are a continuance of the right possessed by the inhabitants of the American Colonies as British subjects, and declares that this present American right is a new grant by the Treaty of 1818. How then can it be maintained that the limitations upon the former right continued although the right did not, and are to be regarded as imposed upon the new grant, although not expressed in the instrument making the grant? On the contrary, the failure to express in the terms of the new Treaty the former limitations, if any there have been, must be deemed to evidence an intent not to attach them to the newly created right. Nor would the acceptance by Great Britain of the American view that the Treaty of 1783 was in the nature of a partition of Empire, that the fishing rights formerly enjoyed by the people of the Colonies and described in the instrument of partition continued notwithstanding the war of 1812, and were in part declared and in part abandoned by the Treaty of 1818, lead to any different conclusion. It may be that under this view the rights thus allotted to the Colonies in 1783 were subject to such Regulations as Great Britain had already imposed upon their exercise before the parti- . tion, but the partition itself and the recognition of the independence of the Colo- nies in the Treaty of partition was a plain abandonment by Great Britain of the authority to further regulate the rights of the citizens of the new and independent nation. The Memorandum says: “The American fishermen cannot rightly claim to exercise their right of fishery under the Convention of 1818 on a footing different than if they had never ceased to be British subjects.”” What then was the meaning of independ- ence? What was it that continued the power of the British Crown over this particular right of Americans formerly exercised by them as British subjects, although the power of the British Crown over all other rights formerly exercised by them as British subjects was ended? No answer to this question is suggested by the Memorandum. In previous correspondence regarding the construction of the Treaty of 1818, the Government of Great Britain has asserted, and the Memorandum under considera- tion perhaps implies, a claim of right to regulate the action of American fishermen in the Treaty waters, upon the ground that those waters are within the territorial jurisdiction of the Colony of Newfoundland. This Government is constrained to repeat emphatically its dissent from any such view. The Treaty of 1818 either declared or granted a perpetual right to the inhabitants of the United States which is beyond the sovereign power of England to destroy or change. It is conceded that this right is, and forever must be, superior to any inconsistent exercise of sovereignty within that territory. The existence of this right is a qualification of British sovereignty within that territory. The limits of the right are not to be tested by referring to the general jurisdictional powers of Great Britain in that territory, but the limits of those powers are to be tested by reference to the right as defined in the instrument created or declaring it. The Earl of Derby in a letter to the Governor of New- foundland, dated the r2th June, 1884, said: “The peculiar fisheries rights granted by Treaties to the French in Newfoundland invest those waters during the months of the year when fishing is carried on in them, both by English and French fishermen, with a character somewhat analogous to that of a common sea for the purpose of fishery.” And the same observation is applicable to the situation created by the existence of American fishing rights under the Treaty of 1818. An appeal to the general jurisdiction of Great Britain over the territory is, therefore, a complete begging of the question, which always must be, not whether the jurisdiction of the Colony CORRESPONDENCE 457 authorizes a law limiting the exercise of the Treaty right, but whether the terms of the grant authorize it. The distinguished writer just quoted observes in the same letter: — “The Government of France each year during the fishing season employs ships of war to superintend the fishery exercised by their countrymen, and, in consequence of the divergent views entertained by the two Governments respectively as to the interpretation to be placed upon the Treaties, questions of jurisdiction which might at any moment have become serious have repeatedly arisen.” The practice thus described, and which continued certainly until as late as the modification of the French fishing rights in the year 1904, might well have been fol- lowed by the United States, and probably would have been, were it not that the desire to avoid such questions of jurisdiction as were frequently arising between the French and the English has made this Government unwilling to have recourse to such a prac- tice so long as the rights of its fishermen can be protected in any other way. The Government of the United States regrets to find that His Majesty’s Govern- ment has now taken a much more extreme position than that taken in the last active correspondence upon the same question arising under the provisions of the Treaty of Washington. In his letter of the 3rd April, 1880, to the American Minister in London, Lord Salisbury said: — “In my note to Mr. Welsh of the 7th November, 1878, I stated that ‘British sovereignty as regards these waters, is limited in scope by the engagements of the Treaty of Washington, which cannot be modified or affected by any municipal legisla- tion,’ and Her Majesty’s Government fully admit that United States’ fishermen have the right of participation on the Newfoundland inshore fisheries, in common with British subjects, as specified in Article XVIII of that Treaty. But it cannot be claimed, consistently with this right of participation in common with the British fishermen, that the United States’ fishermen have any other, and still less that they have any greater, rights than the British fishermen had at the date of the Treaty. “If, then, at the date of the signature of the Treaty of Washington certain restraints were, by the municipal law, imposed upon the British fishermen, the United States’ fishermen were, by the express terms of the Treaty, equally subjected to those restraints and the obligation to observe im common with the British the then existing local laws and regulations, which is implied by the words ‘in common,’ attached to the United States’ citizens as soon as they claimed the benefit of the Treaty.” Under the view thus forcibly expressed, the British Government would be con- sistent in claiming that all regulations and limitations upon the exercise of the right of fishing upon the Newfoundland coast, which were in existence at the time when the Treaty of 1818 was made, are now binding upon American fishermen. Farther than this, His Majesty’s Government cannot consistently go, and, farther than this, the Government of the United States cannot go. For the claim now asserted that the Colony of Newfoundland is entitled at will to regulate the exercise of the American Treaty right is equivalent to a claim of power to completely destroy that right. This Government is far from desiring that the Newfoundland fisheries shall go unregulated. It is willing and ready now, as it has always been, to join with the Government of Great Britain in agreeing upon all reason- able and suitable regulations for the due control of the fishermen of both countries in the exercise of their rights, but this Government cannot permit the exercise of these tights to be subject to the will of the Colony of Newfoundland. The Government of the United States cannot recognize the authority of Great Britain or of its Colony 458 APPENDIX to determine whether American citizens shall fish on Sunday. The Government of Newfoundland cannot be permitted to make entry and clearance at a Newfoundland custom-house and the payment of a tax for the support of Newfoundland lighthouses conditions to the exercise of the American right of fishing.- If it be shown that these things are reasonable the Government of the United States will agree to them, but it cannot submit to have them imposed upon it without its consent. This position is not a matter of theory. It is of vital and present importance, for the plain object of recent legislation of the Colony of Newfoundland has been practically to destroy the value of American rights under the Treaty of 1818. Those rights are exercised in competition with the fishermen and merchants of Newfoundland. The situation of the Newfoundland fishermen residing upon the shore and making the shore their base of operations, and of the American fishermen coming long distances with expensive outfits, devoting long periods to the voyage to the fishing grounds and back to the market, obliged to fish rapidly in order to make up for that loss of time, and making ships their base of operations, are so different that it is easy to frame regulations which will offer slight inconvenience to the dwellers on shore and be practically prohibitory to the fishermen from the coasts of Maine and Massachusetts; and, if the grant of this competitive right is to be subject to such Jaws as our competitors choose to make, it is a worthless right. The Premier of Newfoundland in his speech in the Newfound- land Parliament, delivered on the 12th April, 1905, in support of the Foreign Fishing Bill, made the following declaration: — “This Bill is framed specially to prevent the American fishermen from coming into the bays, harbours, and creeks of the coast of Newfoundland for the purpose of obtaining herring, caplin, and squid for fishing purposes.” And this further declaration: — “This communication is important evidence as to the value of the position we occupy as mistress of the northern seas so far as the fisheries are concerned. Herein was evidence that it is within the power of the Legislature of this Colony to make or mar our competitors to the North Atlantic fisheries. Here was evidence that by refusing or restricting the necessary bait supply, we can bring our foreign competitors to realize their dependency upon us. One of the objects of this legislation is to bring the fishing interests of Gloucester and New England to a realization of their inde- pendence upon the bait supplies of this Colony. No measure could have been devised having more clearly for its object the conserving, safeguarding, and protecting of the interests of those concerned in the fisheries of the Colony.” It will be observed that there is here the very frankest possible disavowal of any intention to so regulate the fisheries as to be fair to the American fishermen. The purpose is, under cover of the exercise of the power of regulation, to exclude the Ameri- can fishermen. The Government of the United States surely cannot be expected to see with complacency the rights of its citizens subjected to this kind of regulation. The Government of the United States finds assurance of the desire of His Majesty’s Government to give reasonable and friendly treatment to American fishing rights on the Newfoundland coast in the statement of the Memorandum that the Newfound- land Foreign Fishing-Vessels Act is not as clear and explicit as, in the circumstances, it is desirable that it should be, and in the expressed purpose of His Majesty’s Govern- ment to confer with the Government of Newfoundland with the object of removing any doubts which the Act, in its present form, may suggest as to the power of His Majesty to fulfill his obligation under the Convention of 1818. It is hoped that, upon this Conference, His Majesty’s Government will have come to the conclusion, not , CORRESPONDENCE 450 merely that the seventh section of the Act, which seeks to preserve “the rights and privileges granted by Treaty to the subjects of any States in amity with His Majesty,” amounts to a prohibition of any ‘‘vexatious interference” with the exercise of the Treaty rights of American fishermen, but that this clause ought to receive the effect of entirely excluding American vessels from the operation of the first and third clauses of the Act relating to searches and seizures and primd facie evidence. Such a con- struction by His Majesty’s Government would wholly meet the difficulty pointed out in my letter of the 19th October, as arising under the first and third sections of the Act. A mere limitation, however, to interference which is not ‘ vexatious,” leaving the question as to what is “vexatious interference” to be determined by the local officers of Newfoundland, would be very far from meeting the difficulty. You will inform His Majesty’s Government of these views, and ask for such action as shall prevent any interference upon any ground by the officers of the Newfoundland Government with American fishermen when they go to exercise their Treaty rights upon the Newfoundland coast during the approaching fishing season. I am, etc. (Signed) Evisu Root NOTE FROM SIR EDWARD GREY TO MR. REID, JUNE 20, 1907! ForEIcN OFFICE, June 20, 1907 Srr,—On the 20th of July last, Your Excellency communicated to me a letter addressed to you by Mr. Root in which he gave reasons which prevented his agree- ment with the views of His Majesty’s Government as to the rights of American fishing vessels in the waters of Newfoundland under the Convention of 1818. No reply was returned at the time to the arguments contained in this letter, as the divergence of views between the two Governments made it hopeless to expect an immediate and definitive settlement of the various questions at issue and it was essen- tial to arrive at some arrangement immediately which would secure the peaceable and orderly conduct of the impending fishery season. Upon the conclusion of the Modus Vivendi His Majesty’s Government further deferred any additional observations on the questions at issue until the arrival in this country of the Premier of Newfoundland to attend the Imperial Conference. They have now had the advantage of a full discussion with Sir R. Bond, and although His Majesty’s Government are unable to modify the views to which they have on various occasions given expression, of the proper interpretation of the Convention of 1818 in its bearing on the rights of American fishermen, they are not without hope, having regard to the willingness of the United States Government from a practical point of view to discuss reasonable and suitable regulations for the due control of the fishermen of both countries, that an arrangement may be arrived at which will be satisfactory to both countries. * I desire at the outset to place on record my appreciation of the moderation and fairness with which Mr. Root has stated the American side of the question and I shall in my turn endeavour to avoid anything of a nature to embitter this long-standing controversy. It will be convenient to recapitulate the main grounds of divergence between the two Governments on the question of principle. His Majesty’s Government, on the one hand, claim that the Treaty gave no fishing rights to American vessels as such, but only to inhabitants of the United States and 1 Appendix, British Case, p. 507; Appendix, U. S. Case, p. 1003. 460 APPENDIX that the latter are bound to conform to such Newfoundland laws and regulations as are reasonable and not inconsistent with the exercise of their Treaty rights. The United States Government, on the other hand, assert that American rights may be exercised irrespectively of any laws or regulations which the Newfoundland Govern- ment may impose, and agree that as ships strictly speaking can have no rights or duties, whenever the term is used, it is but a convenient or customary form of describ- ing the owners’ or masters’ rights. As the Newfoundland fishery, however, is essen- tially a ship fishery, they consider that it is probably quite unimportant which form of expression is used. By way of qualification Mr. Root goes on to say that if it is intended to assert that the British Government is entitled to claim that, when an American goes with his vessel upon the Treaty Coast for the purpose of fishing, or with his vessel enters the bays or harbours of the coast for the purpose of obtaining shelter, and of repairing damages therein, or of purchasing wood, or of obtaining water, he is bound to furnish evidence that all the members of the crew are inhabitants of the United States, he is obliged entirely to dissent from any such proposition. The views of His Majesty’s Government are quite clear upon this point. The Convention of 1818 laid down that the inhabitants of the United States should have for- ever in common with the subjects of His Britannic Majesty the liberty to take fish of every kind on the coasts of Newfoundland within the limits which it proceeds to define. This right is not given to American vessels, and the distinction is an important one from the point of view of His Majesty’s Government, as it is upon the actual words of the Convention that they base their claim to deny any right under the Treaty to American masters to employ other than American fishermen for the taking of fish in Newfoundland Treaty waters. Mr. Root’s language, however, appears to imply that the condition which His Majesty’s Government seek to impose on the right of fishing is a condition upon the entry of an American vessel into the Treaty waters for the purpose of fishing. This is not the case. His Majesty’s Government do not contend that every person on board an American vessel fishing in the Treaty waters must be an inhabitant of the United States, but merely that no such person is entitled to take fish unless he is an inhabitant of the United States. This appears to meet Mr. Root’s argument that the contention of His Majesty’s Government involves as a corollary that no American vessel would be entitled to enter the waters of British North America (in which inhab- itants of the United States are debarred from fishing by the Convention of 1818) for any of the four specified purposes, unless all the members of the crew are inhab- itants of the United States. ; Whatever may be the correct interpretation of the Treaty as to the employment of foreigners generally on board American vesse's, His Majesty’s Government do not suppose that the United States Government lay claim to withdraw Newfoundlanders from the jurisdiction of their own Government so as to entitle them to fish in the em- ployment of Americans in violation of Newfoundland laws. The United States Gov- ernment do not, His Majesty’s Government understand, put their claim higher than that of a “common” fishery, and such an arrangement cannot override the power of the Colonial Legislature to enact laws binding on the inhabitants of the Colony. It can hardly be contended that His Majesty’s Government have lost their juris- diction not only over American fishermen fishing in territorial waters of Newfound- land, but also over the British subjects working with them. CORRESPONDENCE 461 It may be as well to mention incidentally in regard to Mr. Root’s contention that no claim to place any such restriction on the French right of fishery was ever put forward by Great Britain; that there was never any occasion to advance it, for the reason that foreigners other than Frenchmen were never employed by French fishing vessels. The main question at issue is, however, that of the application of the Newfound- land regulations to American fishermen. In this connection the United States Govern- ment admit the justice of the view that all regulations and limitations upon the exer- cise of the right of fishing upon the Newfoundland Coast, which were in existence at the time of the Convention of 1818, would now be binding upon American fishermen. Although Mr. Root considers that to be the extreme view which His Majesty’s Govern- ment could logically assert, and states that it is the utmost to which the United States Government could agree, His Majesty’s Government feel that they cannot admit any such contention, as it would involve a complete departure from the position which they have always been advised to adopt as to the real intention and scope of the treaties upon which the American fishing rights depend. On this vital point of principle there does not seem to be any immediate prospect of agreement with United States views, and it would, therefore, seem better to endeavour to find some temporary solution of the difficulty as to the regulations under which the Americans are to fish. His Majesty’s Government note with satisfaction Mr. Root’s statement that the American Government are far from desiring that the fishery should go unregulated, and believing as they do that the Newfoundland regulations have been framed with the intention of preserving and maintaining the fishery in the most efficient and pro- ductive condition, and for the prevention of practices that must be detrimental to the common interests they propose to communicate a copy of all the regulations that are now in force, and if there is anything in these regulations which the United States Government feel to bear hardly upon the American fishermen, His Majesty’s Government will gladly pay the utmost consideration to any American representations on the subject with a view to the amendment of the regulations in the sense desired, provided that such be consistent, with the due preservation of the fishery. Pending this examination of the regulations, His Majesty’s Government would propose the following arrangements as to the provisions in the Newfoundland enact- ments that have been most discussed. These are the obligation to report at a Custom House and to pay light dues, and the prohibition to use purse seines, and to fish on Sundays. Other regulations, such as the prohibition to throw ballast or rubbish into the water frequented by herring, and to throw overboard on the fishing ground fish offal, heads and bones, have occa- sionally come in question, but are clearly reasonable, and are not, it is believed, objected to by the United States Government. Fishing at night is another question which has been discussed, although it is not forbidden by the regulations. His Majesty’s Government understand that by tacit consent among the fishermen themselves fishing is not pursued at night, and with this arrangement there seems no reason to interfere. With regard to the entry and clearance of American vessels at Newfoundland ports, I would remind your Excellency that the American vessels engaged in the winter fishery in the Bay of Islands must pass in close proximity to several Custom Houses, and that it cannot be said that the obligation to report and clear unduly interferes with the operations of the vessels. On this point, however, His Majesty’s Govern- ment would, in order to secure an arrangement for the next fishing season, be prepared to defer discussion of the question of right; but they would urge, on the other hand, 462 APPENDIX that it would be most advisable that American vessels should comply with the regula- tion on the ground that unless the vessels enter at the Custom Houses, the British authorities have no cognizance that they are in Newfoundland waters, and that, as His Majesty’s Government are responsible for keeping the peace, it is important that they should know exactly what American vessels are on the fishing grounds. More- over, the provision in question is clearly necessary for the prevention of smuggling, and unless American vessels have made proper entry at a Custom House, there is no means, short of searching the vessels, of ascertaining whether they are really fishing vessels, and not smugglers. The next point in dispute is the prohibition of purse seines. His Majesty’s Govern- ment have the independent testimony of British naval officers who have been employed on the Treaty Coast, as to the destructive results of their use; and they would, there- fore, point out that there is complete justification for the Colonial regulation. I would, moreover, remind Your Excellency that the regulation is in force in all the waters of the Colony of Newfoundland and of the Dominion of Canada, and applies equally to all fishermen whether they be Newfoundlanders or not. His Majesty’s Government, therefore, feel that they cannot interfere with the enforcement of the regulation which prohibits purse seines in the waters of Newfoundland. They would also point out that fishing on Sundays is always liable to lead to regrettable breaches of the peace, and they would propose that the American fishermen should agree to abstain from this practice. Finally, His Majesty’s Government feel that the payment of light dues by an Ameri- can vessel entering a port of the Colony clearly does not involve an unreasonable inter- ference with the exercise of the treaty rights of the American fishermen on board. These dues are payable by all vessels of whatever description and nationality, other than coasting and fishing vessels owned and registered in the Colony. As, however, vessels of the latter class are under certain conditions exempt either wholly or in part from payment, His Majesty’s Government consider that it would be unfair to intro- duce any discrimination against American vessels in this respect, and it is proposed that the demand for light dues should be waived under the same conditions as in the case of the Newfoundland vessels. I venture to express the hope that the temporary arrangement outlined above will be agreed to by the United States Government. I have, etc. E. GREY + His EXCELLENCY THE HONORABLE WHITELAW REID, etc., elc., etc. NOTE FROM MR. REID TO SIR EDWARD GREY, JULY 12, 19071 AMERICAN Empassy, Lonpon, July 12, 1907 Srr,— Referring to your letter of June 20th, in relation to the Newfoundland Fisheries, I beg to say that while its propositions seemed so much in conflict with our views on the subject that my previous instructions would have enabled me to make an immediate reply, I hastened to lay them before my Government. Before communicating the result I desire to acknowledge and reciprocate to the full the kindly expressions you have been good enough to use as to the moderation 1 Appendix, U. S. Case, p. 1007; Appendix, British Case, p. 509. CORRESPONDENCE 463 and fairness with which Mr. Root has stated the American side of the case. We have had the same appreciation of your conduct of the discussion, and we share your wish to bring the long-standing controversy on the subject to a satisfactory conclusion without having added anything tending in the slightest degree to embitter it. But with the utmost desire to find in your last letter some practical basis for an agreement, we are unable to perceive it. Acquiescence in your present proposals would seem to us equivalent to yielding all the vital questions in dispute, and abandon- ing our fishing rights on the coast of Newfoundland under the Treaty of 1818. Without dwelling on minor points, on which we would certainly make every effort to meet your views, I may briefly say that in our opinion, sustained by the observa- tions of those best qualified to judge, the surrender of the right to hire local fishermen, who eagerly seek to have us employ them, and the surrender at the same time of the use of purse seines and of fishing on Sunday would, under existing circumstances, render the Treaty stipulation worthless to us. My Government holds this opinion so strongly that the task of reconciling it with the positions maintained in your letter of June zoth seems hopeless. In this conviction my Government authorizes me, and I now have the honour, to propose a reference of the pending questions under the Treaty of 1818 to arbitra- tion before the Hague Tribunal. We have the greater reason to hope that this solution may be agreeable to you since your Ambassador to the United States recently suggested some form of arbitra- tion, with a temporary modus vivendi pending the decision, as the best way of reach- ing a settlement. We hope also that the reference of such a long-standing question between two such nations at such a time to the Hague Tribunal might prove an im- portant step in promoting the spread of this peaceful and friendly method of adjust- ing differences among all civilized countries of the world. If this proposition should be agreeable to you we should trust that the conclusion might be reached in so short a period that the continuation in force meantime of the modus vivendi I had the honor of arranging with you last year could work no real hardship to any British or Colonial interests. In its practical operation last year it resulted in voluntary arrangements by which our fishermen gave up purse seines. They did, however, employ Newfoundland fishermen. We do not think the con- tinued employment of men so eager for the work, and the consequent influx of their wages into the Colony could, for the short time involved, work the Colony any harm. But if for any reason you should find it unsuitable or inconvenient to renew for so short a time this feature of the modus vivendi, we should be compelled to insist on the use of purse seines for the reason already stated. To give that up too we should con- sider under existing circumstances as giving up altogether our Treaty rights of fishing on that coast. Hoping that in these proposals we have made an offer not only indicating our earnest desire to reach a mutually satisfactory arrangement, but an honourable and agreeable means of doing so, I have, etc. WHITELAW REID Str Epwarp Grey, Bart. etc., elc., etc. STATUTES BRITISH STATUTE 28 GEO. III, CAP. 35, 17881 An Act to enable His Majesty to make such Regulations as may be necessary to prevent the inconvenience which might arise from the competition of His Majesty’s subjects and those of the Most Christian King, in carrying on the Fishery on the Coasts of the Island of Newfoundland. ““Whereas, by the thirteenth article of the treaty concluded at Utrecht on the fourth day of April, new style, in the year of our Lord one thousand seven hundred and thirteen, between Her late Majesty Queen Anne and the Most Christian King Louis the Fourteenth, it was, among other things, agreed, that the island called New- foundland, with the adjacent islands, should, from that time forward, belong of right wholly to Britain; and to that end the town and fortress of Placentia, and whatever other places in the said island were in the possession of the French, should be yielded and given up, within seven months from the exchange of the ratification of that treaty, or sooner if possible, by the Most Christian King, to those who had a commission from the Queen of Great Britain for that purpose; nor should the Most Christian King, his heirs or successors, or any of their subjects, at any time thereafter, lay claim to any right to the said island and islands, or to any part of them; moreover, it should not be lawful for the subjects of France to fortify any place in the said Island of Newfoundland, or to erect any buildings there, besides stages made of boards, and huts necessary and useful for drying of fish, or to resort to the said island beyond the time necessary for fishing and drying fish: that it should be allowed to the subjects of France to catch fish, and to dry them on land, on that part only, and in none other besides that part of the Island of Newfoundland, which stretches from the place called Cape Bonavista, to the northern point of the said island, and from thence running down by the western side, and reaches as far as the place called Cape Riche: And whereas, by the fifth article of the treaty of peace, concluded at Paris on the tenth day of February one thousand seven hundred and sixty-three, between His Majesty and the late Most Christian King Louis the Fifteenth, and His Most Catholic Majesty, it was, among other things, agreed, that the subjects of France should have the liberty of fishing and drying on a part of the coast of the Island of Newfoundland, such as is specified in the thirteenth article of the treaty of Utrecht, which article is confirmed - and renewed by the present treaty: And whereas, by the fifth article of the definitive treaty of peace, concluded at Versailles, between His Majesty and the Most Chris- tian King, on the third day of September one thousand seven hundred and eighty- three, it was, among other things, agreed, that His Majesty, the King of Great Britain, should be maintained in his right to the Island of Newfoundland, and to the adjacent islands, as the whole were assured to him by the thirteenth article of the treaty of Utrecht, excepting the Islands of Saint Pierre and Miquelon, which were ceded in full right, by the said treaty of the third day of September one thousand seven hundred and eighty-three, to His Most Christian Majesty; and that His Majesty, the Most Christian King, in order to prevent the quarrels which had before then arisen between the two nations of England and France, consented to remove the right of fishing which 1 Appendix, British Case, p. 561. 464 STATUTES 465 belonged to him in virtue of the aforesaid article of the treaty of Utrecht, from Cape Bonavista to Cape Saint John, situated on the eastern coast of Newfoundland, in fifty degrees north latitude, and His Majesty the King of Great Britain consented, on his part, that the fishery assigned to the subjects of His Most Christian Majesty, begin- ning at the said Cape Saint John, passing to the north, and descending by the western coast of the Island of Newfoundland, should extend to the place called Cape Rage, situate in forty-seven degrees and fifty minutes latitude: the French fishermen should enjoy the fishery which was assigned to them by the said article, as they had the right to enjoy that which was assigned to them by the treaty of Utrecht: And whereas, by a declaration delivered by His Majesty’s Ambassador Extraordinary to His Most Christian Majesty, bearing date also on the said third day of September one thousand seven hundred and eighty-three, His Majesty engaged not only to insure the execu- tion of the last mentioned treaty with his known good faith and punctuality, but to give all possible efficacy to such principles as may prevent dispute; and, that the fishermen of the two nations may not give cause for daily quarrels, was pleased to engage that he would take the most positive measures for preventing his subjects from interrupting in any manner, by their competition, the fishing of the French, during the temporary exercise thereof which is granted to them upon the coasts of the Island of Newfoundland, and that he would, for that purpose, cause the perma- nent settlements which should be formed there to be removed; and that he would give orders that the French fishermen should not be incommoded in the cutting of wood necessary for the repair of their scaffolds, huts, and fishing boats; and that the thirteenth article of the treaty of Utrecht, and the method of carrying on the fishery which had at all times been acknowledged, should be the plan upon which the fishery should be carried on there, and that it should not be deviated from by either party, the French fishermen building only their scaffolds, confining themselves to the repair of their fishing vessels, and not wintering there; the subjects of His Britannic Majesty, on their part, not molesting in any manner the French fishermen during their fishing, nor injuring their scaffolds during their absence: And whereas it is expedient, in con- formity to the definitive treaty of peace and the declaration aforesaid, that His Majesty’s subjects should be prevented from interrupting in any manner, by their competition, the aforesaid fishery of the subjects of His Most Christian Majesty, during the tem- porary exercise thereof which is granted to them on the coast of Newfoundland; and that all permanent establishments on that part of the coast allotted to the French fishermen should be removed; and that such fishermen should be in no manner mo- lested, contrary to the tenor of the said treaty, and the good faith thereof: in order, therefore, that His Majesty may be the better enabled to carry the said several treaties and declarations into faithful and punctual execution, and to make such regulations as may be expedient, respecting the fishery in the manner herein after mentioned,” be it enacted by the King’s Most Excellent Majesty, by and with the advice and con- sent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, that it shall and may be lawful for His Majesty, his heirs and successors, by advice of council, from time to time, to give such orders and instructions to the governor of Newfoundland, or to any officer or officers on that station, as he or they shall deem proper and necessary to fulfill the purposes of the definitive treaty and declaration aforesaid; and, if it shall be necessary to that end, to give orders and instructions to the governor, or other officer or officers afore- said, to remove, or cause to be removed, any stages, flakes, train vats, or other works whatever, for the purpose of carrying on fishery, erected by His Majesty’s subjects 466 APPENDIX on that part of the coast of Newfoundland which lies between Cape Saint John, passing to the north, and descending by the western coast of the said island to the place called Cape Rage, and also all ships, vessels, and boats, belonging to His Majesty’s subjects, which shall be found within the limits aforesaid, and also, in case of refusal to depart from within the limits aforesaid, to compel any of His Majesty’s subjects to depart from thence; any law, usage, or custom, to the contrary notwithstanding. II. And be it further enacted by the authority aforesaid, that if any person or persons shall refuse, upon requisition made by the governor, or any officer or officers acting under him, in pursuance of His Majesty’s orders or instructions as aforesaid, to depart from within the limits aforesaid, or otherwise to conform to such requisition and directions as such governor, or other officer as aforesaid, shall make or give, for the purposes aforesaid, every such person or persons so refusing, or otherwise offend- ing against the same, shall forfeit the sum of two hundred pounds, to be recovered in the Court of Session, or Court of Vice Admiralty in the said Island of Newfoundland, or by bill, plaint, or information, in any of His Majesty’s courts of record at West- minster; one moiety of such penalty to belong to His Majesty, his heirs and successors, and the other moiety to such person or persons as shall sue or prosecute for the same: provided always, that every such suit or prosecution, if the same be commenced in Newfoundland, shall be commenced within three months, and if commenced in any of His Majesty’s courts of record at Westminster, within twelve months from the time of the commission of such offense. BRITISH STATUTE 59 GEO. III, CAP. 38, JUNE 14, 18191 An Act to enable His Majesty to make Regulations with respect to the taking and curing Fish on certain parts of the Coasts of Newfoundland, Labrador, and His Majesty’s other Possessions in North America, according to a Convention made between His Majesty and the United States of America. {r4th June, 18109] ‘‘Whereas a convention between His Majesty and the United States of America was made and signed at London, on the 20th day of October one thousand eight hun- dred and eighteen; and by the First article of the said convention, reciting that differences had arisen respecting the liberty claimed by the United States for the inhabitants thereof to take, dry and cure fish in certain coasts, bays, harbours and creeks of His Britannic Majesty’s dominions in America, it is agreed, that the inhab- itants of the said United States shall have forever, in common with the subjects of His Britannic Majesty, the liberty to take fish of every kind on that part of the southern coast of Newfoundland which extends from Cape Ray to the Rameau Islands, on the western and northern coasts of Newfoundland, from the said Cape Ray to the Quirpon Islands, on the shores of the Magdalen Islands, and also on the coasts, bays, harbours and creeks from Mount Joly on the southern coasts of Labrador, to and through the Straits of Belleisle, and thence northwardly indefinitely along the coast, without prejudice however to any of the exclusive rights of the Hudson’s Bay Company; and it was also by the said article of the said convention agreed, that the American fisher- men should have liberty forever to dry and cure fish in any of the unsettled bays, harbours and creeks of the southern part of the coast of Newfoundland above described, and of the coast of Labrador, but that so soon as the same, or any portion thereof, should be settled, it should not be lawful for the said fishermen to dry or cure fish at such portion so settled, without previous agreement for such purpose with the inhab- itants, proprietors or possessors of the ground: And Whereas it is expedient that His 1 Appendix, British Case, p. 565; Appendix, U. S. Case, p. 112. STATUTES 467 Majesty should be enabled to carry into execution so much of the said convention as is above recited, and to make regulations for that purpose;” Be it therefore enacted by the King’s Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, that from and after the passing of this Act, it shall and may be lawful for His Majesty, by and with the advice of His Majesty’s Privy Council, by any order or orders in council, to be from time to time made for that purpose, to make such regulations, and to give such directions, orders and instructions to the governor of Newfoundland, or to any officer or officers on that station, or to any other person or persons whomsoever, as shall or may be from time to time deemed proper and necessary for the carrying into effect the purposes of the said convention, with relation to the taking, drying and curing of fish by inhabitants of the United States of America, in common with British subjects, within the limits set forth in the said article of the said convention, and hereinbefore recited; any Act or Acts of Parliament, or any law, custom or usage to the contrary in anywise notwithstanding. II. And be it further enacted, That from and after the passing of this Act it shall not be lawful for any person or persons, not being a natural born subject of His Majesty, in any foreign ship, vessel or boat, nor for any person in any ship, vessel or boat, other than such as shall be navigated according to the laws of the United Kingdom of Great Britain and Ireland, to fish for, or to take, dry or cure any fish of any kind whatever, within three marine miles of any coasts, bays, creeks or harbours whatever, in any part of His Majesty’s dominions in America, not included within the limits specified and described in the First article of the said convention, and herein- before recited; and that if any such foreign ship, vessel or boat, or any persons on board thereof, shall be found fishing, or to have been fishing, or preparing to fish within such distance of such coasts, bays, creeks or harbours, within such parts of His Majesty’s dominions in America out of the said limits as aforesaid, all such ships, vessels and boats, together with their cargoes, and all guns, ammunition, tackle, apparel, furni- ture and stores, shall be forfeited, and shall and may be seized, taken, sued for, prose- cuted, recovered and condemned by such and the like ways, means and methods, and in the same courts, ‘as ships, vessels or boats may be forfeited, seized, prosecuted and condemned for any offense against any laws relating to the revenue of customs, or the laws of trade and navigation, under any Act or Acts of the Parliament of Great Britain, or of the United Kingdom of Great Britain and Ireland; provided that nothing in this Act contained shall apply, or be construed to apply to the ships or subjects of any Prince, Power or State in amity with His Majesty, who are entitled by treaty with His Majesty to any privilege of taking, drying or curing fish on the coasts, bays, creeks or harbours, or within the limits in this Act described. III. Provided always, and be it enacted, That it shall and may be lawful for any fisherman of the said United States to enter into any such bays or harbours of His Britannic Majesty’s dominions in America as are last mentioned, for the purpose of shelter and repairing damages therein, and of purchasing wood and of obtaining water, and for no other purpose whatever; subject nevertheless to such restrictions as may be necessary to prevent such fishermen of the said United States from taking, drying or curing fish in the said bays or harbours, or in any other manner whatever abusing the said privileges by the said treaty and this Act reserved to them, and as shall for that purpose be imposed by any order or orders to be from time to time made by His Majesty in council under the authority of this Act, and by any regula- tions which shall be issued by the governor or persons exercising the office of gover- 468 APPENDIX nor in any such parts of His Majesty’s dominions in America, under or in pursuance of any such order in council as aforesaid. IV. And be it further enacted, That if any person or persons, upon requisition made by the governor of Newfoundland, or the person exercising the office of gov- ernor, or by any governor or person exercising the office of governor, in any other parts of His Majesty’s dominions in America as aforesaid, or by any officer or officers acting under such governor or person exercising the office of governor, in the execution of any orders or instructions from His Majesty in council, shall refuse to depart from such bays or harbours; or if any person or persons shall refuse or neglect to conform to any regulations or directions which shall be made or given for the execution of any of the purposes of this Act; every such person so refusing or otherwise offending against this Act shall forfeit the sum of Two hundred Pounds, to be recovered in the Superior Court of Judicature of the Island of Newfoundland, or in the Superior Court of Judi- cature of the colony or settlement within or near to which such offense shall be com- mitted, or by bill, plaint or information in any of His Majesty’s Courts of Record at Westminster; one moiety of such penalty to belong to His Majesty, his heirs and suc- cessors, and the other moiety to such person or persons as shall sue or prosecute for the same: Provided always, that any such suit or prosecution, if the same be com- mitted in Newfoundland, or in any other colony or settlement, shall be commenced within three calendar months; and, if commenced in any of His Majesty’s courts at Westminster, within twelve calendar months from the time of the commission of such offense. NEWFOUNDLAND STATUTE OF 5 EDWARD VII, CAP. 4, JUNE 15, 1905} An Act Resprectinc ForrIcN FISHING VESSELS [PASSED JUNE ISTH, 1905] SECTION SECTION 1. Justices and others may board and 5. Appeal. bring into port foreign fishing 6. No proceeding to be quashed for want vessels; in certain cases such vessels of form. shall be forfeited. 7. Saving Treaty rights. 2. Vessels may be secured by officer; 8. Power to suspend Act. penalty for interference. 9. Interpretation. 3. Evidence of violation of Act. to. Repealing section. 4. Offenders may be prosecuted before a Stipendiary Magistrate. Be it enacted by the Governor, the Legislative Council and House of Assembly, in Legislative Session convened, as follows: a. Any Justice of the Peace, Sub-Collector, Preventive Officer, Fishery Warden or Constable, may go on board any foreign fishing vessel being within any port on the coasts of this Island, or hovering in British waters within three marine miles of any of the coasts, bays, creeks or harbours in this Island, and may bring such foreign fishing vessel into port, may search her cargo and may examine the master upon oath touching the cargo and voyage; and the master or person in command shall answer truly such questions as shall be put to him under a penalty not exceeding five hundred dollars. And if such foreign fishing vessel has on board any herring, caplin, squid, or other bait fishes, ice, lines, seines, or other outfits or supplies for the fishery, pur- chased within any port on the coasts of this Island or within the distance of three marine miles from any of the coasts, bays, creeks, or harbours of this Island, or if the 1 Appendix, British Case, p. 757; Appendix, U. S. Case, p. 197. STATUTES : 409 master of the said vessel shall have engaged, or attempted to engage, any person to form part of the crew of the said vessel in any port or on any part of the coasts of this Island, or has entered such waters for any purpose not permitted by treaty or con- vention for the time being in force, such vessel and the tackle, rigging, apparel, furni- ture, stores and cargo thereof shall be forfeited. 2. All goods and vessels, and the tackle, rigging, apparel, furniture, stores and cargo thereof, liable to forfeiture under this Act, may be seized and secured by any officer or person mentioned in the first section hereof, and every person opposing any such officer or person in the execution of his duty under this Act, or aiding or abetting any other person in such opposition, shall be deemed guilty of a misdemeanor and liable to a fine of five hundred dollars. 3. In any prosecution under this Act, the presence on board any foreign fishing vessel in any port of this Island, or within British waters aforesaid, of any caplin, squid, or other bait fishes, of ice, lines, seines, or other outfit or supplies for the fishery, shall be prima facie evidence of the purchase of the said bait fishes and supplies and outfits within such port or waters. 4. All offenders against the provisions of this Act may be prosecuted and con- victed, and all fines, forfeitures, penalties, and other punishments imposed, recovered and made in a summary manner before a Stipendiary Magistrate, and any vessel, and the tackle, rigging, apparel, furniture, stores and cargo thereof liable to forfeiture under the provisions of this Act, may be sued for, prosecuted, recoyered and condemned in a summary manner before a Stipendiary Magistrate in a proceeding against the master or other person in charge of such vessel. For the purposes of this Act all Stipendiary Magistrates shall be deemed to be Stipendiary Magistrates for the Colony, and may exercise the jurisdiction given by this Act in any part of the Colony. 5. If any person convicted under this Act shall feel himself aggrieved by such conviction, he may appeal therefrom to the then next sitting of His Majesty’s Supreme Court, holden in or nearest the place where such conviction shall have been had, or in St. John’s: Provided notice of such appeal, and of the cause and matter thereof, be given to the convicting Magistrate, in writing, within seven days next after such conviction, and the party desiring to appeal shall also, within fourteen days after such notice, give and enter into recognizance with two approved sureties before the convicting Magistrate, conditioned for the appearance of the person convicted at such next sitting of the Supreme Court, on the first day of such sitting, for the prosecution of the appeal with effect and without delay, to abide the judgment of the Court thereon, and for the delivery and surrender of any vessel or other property ordered to be con- fiscated, and to pay such costs as the Court may award. 6. No proceeding or conviction by, nor order of, any Magistrate or other officer under this Act, shall be quashed or set aside for any informality; provided the same shall be substantially in accordance with the intent and meaning of this Act. 7. Nothing in this Act shall affect the rights and privileges granted by Treaty to the subjects of any State in amity with His Majesty. 8. The Governor in Council may at any time, by proclamation, suspend the operation of this Act for such period as may be expedient and as shall be declared in such proclamation. 9. In this Act the word “vessel” shall include any boat or ship registered or not registered, jack, skiff, punt or launch, whether propelled by sails, oars or steam. to. The Act 56 Vic., cap. 6, entitled ‘An Act respecting Foreign Fishing Vessels,” is hereby repealed. 470 APPENDIX NEWFOUNDLAND STATUTE OF 6 EDWARD VII, CAP. 1, MAY 10, 1906! An Act RESPECTING FOREIGN FISHING VESSELS [PassED 10TH May, 1906] SECTION SECTION 1. Power of officers to board and search 10. Procedure. foreign vessels. rz. Appeal. 2. Penalties for offenses. 12. Informality no ground for setting 3. Respecting seizure of vessels and pen- aside proceedings. alty for obstructing officers. 13. Foreign vessels exercising Treaty 4. Evidence of offense committed. rights amenable to local laws. 5. Certain aliens not entitled to fish. 14. Saving all Treaty rights. 6. British subject not to fish in foreign 15. Governor in Council may limit or vessel. suspend Act. 7. Residents not to leave Colony to fish 16. Interpretation. in foreign vessels. 17. Repealing section. 8. Residents not to sell or hire fishery 18. Suspending section. gear. g. Penalty. Be it enacted by the Governor, the Legislative Council and House of Assembly, in Legislative Session convened, as follows: — 1. Any Justice of the Peace, Sub-Collector, Preventive Officer, Fishery Warden, or Constable, may go,on board any foreign vessel being within any port on the coasts of this Colony, or hovering in British waters within three marine miles of any of the coasts, bays, creeks, or harbours in this Colony, and may bring such foreign fishing vessel into port, may search her cargo, and may examine the master upon oath touch- ing the cargo and voyage, and the master or person in command shall answer truly such questions as shall be put to him, under a penalty not exceeding five hundred dollars. 2. If any foreign fishing vessel be found within any port on the coasts of this Colony, or hovering in British waters within three marine miles of any of the coasts, bays, creeks, or harbours in this Colony, and having on board any herring, caplin, squid, or other bait fishes, ice, lines, seines, or other outfits or supplies for the fishery, purchased within any port on the coasts of this Colony or within the distance of three marine miles from any of the coasts, bays, creeks, or harbours of this Colony; or if the master, owner or agent of the said vessel shall have engaged, or attempted to engage, any person to form part of the crew of the said vessel in any port, or on any part of the coasts of this Colony, or has entered such waters for any purpose not permitted by treaty or convention for the time being in force, the master, owner or agent shall be liable to a penalty not exceeding one hundred dollars, or such vessel and the tackle, rigging, apparel, furniture, stores and cargo thereof shall be forfeited, as the Magistrate before whom the proceedings is taken shall determine. 3. All goods and vessels, and the tackle, rigging, apparel, furniture, stores and cargo thereof, liable to forfeiture under this Act, may be seized and secured by any officer or person mentioned in the first section hereof, and every person opposing any such officer or person in the execution of his duty under this Act, or aiding or abetting any other person in such opposition, shall be deemed guilty of a misdemeanor and liable to a fine of five hundred dollars. 4. In any prosecution under this Act, the presence on board any foreign fishing vessel in any port of this Colony, or within British waters aforesaid, of any caplin, ee . — | ‘Appendix, British Case, p. 758; Appendix, U. S. Case, p. 199. STATUTES Aq1 squid, or other bait fishes, of ice, lines, seines, or other outfit or supplies for the fishery, shall be prima facie evidence of the purchase of the said bait fishes and supplies and outfits within such port or waters. 5. No alien, not so entitled by treaty or convention for the time being in force, shall fish in the waters of this Colony; and the master, owner, or agent of any fishing vessel who permits any alien not so entitled to fish in, from, or for such vessel, shall be liable to a penalty not exceeding one hundred dollars, or to the forfeiture of such vessel, as the Magistrate shall determine. 6. No person, being a British subject, shall fish in, from, or for a foreign fishing vessel in the waters of this Colony, and the master, owner, or agent of any foreign fishing vessel who permits any such British subject to fish in, for, or from such vessel, shall be liable to a penalty not exceeding one hundred dollars, or to the forfeiture of such vessel as the Magistrate shall determine. 7. No person, being a resident of this Colony, shall leave this Colony for the purpose of engaging in foreign fishing vessels which are fishing or intending to fish in the waters of this Colony, under a penalty not exceeding one hundred dollars. 8. No person, being a resident of this Colony, shall sell, let, hire, lend or remove from this Colony, for the purpose of selling, letting, hiring, or lending to a master, owner or agent of any foreign fishing vessel any boats, nets, or gear, under a penalty not exceeding one hundred dollars; nor shall the master, owner or agent of any foreign fishing vessel buy, hire, or borrow, in any port or place in this Colony, or in the waters of this Colony, any boats, nets, or fishing gear, from any person resident in this Colony, under a penalty for each offense not exceeding one hundred dollars. 9. The master of any vessel who conveys any person resident in the Colony out- side the waters of this Colony, for the purpose of enabling such person to be engaged on board any foreign fishing vessel, shall be liable to a penalty not exceeding one hundred dollars. to. All offenders against the provisions of this Act may be prosecuted and convicted, and all fines, forfeitures, penalties, and other punishments imposed, recovered and made in a summary manner before a Stipendiary Magistrate; and any vessel, and the tackle, rigging, apparel, furniture, stores and cargo thereof, liable to forfeiture under the provisions of this Act, may be sued for, prosecuted, recovered and condemned in a summary manner before a Stipendiary Magistrate in a proceeding against the master or other person in charge of such vessel. For the purposes of this Act all Stipendiary Magistrates shall be deemed to be Stipendiary Magistrates for the Colony, and may exercise the jurisdiction given by this Act in any part of the Colony. 1x. If any person convicted under this Act shall feel himself aggrieved by such conviction, he may appeal therefrom to the then next sitting of His Majesty’s Supreme Court, holden in or nearest the place where such conviction shall have been had, or in St. John’s: Provided notice of such appeal, and of the cause and matter thereof, be given to the convicting magistrate in writing within seven days next after such conviction, and the party desiring to appeal shall also, within fourteen days after such notice, give and enter into recognizance, with two approved sureties, before the convicting magistrate, conditioned for the appearance of the person convicted at such next sitting of the Supreme Court, on the first day of such sitting, for the prose- cution of the appeal with effect and without delay, to abide the judgment of the Court thereon, and for the delivery and surrender of any vessel or other property ordered to be confiscated, and to pay such costs as the Court may award. 472 APPENDIX 12. No proceeding or conviction by, nor order of, any Magistrate or other officer under this Act shall be quashed or set aside for any informality; provided the same shall be substantially in accordance with the intent and meaning of this Act. 13. All foreign fishing vessels exercising rights under any Treaty or Convention shall be amenable to all the laws of the Colony not inconsistent with any such rights under treaty or convention. 14. Nothing in this Act shall affect the rights and privileges granted by treaty to the subjects of any State in amity with His Majesty; and sections 1 and 4 hereof shall not be held to apply to any foreign fishing vessels resorting to the waters of this Colony for the exercise of treaty rights. 15. The Governor in Council may at any time by proclamation suspend or limit the operation of this Act, as to the whole Act or any part thereof, and in relation to the whole Colony, or any district or parts thereof, and as to all or any classes of persons, and for any period as shall be expedient and as may be declared in such proclamation. 16. In this Act the word ‘‘vessel” shall include any boat or ship, registered or not registered, jack, skiff, punt, or launch, whether propelled by sails, oars or steam. 17. The Act 5 Ed. VII., cap. 4, entitled ‘‘An Act respecting Foreign Fishing Ves- sels,” is hereby repealed. 18. This Act shall come into operation upon a day to be appointed for that pur- pose, by proclamation of the Governor, to the effect that the same has been approved and confirmed by His Majesty in council. CIRCULARS SECRETARY OF STATE WEBSTER’S STATEMENT, JULY 6, 1852! THE AMERICAN FISHERIES [From The Boston Courier of Monday] DEPARTMENT OF STATE, WASHINGTON, July 6th, 1852 Information of an official character has been received at this Department to the following effect: “The late Ministry of England was opposed to the granting of bounties on principle, and in consequence it steadily refused to give the necessary assent to Acts of the Colonial Legislatures granting bounties to the fisheries. The colonies complained severally, of this interference with their local affairs; and they further complained, that the Government declined to enforce the provisions of the Fishery Convention of 1818, and thereby permitted American fishermen to encroach upon the best fishing grounds, from which, under the legal construction of the treaty, they ought to be excluded. “With the recent change of Ministry in England, has occurred an entire change of policy. The present Secretary of State for the Colonies, Sir John Packington, has addressed a circular letter to the Governors of the several North American Colonies, an extract from which is as follows: “Downinc STREET, May 26, 1852 Among the many pressing subjects which have engaged the attention of Her Majesty’s Ministers, since their assumption of office, few have been more important in their estimation than the questions relating to the protection solicited for the fisheries on the coasts of British North America. Her Majesty’s Government have taken into their serious consideration the representations upon this subject contained in your despatches noted in the margin, and have not failed to observe, that whilst active measures have been taken by certain colonies for the purpose of encouraging their fisheries, and of repelling the intrusion of foreign vessels, it has been a subject of complaint that impediments should have been offered by the policy of the Imperial Government to the enactment of bounties, considered by the local Legislatures essential for the protection of this trade. Her Majesty’s Ministers are desirous of removing all grounds of complaint on the part of the colonies, in consequence of the encroachments of the fishing vessels of the United States upon those waters from which they are excluded by the terms of the Convention of 1818, and they therefore intend to despatch, as soon as possible, a small naval force of steamers or other small vessels, to enforce the observance of that Convention. This announcement is accompanied by the following, as to the bounties: — With regard to the question of promoting the fisheries of the British Colonies by the means of bounties, Her Majesty’s Government, although desirous not to sanc- tion any unnecessary deviation from that policy, which regulates the commerce of 1 Appendix, U. S. Case, p. 507; Appendix, British Case, pp. 152-153. 473 474 APPENDIX this country, are still disinclined to prevent those colonies, by the interposition of Imperial authority — and especially pending the negotiation with the United States of America for the settlement of the principles on which the commerce with the British North American Colonies is hereafter to be carried on — from adopt- ing the policy which they may deem most conducive to their own prosperity and welfare. “The vessels of war mentioned in the above circular despatches are expected to be upon the coasts of British North America, during the present month (July), when, no doubt, seizures will begin to be made of American fishing vessels, which in the autumn pursue their business in indents of the coast, from which it is contended they are excluded by the Convention of 1818. “Meantime, and within the last ten days, an American fishing vessel, called the ‘Coral,’ belonging to Machias, in Maine, has been seized in the Bay of Fundy, near Grand Manan, by the officer commanding Her Majesty’s cutter ‘Netley,’ already arrived in that bay, for an alleged infraction of the fishing convention; and the fish- ing vessel has been carried to the Port of St. John, New Brunswick, where proceed- ings have been taken in the Admiralty Court, with a view to her condemnation and absolute forfeiture. “Besides the small naval force to be sent out by the Imperial Government, the colonies are bestirring themselves also for the protection of their fisheries. Canada has fitted out an armed vessel to be stationed in the Gulf; and this vessel has pro- ceeded to the fishing grounds, having on board not only a naval Commander and crew, with power to seize vessels within limits, but also a stipendiary magistrate and civil police, to make prisoners of all who are found transgressing the laws of Canada, in order to their being committed to jail, in that colony, for trial. “The colony of Newfoundland has fitted out an armed vessel for the purpose of resisting the encroachments of French fishing vessels on the coast of Labrador; but, when ready to sail from their port, the governor of that colony, acting under Im- perial instructions, refused to give the commander of this colonial vessel the neces- sary authority for making prize of French vessels found trespassing. This is an extraordinary circumstance, especially when taken in connection with the fact that the like authority to seize American fishing vessels, under similar circumstances, has never been refused to the cruisers of any of the North American Colonies. “The Colony of Nova Scotia has now four armed cruisers, well manned, on its coasts, ready to pounce upon any American vessels who may, accidentally or otherwise, be found fishing within the limits defined by the crown officers of England. “New Brunswick has agreed with Canada and Nova Scotia to place a cutter in the Bay of Fundy to look after American fishermen there; and at Prince Edward Islands, Her Majesty’s steam frigate ‘Devastation’ has been placed under the in- structions of the governor of that colony.” The first Article of the Convention between the United States and Great Britain of the zoth October, 1818, is in these words: “Whereas, differences have arisen respecting the liberty claimed by the United States for the inhabitants thereof to take, dry, and cure fish on certain coasts, bays, harbors, and creeks of His Britannic Majesty’s dominions in America, it is agreed between the high contracting parties that the inhabitants of the said United States shall have forever, in common with the subjects of His Britannic Majesty, the liberty to take fish of every kind on that part of the southern coast of Newfoundland which CIRCULARS 475 extends from Cape Ray to the Rameau Islands, on the western and northern coast of said Newfoundland, from the said Cape Ray to the Quirpon Islands, on the shores of the Magdalen Islands; and also on the coasts, bays, harbors, and creeks from Mount Joly, on the southern coast of Labrador, to and through the Straits of Belleisle and thence northwardly indefinitely along the coast, without prejudice, however, to any of the exclusive rights of the Hudson’s Bay Company; and that the American fisher- men shall also have. liberty forever to dry and cure fish in any of the unsettled bays, harbors, 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 such portion so settled, without previous agreement for such purpose with the inhabitants, proprietors, or possessors of the ground. And the United States hereby renounce forever 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 harbors of His Britannic Majesty’s dominions in America, not included within the above-mentioned limits. Provided, however, that the American fishermen shall be admitted to enter such bays or harbors, for the purpose of shelter, and of repairing damages therein, of purchasing wood and of 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.” : It would appear that, by a strict and rigid construction of this Article, fishing vessels of the United States are precluded from entering into the bays or harbors of the British Provinces, except for the purposes of shelter, repairing damages, and obtaining wood and water. A bay, as is usually understood, is an arm or recess of the sea, entering from the ocean between capes or headlands; and the term is applied equally to small and large tracts of water thus situated. It is common to speak of Hudson’s Bay, or the Bay of Biscay, although they are very large tracts of water. The British authorities insist that England has a right to draw a line from head- land to headland, and to capture all American fishermen who may follow their pursuits inside of that line. It was undoubtedly an oversight in the Convention of 1818 to make so large a concession to England, since the United States had usually considered that those vast inlets or recesses of the Ocean ought to be open to American fishermen, as freely as the sea itself, to within three marine miles of the shore. In 1841, the Legislature of Nova Scotia prepared a case for the consideration of the Advocate General, and Attorney General of England, upon the true construction of this Article of the Convention. The opinion delivered by these officers of the Crown was, — ‘‘That by the terms of the Convention American citizens were ex- cluded from any right of fishing within three miles from the coast of British America, and that the prescribed distance of three miles is to be measured from the headlands or extreme points of land next the sea, of the coast or of the entrance of bays or indents of the coast, and consequently that no right exists on the part of American citizens to enter the bays of Nova Scotia, there to take fish, although the fishing, being within the bay; may be at a greater distance than three miles from the shore of the bay; as we are of opinion that the term ‘headland’ is used in the treaty to express the part of the land we have before mentioned; including the interior of the bays, and the incidents of the coast.” It is this construction of the intent and meaning of the Convention of 1818, for which the colonies have contended since 1841, and which they have desired should be 476 APPENDIX enforced. This, the English Government has now, it would appear, consented to do, and the immediate effect will be, the loss of the valuable fall-fishing to American fishermen; a complete interruption of the extensive fishing business of New England, attended by constant collisions of the most unpleasant and exciting character, which may end in the destruction of human life, in the involvement of the Government in questions of a very serious nature, threatening the peace of the two countries. Not agreeing that the construction thus put upon the treaty is conformable to the intentions of the Contracting Parties, this information is, however, made public, to the end that those concerned in the American fisheries may perceive how the case at present stands, and be upon their guard. The whole subject will engage the immediate attention of the Government. DaniEL WEBSTER, Secretary of State SECRETARY MARCY’S CIRCULAR ADDRESSED TO COLLECTORS OF CUSTOMS, JULY 12, 1855! Cu. H. PEASLEE Esgre. Collector of the Customs, Boston Circular DEPARTMENT OF STATE, WASHINGTON, July 12, 1855 Sir, — It is understood that there are certain Acts of the British North American Colonial Legislatures, and also, perhaps, Executive Regulations, intended to prevent the wanton destruction of the fish which frequent the coasts of the Colonies and injuries to the fishing thereon. There is nothing in the Reciprocity Treaty between the United States and Great Britain which stipulates for the observance of these regu- lations by our fishermen; yet; as it is presumed, they have been framed with a view to prevent injuries to the fisheries, in which our fishermen now have an equal interest with those of Great Britain, it is deemed reasonable and desirable that both should pay a like respect to those regulations, which were designed to preserve and increase the productiveness and prosperity of the fisheries themselves. It is, consequently, earnestly recommended to our citizens to direct their proceedings accordingly. You will make this recommendation known to the masters of such fishing vessels as belong to your port, in such manner as you may deem most advisable. Tam, etc., (S) W. L. Marcy It is believed that the principal regulations referred to above are the following, from the Revised Statutes of New Brunswick, Vol. I, Title 22, chap. ror: “‘4. The Wardens of any county shall, when necessary, mark out and designate in proper positions ‘gurry grounds’ putting up notices thereof, describing their limits and position, in the several school houses and other most public places in the parish where the said gurry grounds are marked out, publishing the like notice in the ‘Royal Gazette’; and no person after such posting and publication shall cast overboard from any boat or vessel the offal of fish into the waters at or near the said parish at any place except the said gurry grounds. “12. Within the parishes of Grand Manan, West Isles, Campo Bello, Pennfield, and St. George, in the County of Charlotte, no seine or net shall be set across the mouth of any haven, river, creek. or harbour, nor in any place extending more than one-third the distance across the same, or be within 40 fathoms of each other, nor shall they be set within 20 fathoms of the shore at low water mark. 1 Appendix, British Case, p. 207. CIRCULARS 477 “15. No herrings shall be taken between the 15th of July and 15th October in any year, on the spawning ground at the southern head of Grand Manan, to commence at the eastern part of Seal Cove, at a place known as Red Point; thence extending westerly along the coast and around the southern head of Bradford’s Cove, about five miles, and extending one mile from the shore; all nets or engines used for catching herring on the said ground within that period shall be seized and forfeited, and every person engaged in using the same shall be guilty of a misdemeanor and punished accordingly.” [Mr. Marcy’s “private note” mentioned in the foregoing letter appears above as No. 129 under date 28th March, 1856. A copy of the “instruction” with Mr. Crampton’s amendment written by him in red ink (shown in the print in italics) is the document next hereinafter printed. Mr. Marcy’s altered instruction appears ante under date 28th March, 1856. Where Mr. Crampton speaks of the passage “which Mr. Marcy has substituted for that which I suggested” he refers to the following words which were underlined by him in the copy enclosed to the Earl of Clarendon: — “By granting the mutual use of the inshore fisheries neither party has yielded its right to civil jurisdiction over a marine league along its coast. Its laws are as obligatory upon the citizens or subjects of the other as upon its own. The laws of the British Provinces not in conflict with the provisions of the reciprocity treaty would be as binding upon citizens of the United States within that jurisdiction as upon British subjects.” ] SECRETARY MARCY’S AMENDED CIRCULAR OF MARCH 28, 1856 DEPARTMENT OF STATE, WASHINGTON, March 28, 1856! Str, —It is understood that there are certain acts of the British North American Colonial Legislature and also perhaps Executive Regulations intended to prevent the wanton destruction of the fish which frequent the coast of the Colonies and injuries to the fishing thereon. It is deemed reasonable and desirable that both United States and British fisher- men should pay a like respect to such laws and regulations which are designed to preserve and increase the productiveness of the fisheries on those coasts. Such being the object of these laws and regulations, the observance of them is enjoined upon citizens of the United States in like manner as they are observed by British subjects. American citizens would indeed, within British jurisdiction, be liable equally with British subjects to the penalties prescribed by-law for a willful infraction of such regulations, but nevertheless should these be so framed or executed as to make any discrimination in favor of the British fishermen or to impair the rights secured to American fishermen by the Reciprocity Treaty, those injuriously affected by them will appeal to this Government for redress; In prosecuting complaints of this kind, should there be cause for doing so, they are requested to furnish the Department of State with a copy of the law or regulation which is alleged injuriously to affect their rights, or “to make an unfair discrimination between the fishermen of the respective countries or with a state- ment of any supposed grievance in the execution of such law or regulation, in order that the matter may be arranged by the two Governments. 1 Appendix, British Case, p. 211. 478 APPENDIX You will make this direction known to the masters of such fishing vessels as belong to your port, in such manner as you may deem most advisable. C. H. PEASLEE Esgr. Collector of Customs, Boston 1856, Marcu 28: LETTER FROM Mr. Marcy To Mr. CRAMPTON Private WASHINGTON, March 28, 1856 Sir,—I enclose a Circular to be issued to our fishermen modified, as I think, so as to conform to your suggestions on that subject. I submit it to you with a request to return it with such remarks thereon as you may see fit to make. Yours, Joun F. Crampton, Esqre. W. L. Makcy ete., etc., etc. SECRETARY MARCY’S FINAL CIRCULAR OF MARCH 28, 18561 To Cuaarzes H. PEasLer, Esq. Collector of the Customs, Boston DEPARTMENT OF STATE, WASHINGTON, March 28, 1856 S1r,—It is understood that there are certain Acts of the British North American Colonial legislatures, and also, perhaps, Executive Regulations, intended to prevent the wanton destruction of the fish which frequent the coasts of the Colonies, and injuries to the fishing thereon. It is deemed reasonable and desirable that both United States and British fishermen should pay a like respect to such laws and regulations, which are designed to preserve and increase the productiveness of the fisheries on those coasts. Such being the object of these laws and regulations, the observance of them is enjoined upon the citizens of the United States in like manner as they are observed by British subjects. By granting the mutual use of the inshore fisheries neither party has yielded its right to civil jurisdiction over a marine league along its coast. Its laws are as obligatory upon the citizens or subjects of the other as upon its own. The laws of the British Provinces not in conflict with the provisions of the Reciprocity Treaty would be as binding upon citizens of the United States within that jurisdiction as upon British subjects. Should they be so framed or executed as to make any dis- crimination in favor of the British fisherman, or to impair the rights secured to Ameri- can fishermen by that Treaty, those injuriously affected by them will appeal to this Government for redress. In presenting complaints of this kind, should there be cause for doing so, they are requested to furnish the Department of State with a copy of the law or regulation which is alleged injuriously to affect their rights or to make an unfair discrimination between the fishermen of the respective countries, or with a statement of any sup- posed grievance in the execution of such law or regulation, in order that the matter may be arranged by the two Governments. You will make this direction known to the masters of such fishing vessels as belong to your port, in such manner as you may deem most advisable. I an, Sir, respectfully, Your obedient servant, W. L. Marcy - 1 Appendix, British Case, p. 209. CIRCULARS 479 It is believed that the principal regulations referred to above are the following, from the Revised Statutes of New Brunswick, vol. 1, title 22, chapter 101: “7, The wardens of any county shall, when necessary, mark out and designate, in proper positions, ‘gurry grounds,’ putting up notices thereof, describing their limits and position, in the several school houses, and other most public places in the parish where the said gurry grounds are marked out, publishing the like notice in the Royal Gazette; and no person, after such posting and publication, shall cast overboard from any boat or vessel the offal of fish into the water at or near the said parish at any place except the said gurry grounds.” “2, Within the parishes of Grand Manan, West Isles, Campo Bello, Pennfield, and Saint George, in the county of Charlotte, no seine or net shall be set across the mouth of any haven, river, creek, or harbour, nor in such place éxtending more than one-third the distance across the same, or be within forty fathoms of each other, nor shall they be set within twenty fathoms of the shore at low-water mark.” “t5. No herrings shall be taken between the 15th day of July and the rsth of October in any year, on the spawning ground at the head of Grand Manan, to com- mence at the eastern part of Seal Cove, at a place known as Red Point, thence ex- tending westerly along the coast and around the southern head of Bradford’s Cove, about five miles, and extending one mile from the shore; all nets or engines used for catching herring on the said ground within that period shall be seized and forfeited, and every person engaged in using the same shall be guilty of a misdemeanor, and punished accordingly.” SECRETARY OF THE TREASURY BOUTWELL’S FINAL CIRCULAR OF MARCH 6, 18721 [No. 16] NAVIGATION DIVISION, CIRCULAR NO. 5 RELATIVE TO THE FISHERIES ON THE COASTS OF THE BritisH NoRTH AMERICAN COLONIES TREASURY DEPARTMENT, WASHINGTON, D. C., March 6, 1872 To CoLLEectors oF CUSTOMS: As the season for fishing on the coast of the British Possessions in our vicinity is approaching, it is considered important that fishermen of the United States intending to pursue their business in the locality mentioned should be thoroughly acquainted with the laws and regulations governing the matter, in order to avoid incurring the penalties for violations thereof. To that end the following Circular, issued by this Department June 9, 1870, is republished, as containing information still applicable. You will please endeavour to bring the contents of the Circular to the attention of all parties concerned, at the same time notifying them that the provisions of the Treaty between the United States and Great Britain, proclaimed July 4, 1871, relating to the fisheries, will not go into effect until the laws required to carry them into opera- tion shall have been passed by the various Governments mentioned in Article XX XIII, and warning them that their business must yet be carried on subject to the restrictions existing at the time of the ratification of the Treaty: CIRCULAR “In compliance with the request of the Secretary of State, you are hereby author- ized and directed to inform all masters of fishing vessels, at the time of clearance from 1 Appendix, British Case, p. 249. 480 APPENDIX your port, that the authorities of the Dominion of Canada have terminated the system of granting fishing licenses to foreign vessels, under which they have heretofore been permitted to fish within the maritime jurisdiction of the said Dominion, that is to say, within three marine miles of the shores thereof; and that all fishermen of the United States are prohibited from the use of such in-shore fisheries, except so far as stipulated in the first Article of the Treaty of October 20, 1818, between the United States and Great Britain, in virtue of which the fishermen of the United States have, in common with the subjects of Her Britannic Majesty, the liberty to take fish of every kind on that part of the southern coast of Newfoundland which extends from Cape Ray to the Rameau Islands; on the Western and Northern coast of Newfound- land, from the said Cape Ray to the Quirpon Islands, on the shores of the Magdalen Islands; and, also, on the coasts, bays, harbours, and creeks, from Mount Joly, which was, when the Treaty was signed, on the southern coast of Labrador, to and through the Straits of Belle Isle, and thence northwardly, indefinitely along the coast, without prejudice, however, to any exclusive rights of the Hudson’s Bay Company; and, have also, liberty forever to dry and cure fish in any of the unsettled bays, harbours, and creeks of the southern part of the coast of Newfoundland, above described, and of the coast of Labrador, unless the same, or any portion thereof, be settled; in which case it is not lawful for the said fishermen to dry or cure fish at such portion so settled, without previous agreement for such purpose with the inhabitants, proprietors, or possessors of the ground; and, also, are admitted to enter any other bays or harbours, for the purpose of shelter and of repairing damages therein, of purchasing wood, and of obtaining water, and for no other purpose whatever, subject to such restrictions as may be necessary to prevent their taking, drying, or curing fish therein, or in any other manner whatever abusing the privileges reserved to them as above expressed. Fishermen of the United States are bound to respect the British laws and regulations for the regulation and preservation of the fisheries to the same extent to which they are applicable to British or Canadian fishermen. “The Canadian Law of the 22d of May, 1868, (31 Victoria, cap. 61), entitled ‘An Act respecting Fishing by Foreign Vessels,’ and the Act assented to on the 12th of May, 1870, entitled ‘An Act to amend the Act respecting Fishing by Foreign Vessels,’ among other things, enact, that any commissioned officer of Her Majesty’s navy, serving on board of any vessel of Her Majesty’s navy, cruising and being in the waters of Canada, for the purpose of affording protection to Her Majesty’s subjects engaged in the fisheries, or any commissioned officer of Her Majesty’s navy, fishery officer, or sti- pendiary magistrate, on board of any vessel belonging to or in the service of the Gov- ernment of Canada, and employed in the service of protecting the fisheries, or any officer of the Customs of Canada, sheriff, magistrate, or other person duly commis- sioned for that purpose, may goon board of any ship, vessel, or boat, within any harbour in Canada, or hovering (in British waters) within three marine miles of any of the coasts, bays, creeks, or harbours in Canada, and stay on board so long asshe may remain within such place or distance; and that any one of such officers or persons, as are above mentioned, may bring any ship, vessel, or boat, being within any harbour in Canada; or hovering (in British waters) within three marine miles of any of the coasts, bays, creeks, or harbours in Canada, into port and search her cargo, and may also examine the master upon oath touching the cargo and voyage; and if the master or person in command shall not truly answer the questions put to him in such examination, he shall forfeit four hundred dollars; and if such ship, vessel, or boat be foreign, or not navi- gated according to the laws of the United Kingdom or of Canada, and has been found CIRCULARS 481 fishing, or preparing to fish, or to have been fishing (in 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 license, or after the expiration of the. period named in the last license granted to such ship, vessel, or boat under the first section of this Act, such ship, vessel, or boat, and the tackle, rigging, apparel, furniture, stores, and cargo thereof, shall be forfeited. And that all goods, ships, vessels, and boats, and the tackle, rigging, apparel, and furniture, stores, and cargo liable to for- feiture under this Act may be seized and secured by any officers or persons mentioned in the second section of this Act. And every person opposing any officer or person in the execution of his duty under this Act, or aiding or abetting any other person in any opposition, shall forfeit eight hundred dollars, and shall be guilty of a mis- demeanor, and upon conviction be liable to imprisonment for a term not exceeding two years. “Tt will be observed that the warning formerly given is not required under the Amended Act, but that vessels trespassing are liable to seizure without such warning. “On the 8th January, 1870, the Governor General of the Dominion of Canada, in Council, ordered that suitable sailing vessels, similar to the ‘La Canadienne,’ be chartered and equipped for the service of protecting the Canadian in-shore fisheries against illegal encroachments by foreigners, these vessels to be connected with the police force of Canada, and to form a marine branch of the same. It is understood that, by a change of the boundaries between Canada and Labrador, the Canadian territory now includes Mount Joly and a portion of the shore to the east thereof, which, in the Treaty of 1818, was described as the southern coast of Labrador. This municipal change of boundary does not, however, interfere with the rights of American fishermen, as definedby the Treaty, on that portion of what was the southern Coast of Labrador, east of Mount Joly.” .. . There is reason to apprehend that the Canadian authorities will adopt similar measures towards preventing encroachments upon the British fisheries during the season of 1872. Very respectfully, Geo. S. BouTWELL, Secretary of the Treasury CONVENTION BETWEEN THE UNITED STATES AND GREAT BRITAIN #4 ARBITRATION The President of the United States of America and His Majesty the King of the United Kingdom of Great Britain and Ireland and of the British Dominions beyond the Seas, Emperor of India, desiring in pursuance of the principles set forth in Articles 15-19 of the Convention for the pacific settlement of international disputes, signed at The Hague July 29, 1899, to enter into negotiations for the conclusion of an Arbitra- tion Convention, have named as their Plenipotentiaries, to wit: The President of the United States of America, Elihu Root, Secretary of State of the United States, and His Majesty the King of the United Kingdom of Great Britain and Ireland and of the British Dominions beyond the Seas, Emperor of India, The Right Honorable James Bryce, O. M., who, after having communicated to one another their full powers, found in good and due form, have agreed upon the following articles: Art. I. Differences which may arise of a legal nature or relating to the interpreta- tion of treaties existing between the two Contracting Parties and which it may not have been possible to settle by diplomacy, shall be referred to the Permanent Court of Arbitration established at The Hague by the Convention of the 2th of July, 1899, provided, nevertheless, that they do not affect the vital interests, the independence, or the honor of the two Contracting States, and do not concern the interests of third Parties. Art. II. In each individual case the High Contracting Parties, before appealing to the Permanent Court of Arbitration, shall conclude a special Agreement defining clearly the matter in dispute, the scope of the powers of the Arbitrators, and the periods to be fixed for the formation of the Arbitral Tribunal and the several stages of the procedure. It is understood that such special agreements on the part of the United States will be made by the President of the United States, by and with the advice and consent of the Senate thereof; His Majesty’s Government reserving the right before concluding a special agreement in any matter affecting the interests of a self-governing Dominion of the British Empire to obtain the concurrence there- in of the Government of that Dominion. Such Agreements shall be binding only when confirmed by the two Governments by an Exchange of Notes. ‘Art. III. The present Convention shall be ratified by the President of the United States of America by and with the advice and consent of the Senate thereof, and by his Britannic Majesty. The ratifications shall be exchanged at Washington as soon as possible, and the Convention shall take effect on the date of the exchange of its ratifications. Art. IV. The present Convention is concluded for a period of five years, dating from the day of the exchange of its ratifications. Done in duplicate at the City of Washington, this fourth day of April, in the year 1908. Eurau Roor [seat] James Bryce [seat] 1 Appendix, U. S. Case, p. 11. 482 CONVENTION 483 SPECIAL AGREEMENT FOR THE SUBMISSION OF QUESTIONS RELATING TO FISHERIES ON THE NORTH ATLANTIC COAST UNDER THE GENERAL TREATY OF ARBITRATION CONCLUDED BETWEEN THE UNITED STATES AND GREAT BRITAIN ON THE 4th DAY OF APRIL, 19081 Art. I. Whereas, by Article I of the Convention signed at London on the 2oth day of October, 1818, between the United States and Great Britain, it was agreed as follows: Whereas differences have arisen respecting the Liberty claimed by the United States for the Inhabitants thereof, to take, dry and cure Fish on Certain Coasts, Bays, Harbours and Creeks of His Britannic Majesty’s Dominions in America, it is agreed between the High Contracting Parties, that the Inhabitants of the said United States shall have forever, in common with the Subjects of His Britannic Majesty, the Liberty to take Fish of every kind on that part of the Southern Coast of Newfound- land which extends from Cape Ray to the Rameau Islands, on the Western and Northern Coast of Newfoundland, from the said Cape Ray to the Quirpon Islands on the shores of the Magdalen Islands, and also on the Coasts, Bays, Harbours, and Creeks from Mount Joly on the Southern Coast of Labrador, to and through the Straits of Belleisle and thence Northwardly indefinitely along the Coast, without prejudice however, to any of the exclusive Rights of the Hudson Bay Company; and that the American Fishermen shall also have liberty forever, to dry and cure Fish in any of the unsettled Bays, Harbours, and Creeks of the Southern part of the Coast of Newfoundland hereabove 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 such Portion so settled, without previous agreement for such purpose with the Inhabitants, Proprietors, or Possessors of the ground. — And the United States hereby renounce forever, 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 the above mentioned 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 of 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 as to the scope and meaning of the said Article, and of the liberties therein referred to, and otherwise in respect of the rights and liberties which the inhabitants of the United States have or claim to have in the waters or on the shores therein referred to: It is agreed that the following questions shall be submitted for decision to a tribunal of arbitration constituted as hereinafter provided: Question 1. To what extent are the following contentions or either of them justified ? It is contended on the part of Great Britain that the exercise of the liberty to take fish referred to in the said Article, which the inhabitants of the United States have forever in common with the subjects of His Britannic Majesty, is subject, without the consent of the United States, to reasonable regulation by Great Britain, Canada, or Newfoundland in the form of municipal laws, ordinances, or rules, as, for example, 1 Appendix, U. S. Case, p. 3; Appendix, British Case, p. 1. 484 APPENDIX to regulations in respect of (1) the hours, days, or seasons when fish may be taken on the treaty coasts; (2) the method, means, and implements to be used in the taking of fish or in the carrying on of fishing operations on such coasts; (3) any other matters of a similar character relating to fishing; such regulations being reasonable, as being, for instance — (a) Appropriate or necessary for the protection and preservation of such fisheries and the exercise of the rights of British subjects therein and of the liberty which by the said Article I the inhabitants of the United States have therein in common with British subjects; () Desirable on grounds of public order and morals; (c) Equitable and fair as between local fishermen and the inhabitants of the United States exercising the said treaty liberty and not so framed as to give unfairly an advantage to the former over the latter class. It is contended on the part of the United States that the exercise of such liberty is not subject to limitations or restraints by Great Britain, Canada, or Newfoundland in the form of municipal laws, ordinances, or regulations in’ respect of (1) the hours, days, or seasons when the inhabitants of the United States may take fish on the treaty coasts, or (2) the method, means, and implements used by them in taking fish or in carrying on fishing operations on such coasts, or (3) any other limitations or restraints of similar character— . (a) Unless they are appropriate and necessary for the protection and preserva- tion of the common rights in such fisheries and the exercise thereof; and (b) Unless they are reasonable in themselves and fair as between local fishermen and fishermen coming from the United States, and not so framed as to give an advan- tage to the former over the latter class; and (c) Unless their appropriateness, necessity, reasonableness, and fairness be deter- mined by the United States and Great Britain by common accord and the United States concurs in their enforcement. Question 2. Have the inhabitants of the United States, while exercising the liberties referred to in said Article, a right to employ as members of the fishing crews of their vessels persons not inhabitants of the United States? Question 3. Can the exercise by the inhabitants of the United States of the liber- ties referred to in the said Article be subjected, without the consent of the United States, to the requirements of entry or report at custom-houses or the payment of light or harbor or other dues, or to any other similar requirement or condition or exaction ? ; Question 4. Under the provision of the said Article that the American fishermen shall be admitted to enter certain bays or harbors for shelter, repairs, wood, or water, and for no other purpose whatever, but that 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 thereby reserved to them, is it permissible to impose restrictions making the exercise of such privileges conditional upon the pay- ment of light or harbor or other dues, or entering or reporting at custom-houses or any similar conditions ? Question 5. From where must be measured the “three marine miles of any of the coasts, bays, creeks, or harbors” referred to in the said Article? Question 6. Have the inhabitants of the United States the liberty under the said Article or otherwise, to take fish in the bays, harbors, and creeks on that part of the southern coast of Newfoundland which extends from Cape Ray to Rameau Islands, CONVENTION 485 or on the western and northern coasts of Newfoundland from Cape Ray to Quirpon Islands, or on the Magdalen Islands? Question 7. Are the inhabitants of the United States whose vessels resort to the treaty coasts for the purpose of exercising the liberties referred to in Article I of the treaty of 1818 entitled to have for those vessels, when duly authorized by the United States in that behalf, the commercial privileges on the treaty coasts accorded by agree- ment or otherwise to United States trading vessels generally ? Art. II. Either Party may call the attention of the Tribunal to any legislative or executive act of the other Party, specified within three months of the exchange of notes enforcing this agreement, and which is claimed to be inconsistent with the true interpretation of the treaty of 1818; and may call upon the Tribunal to express in its award its opinion upon such acts, and to point out in what respects, if any, they are imconsistent with the principles laid down in the award in reply to the preceding questions; and each Party agrees to conform to such opinion. Art. III. If any question arises in the arbitration regarding the reasonableness of any regulation or otherwise which requires an examination of the practical effect of any provisions in relation to the conditions surrounding the exercise of the liberty of fishery enjoyed by the inhabitants of the United States, or which requires expert in- formation about the fisheries themselves, the Tribunal may, in that case, refer such question to a commission of three expert specialists in such matters; one to be desig- nated by each of the Parties hereto, and the third, who shall not be a national of either Party, to be designated by the Tribunal. This Commission shall examine into and report their conclusions on any question or questions so referred to it by the Tri- bunal and such report shall be considered by the Tribunal and shall, if incorporated by them in the award, be accepted as a part thereof. Pending the report of the Commission upon the question or questions so referred and without awaiting such report, the Tribunal may make a separate award upon all or any other questions before it, and such separate award, if made, shall become immediately effective, provided that the report aforesaid shall not be incorporated in the award until it has been considered by the Tribunal. The expenses of such Commission shall be borne in equal moieties by the Parties hereto. Art. IV. The Tribunal shall recommend for the consideration of the High Con- tracting Parties rules and a method of procedure under which all questions which may arise in the future regarding the exercise of the liberties above referred to may be determined in accordance with the principles laid down in the award. If the High Contracting Parties shall not adopt the rules and method of procedure so recom- mended, or if they shall not, subsequently to the delivery of the award, agree upon such rules and methods, then any differences which may arise in the future between the High Contracting Parties relating to the interpretation of the treaty of 1818 or to the effect and application of the award of the Tribunal shall be referred informally to the Permanent Court at The Hague for decision by the summary procedure pro- vided in Chapter IV of The Hague Convention of the 18th of October, 1907. Art. V. The Tribunal of Arbitration provided for herein shall be chosen from the. general list of members of the Permanent Court at The Hague, in accordance with the provisions of Article XLV of the Convention for the Settlement of International Disputes, concluded at the Second Peace Conference at The Hague on the 18th of October, 1907. The provisions of said Convention, so far as applicable and not incon- sistent herewith, and excepting Articles LIII and LIV, shall govern the proceedings under the submission herein provided for. 486 APPENDIX The time allowed for the direct agreement of the President of the United States and His Britannic Majesty on the composition of such Tribunal shall be three months. Art. VI. The pleadings shall be communicated in the order and within the time following: As soon as may be and within a period not exceeding seven months from the date of the exchange of notes making this agreement binding the printed case of each of the Parties hereto, accompanied by printed copies of the documents, the official cor- respondence, and all other evidence on which each Party relies, shall be delivered in duplicate (with such additional copies as may be agreed upon) to the agent of the other Party. It shall be sufficient for this purpose if such case is delivered at the British Embassy at Washington or at the American Embassy at London, as the case may be, for transmission to the agent for its Government. Within fifteen days thereafter such printed case and accompanying evidence of each of the Parties shall be delivered in duplicate to each member of the Tribunal, and such delivery may be made by depositing within the stated period the necessary number of copies with the International Bureau at The Hague for transmission to the Arbitrators. After the delivery on both sides of such printed case, either Party may, in like manner, and within four months after the expiration of the period above fixed for the delivery to the agents of the case, deliver to the agent of the other Party (with such additional copies as may be agreed upon), a printed counter-case accompanied by printed copies of additional documents, correspondence, and other evidence in reply to the case, documents, correspondence, and other evidence so presented by the other Party, and within fifteen days thereafter such Party shall, in like manner as above provided, deliver in duplicate such counter-case and accompanying evidence to each of the Arbitrators. The foregoing provisions shall not prevent the Tribunal from permitting either Party to rely at the hearing upon documentary or other evidence which is shown to have become open to its investigation or examination or available for use too late to be submitted within the period hereinabove fixed for the delivery of copies of evidence, but in case any such evidence is to be presented, printed copies of it, as soon as possible after it is secured, must be delivered, in like manner as provided for the delivery of copies of other evidence, to each of the Arbitrators and to the agent of the other Party. The admission of any such additional evidence, however, shall be subject to such conditions as the Tribunal may impose, and the other Party shall have a reason- able opportunity to offer additional evidence in rebuttal. The Tribunal shall take into consideration all evidence which is offered by either Party. ‘ Art. VII. If in the case or counter-case (exclusive of the accompanying evidence) either Party shall have specified or referred to any documents, correspondence, or other evidence in its own exclusive possession without annexing a copy, such Party shall be bound, if the other Party shall demand it within thirty days after the delivery -of the case or counter-case respectively, to furnish to the Party applying for it a copy thereof; and either Party may, within the like time, demand that the other shall furnish certified copies or produce for inspection the originals of any documentary evidence adduced by the Party upon whom the demand is made. It shall be the duty of the Party upon whom any such demand is made to comply with it as soon as may be, and within a period not exceeding fifteen days after the demand has been received. The production for inspection or the furnishing to the other Party of official govern- CONVENTION 487 mental publications, publishing, as authentic, copies of the documentary evidence referred to, shall be a sufficient compliance with such demand, if such governmental publications shall have been published prior to the rst day of January, 1908. If the demand is not complied with, the reasons for the failure to comply must be stated to the Tribunal. Art. VIII. The Tribunal shall meet within six months after the expiration of the period above fixed for the delivery to the agents of the case, and upon the assembling of the Tribunal at its first session each Party, through its agent or counsel, shall deliver in duplicate to each of the Arbitrators and to the agent and counsel of the other party (with such additional copies as may be agreed upon) a printed argument showing the points and referring to the evidence upon which it relies. The time fixed by this Agreement for the delivery of the case, counter-case, or argument, and for the meeting of the Tribunal, may be extended by mutual consent of the Parties. Art. IX. The decision of the Tribunal shall, if possible, be made within two months from the close of the arguments on both sides, unless on the request of the Tribunal the Parties shall agree to extend the period. It shall be made in writing, and dated and signed by each member of the Tribunal, and shall be accompanied by a statement of reasons. A member who may dissent from the decision may record his dissent when signing. The language to be used throughout the proceedings shall be English. Art. X. Each Party reserves to itself the right to demand a revision of the award. Such demand shall contain a statement of the grounds on which it is made and shall be made within five days of the promulgation of the award, and shall be heard by the Tribunal within ten days thereafter. The Party making the demands shall serve a copy of the same on the opposite Party, and both Parties shall be heard in argument by the Tribunal on said demand. The demand can only be made on the discovery of some new fact or circumstance calculated to exercise a decisive influence upon the award and which was unknown to the Tribunal and to the Party demanding the revi- sion at the time the discussion was closed, or upon the ground that the said award does not fully and sufficiently, within the meaning of this Agreement, determine any question or questions submitted. If the Tribunal shall allow the demand for a revi- sion, it shall afford such opportunity for further hearings and arguments as it shall deem necessary. Art. XI. The present Agreement shall be deemed to be binding only when con- firmed by the two Governments by an exchange of notes. In witness whereof this Agreement has been signed and sealed by the Secretary of State of the United States, Elihu Root, on behalf of the United States, and by His Britannic Majesty’s Ambassador at Washington, The Right Honorable James Bryce, O. M., on behalf of Great Britain. Done at Washington on the 27th day of January, one thousand nine hundred and nine. Eximmvu Root [sEat.] James Bryce [szat.] AWARD OF THE TRIBUNAL! Permanent Court of Arbitration at The Hague. The North Atlantic Coast Fisheries PREAMBLE Whereas a Special Agreement between the United States of America and Great Britain, signed at Washington the 27th January, 1909, and confirmed by interchange of Notes dated the 4th March, 1909, was concluded in conformity with the provisions of the General Arbitration Treaty between the United States of America and Great Britain, signed the 4th April, 1908, and ratified the 4th June, 1908; And whereas the said Special Agreement for the submission of questions relating to fisheries on the North Atlantic Coast under the general treaty of Arbitration con- cluded between the United States and Great Britain on the 4th day of April, 1908, is as follows: Art. I. Whereas by Article I of the Convention signed at London on the 20th day of October, 1818, between Great Britain and the United States, it was agreed as follows: — Whereas differences have arisen respecting the liberty claimed by the United States for the inhabitants thereof, to take, dry and cure Fish on Certain Coasts, Bays, Harbours and Creeks of His Britannic Majesty’s Dominions in America, it is agreed between the High Contracting Parties, that the Inhabitants of the said United States shall have forever, in common with the Subjects of His Britannic Majesty, the Liberty to take Fish of every kind on that part of the Southern Coast of Newfoundland which extends from Cape Ray to the Rameau Islands, on the Western and Northern Coast of Newfoundland, from the said Cape Ray to the Quirpon Islands, on the shores of the Magdalen Islands, and also on the Coasts, Bays, Harbours, and Creeks from Mount Joly on the Southern Coast of Labrador, to and through the Straits of Belleisle and thence Northwardly indefinitely along the coast, without prejudice, however, to any of the exclusive Rights of the Hudson Bay Company; and that the American Fishermen shall also have liberty forever, to dry and cure Fish in any of the unsettled Bays, Harbours and Creeks of the Southern part of the Coast of New- foundland hereabove 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 such Portion so settled, without previous agreement for such purpose with the Inhabitants, Proprietors, or Possessors of the ground. — And the United States hereby renounce forever, 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 the above-mentioned 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 of 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. 1“ Oral Argument,” Vol. II, p. 1433. 488 AWARD OF THE TRIBUNAL 489 And, whereas, differences have arisen as to the scope and meaning of the said Article, and of the liberties therein referred to, and otherwise in respect of the rights and liberties which the inhabitants of the United States have or claim to have in the waters or on the shores therein referred to: It. is agreed that the following questions shall be submitted for decision to a tri- bunal of arbitration constituted as hereinafter provided: — Question 1. To what extent are the following contentions of either of them justified ? It is contended on the part of Great Britain that the exercise of the liberty to take fish referred to in the said Article, which the inhabitants of the United States have forever in common with the subjects of His Britannic Majesty, is subject, without the consent of the United States, to reasonable regulation by Great Britain, Canada, or Newfoundland in the form of municipal laws, ordinances, or rules, as, for example, to regulations in respect of (1) the hours, days, or seasons when fish may be taken on the treaty coasts; (2) the method, means, and implements to be used in the taking of fish or in the carrying on of fishing operations on such coasts; (3) any other matters of a similar character relating to fishing; such regulations being reasonable, as being, for instance — (a.) Appropriate or necessary for the protection and preservation of such fisheries and the exercise of the rights of British subjects therein and of the liberty which by the said Article I the inhabitants of the United States have therein in common with British subjects; (b.) Desirable on grounds of public order and morals; (c.) Equitable and fair as between local fishermen and the inhabitants of the United States exercising the said treaty liberty and not so framed as to give unfairly an advantage to the former over the latter class. It is contended on the part of the United States that the exercise of such liberty is not subject to limitations or restraints by Great Britain, Canada, or Newfoundland in the form of municipal laws, ordinances, or regulations in respect of (1) the hours, days, or seasons when the inhabitants of the United States may take fish on the treaty coasts, or (2) the method, means, and implements used by them in taking fish or in carrying on fishing operations on such coasts, or (3) any other limitations or restraints of similar character — (a.) Unless they are appropriate and necessary for the protection and preservation of the common rights in such fisheries and the exercise thereof; and (b.) Unless they are reasonable in themselves and fair as between local fishermen and fishermen coming from the United States, and not so framed as to give an advan- tage to the former over the latter class; and (c.) Unless their appropriateness, necessity, reasonableness, and fairness be deter- mined by the United States and Great Britain by common accord and the United States concurs in their enforcement. Question 2. Have the inhabitants of the United States, while exercising the liberties referred to in said Article, a right to employ as members of the fishing crews of their vessels persons not inhabitants of the United States? ‘Question 3. Can the exercise by the inhabitants of the United States of the liberties referred to in the said Article be subjected, without the consent of the United States, to the requirements of entry or report at custom-houses or the payment of light or harbour or other dues, or to any other similar requirement or condition or exaction ? 490 APPENDIX Question 4. Under the provision of the said Article that the American fishermen shall be admitted to enter certain bays or harbours for shelter, repairs, wood, or water, and for no other purpose whatever, but that 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 thereby reserved to them, is it permissible to impose restrictions making the exercise of such privileges conditional upon the pay- ment of light or harbour or other dues, or entering or reporting at custom-houses or any similar conditions ? Question 5. From where must be measured the “three marine miles of any of the coasts, bays, creeks, or harbours” referred to in the said Article? Question 6, Have the inhabitants of the United States the liberty under the said Article or otherwise to take fish in the bays, harbours, and creeks on that part of the southern coast of Newfoundland which extends from Cape Ray to Rameau Islands, or on the western and northern coasts of Newfoundland from Cape Ray to Quirpon Islands, or on the Magdalen Islands? Question 7. Are the inhabitants of the United States whose vessels resort to the treaty coasts for the purpose of exercising the liberties referred to in Article I of the treaty of 1818 entitled to have for those vessels, when duly authorized by the United States in that behalf, the commercial privileges on the treaty coasts accorded by agree- ment or otherwise to United States trading-vessels generally ? Art. II. Either Party may call the attention of the Tribunal to any legislative or executive act of the other Party, specified within three months of the exchange of notes enforcing this agreement, and which is claimed to be inconsistent with the true inter- pretation of the Treaty of 1818; and may call upon the Tribunal to express in its award its opinion upon such acts, and to point out in what respects, if any, they are inconsistent with the principles laid down in the award in reply to the preceding questions; and each Party agrees to conform to such opinion. : Art. III. If any question arises in the arbitration regarding the reasonableness of any regulation or otherwise which requires an examination of the practical effect of any provisions in relation to the conditions surrounding the exercise of the liberty of fishery enjoyed by the inhabitants of the United States, or which requires expert information about the fisheries themselves, the Tribunal may, in that case, refer such question to a Commission of three expert specialists in such matters; one to be desig- nated by each of the Parties hereto, and the third, who shall not be a national of either Party, to be designated by the Tribunal. This Commission shall examine into and report their conclusions on any question or questions so referred to it by the Tribunal and such report shall be considered by the Tribunal and shall, if incorporated by them in the award, be accepted as a part thereof. Pending the report of the Commission upon the question or questions so referred and without awaiting such report, the Tribunal may make a separate award upon all or any other questions before it, and such separate award, if made, shall become immediately effective, provided that the report aforesaid shall not be incorporated in the award until it has been considered by the Tribunal. The expenses of such Com- mission shall be borne in equal moieties by the Parties hereto. Art. IV. The Tribunal shall recommend for the consideration of the High Con- tracting Parties rules and a method of procedure under which all questions which may arise in the future regarding the exercise of the liberties above referred to may be determined in accordance with the principles laid down in the award. If the High Contracting Parties shall not adopt the rules and method of procedure so recom- AWARD OF THE TRIBUNAL 491 mended, or if they shall not, subsequently to the delivery of the award, agree upon such rules and methods, then any differences which may arise in the future be- tween the High Contracting Parties relating to the interpretation of the Treaty of 1818 or to the effect and application of the award of the Tribunal shall be referred informally to the Permanent Court at The Hague for decision by the summary procedure provided in Chapter IV of The Hague Convention of the 18th October, 1907. Art. V. The Tribunal of Arbitration provided for herein shall be chosen from the general list of members of the Permanent Court at The Hague, in accordance with the provisions of Article XLV of the Convention for the Settlement of International Disputes, concluded at the Second Peace Conference at The Hague on the 18th of October, 1907. The provisions of said Convention, so far as applicable and not in- consistent herewith, and excepting Articles LIII and LIV, shall govern the proceedings under the submission herein provided for. The time allowed for the direct agreement of His Britannic Majesty and the President of the United: States on the composition of such Tribunal shall be three months. : Art. VI. The pleadings shall be communicated in the order and within the time following: As soon as may be and within a period not exceeding seven months from the date of the exchange of notes making this agreement binding the printed case of each of the Parties hereto, accompanied by printed copies of the documents, the official correspond- ence, and all other evidence on which each Party relies, shall be delivered in duplicate (with such additional copies as may be agreed upon) to the agent of the other Party. It shall be sufficient for this purpose if such case is delivered at the British Embassy at Washington or at the American Embassy at London, as the case may be, for trans- mission to the agent for its Government. Within fifteen days thereafter such printed case and accompanying evidence of each of the Parties shall be delivered in duplicate to each member of the Tribunal, and such delivery may be made by depositing within the stated period the necessary number of copies with the International Bureau at The Hague for transmission to the Arbitrators, After the delivery on both sides of such printed case, either Party may, in like man- ner, and within four months after the expiration of the period above fixed for the delivery to the agents of the case, deliver to the agent of the other Party (with such additional copies as may be agreed upon), a printed counter-case accompanied by printed copies of additional documents, correspondence, and other evidence in reply to the case, documents, correspondence, and other evidence so presented by the other Party, and within fifteen days thereafter such Party shall, in like manner as above provided, deliver in duplicate such counter-case and accompanying evidence to each of the Arbitrators. The foregoing provisions shall not prevent the Tribunal from permitting either Party to rely at the hearing upon documentary or other evidence which is shown to have become open to its investigation or examination or available for use too late to be submitted within the period hereinabove fixed for the delivery of copies of evidence, but in case any such evidence is to be presented, printed copies of it, as soon as possible after it is secured, must be delivered, in like manner as provided for the delivery of copies of other evidence, to each of the Arbitrators and to the agent of the other Party. The admission of any such additional evidence, however, shall be subject to such 492 APPENDIX conditions as the Tribunal may impose, and the other Party shall have a reasonable opportunity to offer additional evidence in rebuttal. The Tribunal shall take into consideration all evidence which is offered by either Party. Art. VII. If in the case or counter-case (exclusive of the accompanying evidence) either Party shall have specified or referred to any documents, correspondence, or other evidence in its own exclusive possession without annexing a copy, such Party shall be bound, if the other Party shall demand it within thirty days after the delivery of the case or counter-case respectively, to furnish to the Party applying for it a copy thereof; and either Party may, within the like time, demand that the other shall furnish certified copies or produce for inspection the originals of any documentary evidence adduced by the Party upon whom the demand is made. It shall be the duty of the Party upon whom any such demand is made to comply with it as soon as may be, and within a period not exceeding fifteen days after the demand has been received. The production for inspection or the furnishing to the other Party of ‘offi- cial governmental publications, publishing, as authentic, copies of the documentary evidence referred to, shall be a sufficient compliance with such demand, if such govern- mental publications shall have been published prior to the 1st day of January, 1908. If the demand is not complied with, the reasons for the failure to comply must be stated to the Tribunal. Art. VIII. The Tribunal shall meet within six months after the expiration of the period above fixed for the delivery to the agents of the case, and upon the assembling of the Tribunal at its first session each Party, through its agent or counsel, shall deliver in duplicate to each of the Arbitrators and to the agent and counsel of the other Party (with such additional copies as may be agreed upon) a printed argument showing the points and referring to the evidence upon which it relies. The time fixed by this Agreement for the delivery of the case, counter-case, or argument, and for the meeting of the Tribunal, may be extended by mutual consent of the Parties. y Art. IX. The decision of the Tribunal shall, if possible, be made within two months from the close of the arguments on both sides, unless on the request of the Tribunal the Parties shall agree to extend the period. It shall be made in writing, and dated and signed by each member of the Tribunal, and shall be accompanied by a statement of reasons. A member who may dissent from the decision may record his dissent when signing. The language to be used throughout the proceedings shall be English. Art. X. Each Party reserves to itself the right to demand a revision of the award. Such demand shall contain a statement of the grounds on which it is made and shall be made within five days of the promulgation of the award, and shall be heard by the Tribunal within ten days thereafter. The Party making the demand shall serve a copy of the same on the opposite Party, and both Parties shall be heard in argument by the Tribunal on said demand. The demand can only be made on the discovery of some new fact or circumstance calculated to exercise a decisive influence upon the award and which was unknown to the Tribunal and to the Party demanding the revi- sion at the time the discussion was closed, or upon the ground that the said award does not fully and sufficiently, within the meaning of this Agreement, determine any question or questions submitted. If the Tribunal shall allow the demand for a revi- sion, it shall afford such opportunity for further hearings and arguments as it shall deem necessary. ; AWARD OF THE TRIBUNAL 493 Art. XI. The present Agreement shall be deemed to be binding only when con- firmed by the two Governments by an exchange of notes. In witness whereof this-Agreement has been signed and sealed by His Britannic Majesty’s Ambassador at Washington, the Right Honourable James Bryce, O.M., on behalf of Great Britain, and by the Secretary of State of the United States, ELrau Root, on behalf of the United States. Done at Washington on the 27th day of January, one thousand nine hundred and nine. James Bryce [srat.] Exmau Root [seat.] And whereas, the parties to the said Agreement have by common accord, in accord- ance with Article V, constituted as a Tribunal of Arbitration the following Members of the Permanent Court at The Hague: Mr. H. Lammascu, Doctor of Law, Professor of the University of Vienna, Aulic Councillor, Member of the Upper House of the Austrian Parliament; His Excellency Jonkheer A. F. DE Savornin Lowman, Doctor of Law, Minister of State, Former Minister of the Interior, Member of the Second Chamber of the Netherlands; the Honourable GrorcE Gray, Doctor of Laws, Judge of the United States Circuit Court of Appeals, former United States Senator; the Right Honourable Sir CHartes Fitzpatrick, Member of the Privy Council, Doctor of Laws, Chief Justice of Canada; the Honourable Luts Marta Draco, Doctor of Law, former Minister of Foreign Affairs of the Argentine Republic, Member of the Law Academy of Buenos-Aires; And whereas, the Agents of the Parties to the said Agreement have duly and in accordance with the terms of the Agreement communicated to this Tribunal their cases, counter-cases, printed arguments and other documents; And whereas, counsel for the Parties have fully presented to this Tribunal their oral arguments in the sittings held between the first assembling of the Tribunal on st June, 1910, to the close of the hearings on 12th August, 1910; Now, therefore, this Tribunal having carefully considered the said Agreement, cases, counter-cases, printed and oral arguments, and the documents presented by either side, after due deliberation makes the following decisions and awards: Question I. To what extent are the following contentions or either of them justified? It is contended on the part of Great Britain that the exercise of the liberty to take fish referred to in the said Article, which the inhabitants of the United States have forever in common with the subjects of His Britannic Majesty, is subject, without the consent of the United States, to reasonable regulation by Great Britain, Canada, or Newfoundland in the form of municipal laws, ordinances, or rules, as, for example, to regulations in respect of (1) the hours, days, or seasons when fish may be taken on the treaty coasts; (2) the method, means, and implements to be used in the taking of fish or in the carrying on of fishing operations on such coasts; (3) any other matters of a similar character relating to fishing; such regulations being reasonable, as being, for instance — (a) Appropriate or necessary for the protection and preservation of such fisheries and the exercise of the rights of British subjects therein and of the liberty which by the said Article I the inhabitants of the United States have therein in common with British subjects; (b) Desirable on grounds of public order and morals; 494 APPENDIX (c) Equitable and fair as between local fishermen and the inhabitants of the United States exercising the said treaty liberty, and not so framed as to give unfairly an advantage to the former over the latter class. It is contended on the part of the United States that the exercise of such liberty is not subject to limitations or restraints by Great Britain, Canada, or Newfoundland in the form of municipal laws, ordinances, or regulations in respect of (1) the hours, days, or seasons when the inhabitants of the United States may take fish on the treaty coasts, or (2) the method, means, and implements used by them in taking fish or in carrying on fishing operations on such coasts, or (3) any other limitations or restraints of similar character — (a) Unless they are appropriate and necessary for the protection and preservation of the common rights in such fisheries and the exercise thereof; and (6) Unless they are reasonable in themselves and fair as between local fishermen and fishermen coming from the United States, and not so framed as to give an advan- tage to the former over the latter class; and (c) Unless their appropriateness, necessity, reasonableness, and fairness be deter- mined by the United States and Great Britain by common accord and the United States concurs in their enforcement. Question I, thus submitted to the Tribunal, resolves itself into two main con- tentions: ist. Whether the right of regulating reasonably the liberties conferred by the Treaty of 1818 resides in Great Britain; 2nd. And, if such right does so exist, whether such reasonable exercise of the right is permitted to Great Britain without the accord and concurrence of the United States. The Treaty of 1818 contains no explicit disposition in regard to the right of reg- ulation, reasonable or otherwise; it neither reserves that right in express terms, nor refers to it in any way. It is therefore incumbent on this Tribunal to answer the two questions above indicated by interpreting the general terms of Article I of the Treaty, and more especially the words ‘the inhabitants of the United States shall have, forever, in common with the subjects of His Britannic Majesty, the liberty to take fish of every kind.” This interpretation must be conformable to the general import of the instrument, the general intention of the parties to it, the sub- ject matter of the contract, the expressions actually used and the evidence submitted. Now in regard to the preliminary question as to whether the right of reasonable regulation resides in Great Britain: Considering that the right to regulate the liberties conferred by the Treaty of 1818 is an attribute of sovereignty, and as such must be held to reside in the territorial sovereign, unless the contrary be provided; and considering that one of the essential elements of sovereignty is that it is to be exercised within territorial limits, and that, failing proof to the contrary, the territory is coterminous with the Sovereignty, it follows that the burden of the assertion involved in the contention of the United States (viz. that the right to regulate does not reside independently in Great Britain, the territorial Sovereign) must fall on the-United States. And for the purpose of sustaining this burden, the United States have put forward the following series of propositions, each one of which must be singly considered. It is contended by the United States: (1) That the French right of fishery under the treaty of 1713 designated also as a liberty, was never subjected to regulation by Great Britain, and therefore the inference is warranted that the American liberties of fishery are similarly exempted. AWARD OF THE TRIBUNAL 495 The Tribunal is unable to agree with this contention: (2) Because although the French right designated in 1713 merely “an allowance,’” (a term of even less force than that used in regard to the American fishery) was never- theless converted, in practice, into an exclusive right, this concession on the part of Great Britain was presumably made because France, before 1713, claimed to be the sovereign of Newfoundland, and, in ceding the Island, had, as the American argument says, “reserved for the benefit of its subjects the right to fish and to use the strand”; (5) Because the distinction between the French and American right is indicated by the different wording of the Statutes for the observance of Treaty obligations towards France and the United States, and by the British Declaration of 1783; (c) And, also, because this distinction is maintained in the Treaty with France of 1904, concluded at a date when the American claim was approaching its present stage, and by which certain common rights of regulation are recognized to France. For the further purpose of such proof it is contended by the United States: (2) That the liberties of fishery, being accorded to the inhabitants of the United States “forever,” acquire, by being in perpetuity and unilateral, a character exempt- ing them from local legislation. The Tribunal is unable to agree with this contention: (a) Because there is no necessary connection between the duration of a grant and its essential status in its relation to local regulation; a right granted in perpetuity may yet be subject to regulation, or, granted temporarily, may yet be exempted there- from; or, being reciprocal may yet be unregulated, or being unilateral may yet be regulated: as is evidenced by the claim of the United States that the liberties of fishery accorded by the Reciprocity Treaty of 1854 and the Treaty of 1871 were exempt from regulation, though they were neither permanent nor unilateral; (b) Because no peculiar character need be claimed for these liberties in order to secure their enjoyment in perpetuity, as is evidenced by the American negotiators in 1818 asking for the insertion of the words “forever.” International law in its modern development recognizes that a great number of Treaty obligations are not annulled by war, but at most suspended by it; (c) Because the liberty to dry and cure is, pursuant to the terms of the Treaty, provisional and not permanent, and is nevertheless, in respéct of the liability to regu- lation, identical in its nature with, and never distinguished from, the liberty to fish. For the further purpose of such proof, the United States allege: (3) That the liberties of fishery granted to the United States constitute an Inter- national servitude in their favour over the territory of Great Britain, thereby involving a derogation from the sovereignty of Great Britain, the servient State, and that there- fore Great Britain is deprived, by reason of the grant, of its independent right to regulate the fishery. The Tribunal is unable to agree with this contention: (a) Because there is no evidence that the doctrine of International servitudes was one with which either American or British Statesmen were conversant in 1818, no English publicists employing the term before 1818, and the mention of it in Mr. GALLATIN’s report being insufficient; . (6) Because a servitude in the French law, referred to by Mr. GALLATIN, can, since the Code, be only real and cannot be personal (Code Civil, Art. 686); (c) Because a servitude in International law predicates an express grant of a sover- eign right and involves an analogy to the relation of a praedium dominans and a praedium serviens; whereas by the Treaty of 1818 one State grants a liberty to fish, 490 APPENDIX which is not a sovereign right, but a purely economic right, to the inhabitants of ,another State; (d) Because the doctrine of International servitude in the sense which is now sought to be attributed to it originated in the peculiar and now obsolete conditions prevailing in the Holy Roman. Empire of which the domini terrae were not fully sovereigns; they holding territory under the Roman Empire, subject at least theoretically, and in some respects also practically, to the Courts of that Empire; their right being, moreover, rather of a civil than of a public nature, partaking more of the character of dominium than of imperium, and therefore certainly not a complete sovereignty. And because in contradistinction to this quasi-sovereignty with its incoherent attributes acquired at various times, by various means, and not impaired in its character by being incom- plete in any one respect or by being limited in favor of another territory and its pos- sessor, the modern State, and particularly Great Britain, has never admitted partition of sovereignty, owing to the constitution of a modern State requiring essential sover- - eignty and independence; (e) Because this doctrine being but little suited to the principle of sovereignty which prevails in States under a system of constitutional government such as Great Britain and the United States, and to the present International relations of Sovereign States, has found little, if any, support from modern publicists. It could therefore in the general interest of the Community of Nations, and of the Parties to this Treaty, be affirmed by this Tribunal only on the express evidence of an Inter- national contract; ({) Because even if these liberties of fishery constituted an International servitude, the servitude would derogate from the sovereignty of the servient State only in so far as the exercise of the rights of sovereignty by the servient State would be contrary to the exercise of the servitude right by the dominant State. Whereas it is evident that, though every regulation of the fishery is to some extent a limitation, as it puts limits to the exercise of the fishery at will, yet such regulations as are reasonable and made for the purpose of securing and preserving the fishery and its exercise for the com- mon benefit, are clearly to be distinguished from those restrictions and “ molestations,”’ the annulment of which was the purpose of the American demands formulated by Mr. Apams in 1782, and such regulations consequently cannot be held to be inconsistent with a servitude; (g) Because the fishery to which the inhabitants of the United States were admitted in 1783, and again in 1818, was a regulated fishery, as is evidenced by the following regulations: Act 15 Charles IT, Cap. 16, s. 7 (1663) forbidding “‘to lay any seine or other net in or near any harbour in Newfoundland, whereby to take the spawn or young fry of the Poor-John, or for any other use or uses, except for the taking of bait only,” which had not been superseded either by the order in council of March roth, 1670, or by the statute 10 and XI Wm. III, Cap. 25, 1699. The order in council provides expressly for the obligation ‘‘to submit unto and to observe all rules and orders as are now, or hereafter shall be established,” an obligation which cannot be read as referring only to the rules established by this very act, and having no reference to anteceding rules “as are now established.” In a similar way, the statute of 1699 preserves in force prior legislation, conferring the freedom of fishery only “as fully and freely as at any time heretofore.” The order in council, 1670, provides that the Admirals, who always were fishermen, arriving from an English or Welsh port, “see that His Majesty’s rules and orders concerning the regulation of the fisheries are duly put in AWARD OF THE TRIBUNAL 407 execution” (sec. 13). Likewise the Act 10 and XI, Wm. III, Cap. 25 (1699) provides that the Admirals do settle differences between the fishermen arising in respect of the places to be assigned to the different vessels. As to Nova Scotia, the proclamation of 1665 ordains that no one shall fish without license; that the licensed fishermen are obliged “to observe all laws and orders which now are made and published, or shall hereafter be made and published in this jurisdiction,” and that they shall not fish on the Lord’s day and shall not take fish at the time they come to spawn. The judgment of the Chief Justice of Newfoundland, October 26th, 1820, is not held by the Tribunal sufficient to set aside the proclamations referred to. After 1783, the statute 26 Geo. III, Cap. 26, 1786, forbids “the use, on the shores of Newfoundland, of seines or nets for catching cod by hauling on shore or taking into boat, with meshes less than 4inches”; a prohibition which cannot be considered as limited to the bank fishery. The act for regulating the fisheries of New Brunswick, 1793, which forbids “the plac- ing of nets or seines across any cove or creek in the Province so as to obstruct the natural course of fish,” and which makes specific provision for fishing in the Harbour of St. John, as to the manner and time of fishing, cannot be read as being limited to fishing from the shore. The act for regulating the fishing on the coast of Northumber- land (1799) contains very elaborate dispositions concerning the fisheries in the bay of Miramichi which were continued in 1823, 1829 and 1834. The statutes of Lower Canada, 1788 and 1807, forbid the throwing overboard of offal. The fact that these acts extend the prohibition over a greater distance than the first marine league from the shore may make them nonoperative against foreigners without the territorial limits of Great Britain, but is certainly no reason to deny their obligatory character for foreigners within these limits; (hk) Because the fact that Great Britain rarely exercised the right of regulation in the period immediately succeeding 1818 is to be explained by various circumstances and is not evidence of the non-existence of the right; (i) Because the words “in common with British subjects” tend to confirm the opinion that the inhabitants of the United States were admitted to a regulated fishery; (j) Because the statute of Great Britain, 1819, which gives legislative sanction to the Treaty of 1818, provides for the making of “regulations with relation to the tak- ing, drying and curing of fish by inhabitants of the United States in ‘common.’” For the purpose of such proof, it is further contended by the United States, in this latter connection: (4) That the words “in common with British subjects” used in the Treaty should not be held as importing a common subjection to regulation, but as intending to nega- tive a possible pretention on the part of the inhabitants of the United States to liberties of fishery exclusive of the right of British subjects to fish. The Tribunal is unable to agree with this contention: (a) Because such an interpretation is inconsistent with the historical basis of the American fishing liberty. The ground on which Mr. Apams founded the American right in 1782 was that the people then constituting the United States had always, when still under British rule, a part in these fisheries and that they must continue to enjoy their past right in the future. He proposed “that the subjects of His Britannic Majesty and the people of the United States shall continue to enjoy unmolested the right to take fish . . . where the inhabitants of both countries used, at any time heretofore, to fish.” The theory of the partition of the fisheries, which by the American negotiators had been advanced with so much force, negatives the assump- tion that the United States could ever pretend to an exclusive right to fish on the 498 APPENDIX British shores; and to insert a special disposition to that end would have been wholly superfluous; (6) Because the words “in common” occur in the same connection in the Treaty of 1818 as in the Treaties of 1854 and 1871. It will certainly not be suggested that in these Treaties of 1854 and 1871 the American negotiators meant by inserting the words “in common” to imply that without these words American citizens would be precluded from the right to fish on their own coasts and that, on American shores, British subjects should have an exclusive privilege. It would have been the very opposite of the concept of territorial waters to suppose that, without a special treaty- provision, British subjects could be excluded from fishing in British waters. There- fore that cannot have been the scope and the sense of the words “in common”; (c) Because the words ‘“‘in common” exclude the supposition that American inhab- itants were at liberty to act at will for the purpose of taking fish, without any regard to the co-existing rights of other persons entitled to do the same thing; and because these words admit them only as members of a social community, subject to the ordinary duties binding upon the citizens of that community, as to the regulations made for the common benefit; thus avoiding the “bellum omnium contra omnes” which would otherwise arise in the exercise of this industry; (d) Because these words are such as would naturally suggest themselves to the negotiators of 1818 if their intention had been to express a common subjection to regu- lations as well as a common right. In the course of the Argument it has also been alleged by the United States: (5) That the Treaty of 1818 should be held to have entailed a transfer or partition of sovereignty, in that it must in respect to the liberties of fishery be interpreted in its relation to the Treaty of 1783; and that this latter Treaty was an act of parti- tion of sovereignty and of separation, and as such was not annulled by the war of 1812. Although the Tribunal is not called upon to decide the issue whether the treaty of - 1783 was a treaty of partition or not, the questions involved therein having been set at rest by the subsequent Treaty of 1818, nevertheless the Tribunal could not forbear to consider the contention on account of the important bearing the controversy has upon the true interpretation of the Treaty of 1818. In that respect the Tribunal is of opinion: (a) That the right to take fish was accorded as a condition of peace to a foreign people; wherefore the British negotiators refused to place the right of British subjects on the same footing with those of American inhabitants; and further, refused to insert the words also proposed by Mr. ADAMs — “continue to enjoy” — in the second branch of Art. III of the Treaty of 1783; (0) That the Treaty of 1818 was in different terms, and very different in extent, from that of 1783, and was made for different considerations. It was, in other words, a new grant. For the purpose of such proof it is further contended by the United States: (6) That as contemporary Commercial Treaties contain express provisions for sub- mitting foreigners to local legislation, and the Treaty of 1818 contains no such pro- vision, it should be held, @ contrario, that inhabitants of the United States exercising these liberties are exempt from regulation. ‘The Tribunal is unable to agree with this contention: (a) Because the Commercial Treaties contemplated did not admit foreigners to all and equal rights, seeing that local legislation excluded them from many rights of im- AWARD OF THE TRIBUNAL 499 portance, e.g. that of holding land; and the purport of the provisions in question consequently was to preserve these discriminations. But no such discriminations existing in the common enjoyment of the fishery by American and British fishermen, no such provision was required; (5) Because no proof is furnished of similar exemptions of foreigners from local legislation in default of Treaty stipulations subjecting them thereto; (c) Because no such express provision for subjection of the nationals of either Party to local law was made either in this Treaty, in respect to their reciprocal admission to certain territories as agreed in Art. III, or in Art. III of the Treaty of 1794; although such subjection was clearly contemplated by the Parties. For the purpose of such proof it is further contended by the United States: (7) That, as the liberty to dry and cure on the Treaty coasts and to enter bays and harbours on the non-treaty coasts are both subjected to conditions, and the latter to specific restrictions, it should therefore be held that the liberty to fish should be sub- jected to no restrictions, as none are provided for in the Treaty. The Tribunal is unable to apply the principle of “expressio unius exclusio alterius” to this case: (a) Because the conditions and restrictions as to the liberty to dry and cure on the shore and to enter the harbours are limitations of the rights themselves, and not restrictions of their exercise. Thus the right to dry and cure is limited in duration, and the right to enter bays and harbours is limited to particular purposes; (5) Because these restrictions of the right to enter bays and harbours applying solely to American fishermen must have been expressed in the Treaty, whereas regu- lations of the fishery, applying equally to American and British, are made by right of territorial sovereignty. For the purpose of such proof it has been contended by the United States: (8) That Lord BatHurst in 1815 mentioned the American right under the Treaty of 1783 as a right to be exercised “‘at the discretion of the United States”; and that this should be held as to be derogatory to the claim of exclusive regulation by Great Britain. But the Tribunai is unable to agree with this contention: (a) Because these words implied only the necessity of an express stipulation for any liberty to use foreign territory at the pleasure of the grantee, without touching any question as to regulation; (6) Because in this same letter Lord Bataurst characterized this right as a policy “temporary and experimental, depending on the use that might be made of it, on the condition of the islands and places where it was to be exercised, and the more general conveniences or inconveniences from a military, naval and commercial point of view”; so that it cannot have been his intention to acknowledge the exclusion of British interference with this right; (c) Because Lord Bataurst in his note to Governor Sir C. HAMILTON in 1819 orders the Governor to take care that the American fishery on the coast of Labrador be carried on in the same manner as previous to the late war; showing that he did not interpret the Treaty just signed as a grant conveying absolute immunity from inter- ference with the American fishery right. For the purpose of such proof it is further contended by the United States: (9) That on various other occasions following the conclusion of the Treaty, as evidenced by official correspondence, Great Britain made use of expressions incon- sistent with the claim to a right of regulation. 500 APPENDIX - ‘The Tribunal, unwilling to invest such expressions with an importance entitling them to affect the general question, considers that such conflicting or inconsistent expressions as have been exposed on either side are sufficiently explained by their relations to ephemeral phases of a controversy of almost secular duration, and should be held to be without direct effect on the principal and present issues. Now with regard to the second contention involved in Question I, as to whether the right of regulation can be reasonably exercised by Great Britain without the con- sent of the United States: Considering that the recognition of a concurrent right of consent in the United States would affect the independence of Great Britain, which would become dependent on the Government of the United States for the exercise of its sovereign right of regu- lation, and considering that such a co-dominium would be contrary to the constitution of both sovereign States; the burden of proof is imposed on the United States to show that the independence of Great Britain was thus impaired by international contract in 1818 and that a co-dominium was created. For the, purpose of such proof it is contended by the United States: (to) That a concurrent right to cooperate in the making and enforcement of regu- lations is the only possible and proper security to their inhabitants for the enjoyment of their liberties of fishery, and that such a right must be held to be implied in the grant of those liberties by the Treaty under interpretation. The Tribunal is unable to accede to this claim on the ground of a right so implied: (a) Because every State has to execute the obligations incurred by Treaty bona fide, and is urged thereto by the ordinary sanctions of International Law in regard to observance of Treaty obligations. Such sanctions are, for instance, appeal to public opinion, publication of correspondence, censure by Parliamentary vote, demand for arbitration with the odium attendant on a refusal to arbitrate, rupture of relations, reprisal, etc. But no reason has been shown why this Treaty, in this respect, should be considered as different from every other Treaty under which the right of a State to regulate the action of foreigners admitted by it on its territory is recognized; (b) Because the exercise of such a right of consent by the United States would predi- cate an abandonment of its independence in this respect by Great Britain, and the recognition by the latter of a concurrent right of regulation in the United States. But the Treaty conveys only a liberty to take fish in common, and neither directly nor indirectly conveys a joint right of regulation; (c) Because the Treaty does not convey a common right of fishery, but a liberty to fish in common. This is evidenced by the attitude of the United States Govern- ment in 1823, with respect to the relations of Great Britain and France in regard to the fishery; , (d) Because if the consent of the United States were requisite for the fishery a gen- eral veto would be accorded them, the full exercise of which would be socially subver- sive and would lead to the consequence of an unregulatable fishery; (e) Because the United States cannot by assent give legal force and validity to British legislation; (f) Because the liberties to take fish in British territorial waters and to dry and cure fish on land in British territory are in principle on the same footing; but in practice a right of cooperation in the elaboration and enforcement of regulations in regard to the latter liberty (drying and curing fish on land) is unrealizable. In any event, Great Britain, as the local sovereign, has the duty of preserving and protecting the fisheries. In so far as it is necessary for that purpose, Great Britain AWARD OF THE TRIBUNAL 501 is not only entitled, but obliged, to provide for the protection and preservation of the fisheries; always remembering that the exercise of this right of legislation is limited by the obligation to execute the Treaty in good faith. This has been admitted by counsel and recognized by Great Britain in limiting the right of regulation to that of reasonable regulation. The inherent defect of this limitation of reasonableness, with- out any sanction except in diplomatic remonstrance, has been supplied by the submis- sion to arbitral award as to existing regulations in accordance with Arts. II and III of the Special Agreement, and as to further regulation’ by the obligation to submit their reasonableness to an arbitral test in accordance with Art. IV of the Agreement. It is finally contended by the United States: That the United States did not expressly agree that the liberty granted to them could be subjected to any restriction that the grantor might choose to impose on the ground that in her judgment such restriction was reasonable. And that while admit- ting that all laws of a general character, controlling the conduct of men within the terri- tory of Great Britain, are effective, binding and beyond objection by the United States, and competent to be made upon the sole determination of Great Britain or her colony, without accountability to anyone whomsoever; yet there is somewhere a line, beyond which it is not competent for Great Britain to go, or beyond which she cannot rightfully go, because to go beyond it would be an invasion of the right granted to the United States in 1818. That the legal effect of the grant of 1818 was not to leave the determination as to where that line is to be drawn to the uncontrolled judg- ment of the grantor, either upon the grantor’s consideration as to what would be a reasonable exercise of its sovereignty over the British Empire, or upon the grantor’s consideration of what would be a reasonable exercise thereof towards the grantee. But this contention is founded on assumptions, which this Tribunal cannot accept for the following reasons in addition to those already set forth: (a) Because the line by which the respective rights of both Parties accruing out of the Treaty are to be circumscribed, can refer only to the right granted by the Treaty; that is to say to the liberty of taking, drying and curing fish by American inhabitants in certain British waters in common with British subjects, and not to the exercise of rights of legislation by Great Britain not referred to in the Treaty; (b) Because a line which would limit the exercise of sovereignty of a State within the limits of its own territory can be drawn only on the ground of express stipulation, and not by implication from stipulations concerning a different subject-matter; (c) Because the line in question is drawn according to the principle of international law that treaty obligations are to be executed in perfect good faith, therefore excluding the right to legislate af will concerning the subject-matter of the Treaty, and limiting the exercise of sovereignty of the States bound by a treaty with respect to that subject- matter to such acts as are consistent with the treaty; : (d) Because on a true construction of the Treaty the question does not arise whether the United States agreed that Great Britain should retain the right to legislate with regard to the fisheries in her own territory; but whether the Treaty contains an abdi- cation by Great Britain of the right which Great Britain, as the sovereign power, undoubtedly possessed when the Treaty was made, to regulate those fisheries; (e) Because the right to make reasonable regulations, not inconsistent with the obligations of the Treaty, which is all that is claimed by Great Britain, for a fishery which both Parties admit requires regulation for its preservation, is not a restriction of or an invasion of the liberty granted to-the inhabitants of the United States. This grant does not contain words to justify the assumption that the sovereignty of Great 502 APPENDIX Britain upon its own territory was in any way affected; nor can words be found in the treaty transferring any part of that sovereignty to the United States. Great Britain assumed only duties with regard to the exercise of its sovereignty. The sovereignty of Great Britain over the coastal waters and territory of Newfoundland remains after the Treaty as unimpaired as it was before. But from the Treaty results an obligatory relation whereby the right of Great Britain to exercise its right of sover- eignty by making regulations is limited to such regulations as are made in good faith, and are not in violation of the Treaty; (f) Finally to hold that the United States, the grantee of the fishing right, has a voice in the preparation of fishery legislation involves the recognition of a right in that country to participate in the internal legislation of Great Britain and her Colonies, and to that extent would reduce these countries to a state of dependence. While therefore unable to concede the claim of the United States as based on the Treaty, this Tribunal considers that such claim has been and is to some extent, con- ceded in the relations now existing between the two Parties. Whatever may have been the situation under the Treaty of 1818 standing alone, the exercise of the right of regulation inherent in Great Britain has been, and is, limited by the repeated recog- nition of the obligations already referred to, by the limitations and liabilities accepted in the Special Agreement, by the unequivocal position assumed by Great Britain in the presentation of its case before this Tribunal, and by the consequent view of this Tribunal that it would be consistent with all the circumstances, as revealed by this record, as to the duty of Great Britain, that she should submit the reasonableness of any future regulation to such an impartial arbitral test, affording full opportunity therefor, as is hereafter recommended under the authority of Article IV of the Special Agreement, whenever the reasonableness of any regulation is objected to or challenged by the United States in the manner, and within the time hereinafter specified in the said recommendation. Now therefore this Tribunal decides and awards as follows: The right of Great Britain to make regulations without the consent of the United States, as to the exercise of the liberty to take fish referred to in Article I of the Treaty of October 20th, 1818, in the form of municipal laws, ordinances or rules of Great Britain, Canada or Newfoundland is inherent to the sovereignty of Great Britain. The exercise of that right by Great Britain is, however, limited by the said Treaty in respect of the said liberties therein granted to the inhabitants of the United States in that such regulations must be made bona fide and must not be in vio- lation of the said Treaty. Regulations which are (1) appropriate or necessary for the protection and preserva- tion of such fisheries, or (2) desirable or necessary on grounds of public order and morals without unnecessarily interfering with the fishery itself, and in both cases equitable and fair as between local and American fishermen, and not so framed as to give unfairly an advantage to the former over the latter class, are not inconsistent with the obligation to execute the Treaty in good faith, and are therefore reasonable and not in violation of the Treaty. For the decision of the question whether a regulation is or is not reasonable, as being or not in accordance with the dispositions of the Treaty and not in violation thereof, the Treaty of 1818 contains no special provision. The settlement of differences in this respect that might arise thereafter was left to the ordinary means of diplomatic intercourse. By reason, however, of the form in which Question I is put, and by further reason of the admission of Great Britain by her counsel before this Tribunal that it is not now for either of the Parties to the Treaty to determine the reasonableness of any regulation made by Great Britain, Canada or Newfoundland, the reasonableness of any such regulation, if contested, must be decided not by either of the Parties, but by an impartial AWARD OF THE TRIBUNAL 503 authority in accordance with the principles hereinabove laid down, and in the manner proposed in the recommendations made by the Tribunal in virtue of Article IV of the Agreement. The Tribunal further decides that Article IV of the Agreement is, as stated by counsel of the respective Parties at the argument, permanent in its effect, and not termi- nable by the expiration of the General Arbitration Treaty of 1908, between Great Britain and the United States. In execution, therefore, of the responsibilities imposed upon this Tribunal in regard to Articles IT, III and IV of the Special Agreement, we hereby pronounce in their regard as follows: ‘ As To ARTICLE II Pursuant to the provisions of this. Article, hereinbefore cited, either Party has called the attention of this Tribunal to acts of the other claimed to be inconsistent with the true interpretation of the Treaty of 1818. But in response to a request from the Tribunal, recorded in Protocol No. XXVI of igth July, for an exposition of the grounds of such objections, the Parties replied as reported in Protocol No. XXX of 28th July to the following effect: His Majesty’s Government considered that it would be unnecessary to call upon the Tribunal for an opinion under the second clause of Article II, in regard to the executive act of the United States of America in sending warships to the territorial waters in question, in view of the recognized motives of the United States of America in taking this action and of the relations maintained by their representatives with the local authorities. And this being the sole act to which the attention of this Tribunal has been called by His Majesty’s Government, no further action in their behalf is required from this Tribunal under Article II. The United States of America presented a statement in which their claim that specific provisions of certain legislative and executive acts of the Governments of Canada and Newfoundland were inconsistent with the true interpretation of the Treaty of 1818 was based on the contention that these provisions were not “reasonable” within the meaning of Question I. After calling upon this Tribunal to express an opinion on these acts, pursuant to the second clause of Article II, the United States of America pointed out in that statement that under Article III any question regarding the reasonableness of any regulation might be referred by the Tribunal to a Commission of expert specialists, and expressed an intention of asking for such reference under certain circumstances. The Tribunal having carefully considered the counter-statement presented on behalf of Great Britain at the session of August 2nd, is of opinion that the decision on the reasonableness of these regulations requires expert information about the fisheries themselves and an examination of the practical effect of a great number of these provisions in relation to the conditions surrounding the exercise of the liberty of fishery enjoyed by the inhabitants of the United States, as contemplated by Article III. No further action on behalf of the United States is therefore required from this Tribunal under Article IT. As To Articte III As provided in Article III, hereinbefore cited and above referred to, “any question regarding the reasonableness of any regulation, or otherwise, which requires an examination of the practical effect of any provisions surrounding the exercise of the liberty of fishery enjoyed by the inhabitants of the United States, or which requires expert information about the fisheries themselves, may be referred by this Tribunal to a Commission of expert specialists; one to be designated by each of the Parties hereto and the third, who shall not be a national of either Party, to be designated by the Tribunal.” ‘ The Tribunal now therefore calls upon the Parties to designate within one month their national Commissioners for the expert examination of the questions sub- mitted. As the third non-national Commissioner this Tribunal designates Doctor P. P. C. Hoek, Scientific Adviser for the fisheries of the Netherlands and if any necessity arises therefore a substitute may be appointed by the President of this Tribunal. 504 . APPENDIX After a reasonable time, to be agreed on by the Parties, for the expert Commission to arrive at a conclusion, by conference, or, if necessary, by local inspection, the Tribunal shall, if convoked by the President at the request of either Party, there- upon at the earliest convenient date, reconvene to consider the report of the Commission, and if it be on the whole unanimous shall incorporate it in the award. If not on the whole unanimous, i.e., on all points which in the opinion of the Tribunal are of essential importance, the Tribunal shall make its award as to the regulations concerned after consideration of the conclusions of the expert Commissioners and after hearing argument by counsel. But while recognizing its responsibilities to meet the obligations imposed on it under Article III of the Special Agreement, the Tribunal hereby recommends as an alternative to having recourse to a reconvention of this Tribunal, that the Parties . should accept the unanimous opinion of the Commission or the opinion of the non-national Commissioner on any points in dispute as an arbitral award rendered under the provisions of Chapter IV of the Hague Convention of 1907. As To ARTICLE IV Pursuant to the provisions of this Article, hereinbefore cited, this Tribunal recom- mends for the consideration of the Parties the following rules and method of procedure under which all questions which may arise in the future regarding the exercise of the liberties above referred to may be determined in accordance with the principles laid down in this award. sists 1. All future municipal laws, ordinances or rules for the regulation of the fishery by Great Britain in respect of (1) the hours, days or seasons when fish may be taken on the Treaty coasts; (2) the method, means and implements used in the taking of fish or in carrying on fishing operations; (3) any other regulation of a similar character shall be published in the London Gazette two months before going into operation. Similar regulations by Canada or Newfoundland shall be similarly published in the Canada Gazette and the Newfoundland Gazette respectively. 2. If the Government of the United States considers any such laws or regulations inconsistent with the Treaty of 1818, it is entitled to so notify the Government of Great Britain within the two months referred to in Rule No. 1. 3. Any law or regulation so notifed shall not come into effect with respect to inhab- ‘itants of the United States until the Permanent Mixed Fishery Commission has decided that the regulation is reasonable within the meaning of this award. 4. Permanent Mixed Fishery Commissions for Canada and Newfoundland respectively shall be established for the decision, of such questions as to the reasonableness of future regulations, as contemplated by Article IV of the Special Agreement; these Commissions shall consist of an expert national appointed by either Party for five years. The third member shall not be a national of either Party; he shall be nominated for five years by agreement of the Parties, or failing such agreement within two months, he shall be nominated by Her Majesty the Queen of the Netherlands. The two national members shall be convoked by the Gov- ernment of Great Britain within one month from the date of notification by the Government of the United States. 5. The two national members having failed to agree within one month, within another month the full Commission, under the presidency of the umpire, is to be convoked by Great Britain. It must deliver its decision, if the two Governments do not agree otherwise, at the latest in three months. The Umpire shall conduct the procedure in accordance with that provided in Chapter IV of the Convention for the Pacific Settlement of International Disputes, except in so far as herein otherwise provided. 6. The form of convocation of the Commission including the terms of reference of the question at issue shall be as follows: ‘The provision hereinafter fully set forth of an Act dated , published in the has been notified to the Government of Great Britain by the Government of the United States, under date of , as provided by the award of the Hague Tribunal of September 7th, IgIo. “Pursuant to the provisions of that award the Government of Great Britain hereby ‘, 7 Sees (Canada), convokes the Permanent Mixed Fishery Commission for Wewfoundland) composed AWARD OF THE TRIBUNAL 505 of SHIRE oat for the United States of America, and of Com- ad d : ie missioner for ae aL which shall meet at and render a decision within one month as to whether the provision so notified is reasonable and con- sistent with the Treaty of 1818, as interpreted by the award of the Hague Tribunal of September 7th, 1910, and if not, in what respect it is unreasonable and incon- sistent therewith. “Failing an agreement on this question within one month the Commission shall so notify the Government of Great Britain in order that the further action required by that award may be taken for the decision of the above question. “The provision is as follows: 7. The unanimous decision of the two national Commissioners, or the majority decision of the Umpire and one Commissioner, shall be final and binding. Question If Have the inhabitants of the United States, while exercising the liberties referred to in said Article, a right to employ as members of the fishing crews of their vessels persons not inhabitants of the United States ? In regard to this question the United States claim in substance: 1. That the liberty assured to their inhabitants by the Treaty plainly includes the right to use all the means customary or appropriate for fishing upon the sea, not only ships and nets and boats, but crews to handle the ships and the nets and the boats; 2. That no right to control or limit the means which these inhabitants shall use in fishing can be admitted unless it is provided in the terms of the Treaty and no right to question the nationality or inhabitancy of the crews employed is contained in the terms of the Treaty. And Great Britain claims: 1. That the Treaty confers the liberty to inhabitants of the United States exclu- sively; 2. That the Governments of Great Britain, Canada or Newfoundland may, without infraction of the Treaty, prohibit persons from engaging as fishermen in American vessels. Now considering (1) that the liberty to take fish is an economic right attributed by the Treaty; (2) that it is attributed to inhabitants of the United States, without any mention of their nationality; (3) that the exercise of an economic right includes the right to employ servants; (4) that the right of employing servants has not been limited by the Treaty to the employment of persons of a distinct nationality or inhabitancy; (5) that the liberty to take fish as an economic liberty refers not only to the individuals doing the manual act of fishing, but also to those for whose profit the fish are taken. But considering, that the Treaty does not intend to grant to individual persons or to a class of persons the liberty to take fish in certain waters “‘in common,” that is to say in company, with individual British subjects, in the sense that no law could forbid British subjects to take service on American fishing ships; (2) that the Treaty intends to secure to the United States a share of the fisheries designated therein, not only in the interest of a certain class of individuals, but also in the interest of both the United States and Great Britain, as appears from the evidence and notably from the correspondence between Mr. Apams and Lord BaTuurst in 1815; (3) that the inhabitants of the United States do not derive the liberty to take fish directly from the Treaty, but from the United States Government as party to the Treaty with Great Britain and moreover exercising the right to regulate the conditions under which its inhabitants may enjoy the granted liberty; (4) that it is in the interest of the inhab- itants of the United States that the fishing liberty granted to them be restricted to 506 APPENDIX exercise by them and removed from the enjoyment of other aliens not entitled by this Treaty to participate in the fisheries; (5) that such restrictions have been throughout enacted in the British Statute of June 15, 1819, and that of June 3, 1824, to this effect, that no alien or stranger whatsoever shall fish in the waters designated therein, except in so far as by treaty thereto entitled, and that this exception will, in virtue of the Treaty of 1818, as hereinabove interpreted by this award, exempt from these statutes American fishermen fishing by the agency of non-inhabitant aliens employed in their service; (6) that the Treaty does not affect the sovereign right of Great Britain as to aliens, non-inhabitants of the United States, nor the right of Great Britain to regu- late the engagement of British subjects, while these aliens or British subjects are on British territory. Now therefore, in view of the preceding considerations this Tribunal is of opinion that the inhabitants of the United States while exercising the liberties referred to in the said article have a right to employ, as members of the fishing crews of their vessels, persons not inhabitants of the United States. But in view of the preceding considerations the Tribunal, to prevent any misunder- standing as to the effect of its award, expresses the opinion that non-inhabitants employed as members of the fishing crews of United States vessels derive no benefit or immunity from the Treaty and it is so decided and awarded. Question III Can the exercise by the inhabitants of the United States of the liberties referred to in the said Article be subjected, without the consent of the United States, to the requirements of entry or report at custom-houses or the payment of light or harbour or other dues, or to any other similar requirement or condition or exaction ? The Tribunal is of opinion as follows: It is obvious that the liberties referred to in this question are those that relate to taking fish and to drying and curing fish on certain coasts as prescribed in the Treaty of October 20, 1818. The exercise of these liberties by the inhabitants of the United States in the prescribed waters to which they relate, has no reference to any commer- ” cial privileges which may or may not attach to such vessels by reason of any supposed authority outside the Treaty, which itself confers no commercial privileges whatever upon the inhabitants of the United States or the vessels in which they may exercise the fishing liberty. It follows, therefore, that when the inhabitants of the United States are not seeking to exercise the commercial privileges accorded to trading vessels for the vessels in which they are exercising the granted liberty of fishing, they ought not to be subjected to requirements as to report and entry at custom houses that are only appropriate to the exercise of commercial privileges. The exercise of the fishing liberty is distinct from the exercise of commercial or trading privileges and it is not competent for Great Britain or her colonies to impose upon the former exactions only appropriate to the latter. The reasons for the requirements enumerated in the case of commercial vessels, have no relation to the case of fishing vessels. , We think, however, that the requirement that American fishing vessels should report, if proper conveniences and an opportunity for doing so are provided, is not unreason- able or inappropriate. Such a report, while serving the purpose of a notification of the presence of a fishing vessel in the treaty waters for the purpose of exercising the treaty liberty, while it gives an opportunity for a proper surveillance of such vessel by revenue officers, may also serve to afford to such fishing vessel protection from inter- ference in the exercise of the fishing liberty. There should be no such requirement, AWARD OF THE TRIBUNAL 507 however, unless reasonably convenient opportunity therefor be afforded in person or by telegraph, at a custom-house or to a customs official. The Tribunal is also of opinion that light and harbour dues, if not imposed on New- foundland fishermen, should not be imposed on American fishermen while exercising the liberty granted by the Treaty. To impose such dues on American fishermen only would constitute an unfair discrimination between them and Newfoundland fishermen and one inconsistent with the liberty granted to American fishermen to take fish, etc., “in common with the subjects of His Britannic Majesty.” Further, the Tribunal considers that the fulfillment of the requirement as to report by fishing vessels on arrival at the fishery would be greatly facilitated in the interests of both parties by the adoption of a system of registration, and distinctive marking of the fishing boats of both parties, analogous to that established by Articles V to XIII, inclusive, of the International Convention signed at The Hague, 8 May, 1882, for the regulation of the North Sea Fisheries. The Tribunal therefore decides and awards as follows: The requirement that an American fishing vessel should report, if proper conveniences for doing so are at hand, is not unreasonable, for the reasons stated in the fore- going opinion. There should be no such requirement, however, unless there be reasonably convenient opportunity afforded to report in person or by tele- graph, either at a custom-house or to a customs official. But the exercise of the fishing liberty by the inhabitants of the United States should not be subjected to the purely commercial formalities of report, entry and clear- ance at a custom-house, nor to light, harbor or other dues not imposed upon Newfoundland fishermen. Question IV Under the provision of thesaid Article that the American fishermen shall be admitted to enter certain bays or harbours for shelter, repairs, wood, or water, and for no other purpose whatever, but that 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 thereby reserved to them, is it permissible to impose restrictions making the exercise of such privileges conditional upon the payment of light or harbour or other dues, or entering or reporting at custom-houses or any similar conditions ? The Tribunal is of opinion that the provision in the first Article of the Treaty of October 20th, 1818, admitting American fishermen to enter certain bays or harbours for shelter, repairs, wood and water, and for no other purpose whatever, is an exercise in large measure of those duties of hospitality and humanity which all civilized nations impose upon themselves and expect the performance of from others. The enumerated purposes for which entry is permitted all relate to the exigencies in which those who pursue their perilous calling on the sea may be involved. The proviso which appears in the first article of the said Treaty immediately after the so-called renunciation clause, was doubtless due to a recognition by Great Britain of what was expected from the humanity and civilization of the then leading commercial nation of the world. To impose restrictions making the exercise of such privileges conditional upon the payment of light, harbor or other dues, or entering and reporting at custom-houses, or any similar conditions would be inconsistent with the grounds upon which such privileges rest and therefore is not permissible. And it is decided and awarded that such restrictions are not permissible. It seems reasonable, however, in order that these privileges accorded by Great Britain on these grounds of hospitality and humanity should not be abused, that the 508 APPENDIX American fishermen entering such bays for any of the four purposes aforesaid and remaining more than 48 hours therein, should be required, if thought necessary by Great Britain or the Colonial Government, to report, either in person or by telegraph, at a custom-house or to a customs official, if reasonably convenient opportunity there- for is afforded. And it is so decided and awarded. QUESyYION V From where must be measured the “three marine miles of any of the coasts, bays, creeks, or harbours” referred to in the said Article ? In regard to this question, Great Britain claims that the renunciation applies to all bays generally and The United States contend that it applies to bays of a certain class or condition. Now, considering that the Treaty used the general term “bays” without qualifica- tion, the Tribunal is of opinion that these words of the Treaty must be interpreted in a general sense as applying to every bay on the coast in question that might be reasonably supposed to have been considered as a bay by the negotiators of the Treaty under the general conditions then prevailing, unless the United States can adduce satisfactory proof that any restrictions or qualifications of the general use of the term were or should have been present to their minds. And for the purpose of such proof the United States contend: 1°. That while a State may renounce the treaty right to fish in foreign territorial waters, it cannot renounce the natural right to fish on the High Seas. But the Tribunal is unable to agree with this contention. Because though a State cannot grant rights on the High Seas it certainly can abandon the exercise of its right to fish on the High Seas within certain definite limits. Such an abandonment was made with respect to their fishing rights in the waters in question by France and Spain in 1763. By a convention between the United Kingdom and the United States in 1846, the two countries assumed ownership over waters in Fuca Straits at distances from the shore as great as 17 miles. The United States contend moreover: 2°. That by the use of the term “liberty to fish” the United States manifested the intention to renounce the liberty in the waters referred to only in so far as that liberty was dependent upon or derived from a concession on the part of Great Britain, and not to renounce the right to fish in those waters where it was enjoyed by virtue of their natural right as an independent State. But the Tribunal is unable to agree with this contention: (a) Because the term ‘liberty to fish”? was used in the renunciatory clause of the Treaty of 1818 because the same term had been previously used in the Treaty of 1783 which gave the liberty; and it was proper to use in the renunciation clause the same term that was used in the grant with respect to the object of the grant; and, in view of the terms of the.grant, it would have been improper to use the term “right” in the renunciation. Therefore the conclusion drawn from the use of the term “liberty” instead of the term “right” is not justified; (b) Because the term “liberty” was a term properly applicable to the renunciation which referred not only to fishing in the territorial waters but also to drying and curing on the shore. This latter right was undoubtedly held under the provisions of the Treaty and was not. a right accruing to the United States by virtue of any principle of International law. AWARD OF THE TRIBUNAL 509 3°. The United States also contend that the term “bays of His Britannic Majesty’s Dominions” in the renunciatory clause must be read as including only those bays which were under the territorial sovereignty of Great Britain. But the Tribunal is unable to accept this contention: (a) Because the description of the coast on which the fishery is to be exercised by the inhabitants of the United States is expressed throughout the Treaty of 1818 in geographical terms and not by reference to political control; the Treaty describes the coast as contained between capes; (b) Because to express the political concept of dominion as equivalent to sovereignty, the word “dominion” in the singular would have been an adequate term and not “dominions” in the plural; this latter term having a recognized and well settled mean- ing as descriptive of those portions of the Earth which owe political allegiance to His Majesty; e.g. “His Britannic Majesty’s Dominions beyond the Seas.” 4°. It has been further contended by the United States that the renunciation applies only to bays six miles or less in width “inter fauces terrae,’ those bays only being territorial bays, because the three mile rule is, as shown by this Treaty, a principle of international law applicable to coasts and should be strictly and systematically applied to bays. But the Tribunal is unable to agree with this contention: (a) Because admittedly the geographical character of a bay contains conditions which concern the interests of the territorial sovereign to a more intimate and impor- tant extent than do those connected with the open coast. Thus conditions of national and territorial integrity, of defense, of commerce and of industry are all vitally con- cerned with the control of the bays penetrating the national coast line. This interest varies, speaking generally in proportion to the penetration inland of the bay; but as no principle of international law recognizes any specified relation between the con- cavity of the bay and the requirements for control by the territorial sovereignty, this Tribunal is unable to qualify by the application of any new principle its interpretation of the Treaty of 1818 as excluding bays in general from the strict and systematic application of the three mile rule; nor can this Tribunal take cognizance in this con- nection of other principles concerning the territorial sovereignty over bays such as ten mile or twelve mile limits of exclusion based on international acts subsequent to the treaty of 1818 and relating to coasts of a different configuration and conditions of a different character; (b) Because the opinion of jurists and publicists quoted in the proceedings conduce to the opinion that speaking generally the three mile rule should not be Strictly and systematically applied to bays; (c) Because the treaties referring to these coasts, antedating the feat of 1818, made special provisions as to bays, such as the Treaties of 1686 and 1713 between Great Britain and France, and especially the Treaty of 1778 between the United States and France. Likewise Jay’s Treaty of 1794 Art. 25, distinguished bays from the space “within cannon-shot of the coast” in regard to the right of seizure in times of war. If the proposed treaty of 1806 and the treaty of 1818 contained no disposition to that effect, the explanation may be found in the fact that the first ex- tended the marginal belt to five miles, and also in the circumstance that the American proposition of 1818 in that respect was not limited to “‘bays,”’ but extended to “cham- bers formed by headlands” and to “five marine miles from a right line from one head- land to another,” a proposition which in the times of the Napoleonic wars would have affected to a very large extent the operations of the British navy; 510 APPENDIX (d) Because it has not been shown by the documents and correspondence ih evidence here that the application of the three mile rule to bays was present to the minds of the negotiators in 1818 and they could not reasonably have been expected either to presume it or to provide against its presumption; (e) Because it is difficult to explain the words in art. III of the Treaty under interpretation “country . . together with its bays, harbours and creeks” other- wise than that all bays without distinction as to their width were, in the opinion of the negotiators, part of the territory; (f) Because from the information before this Tribunal it is evident that the three mile rule is not applied to bays strictly or systematically either by the United States or by any other Power; (g) It has been recognized by the United States that bays stand apart, and that in respect of them territorial jurisdiction may be exercised farther than the marginal belt in the case of Delaware bay by the report of the United States Attorney General of May 1gth 1793; and the letter of Mr. JEFFERSON to Mr. Genet of Nov. 8th 1793 declares the bays of the United States generally to be, ‘‘as being landlocked, within the body of the United States.” 5°. In this latter regard it is further contended by the United States, that such exceptions only should be made from the application of the three mile rule to bays as are sanctioned by conventions and established usage; that all exceptions for which the United States of America were responsible are so sanctioned; and that His Majesty’s Government are unable to provide evidence to show that the bays con- cerned by the Treaty of 1818 could be claimed as exceptions on these grounds either generally, or except possibly in one or two cases, specifically. But the Tribunal while recognizing that conventions and established usage might be considered as the basis for claiming as territorial those bays which on this ground might be called historic bays, and that such claim should be held valid in the absence of any principle of international law on the subject; nevertheless is unable to apply this, @ contrario, so as to subject the bays in question to the three mile rule, as desired by the United States: (a) Because Great Britain has during this controversy asserted a claim to these bays generally, and has enforced such claim specifically in statutes or otherwise, in regard to the more important bays such as Chaleurs, Conception and Miramichi; (b) Because neither should such relaxations of this claim, as are in evidence, be construed as renunciations of it; nor should omissions to enforce the claim in regard to bays as to which no controversy arose, be so construed. Such a construction by this Tribunal would not only be intrinsically inequitable but internationally injurious; in that it would discourage conciliatory diplomatic transactions and encourage the assertion of extreme claims in their fullest extent; (c) Because any such relaxations in the extreme claim of Great Britain in its inter- national relations are compensated by recognitions of it in the same sphere by the United States; notably in relations with France for instance in 1823 when they applied to Great Britain for the protection of their fishery in the bays on the western coast of Newfoundland, whence they had been driven by French war vessels on the ground of the pretended exclusive right of the French. Though they never asserted that their fishermen had been disturbed within the three mile zone, only alleging that the dis- turbance had taken place in the bays, they claimed to be protected by Great Britain for having been molested in waters which were, as Mr. Russ stated “clearly within the jurisdiction and sovereignty of Great Britain.” 2 AWARD OF THE. TRIBUNAL 511 6°. It has been contended by the United States that the words “coasts, bays, creeks or harbours” are here used only to express different parts of the coast and are intended to express and be equivalent to the word “coast,” whereby the three marine miles would be measured from the sinuosities of the coast and the renunciation would apply only to the waters of bays within three miles. But the Tribunal is unable to agree with this contention: (a) Because it is a principle of interpretation that words in a document ought not to be considered as being without any meaning if there is not specific evidence to that purpose and the interpretation referred to would lead to the consequence, practically, of reading the words “bays, coasts and harbours” out of the Treaty; so that it would read “within three miles of any of the coasts” including therein the coasts of the bays and harbours; . (b) Because the word ‘‘ therein” in the proviso— “restrictions necessary to prevent their taking, drying or curing fish therein” can refer only to “bays,” and not to the belt of three miles along the coast; and can be explained only on the supposition that the words “‘bays, creeks and harbours” are to be understood in their usual ordinary sense and not in an artificially restricted sense of bays within the three mile belt; (c) Because the practical distinction for the purpose of this fishery between coasts and bays and the exceptional conditions pertaining to the latter has been shown from the correspondence and the documents in evidence, especially the Treaty of 1783, to have been in all probability present to the minds ot the negotiators of the Treaty of 1818; (d) Because the existence of this distinction is confirmed in the same article of the Treaty by the proviso permitting the United States fishermen to enter bays for certain purposes; (e) Because the word ‘‘coasts” is used in the plural form whereas the contention would require its use in the singular; (f) Because the Tribunal is unable to understand the term “bays” in the renuncia- tory clause in other than its geographical sense, by which a bay is to be considered as an indentation of the coast, bearing a configuration of a particular character easy to determine specifically, but difficult to describe generally. The negotiators of the Treaty of 1818 did probably not trouble themselves with subtle theories concerning the notion of “bays”; they most probably thought that everybody would know what was a bay. In this popular sense the term must be in- terpreted in the Treaty. The interpretation must take into account all the individual circumstances which for any one of the different bays are to be appreciated, the relation of its width to the length of penetration inland, the possibility and the necessity of its being defended by the State in whose territory it is indented; the special value which it has for the industry of the inhabitants of its shores; the distance which it is secluded from the highways of nations on the open sea and other circumstances not possible to enumerate in general. For these reasons the Tribunal decides and awards: In case of bays the three marine miles are to be measured from a straight line drawn across the body of water at the place where it ceases to have the configuration and characteristics of a bay. At all other places the three marine miles are to be measured following the sinuosities of the coast. But considering the Tribunal cannot overlook that this answer to Question V, although correct in principle and the only one possible in view of the want of a sufficient basis for a more concrete answer, is not entirely satisfactory as to its practical 512 APPENDIX applicability, and that it leaves room for doubts and differences in practice. There- fore the Tribunal considers it its duty to render the decision more practicable and to remove the danger of future differences by adjoining to it, a recommendation in virtue of the responsibilities imposed by Art. IV of the Special Agreement. Considering, moreover, that in treaties with France, with the North German Con- federation and the German Empire and likewise in the North Sea Convention, Great Britain has adopted for similar cases the rule that only bays of ten miles width should be considered as those wherein the fishing is reserved to nationals. And that in the course of the negotiations between Great Britain and the United States a similar rule has been on various occasions proposed and adopted by Great Britain in instructions to the naval officers stationed on these coasts. And that though these circumstances are not sufficient to constitute this a principle of international law, it seems reason- able to propose this rule with certain exceptions, all the more that this rule with such exceptions has already formed the basis of an agreement between the two Powers. Now therefore this Tribunal in pursuance of the provisions of art. IV hereby recom- mends for the consideration and acceptance of the High Contracting Parties the following rules and method of procedure for determining the limits of the bays hereinbefore enumerated. 1. In every bay not hereinafter specifically provided for the limits of exclusion shall be drawn three miles seaward from a straight line across the bay in the part nearest the entrance at the first point where the width does not exceed ten miles. 2. In the following bays where the configuration of the coast and the local climatic conditions are such that foreign fishermen when within the geographic head- lands might reasonably and bona fide believe themselves on the high seas, the limits of exclusion shall be drawn in each case between the headlands herein- after specified as being those at and within which such fishermen might be reasonably expected to recognize the bay under average conditions. For the Baie des Chaleurs the line from the Light at Birch Point on Miscou Island to Macquereau Point Light: for the Bay of Miramichi, the line from the Light at Point Escuminac to the Light on the Eastern Point of Tabisintac Gully; for Egmont Bay, in Prince Edward Island, the line from the light at Cape Egmont to the Light at West Point; and off St. Ann’s Bay, in the Province of Nova Scotia, the line from the Light at Point Anconi to the nearest point on the oppo- site shore of the mainland. For Fortune Bay, in Newfoundland, the line from Connaigre Head to the Light on the Southeasterly end of Brunet Island, thence to Fortune Head. For or near the following bays the limits of exclusion shall be three marine miles sea- wards from the following lines, namely: ; For or near Barrington Bay, in Nova Scotia, the line from the Light on Stoddart Island to the Light on the south point of Cape Sable, thence to the light at Bac- caro Point; at Chedabucto and St. Peter’s Bays, the line from Cranberry Island Light to Green Island Light, thence to Point Rouge; for Mira Bay, the line from the Light on the East Point of Scatari Island to the Northeasterly Point of Cape Morien; and at Placentia Bay, in Newfoundland, the line from Latine Point on the Eastern mainland shore, to the most Southerly Point of Red Island, thence by the most Southerly Point of Merasheen Island to the mainland. Long Island and Bryer Island, on St. Mary’s Bay, in Nova Scotia, shall, for the pur- pose of delimitation, be taken as the coasts of such bays. It is understood that nothing in these rules refers either to the Bay of Fundy con- sidered as a whole apart from its bays and creeks or as to the innocent passage through the Gut of Canso, which were excluded by the agreement made by exchange of notes between Mr. Bacon and Mr. Bryce dated February 21st 1909 and March 4th 1909; or to Conception Bay, which was provided for by the decision of the Privy Council in the case of the Direct United States Cable Com- pany v. The Anglo American Telegraph Company, in which decision the United States have acquiesced. AWARD OF THE TRIBUNAL 513 Question VI Have the inhabitants of the United States the liberty under the said Article or otherwise, to take fish in the bays, harbours, and creeks on that part of the southern coast of Newfoundland which extends from Cape Ray to Rameau Islands, or on the western and northern coasts of Newfoundland from Cape Ray to Quirpon Islands, or on the Magdalen Islands ? . In regard to this question, it is contended by the United States that the inhabitants of the United States have the liberty under Art. I of the Treaty of taking fish in the bays, harbours and creeks on that part of the Southern Coast of Newfoundland which extends from Cape Ray to Rameau Islands or on the western and northern coasts of Newfoundland from Cape Ray to Quirpon Islands and on the Magdalen Islands. It is contended by Great Britain that they have no such liberty.. Now considering that the evidence seems to show that the intention of the Parties to the Treaty of 1818, as indicated by the records of the negotiations and by the sub- sequent attitude of the Governments was to admit the United States to such fishery, this Tribunal is of opinion that it is incumbent on Great Britain to produce satisfactory proof that the United States are not so entitled under the Treaty. For this purpose Great Britain points to the fact that whereas the Treaty grants to American fishermen liberty to take fish “‘on the coasts, bays, harbours, and creeks from Mount Joly on the Southern coast of Labrador”’ the liberty is granted to the “coast” only of Newfoundland and to the “shore” only of the Magdalen Islands; and argues that evidence can be found in the correspondence submitted indicating an intention to exclude Americans from Newfoundland bays on the Treaty Coast, and that no value would have been attached at that time by the United States Govern- ment to the liberty of fishing in such bays because there was no cod fishery there as there was in the bays of Labrador. But the Tribunal is unable to agree with this contention: (a) Because the words “part of the southern coast .. from . to” and the words “‘Western and Northern Coast . . . from .. . to,” clearly indicate one uninterrupted coast-line; and there is no reason to read into the words “‘coasts” a contradistinction to bays, in order to exclude bays. On the contrary, as already held in the answer to Question V, the words “‘liberty, forever, to dry and cure fish in any of the unsettled bays, harbours and creeks of the Southern part of the Coast of Newfoundland hereabove described,” indicate that in the meaning of the Treaty, as in all the preceding treaties relating to the same territories, the words coast, coasts, harbours, bays, etc.,are used, without attaching to the word “‘coast”’ the specific mean- ing of excluding bays. Thus in the provision of the Treaty of 1783 giving liberty ‘“‘to take fish on such part of the coast of Newfoundland as British fishermen shall use”; the word ‘“‘coast”’ necessarily includes bays, because if the intention had been to pro- hibit the entering of the bays for fishing the following words “but not to dry or cure the same on that island,”’ would have no meaning. The contention that in the Treaty of 1783 the word “bays” is inserted lest otherwise Great Britain would have had the tight to exclude the Americans to the three mile line, is inadmissible, because in that Treaty that line is not mentioned; (b) Because the correspondence between Mr. Apams and Lord BATHURST also shows that during the negotiations for the Treaty the United States demanded the former rights enjoyed under the Treaty of 1783, and that Lord Batuurst in the letter of 30th October 1815 made no objection to granting those “former rights” “placed under some 514 APPENDIX modifications,” which latter did not relate to the right of fishing in bays, but only to the “preoccupation of British harbours and creeks by the fishing vessels of the United States and the forcible exclusion of British subjects where the fishery might be most advantageously conducted,” and “to the clandestine introduction of prohibited goods into the British colonies.” It may be therefore assumed that the word “coast” is used in both Treaties in the same sense, including bays; (c) Because the Treaty expressly allows the liberty to dry and cure in the unsettled bays, etc. of the southern part of the coast of Newfoundland, and this shows that, a fortiori, the taking of fish in those bays is also allowed; because the fishing liberty was a lesser burden than the grant to cure and dry, and the restrictive clauses never referred to fishing in contradistinction to drying, but always to drying in contradistinction to fishing. Fishing is granted without drying, never drying without fishing; (d) Because there is not sufficient evidence to show that the enumeration of the com- ponent parts of the coast of Labrador was made in order to discriminate between the coast of Labrador and the coast of Newfoundland; (e) Because the statement that there is no codfish in the bays of Newfoundland and that the Americans only took interest in the codfishery is not proved; and evidence to the contrary is to be found in Mr. Joun Apams Journal of Peace Negotiations of November 25, 1782; (f) Because the Treaty grants the right to take fish of every kind, and not only codfish; (g) Because the evidence shows that, in 1823, the Americans were fishing in Newfoundland bays and that Great Britain when summoned to protect them against expulsion therefrom by the French did not deny their right to enter such bays. Therefore this Tribunal is of opinion that American inhabitants are entitled to fish in the bays, creeks and harbours of the Treaty coasts of Newfoundland and the Magdalen Islands and it is so decided and awarded. Question VII Are the inhabitants of the United States whose vessels resort to the Treaty coasts for the purpose of exercising the liberties referred to in Article I of the Treaty of 1818 entitled to have for those vessels, when duly authorized by the United States in that behalf, the commercial privileges on the Treaty coasts accorded by agreement or otherwise to United States trading vessels generally ? Now assuming that commercial privileges on the Treaty coasts are accorded by agreement or otherwise to United States trading vessels generally, without any ex- ception, the inhabitants of the United States, whose vessels resort to the same coasts for the purpose of exercising the liberties referred to in Article I of the Treaty of 1818, are entitled to have for those vessels when duly authorized by the United States in that behalf, the above mentioned commercial privileges, the Treaty containing nothing to the contrary. _ But they cannot at the same time and during the same voyage exet- cise their Treaty rights and enjoy their commercial privileges, because Treaty rights and commercial ‘privileges are submitted to different rules, regulations and restraints. For these reasons this Tribunal is of opinion that the inhabitants of the United States are so entitled in so far as concerns this Treaty, there being nothing in its pro- visions to disentitle them provided the Treaty liberty of fishing and the AWARD OF THE TRIBUNAL 515 commercial privileges are not exercised concurrently and it is so decided and awarded. Done at the Hague, in the Permanent Court of Arbitration, in triplicate original, September 7th, 1910. H. Lammasca A. F. DE Savornin LoHMAN GEORGE GRAY C. Fitzpatrick Luis M. Draco Signing the Award, I state pursuant to Article IX clause 2 of the Special Agreement my dissent from the majority of the Tribunal in respect to the considerations and enacting part of the Award as to Question V. Grounds for this dissent have been filed at the International Bureau of the Perma- nent Court of Arbitration. Luis M. Draco DISSENTING OPINION OF DR. LUIS M. DRAGO! The North Atlantic Coast Fisheries Arbitration. Grounds for the Dissent to the Award on Question V by Dr. Luis M. Drago Counsel for Great Britain have very clearly stated that according to their contention the territoriality of the bays referred to in the Treaty of 1818 is immaterial because whether they are or are not territorial, the United States should be excluded from fishing in them by the terms of the renunciatory clause, which simply refers to “bays, creeks or harbours of His Britannic Majesty’s Dominions” without any other qualifica- tion or description. If that were so, the necessity might arise of discussing whether or not a nation has the right to exclude another by contract or otherwise from any portion or portions of the high seas. But in my opinion the Tribunal need not concern itself with such general question, the wording of the treaty being clear enough to decide the point at issue. Article I begins with the statement that differences have arisen respecting the liberty claimed by the United States for the inhabitants thereof to take, dry and cure fish on “certain coasts, bays, harbours and creeks of His Britannic Majesty’s Domin- ions in America,” and then proceeds to locate the specific portions of the coast with its corresponding indentations, in which the liberty of taking, drying and curing fish should be exercised. The renunciatory clause, which the Tribunal is called upon to construe, runs thus: ‘And the United States hereby renounce, forever, 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 the above mentioned limits.” This language does not lend itself to different constructions. If the bays in which the liberty has been renounced are those ‘‘of His Britannic Majesty’s Do- minions in America,” they must necessarily be territorial bays, because in so far as they are not so considered they should belong to the high seas and consequently form no part of His Britannic Majesty’s Dominions, which, by definition, do not extend to the high seas. It cannot be said, as has been suggested, that the use of the word “dominions,” in the plural, implies a different meaning than would be conveyed by the same term as used in the singular, so that in the present case, ‘‘the British dominions in America” ought to be considered as a mere geographical expression, without refer- ence to any right of sovereignty or ‘dominion.’ It seems to me, on the contrary, that “dominions,” or “possessions,” or ‘estates,’ or such other equivalent terms, simply designate the places over which the “dominion” or property rights are exercised Where there is no possibility of appropriation or dominion, as on the high seas, we cannot speak of dominions. The “dominions” extend exactly to the point which the “dominion” reaches; they are simply the actual or physical thing over which the abstract power or authority, the right, as given to the proprietor or the ruler, applies. The interpretation as to the territoriality of the bays as mentioned in the renunciatory clause of the treaty appears stronger when considering that the United States specifi- cally renounced the “liberty,” not the “right” to fish or to cure and dry fish. “The 1“ Oral Argument,’’ Vol. II, p. 1457. 516 DISSENTING OPINION OF DR. LUIS M. DRAGO 517 United States renounce, forever, any /iberty heretofore enjoyed or claimed, to take, cure or dry fish on, or within three marine miles of any of the coasts, bays, creeks or harbours of His Britannic Majesty’s Dominions in America.” It is well known that the negotiators of the Treaty of 1783 gave a very different meaning to the terms liberty and right, as distinguished from each other. In this connection Mr. Apams’ Journal may be recited. To this Journal the British Counter Case refers in the following terms: “From an entry in Mr. Apams’ Journal it appears that he drafted an article by which he distinguished the right to take fish (both on the high seas and on the shores) and the: liberty to take and cure fish on the land. But on the following day he presented to the British negotiators a draft in which he distinguishes between the ‘right’ to take fish on the high seas, and the ‘/iberty’ to take fish on the ‘coasts,’ and to dry and cure fish on the land. . .. The British Commissioner called attention to the distinction thus suggested by Mr. Apams and proposed that the word Jiberty should be applied to the privileges both on the water and on the land. Mr. Apams thereupon rose up and made a vehement protest, as is recorded in his Diary, against the suggestion that the United States enjoyed the fishing on the banks of Newfoundland by any other title than that of right.” . . . ‘“Theapplication of the word liberty to the coast fishery was left as Mr. Apams proposed.” “The incident,” proceeds the British Case,‘ is of importance, since it shows that the difference between the two phrases was intentional.” (British Counter Case, page 17.) And the British Argument emphasizes again the difference. “More cogent still is the distinction between the words right and liberty. The word right is applied to the sea fisheries, and the word Jiberly to the shore fisheries. The history of the negotiations shows that this distinction was advisedly adopted.” If then a liberty is a grant and not the recognition of a right; if, as the British Case, Counter Case and Argument recognize, the United States had the right to fish in the open sea in contradistinction with the /iberty to fish near the shores or portions of the shores, and if what has been renounced in the words of the treaty is the “liberty” to fish on, or within three miles of the bays, creeks and harbours of His Britannic Majesty’s Dominions, it clearly follows that such /7berty and the corresponding renunciation refers only to such portions of the bays which were under the sovereignty of Great Britain and not to such other portions, if any, as form part of the high seas. And thus it appears that far from being immaterial the territoriality of bays is of the utmost importance. The treaty not containing any rule or indication upon the subject, the Tribunal cannot help a decision as to this point, which involves the second branch of the British contention that all so-called bays are not only geographical but wholly territorial as well, and subject to the jurisdiction of Great Britain. The situa- tion was very accurately described on almost the same lines as above stated by the British Memorandum sent in 1870 by the Earl of Kimberley to Governor Sir JoHN Younc: “The right of Great Britain to exclude American fishermen from waters within three miles of the coasts is unambiguous, and, it is believed, uncontested. But there appears to be some doubt what are the waters described as within three miles of bays, creeks or harbours. When a bay is less than six miles broad its waters are within the three mile limit, and therefore clearly within the meaning of the treaty; but when it is more than that breadth, the question arises whether it is a bay of Her Britannic Majesty's Dominions. This is a question which has to be considered in each particular case with regard to international law and usage. When such a bay is not a bay of Her Majesty’s dominions, the American fishermen shall be entitled to fish in it, except within three marine miles of the ‘coast’; when it isa bay of Her Majesty’s dominions they will not be entitled to fish within three miles of it, that is to say (it is presumed) 518 APPENDIX within three miles of a line drawn from headland to headland.” (American Case Appendix, page 629.) Now, it must be stated in the first place that there does not seem to exist any general rule of international law which may be considered final, even in what refers to the mar- ginal belt of territorial waters. The old rule of the cannon-shot, crystallized into the present three marine miles measured from low water mark, may be modified at a later period inasmuch as certain nations claim a wider jurisdiction and an extension has already been recommended by the Institute of International Law. There is an obvious reason for that. The marginal strip of territorial waters based originally on the cannon shot, was founded on the necessity of the riparian State to protect itself from outward attack, by providing something in the nature of an insulating zone, which very reason- ably should be extended with the accrued possibility of offense due to the wider range of modern ordnance. In what refers to bays, it has been proposed as a general rule (subject to certain important exceptions) that the marginal belt of territorial waters should follow the sinuosities of the coast more or less in the manner held by the United States in the~present contention, so that the marginal belt being of three miles, as in the Treaty under consideration, only such bays should be held as territorial as have an entrance not wider than six miles. (See Sir THomas Barctay’s Report to Institute of International Law, 1894, page 129, in which he also strongly recommends these limits.) This is the doctrine which WESTLAKE, the eminent English writer on Inter- national Law, has summed up in very few words: “As to bays,” he says, “‘if the en- trance to one of them is not more than twice the width of the littoral sea enjoyed by the country in question, — that is, not more than six sea miles in the ordinary case, eight in that of Norway, and so forth — there is no access from the open sea to the bay except through the territorial water of that country, and the inner part of the bay will belong to that country no matter how widely it may expand. The line drawn from shore to shore at the part where, in approaching from the open sea, the width first contracts to that mentioned, will take the place of the line of low water, and the littoral sea belonging to the State will be measured outwards from that line to the distance of three miles or more, proper to the State.” (WESTLAKE, Vol. 1, page 187.) But the learned author takes care to add: ‘But although this is the general rule it often meets with an exception in the case of bays which penetrate deep into the land and are called gulfs. Many of these are recognized by immemorial usage as territorial sea of the States into which they penetrate, notwithstanding that their entrance is wider than the general rule for bays would give as a limit for such appropriation.” And he pro- ceeds to quote as examples of this kind the Bay of Conception in Newfoundland, which he considers as wholly British, Chesapeake and Delaware Bays, which belong to the United States, and others. (Jbid., page 188.) The Institute of International Law, in its Annual Meeting of 1894, recommended a marginal belt of six miles for the general line of the coast and as a consequence established that for bays the line should be drawn up across at the nearest portion of the entrance toward the sea where the distance between the two sides do not exceed twelve miles. But the learned association very wisely added a proviso to the effect, “that bays should be so considered and measured unless a continuous and established usage has sanctioned a greater breadth.” Many great authorities are agreed as to that. Counsel for the United States proclaimed the right to the exclusive jurisdiction of certain bays, no matter what the width of their entrance should be, when the littoral nation has asserted its right to take it into their jurisdiction upon reasons which go always back to the doctrine of protection.‘ Lord BLACKBURN, one of the most eminent of English Judges, in delivering the opinion of DISSENTING OPINION OF DR. LUIS M. DRAGO 519 the Privy Council about Conception Bay in Newfoundland, adhered to the same doc- trine when he asserted the territoriality of that branch of the sea, giving as a reason for such finding “‘that the British Government for a long period had exercised dominion over this bay and its claim had been acquiesced in by other nations, so as to show that the bay had been for a long time occupied exclusively by Great Britain, a circumstance which, in the tribunals of any country, would be very important.” ‘And moreover,” he added, “‘the British Legislature has, by Acts of Parliament, declared it to be part of the British territory, and part of the country made subject to the legislation of Newfoundland.” (Direct U. S. Cable Co. v. The Anglo-American Telegraph Co., Law Reports, 2 Appeal Cases, 374.) So it may be safely asserted that a certain class of bays, which might be properly called the historical bays such as Chesapeake Bay and Delaware Bay in North America and the great estuary of the River Plate in South America, form a class distinct and apart and undoubtedly belong to the littoral country, whatever be their depth of pene- tration and the width of their mouths, when such country has asserted its sovereignty over them, and particular circumstances such as geographical configuration, immemo- rial usage and above all, the requirements of self-defense, justify such a pretension. The right of Great Britain over the bays of Conception, Chaleur and Miramichi are of this description. In what refers to the other bays, as might be termed the common, ordinary bays, indenting the coasts, over which no special claim or assertion of sover- eignty has been made, there does not seem to be any other general principle to be applied than the one resulting from the custom and usage of each individual nation as shown by their Treaties and their general and time honored practice. The well known words of BYNKERSHOEK might be very appropriately recalled in this connection when so many and divergent opinions and authorities have been recited: “The common law of nations,” he says, “‘can only be learnt from reason and custom. I do not deny that authority may add weight to reason, but IJ prefer to seek it in a constant custom of concluding treaties in one sense or another and in examples that have occurred in one country or another.” (Questiones Jure Publici, Vol. 1, Cap. 3.) It is to be borne in mind in this respect that the Tribunal has been called upon to decide as the subject matter of this controversy, the construction to be given to the fishery Treaty of 1818 between Great Britain and the United States. And so it is that from the usage and the practice of Great Britain in this and other like fisheries and from Treaties entered into by them with other nations as to fisheries, may be evolved the right interpretation to be given to the particular convention which has been submitted. In this connection the following Treaties may be recited: Treaty between Great Britain and France. 2nd August, 1839. It reads as follows: Art. IX. The subjects of Her Britannic Majesty shall enjoy the exclusive right of fishery within the distance of 3 miles from low water mark along the whole extent of the coasts of the British Islands. It is agreed that the distance of three miles fixed as the general limit for the exclusive right of fishery upon the coasts of the two countries, shall, with respect to bays, the mouths of which do not exceed ten miles in width, be measured from a straight line drawn from headland to headland. Arr. X, It is agreed and understood, that the miles mentioned in the present Convention are geographical miles, whereof 60 make a degree of latitude. (HERTSLETT’S Treaties and Conventions, Vol. V, p. 89.) Regulations between Great Britain and France. 24th May, 1843. 520 APPENDIX Art. II. The limits, within which the general right of fishery is exclusively reserved to the subjects of the two kingdoms respectively, are fixed (with the exception of those in Granville Bay) at 3 miles distance from low water mark. With respect to bays, the mouths of which do not exceed ten miles in width, the 3 mile distance is measured from a straight line drawn from headland to headland. Art. III. The miles mentioned in the present regulations are geographical miles, of which 60 make a degree of latitude. (HErRTsteETT, Vol. VI, p. 416.) Treaty between Great Britain and France. November 11, 1867. Art..I. British fishermen shall enjoy the exclusive right of fishery within the dis- tance of 3 miles from low water mark, along the whole extent of the coasts of the British Islands. The distance of 3 miles fixed as the general limit for the exclusive right of fishery upon the coasts of the two countries shall, with respect to bays, the mouths of which do not exceed ten miles in width be measured from a straight line drawn from head- land to headland. The miles mentioned in the present convention are geographical miles whereof 60 make a degree of latitude. (HERTSLETI’s Treaties, Vol. XII, p. 1126, British Case App., p. 38.) Great Britain and North German Confederation. British notice to fishermen by the Board of Trade. Board of Trade, November 1868. " Her Majesty’s Government and the North German Confederation having come to an agreement respecting the regulations to be observed by British fishermen fishing off the coasts of the North German Confederation, the following notice is issued for the guidance and warning of British fishermen: . 1. The exclusive fishery limits of the German Empire are designated by the Imperial Government as follows: that tract of the sea which extends to a distance of 3 sea miles from the extremest limits which the ebb leaves dry of the German North Sea Coast of the German Islands or flats lying before it, as well as those bays and incurvations of the coast which are ten sea miles or less in breadth reckoned from the extremest points of the land and the flats, must be considered as under the territorial sovereignty of North Germany. (HERTSLETT’s Treaties, Vol. XIV, p. 1055.) Great Britain and German Empire. British Board of Trade, December 1874. (Same recital referring to an arrangement entered into between Her Britannic Majesty and the German Government.) Then the same articles follow with the alteration of the words “‘German Empire” for “North Germany.” (HERTSLETY’S, Vol. XIV, p. 1058.) Treaty between Great Britain, Belgium, Denmark, France, Germany and the Nether- lands for regulating the police of the North Sea Fisheries, May 6, 1882. TI. Les pécheurs nationaux jouiront du droit exclusif de péche dans le rayon de 3 milles, 4 partir de la laisse de basse mer, le long de toute l’étendue des cétes de leurs pays respectifs, ainsi que des tles et des bancs qui en dépendent. Pour les baies le rayon de 3 milles sera mesuré A partir d’une ligne droite, tirée, en travers de la baie, dans la partie la plus rapprochée de l’entrée, au premier point od Pouverture n’excédera pas 10 milles. (HeErtstEtt, Vol. XV, p. 794.) British Order in Council, October 23rd, 1877. DISSENTING OPINION OF DR. LUIS M. DRAGO 521 Prescribes the obligation of not concealing or effacing numbers or marks on boats, employed in fishing or dredging for purposes of sale on the coasts of England, Wales, Scotland and the Islands of Guernsey, Jersey, Alderney, Sark and Man, and not going outside; (a) The distance of 3 miles from low water mark along the whole extent of the said c#asts; (b) In cases of bays less than romiles wide the line joining the headlands of said bays. (HERTSLETT’S, Vol. XIV, p. 1032.) To this list may be added the unratified Treaty of 1888 between Great Britain and the United States which is so familiar to the Tribunal. Such unratified Treaty con- tains an authoritative interpretation of the Convention of October 20th, 1818, sub judice: “‘The three marine miles mentioned in Article I of the Convention of October 2oth, 1818, shall be measured seaward from low-water mark; but at every bay, creek or harbour, not otherwise specifically provided for in this Treaty, such three marine miles shall be measured seaward from a straight line drawn across the bay, creek or harbor, in the part nearest the entrance at the first point where the width does not exceed ten marine miles,” which is recognizing the exceptional bays as aforesaid and laying the rule for the general and common bays. It has been suggested that the Treaty of 1818 ought not to be studied as hereabove in the light of any Treaties of a later date, but rather be referred to such British inter- national Conventions as preceded it and clearly illustrate, according to this view, what were, at the time, the principles maintained by Great Britain as to their sovereignty over the sea and over the coast and the adjacent territorial waters. In this connection the Treaties of 1686 and 1713 with France and of 1763 with France and Spain have been recited and offered as examples also of exclusion of nations by agreement from fishery rights on the high seas. I cannot partake of such a view. The treaties of 1686, 1713 and 1763 can hardly be understood with respect to this, otherwise than as examples of the wild, obsolete claims over the common ocean which all nations have of old abandoned with the progress of an enlightened civilization. And if certain nations accepted long ago to be excluded by convention from fishing on what is to-day considered a common sea, it is precisely because it was then understood that such tracts of water, now free and open to all, were the exclusive property of a particular power, who, being the owners, admitted or excluded others from their use. The Treaty of 1818 is in the meantime one of the few which mark an era in the diplomacy of the world. Asa matter of fact it is the very first which commuted the rule of the cannon-shot into the three marine miles of coastal jurisdiction. And it really would appear unjustified to explain such historic document, by referring it to international Agreements of a hundred and two hundred years before when the doctrine of SELDEN’S Mare Clausum was at its height and when the coastal waters were fixed at such dis- tances as sixty miles, or a hundred miles, or two days’ journey from the shore and the like. It seems very appropriate, on the contrary, to explain the meaning of the Treaty of 1818 by comparing it with those which immediately followed and established the same limit of coastal jurisdiction. Asa general rule a Treaty of a former date may be very safely construed by referring it to the provisions of like Treaties made by the same nation on the same matter at alater time. Much more so when, as occurs in the present case, the later Conventions, with no exception, starting from the same premise of the three miles coastal jurisdiction arrive always to an uniform policy and line of action in what refers to bays. As a matter of fact all authorities approach and connect the modern fishery Treaties of Great Britain and refer them to the Treaty of 522 APPENDIX 1818. The second edition of Kuper, for instance, quotes in the same sentence the Treaties of October 20th, 1818, and August 2, 1839, as fixing a distance of three miles from low water mark for coastal jurisdiction. And Fiori, the well-known Italian jurist, referring to the same marine miles of coastal jurisdiction, says: ‘This rule recognized as early as the Treaty of 1818 between the United States and Great Britain, and that between Great Britain and France in 1839, has again been admitted in the treaty of 1867.” (Nouveau Droit International Public, Paris, 1885, Section 803.) This is only a recognition of the permanency and the continuity of States. The Treaty of 1818 is not a separate fact unconnected with the later policy of Great Britain. Its negotiators were not parties to such international Convention and their powers disappeared as soon as they signed the document on behalf of their countries, The parties to the Treaty of 1818 were the United States and Great Britain, and what Great Britain meant in 1818 about bays and fisheries, when they for the first time _ fixed a marginal jurisdiction of three miles, can be very well explained by what Great Britain, the same permanent political entity, understood in 1839, 1843, 1867, 1874, 1878 and 1882, when fixing the very same zone of territorial waters. That a bay in Europe should be considered as different from a bay in America and subject to other principles of international law cannot be admitted in the face of it. What the practice of Great Britain has been outside the Treaties is very well known to the Tribunal, and the examples might be multiplied of the cases in which that nation has ordered its subordinates to apply to the bays on these fisheries the ten mile entrance rule or the six miles according to the occasion. It has been repeatedly said that such have been only relaxations of the strict right, assented to by Great Britain in order to avoid friction on certain special occasions. That may be. But it may also be asserted that such relaxations have been very many and that the constant, uniform, never contra- dicted, practice of concluding fishery Treaties from 1839 down to the present day, in all of which the ten miles entrance bays are recognized, is the clear sign of a policy. This policy has but very lately found a most public, solemn and unequivocal expression. “On a question asked in Parliament on the z1st of February 1907, says Pirt CoBBETT, a distinguished English writer, with respect to the Moray Firth Case, it was stated that, according to the view of the Foreign Office, the Admiralty, the Colonial Office, the Board of Trade and the Board of Agriculture and Fisheries, the term “territorial waters” was deemed to include waters extending from the coast line of any part of the territory of a State to three miles from the low-water mark of such coast line and the waters of all bays, the entrance to which is not more than six miles, and of which the entire land boundary forms part of the territory of the same state. (Pitt CoBBETT, Cases and Opinions on International Law, Vol. 1, p. 143.) Is there a contradiction between these six miles and the ten miles of the treaties just referred to? Not at all. The six miles are the consequence of the three miles marginal belt of territorial waters in their coincidence from both sides at the inlets of the coast and the ten miles far from being an arbitrary measure are simply an extension, a margin given for convenience to the strict six miles with fishery purposes. Where the miles represent sixty to a degree in latitude the ten miles are besides the sixth part of the same degree. The American Government in reply to the observations made to Secretary BAyARD’s Memorandum of 1888, said very precisely: “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 DISSENTING OPINION OF DR. LUIS M. DRAGO 523 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.” (British Case Appendix, page 416.) And Professor Joun Basser Mookrg, a recognized authority on International law, in a communication addressed to the Institute of International law, said very forcibly: ‘(Since you observe that there does not appear to be any convincing reason to prefer the ten mile line in such a case to that of double three miles, I may say that there have been supposed to exist reasons both of convenience and of safety. The ten mile line has been adopted in the cases referred to as a practical rule. The transgression of an encroachment upon territorial waters by fishing vessels is generally a grave offense, involving in many instances the forfeiture of the offending vessel, and it is obvious that the narrower the space in which it is permissible to fish the more likely the offense is to be committed. In order, there- fore, that fishing may be practicable and safe and not constantly attended with the risk of violating territorial waters, it has been thought to be expedient not to allow it where the extent of free waters between the three miles drawn on each side of the bay is less than four miles. This is the reason of the ten mile line. Its intention is not to hamper or restrict the right to fish, but to render its exercise practicable and safe. ‘When fishermen fall in with a shoal of fish, the impulse to follow it is so strong as to make the possibilities of transgression very serious within narrow limits of free waters. Hence it has been deemed wiser to exclude them from space less than four miles each way from the forbidden lines. In spaces less than this operations are not only hazard- ous, but so circumscribed as to render them of little practical value.” (Annuaire de Institut de Droit International, 1894, p. 146.) So the use of the ten mile bays so constantly put into practice by Great Britain in its fishery Treaties has its root and connection with the marginal belt of three miles for the territorial waters. So much so that the Tribunal having decided not to adjudi- cate in this case the ten miles entrance to the bays of the treaty of 1818, this will be the only one exception in which the ten miles of the bays do not follow as a consequence the strip of three miles of territorial waters, the historical bays and estuaries always excepted. And it is for that reason that an usage so firmly and for so long a time established ought, in my opinion, be applied to the construction of the Treaty under consideration, much more so, when custom, one of the recognized sources of law, international as well as municipal, is supported in this case by reason and by the acquiescence and the practice of many nations. The Tribunal has decided that: “In case of bays the 3 miles (of the Treaty) are to be measured from a straight line drawn across the body of water at the place where it ceases to have the configuration characteristic of a bay. At all other places the three miles are to be measured following the sinuosities of the coast.’’ But no rule is laid out or general principle evolved for the parties to know what the nature of such con- figuration is or by what methods the points should be ascertained from which the bay should lose the characteristics of such. There lies the whole contention and the whole difficulty, not satisfactorily solved, to my mind, by simply recommending, without the scope of the award and as a system of procedure for resolving future contestations under Article IV of the Treaty of Arbitration, a series of lines, which practical as they may be supposed to be, cannot be adopted by the Parties without concluding a new Treaty. These are the reasons for my dissent, which I much regret, on Question Five. Done at the Hague, September 7th, 1910. Luis M. Draco.