UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 ■ 
 
 Oir Fishery Rights 
 
 IN III E 
 
 North Atlantic 
 
 By 
 
 JOS. I. DORAN. 
 
 Our Fisheries "— Thos. Jefferson. 
 
 PHILADELPHIA : 
 
 ALLEN, I. AM-: & SCOTT'S PRINTING HOUSE, 
 
 South Fifth Sb 
 1 888.
 
 Our Fishery Rights 
 
 IX III! 
 
 North Atlantic. 
 
 JOS. I. DOR AX. 
 
 •'our Fisheries "-Tlios. [efferson. 
 
 PHILADELPHIA: 
 ALLEN, LANE & SCOTT'S PRINTING HOUSE, 
 . ,: . and 233 South Fifth Street. 
 
 i 88.
 
 T 
 
 3 - 
 
 <^9
 
 
 PREFACE. 
 
 Tlic "differences" with Canada about our fishery rights in 
 the North Atlantic arc still unsettled, and in order to determine 
 what are proper terms for the settlemenl of the dispute it is 
 necessary to examine the title under which we claim our rigl 
 and the extent to which we have been enabled to enjoy them. 
 
 Notwithstanding the rejection of the Chamberlain— Bayard 
 treaty by the Senate, the policy influencing the present Ad- 
 ministration at Washington, in its negotiation, is still in 
 control; and as Mr. Cleveland has, by his message to Con- 
 gress of August 23d, 1888, officially declared "that the 
 treat}' just rejected by the Senate was well suited to the 
 exigency, and that its provisions were adequate for our secu- 
 rity in the future from vexatious incidents and for the promo- 
 tion of friendly neighborhood and intimacy without sacrific- 
 ing in the least our national pride or dignity," it is plain that 
 he would approve another treat}- containing similar provisions. 
 
 Mr. Chamberlain, speaking at Birmingham, March 28th, 
 18X8 [see London Times of March 29th, 18SS], said: " I ob- 
 serve that within the last day or two Mr. Bayard [" Hear, 
 hear ! " |, a distinguished man who occupies at the present time 
 the position of Secretary of State in America [cheers], has 
 declared that in his judgment the treaty concedes to American 
 fishermen all that in reason and justice the}- can ask from the 
 Government of Canada. [Cheers.] But, if that be so, the 
 refusal of such a settlement, the rejection of such an olive 
 branch held out to the American people, would throw a heavy 
 responsibility on the shoulders of those who would prolong 
 the state of irritation and of dangerous antagonism which 
 prevailed only two years ago in the relations between Great 
 Britain and the United States. [" Hear, hear ! " I hope, as 
 I have said, that nothing of the kind will occur; but in any 
 case, even if the final result should be delayed, we have at 
 
 (3)
 
 least succeeded in putting on record, in the most formal and 
 authoritative way, the opinion of three governments, of the 
 executives of three nations, as to what constitutes a just and 
 honorable, a fair ami reasonable, settlement of the differences 
 that have arisen between them. That cannot be left out of 
 account in the future ; it must influence, and in the end it must 
 em, the final disposal of the question. It is an element that 
 I do not believe any fair or reasonable man, either in Canada 
 or in the United States, would desire to ignore." 
 
 The policy of the present Administration on the question 
 thus having been declared, and Mr. Chamberlain having an- 
 nounced that the rejected treaty " must influence and in the 
 end must govern the final disposition of the question," any 
 consideration of our fisheries rights now, or hereafter, will be 
 incomplete without an examination of the provisions of the 
 rejected treaty.
 
 The Rights of the United States in ti 
 North Atlantic Fisheries. 
 
 The rights of the United States in the North 
 Atlantic Fisheries arc in the nature of a joint 
 ownership or tenancy in common with subjects 
 of the British Crown, proprietary rights fully as 
 great and the same as those of Canada it sell, 
 and they are rights existing in the United States 
 without any corresponding right in British sub- 
 jects on our coast. 
 
 By Article III. of the treaty of peace of 17S3, by which 
 
 England recognized the United States as " free, sovereign, ami 
 
 independent State," it was declared, as an incident of their 
 
 separate sovereignty : — 
 
 " 'I'll a the people of ti)'' I Inited States sh ill continue to < joy. unmo- 
 lested, tlv right to take fish of every kind <>n tin.' Grand Bank and on 
 all the other hanks of Newfoundland; also in the Cult" of St. Lawrence, 
 and at all other places in the sea where th ■ inhabitants of both countries 
 used at a\w time here! »fore to fish : and also dial the inhabitants of the 
 Unit d S al -hall have the liberty to I ik ■ fish of every kind on such 
 part oi th c ■ 1st of Newfoundland as British fishermen shall use (but 
 n it 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 hays, harbors, and cr 
 of N > 1 Scotia, Magdalen Islands, and Labrador so long as the same 
 shall remain unsettled ; bul so soon as the same or either of them shall 
 ttled it shall not be lawful i.c- th ■ said fishermen to dry or cure fish 
 at such settlement without a previous agreement for that purpose with 
 the inhabitants, proprietors, or possessor-, of the ground." 
 
 "Continue to enjoy unmolested the right to take fish" and 
 other explicit expressions in the treaty, the history oi Amer- 
 ican rights in the fisheries, and of the negotiations of the 
 treaty show that Article 111. of the treaty of [783 was a delib- 
 erate and express acknowledgment of existing rights, and 
 not the grant of new ones.
 
 [n the debate on the treaty in the House of Lords the po- 
 sition taken by Lord Loughborough, that " the fishery on the 
 shores retained by Britain is in the next article not ceded 
 but recognized as a right inherent in the Americans, which, 
 though no longer British subjects, they are to continue to 
 enjoy unmolested — no right, on the other hand, being reserved 
 to British subjects to approach their shorts tor the purpose of 
 fishing, in this reciprocal treaty" was not denied. 
 
 Cobbett's Parliamentary History, vol. 23, page 428. 
 
 Whatever rights Canadian fishermen enjoy in the fisheries 
 of tin- North Atlantic were won by the men of New England 
 from the French in colonial days. While colonies of Great 
 Britain "tin- Americans had hitherto almost alone engaged in 
 the fisheries on the coast of Nova Scotia and the Gulf oi St. 
 Lawrence. The New England men had planned and had 
 alone furnished land forces for the first reduction of Cape 
 Breton, and had assisted in the acquisition of Nova Scotia 
 and Canada. The men of Massachusetts therefore claimed 
 the fisheries on their coasts as a perpetual joint property." 
 
 Bancroft's History of the U. S., vol. 5, page 321 ; 
 
 Sabine's Report on the Fisheries, 185-196; 
 
 Winsor's Crit. & Nar. Hist. America, vol. 5, pages 147, 
 407. 
 
 On April 4U1, 1748, a committee of the House of Parlia- 
 ment adopted the following resolution : — 
 
 " Resolved, That it is the opinion of this committee that the several 
 provinces and colonies of Massachusetts Bay, New Hampshire, Connec- 
 ticut, and Rhode Island be reimbursed the expenses tiny have been at 
 in taking and securing to the Crown of Great Britain tin- island of Cape 
 Breton and its dependen* \- 
 
 Journal of the House, vol. xxv. 
 
 " These expenses," said Edmund Burke, in his speech on 
 conciliation with America, "were immense for such colonies. 
 They were ah- • ,{?200,000 sterling; money first raised and 
 advanced on their public credit." 
 
 The colonists of New England, at the Declaration o'f Inde- 
 p ndence, were enjoying equal rights and a joint ownership
 
 with British fishermen in the North Atlantic fisheries, and as 
 the United States were successful in maintaining their inde- 
 pendence they insisted, in the neg< itiations for peace, that these 
 rierhts were not losl to them by the severance of their relations 
 with the British down and should be expressly recognized 
 in the treaty of peai 
 
 These rights had been confirmed and defined by the char- 
 ters of New England, and when the British Parliament passed 
 the act of March, 1775, to prohibit the colonies of New Eng- 
 land from fishing on the banks of Newfoundland, sixteen 
 peers, among them Lord Camden and Lord Rockingham, 
 protested against the passage of the act, "because the people 
 of New England, besides the natural claim of mankind to the 
 gifts of Providence on their own coast, are specially entitled to 
 the fishery by their charters, which have, never been declared 
 forfeited." 
 
 American Archives, 4th series, 1774-1775, vol. 1. page 
 1690. 
 
 By the charter of Massachusetts Bay of 1691 the province 
 of Maine and the territory of Acadia or Nova Scotia, with the 
 land- (now New Brunswick) lying between Nova Scotia and 
 Maine, were annexed to Massachusetts, and the northerly and 
 easterly limits of the province of Massachusetts under that 
 charter extended to the river St. Lawrence, and down the 
 river St. Lawrence and along the Atlantic coast of Nova 
 - itia to the Gulf of St. Lawrence. Although in 173K a sep- 
 arate constitution was granted to Nova Scotia the charter ot 
 Massachusetts Bay of 1691 continued in force, and Massa- 
 chusetts and Maine remained under it and were entitled to 
 the benefit of its provisions until the Revolution. 
 
 Charters of Massachusetts Bay of [627 and 1691 ; 
 Charters and Constitutions of the U. S., part I. pages 
 
 932-954; 
 fohn Adams to Wm. Tudor. Adams' Works, vol. x., 
 
 page 334; 
 Haliburton's Historical and Statistical Account of 
 
 Nova Scotia, vol. i., pages ~i, 144, 210; 
 Winsor's Crit. & Nar. Hist. America, vol. 5. pages 91, 
 
 479-4S1.
 
 8 
 
 By the charter of 1691 it was expressly provided that the 
 subjects of the British Crown — 
 
 •■That they and every of them shall have full and free power and 
 liberty to continue and use their said trade of fishing upon the said c< lasts, 
 in any of the seas thereunto adjoining, or any arms of the said seas or 
 salt-.water rivers where they have bt en wont to fish, and to build and set 
 upon the lands within our said province or colony lying wash- and not 
 then po I by particular proprietors, such wharves, stages, and 
 
 workhouses as shall be necessary for the salting, drying, keeping, and 
 packing of their fish, to be taken or gotten upon thai co d to cut 
 
 down and take such trees and other materials there growing, or being or 
 growing upon any parts or plai es lying waste and not then in possession 
 of particular propri< bus. as shall be needful for that purpose, and for all 
 other necessary easements, helps, and advantages con< erning the trade 
 of fishing there, in such manner and form as they have been heretofore 
 at any time accustomed to do, without making any willful waste or spoil 
 anything, in these presents contained to the contrary notwithstanding.'' 
 
 The phrases " continue to enjoy unmolested the right to take- 
 fish," and " used at any time heretofore to fish," in the Treaty 1 »f 
 1783, are only repetitions of the expressions " continue and use 
 their said trade of fishing" "where they have been wont to 
 fish," and "as they have been heretofore at anytime accus- 
 tomed to do," in the charters of 1629 and 1 69 1 ; and word 
 "liberty" is foun.d in the charters of 162; and 1691 as well 
 as in the Treaty of 1793. The Treat}' of [783 was little more 
 than a confirmation of the ancient and chartered rights rec- 
 ognized in the charters of 1627 and 1691. 
 
 Down to the Revolution Nova Scotia was hardly known 
 except for its fisheries. In 1793 a witness before a committee 
 of Commons spoke of the- island of Newfoundland "as a 
 great English ship moored near the banks during the fishing 
 season for the convenience ol English fishermen," and that 
 " thi rnor was considered the ship's captain, and all those 
 
 concerned in the fishing business as his crew." 
 
 Sabine's Report on the Fisheries, 1 237-230; 
 
 Winsor's Crit. cv: Xar. Hist, America, vol. 5, page 407. 
 
 The men and ships engaged in tin: fisheries were mainly 
 
 from X '.'. England. In fact, the fisheries were almost, if not
 
 entirely, conducted by the people of New England alone. 
 In colonial days fish was the chief staple commodity of N 
 ! land, as tobacco was iii Virginia. The fishing towns were 
 thriving and populous, and, so far as the people on this conti- 
 nent were concerned, the fisheries on the shores of Nova 
 Scotia and Newfoundland, in the Gulf of St. Lawrence, and 
 on the banks were to all intents and purposes the fisheries 
 New England. The shores immediately adjacent to the fish- 
 eries were -parse!)- peopled, and were used only in conned 
 with the fisheries. Halifax itself was settled for the prosecu- 
 tion of the fisheries. Instead of the fisheries being an appurte- 
 nant to the neighboring coasts, the coast-, on the contrary, 
 were entirely subservient to the fisheries, and were only u 
 as an accommodation to their prosecution. 
 
 Sabine's Report on the Fisheries, pages 227, 23;, 250, 
 261, 303, 390; 
 
 Haliburton's Nova Scotia, vol. i., pages 243,261,. 
 
 Hon. Charles Levi Woodbury, in his "Headlands" pam- 
 phlet, in showing the distinct independence of the fisheries 
 from the ownership of the soil of the coasts and the appurte- 
 nant subjection of the coast to the uses of the common fish- 
 ery, says : — 
 
 "This charter of William and Mary remained in force until the Amer- 
 U< volution, though Nova Scotia had soon passed under French rule. 
 The appurtenant character of the British colonial coasts to these fis 
 ies came in question after the Revolution, and the Treaty of 1783 evi- 
 dently is based upon and recognizes this principle, that the fishery was 
 not an appurtenanl of the shore of the colonies remaining ti 1 Brit- 
 
 ain. It was not tin- main object of the treaty to give fishery right 
 
 not entitled previously thereto, but was to relieve the shores by 
 contract of as much of these old uses as the second party was willing to 
 relinquish of his own right therein. Thus while the United States yields 
 the right to dry and cure fish on the shores of Newfoundland, it retains 
 the right to dry and cine fish in any of the unsettled hays, harbors, ami 
 ks of Nova Scotia, Magdalen fslands, and Labrador; ami where 
 they are settled, to dr\ and cure with the consent of the inhabitants, pro- 
 prietors of the grounds." 
 
 An express recognition of our fishery rights was one "t the 
 ultimatums of peace at the close ^\ the Revolutionary War.
 
 io 
 
 but England naturally opposed this claim and resisted it to the 
 utmost. 
 
 •• Against the British draft of the article on the fisheries, John Adams, 
 with tin- steady and efficienl support of Franklin and of Jay, spoke with 
 the more effect as it introduced an arbitrary restriction ; and he declared 
 he would not set his hind to the treaty unless the limitations were 
 stricken out. After long altercations the article was reduced to the form 
 in which it appears in the treaty, granting to the United States equal 
 rights with the British fishermen to take fish on the coast of Newfound- 
 land and on the coasts, bays, and creeks of all other British dominions 
 in America." 
 
 Bancroft's History of the U. S., vol. v, page 579. 
 
 "That third article was demanded as an ultimatum, and it was de- 
 ed that ni 1 treaty of peace should ever be mack' without it, and when 
 i!i British ministers found that peace could not he made without that 
 article they consented, for Britain wanted peace, if possible, more than 
 we did." 
 
 [ohn Adams to William Thomas, Aug. 10th, 1822, 
 Adams' Works, vol. x, page 404. 
 
 The Continental Congress had by its resolution of May 
 27th, 1779, declared " that in no case by any Treaty of Peace 
 the common right of fishing be given up." 
 
 The writer of an article in a late number of the New York 
 Tribune, giving a history of the American fishery rights, makes 
 the following concise and clear statement of the position taken 
 by the United States in the negotiations for peace at the close 
 of the Revolution : — 
 
 "In the negotiations for peace al the close oi the Revolution, equal 
 rights to tin- fisheries were imperatively demanded. The colonists were 
 unwilling to make p :ace on any other terms. Mr. Livingston, Secretary 
 of State, wrote to Dr. Franklin: 'If we were tenants in common with 
 Great Britain while united with her, we still continue so, unless we have 
 relinquished our title. ( )ur rights are not invalidated by this separation, 
 more particularly as we have kept up our claim from the commencement 
 ol the war. and assigned the attempt off ireat Britain to exclude us from 
 the fisheries as one oi the < auses oi our recurring to arms.' The Conti- 
 nental Congress instructed [ohn Adams by resolution 'that it is essential 
 to the welfare of all the United States that the inhabitants thereof, at the 
 expiration of the war, should continue to enjoy the free and undisturbed 
 exercise of their common righl to fish on the banks of Newfoundland 
 and the other fishing banks and seas of North America, preserving in-
 
 1 1 
 
 violate the treaties between France and the United States.' The origi- 
 nal bases ol peace prop< ;ed by I >r. Franklin were political independent e, 
 an adjustment of boundaries, and unrestricted rights to the fisheries; 
 and these were adopted after a prolonged diplomatic struggle, notwith- 
 standing hostile intrigues l>\ France and Spain. John Adams was as in- 
 flexible in his refusal to conclude peace without obtaining explicil recog- 
 nition of the fishing francluses, as Samuel Adams was intrepid and vehe- 
 ment in hisde< larationsal Boston that war musl be resumed if those rights 
 were denied to New England. When the British Commissioners obj< 
 ed to the word 'right' in the fisheries clause, he indignantly exclaimed:— 
 
 •• • Is there or can there be a clearer right ? In former treaties, that of 
 Utrecht and that of Paris, France and England have claimed the right 
 and used the word. * * * [f heaven at the creation gave a right, 
 it is ours at least as much as yours. If occupation, use, and poss< ssion 
 give a right, we have it as clearly as you. If war, and blood, and tn 
 ure give a right, ours is as good as yours. We have been continuousl) 
 fighting in Canada, ("ape Breton, and Nova Scotia lor the defense of this 
 fishery, and have expended beyond all proportion more than you. If, 
 then, the right cannot be denied, why should it not In- acknowledged 
 and put out of dispute? Why should we leave room for illiterate fisher- 
 men to wrangle ami chicane?' 
 
 •'Mr. jay and Mr. Laurens, Associate American Commissioners, un- 
 equivocally supported Mi. Adams in his refusal to make peace unless 
 the fisheries were included." 
 
 England finally yielded to our claim, and by the Treaty of 
 Peace acknowledged our proprietary title or rights of owner- 
 ship in tlie fisheries as well as our independence, and no cor- 
 responding rights were conferred upon or conceded to British 
 subjects on the coasts of the United States. 
 
 Our title, therefore, tinder the Treaty of 1783 is one of joint 
 ownership with the subjects of the British Crown, a title- 
 equal to and as good as theirs, appurtenant to our separate sov- 
 ereignty declared and established by our War for [ndepend- 
 ence, and without any corresponding right on the part of 
 British subjects on the coasts of the United States. 
 
 John Adams, in a letter to Richard Rush, dated April 5th, 
 [815 (Adams' Works, vol. x, page 160), said: — 
 
 "2. We have a right (1 know not very well how to express it hut 
 we have the right of British subjects. Not that we are now British sub 
 jects ; noi th.u we were British subjects at the treaty of [783, but as hav- 
 ing been British subjects, and entitled to all the rights, liberties, privi- 
 leges, and immunities of British subj< 1 ts, which we had pi ssessed before
 
 I 2 
 
 the Revolution, which we never had surrendered, forfeited, or relin- 
 quished, and which we never would relinquish any farther than in that 
 treaty is expressed, our right was clear and indubitable to fish in all 
 places in the sea where British subjects had fished or ever had a right 
 to fish. 
 
 "3. We have a stronger and clearer right to all these fi .heries in their 
 largest extent than any Britons or Europeans ever had. or could have, 
 for they were all indebted to us and our ancestors for all these fisheries. 
 We discovered diem; we explored them ; we settled the country, at our 
 own expense, industry, and labor, without assistance from Britain or 
 from Europe. We possessed, occupied, exercised, and practiced them 
 from the beginning. We have done more towards exploring the best 
 fishing -rounds and stations, and all the harbors, bays, inlets. 
 
 ts, and shores where fish were to be found, and had discovered by 
 experiments the best means and methods for preserving, curing, drying, 
 and perfecting the commodity, and done more towards perfecting the 
 commerce in it, than all the Britons and all the resl oi Europe. 
 
 "4. We conquered Cap'- Breton and Nova Scotia, dispossessed the 
 French, both hostile and neutral, and did more, in proportion, towards 
 the conquest of Canada than any other portion of the British empire ; and 
 would and could and should have done the whole, at an easier expense to 
 ourselves, both of men and money, if the British government would have 
 permitted that union of colonies which we proj< cted, planned, earnestly 
 desired, and humbly petitioned. In short, we had done more, in pro- 
 portion, towards protecting and defending all these fisheries against the 
 French than any other part of the British empire. For all these reasons, 
 if there is a people under heaven who could advance a claim or a color 
 of a pretension to any exclusive privileges in the fisheries, or any rights 
 in our pari of the old British empire more than another, thai people are 
 the inhabitants of the United Slates of America, especially of New Eng- 
 land. But we set up no claims but tho 1 rted and acknowledged in 
 treaty of 17S3. These we do assert, and these we will have and 
 maintain." 
 
 also Letter K. R. Livingston to Benj. Franklin, 
 Jan. /, [782 ; Spark's Franklin, vol. 9, page 135. 
 
 In the treaty of peace made at Ghent between Great Britain 
 and the United States, at the termination of the War of 1812, 
 no reference is made to the fisheries. During the negotiation 
 of that treat)- Great Britain claimed that the fishing rights 
 within the limits of British Sovereignty reserved to the United 
 States in the Treaty of 1783 were annulled by the war; Corn- 
 mi 1 , Goulding, one of the British Commissioners, stat- 
 ing that although it was not intended to contest the right of 
 the United Stat'--, to the fisheries, " yet, so far as respected the
 
 13 
 
 concessions to land and dry fish within the exclusive jurisd 
 tion of the British, it was proposed not to renew that without 
 an equivalent." 
 
 Memoirs J. Q. Adams, vol. 2, page 6 
 
 lh: United States maintained, however, that our fishery 
 rights and liberties stood on the same foundation as our right 
 to independence and our territory; that the Treaty of 1783 
 conveyed no new rights, but acknowledged and confirmed 
 existing rights and liberties enjoyed before the War of Inde- 
 pendence; that the treaty was the partition of an empire, 
 a perpetual agreement — one of those fundamental agreements 
 incorporated into the very existence of the United States there- 
 from; and that our fishery rights and liberties were no more 
 affected by the War of 1S12 than our right of independence; 
 that unlike another class of treaties, the Treaty of 1783 was 
 to be regarded as perpetual and of the nature of a deed in 
 which the fisheries were an appurtenant of the soil conveyed, 
 and that, therefore, no stipulation was necessary to secure the 
 perpetuity of the append ige more than of the territory itself. 
 
 Wheaton, in his International Law, gives the following ac- 
 count of the claim of Great Britain and the position of the 
 United States:— 
 
 "During the negotiation al Ghent, in [Si4, the British plenipot< 
 tiaries gave notice thai their government 'did not intend to grant 
 to til- United States, gratuitously, the privileges formerly granted by 
 treaty to them of fishing within the limits of the British sovereignty, and 
 of using the shores of the British territories for purposes connected with 
 the British fisheries.' In answ ei to this declaration tin- American 1 
 ipotentiaries stated that thej were ' not authorized to bring into discus- 
 sion any of the rights or liberties which the United States have hei 
 
 oyed in relation thereto ; from their nature, >\n<\ from the pecu 
 liar eh. 1: treat) of [783, by which they were recognized, no 
 
 further stipulation has been deemed necessary by the < '.■ »v< rnment oi the 
 United States to entitle them to the full enjoyment o( them all.' 
 
 •• 'The treaty of p acec< m< lud :d at ( ihent, in [814, the refore, contained 
 no stipulation on the subject ; and the British Government subsequent^ 
 expressed its intention to exclude the American fishing vessels from the 
 liberty of fishing within one marine league of the shores of the British 
 territories in North America, and from that of drying ami curing theii 
 fish on the mix td d parts ol those territories, and, with the consent ol
 
 •4 
 
 the inhabitants, within those parts which had become settled since the 
 peace of 17 s ;,. 
 
 " In discussing this question, the American minister in London, Mr. 
 J. Q. Adams, stated, that from the time the settlement in North 
 America, constituting the United States, was made, until their separa- 
 tion from Great Britain and their establishment as distinct sovereignties, 
 these liberties of fishing, and of drying and curing fish, had been en- 
 joyed by them, in common with the other subjects of the British empire. 
 In point of principle they were pie eminently entitled to the enjoyment; 
 and, in point of fact, they had enjoyed more of them than any other portion 
 of the empire; their settlement of the neighboring country having nat- 
 urally led to the discovery and improvement of these fisheries ; and their 
 proximity to tin- places where they were prosecuted, having led them to 
 the discovery .if the most advantageous fishing grounds, and given them 
 facilities in the pursuit of their occupation in those regions, which the re- 
 moter parts of die empire could not possess. It might be added, that 
 they had contributed their full share, and more than their share, in se- 
 curing the conquest from fiance of the provim es on the coasts of which 
 these fisheries were situated. 
 
 " It was doubtless upon considerations such as these that an express 
 stipulation was inserted in the treaty of [783, recognizing the rights and 
 liberties which had always been enjoyed by the people of the United 
 States in these fisheries, and declaring that they should continue to enjoy 
 the right of fishing on the Grand Bank, and other places of common 
 jurisdiction, and have the liberty of fishing, and drying and curing their 
 fish, within the exclusive British jurisdiction on the North American 
 its, to which they had been accustomed whilst they formed a part of 
 the British nation. This stipulation was a part of that treaty by which 
 Hi-, Majesty acknowledged the United States as free, sovereign, and in- 
 pendent States, and that he treated with them as such. 
 
 •• It could not be necessary to prove that this treaty was not, in its gen- 
 eral provisions, one of those whii h, by tin- common understanding and 
 usage of civilized nations, is considered as annulled by a subsequent 
 war between the same parties. To suppose that it is, would imply the 
 inconsistency and absurdity of a sovereign and independent State, liable 
 to forfeit its right of sovereignty by the act of exercising it on a declara- 
 tion of war. lint the very words of the treaty attested that the sovereignty 
 and independence of the United States were not considered as grants 
 from His Majesty. They were taken and expressed as existing before 
 the treaty was made, and as then only first formally recognized by Great 
 Britain. 
 
 /'1 ■ 1 isely of /he same nature were the rights and liberties in the 
 fisheries. They were, in no respect, grants from the King of Great 
 Britain to the United States; but the acknowledgment of them as 
 rights and liberties enjoyed before the separation oi the two coun- 
 tries, and which it was mutually agreed should continue to be enjoyed 
 under the new relations which were to subsist between them, constituted 
 the essence of the article com erning the fisheries. The very peculiarity
 
 '5 
 
 of the stipulation was an evident e thai it was not, on either side under- 
 Stood or intended as a grant from one sovereign State to another. 1 lad 
 it been so understood, neither could the I United States have < laimed, nor 
 would Great Britain have granted, gratuitously, any such concession. 
 There was nothing, either in the state of things, or in the disposition of 
 the parties, which could have led to such a stipulation on the part of 
 < ,1. .u Britain, as on the ground of a grant without an equivalent. 
 
 •• It' the stipulation by the treaty of [783 was one of the conditions by 
 which His Majesty acknowledged the sovereignty and independence ol 
 the United States ; if it was the mere recognition of rights and liberties 
 previously existing and enjoyed, it was neither a privilege gratuitously 
 -rant.-d. nor liable- to be forfeited by the mere existence of a subsequ 
 war. [f it was not forfeited by the war, neither could it be impaired by 
 the declaration of Great Britain at Ghent, that sin-did not intend to renew 
 the grant. Where there had been no gratuitous concession, there could 
 be none to renew; the rights and liberties of the United States could 
 not be canceled by the declaration of the British intentions. Nothing 
 could abrogate them but a renunciation by the United States them- 
 selves." 
 
 Lawrence's Wheaton's International Law, page 463 ; 
 
 See also Letters bf John Adams, vol. x, Works of John 
 Adams, pages, 97, 131, [36, 159. 354. and 403; 
 
 Opinion C. A. Rodney to President Monroe, Nov. 3, 
 [818; Monroe MSS., Department of State; referred 
 to in Elliott's Northeastern Fisheries, page 45. 
 
 If the British pretension hail been insisted on the war 
 would have been continued, as James Monroe's instructions 
 to the American commissioners were imperative that " the 
 fishery rights of American citizens must not be discussed, and 
 if the British demand their surrender all further negotiations 
 must cease." 
 
 Finally the commissioners, without inserting any provis- 
 ion with regard to the fisheries, signed the formal treaty 
 known as the treaty of Ghent. The first article of this treaty 
 provided that "all territories, places, and possessions what- 
 soever taken by either part}' from the other during the war 
 should be restored without delay." This in itself was an 
 ample refutation of the British claim. The fisheries wei 
 valuable " possession." If the British took them from us by 
 the war, they were obliged by the letter of the treaty to re- 
 store them to us without delay.
 
 i6 
 
 The war, however, had shown Great Britain that her naval 
 prestige was in danger, and that the chief source of that dan- 
 was in the fishing towns of New England. From that 
 moment British statesmen directed their energies to the task 
 of discouraging or destroying the fishing industry of that por- 
 tion of the .United Slates. 
 
 During the next year the British sloop-of-war " Jaseur " 
 sailed along the northeastern fishing -rounds, and notified 
 all American fishing vessels to not come within sixty miles of 
 the shore. The British Government, onbeing notified of this 
 action, expressed disapproval of it, but so many other annoy- 
 ances were heaped on our fishermen that Richard Rush and 
 Albert Gallatin were sent to England to make a new and per- 
 manent convention, which it was hoped would be acceptable 
 i- England and enable our fishermen to pursue their occupa- 
 tion undisturbed. 
 
 They negotiated the Treaty of 181 8, Article I. of which 
 
 provides : — 
 
 " Whereas differences have arisen respecting the liberty claimed by 
 the United Mites for the inhabitants thereof, to take, dry, and run- fish on 
 
 ain coasts, bays, harbors, and creeks of His Britannic .Majesty's do- 
 minions in America, it is agreed between the- high contracting parties 
 that the inhabitants of the said United Stat— shall have, forever, in com- 
 mon with the subjects of His Britannic Majesty, the liberty to takefish of 
 
 n kind on that part of the southern coast of Newfoundland which 
 extends from Cape Ray to the Ramea Islands; on the western and 
 northern coast of Newfoundland, from the said Cape Ray to the Quir- 
 pon Islands; on the shore of the Magdalen Islands; and also on the 
 bays, harbors, and creeks, from Mount Joli, on the southern 
 coast of Labrador, to and through the Straits of Belleisle, and thence 
 northward, indefinitely, along the roast, with. ait prejudice, however, to 
 any of the exclusive rights of th< I ludson's Bay Company ; and thatthe 
 American fishermen shall also have liberty, forever, to dry and cure fish 
 in any of the unsettled bays, harbors. eks of the southern part of 
 
 t h e , . , : Newfoundland hereabov< d< cribed, and of the coast of 
 
 irador ; but so soon as the same or any portion thereof shall be set- 
 tledit 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 pi >rs of the grourfd ; 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 mile-, of any of the coasts, bays, creeks, or harbors 
 oi His Britannic Majesty's dominions in Americanot included within the
 
 '7 
 
 above-mentioned limits: Provided, however, That the American fisher- 
 men shall be admitted to enter su< h bays or harbors for the purpo 
 
 shelter and of repairing damages ther in, o! purchasing w 1. ami of 
 
 obtaining water, and for no other purpose whatever. Bui they shall 1"- 
 under such restrictions as may I"- no essarj to prevent their taking, dry- 
 ing, <>r curing fish therein, or in any oth -r manner whatever abusing the 
 privileges hereby reserved to them." 
 
 By this treaty the joint ownership or tenancy in common of 
 the United States was recognized and extended "forever," in 
 return for certain restrictions of our rights. This was a gen- 
 uine triumph of American diplomacy. 
 
 In a letter addressed to John Quincy Adams, Secretary of 
 State, on October 20th, 1818, Messrs. Gallatin and Rush 
 said : — 
 
 "The most difficult part of the negotiation related to the permanence 
 
 of thu right. To obtain the insertion in the body of the convention i 
 provision declaring that that right should nut 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. 'I he 
 words ' lor ever ' were inserted for that purpose. The insertion of the 
 words ' for ever ' was strenuously resisted. 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 procotol 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 
 tin- convention, that clause having been omitted in the fust British coun- 
 ter-project. We insist* d on it with the view, first, of preventing any 
 implication that the fisheries secured to us were a new -rant, and i t 
 placing the permanence of the rights secured and of those renounced 
 precisely i n tin- same footing ; second, of its bein.i; expressh | that 
 
 our renunciation extended only to the distance of three miles from die- 
 coasts. This last point was the more important, as with the exception 
 of the fishing in open boats in certain harbors, it appeared tli.it tin fish- 
 ing ground on the whole coast of Nova Scotia is more than three miles 
 from the shores. It is in that point of view that the privilege of enter- 
 ing 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 N 
 
 Scotia i will, notwithstanding the renunciation, be preserved." 
 
 John Quincy Adams, Secretary of State during this peri< d, 
 referring to the Treat}', said: — 
 
 "We have gained by the convention of 1818 an adjustment of the 
 
 contest of our whole principle. The i onvention restricts the liberti 
 some small degree, but it enlarges them probably in a degree not
 
 IS 
 
 useful. It has secured the whole coast fishery of every part of the Brit- 
 ish dominions, except within three marine miles of the shores, with the 
 liberty of using all the harbors for shelter, for repairing damages, and for 
 obtaining wood and water. It lias secured the whole participation in 
 the Labrador fisheries, the most important part of the whole, and of 
 which it was at Ghent peculiarly the intention of die British Government 
 at all events to deprive us. The convention lias also secured to us the 
 right of drying and curing the fish on a part of the island of Newfound- 
 land, which had not been enjoyed under the treaty of 1783; it has nar- 
 rowed down the pretensions of exclusive territorial jurisdiction with 
 reference to those fisheries to three marine miles from the shores. Upon 
 the whole 1 consider this interest as secured by the convention of 1818 
 in a manner as advantageous as it had been by the treaty of 1783." 
 
 Adams and Russell, page 241. 
 
 Hon. Charles Levi Woodbury, in an open letter on the fish- 
 cries dispute, published in the American Law Review of 
 
 May-June, 1887, page 442, speaking of these rights, says : — 
 i 
 "The rights, elaborately defined by treaty, which we possess along 
 
 the coasts and in the bays, harbors, and ports of British North America, 
 belong as fully to the United States as does the Capitol or the White 
 House at Washington. They are the trophies of the centuries of priva- 
 tion, toil, and bloodshed through which our colonial ancestors secured 
 themselves from foreign influences. 
 
 "There is not a foot of British North America, from Lake Superior to 
 the Atlantic, to the winning of which from France our American ances- 
 tors did not bear their share in arms. The memories of Lake George, 
 Frontenac, Detroit, Quebec, and Louisbourg are our heirlooms as well 
 as England's. Great Britain's fishing rights, in or adjacent to what is 
 now British North America, were never exclusive. Whatever pertained 
 to the great common of fisheries, whatever enured from the conquest ot 
 Canada, equally pertained and enured to us as to her. The treaty ot 
 1783 regulated mutual, joint, and several uses in a part of these old com- 
 mon or acquired fishery rights, and that of 1S18 was a partial re-arrange- 
 ment thereof. In said treaties, no pretension can be found that Great 
 Britain then or ever before had any exclusive ownership over the fish- 
 eries of the Northeast." 
 
 It is to be noticed that the Treaty of 1783 uses the words 
 "right" and "liberty" apparently as of different meaning. 
 " Right" is used in one clause, "liberty" in the other. John 
 Adams explains how the word liberty got into the Treaty of 
 1783 : ' The word right was in the article as agreed to by the 
 British ministers, but they afterwards requested that the word 
 liberty might be substituted instead of right. They said it
 
 •9 
 
 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." 
 
 John Adams to Wm. Thomas, August ioth, 1822, 
 Adams' Works, vol. x., page 403. 
 
 The charters of Massachusetts Bay of 1627 and 1691 had 
 used " liberty " to secure the right to fish, and there " liberty " 
 had, so far as language could, effectually and permanently 
 secured the right to fish, as if the word "right" had been 
 used. The letter of John Adams shows why and with what 
 understanding " liberty " was used in the Treat}- of 1783, and 
 therefore no distinction can be drawn as to the meaning of 
 " right " and " liberty" in the Treat}' of 1783. 
 
 The British contention as to the abrogation of our fishing 
 privileges by the War of 18 12 was limited during the negoti- 
 ation of the Treaty of 1818 to our " fishing liberty," and did 
 not extend to our " fishing rights." This accounts for no ref- 
 erence to our "fishing rights" in the Treaty of 1818. 
 
 Lord Bathurst, in his letter of October 30th, 181 5, to John 
 Quincy Adams, admitted the force of the argument that the 
 Treat}- of 1783 was the partition of an empire, but endeavored 
 to draw a distinction between "rights " and " liberties? admit- 
 ting that our fishing " lights " were not abrogated by the War 
 of 18 1 2, and claimed that the " liberty to fisli " was different 
 from the " right to fish," and was annulled by the War of 1812. 
 
 " If these liberties," lie says, "thus granted were to be perpetual ami 
 indefeasible as the rights previously recognized, it is difficult to conceive 
 that the plenipotentiaries of the United States would have admitted a 
 variation of language; and above all, that they should have admitted so 
 strange a restriction of a perpetual ami indefeasible right as that with 
 which the article concludes, which leaves a right so practical and so bene- 
 ficial as this is admitted to be, dependent on the will of British subjects, 
 in their character as inhabitants, proprietoiS,*or possessors of the soil, 
 to prohibit its exercise altogether. It is surely obvious that the word 
 i righV is throughout the Treaty used as applicable to what the United 
 States were to enjoy by virtue of a recognized independence, and the 
 word 'liberty' to what they were to enjoy as concessions Strictly de- 
 pendent on the treaty itself." 
 
 See Annals of Congress, 15th Cong., 2d Sess., p. 14^3.
 
 20 
 
 The claim seriously presented by the British Commission- 
 ers during the negotiation of the Treaty of Ghent had not in 
 fact gone any further. 
 
 Memoirs J. Q. Adams, vol. J, page 6. 
 
 John Quincy Adams, in his reply to Lord Bathurst, com- 
 pletely answered the position taken by the British Govern- 
 ment and established that the liberty to fish, " far from includ- 
 ing in itself either limitation of time or precariousne:,s of ten- 
 ure, is essentially as permanent as that of right." He said : — 
 
 "That, previous to the independence of the United States, their peo- 
 ple, as British subjects, had enjoyed all the rights and liberties 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, tin- 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, thence- 
 forward, as a nation possessed of all the prerogatives and attributes of 
 sovereign power. The people of the United States were, thencefor- 
 ward, neither bound to allegiance to the sovereign of Great Britain, nor 
 entitled to his protection in the enjoyment 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 en- 
 joyed 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, wen- the rights and liberties in those 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 and universal right of .ill 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 pai t oi 
 the nation which constituted the United States; that it should not be a 
 eral, but as, between ( ireal Britain and the United States, a common 
 fishery. It was necessary tor the enjoyment ol 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 n ort, and these occasionally brought them 
 to the borders of the British territorial jurisdiction. It was also w
 
 21 
 
 sary, for the prosecution ol a pari of this fishery, thai the fish, when 
 caught, should be immediatelj cured and dried, which could only be 
 done on the rocks or shores adjoining the places where they were caught ; 
 the aco ; to these rocks and shores, for those purposes, was secured to 
 the people of the United States, as in< idental and necessary to the en- 
 joymenl oi the fishery ; it was Hide 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 pe- 
 riod arise- by the settlemenl oi 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 oi the article be inferred. 
 
 " 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 propriet* »r 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 tin- fishery may be free, or held in com- 
 mon. And thus, while in the partition of the national possessions in 
 North America, stipulated by the treaty of 1783, thejurisdiction over the 
 shores washed by the waters where this fishery was placed was reserved 
 to Great Britain, the fisheries themselves, and t lie accommodations essen- 
 tial to their prosecution, were, by mutual compact, agreed to he continued 
 in common." 
 
 Annals of Congress, 15th Cong., 2d Sess., p. 1466. 
 
 As our "rights" under the Treaty of 1783 were not ques- 
 tioned, no reference whatever was therefore made to them in 
 the Treaty of 1818, and the Treaty of 1818 was intended to 
 operate upon the " liberty " to take fish alone. We are con- 
 sequently left in possession, unaffected by the Treaty of I S 1 8, 
 of all "rights" we had under the Treaty o( 17S3 to fish on 
 the Grand Bank, on all the other hanks of Newfoundland, 
 aKo in the Gulf of St. Lawrence, and elsewhere in the sea 
 where we used any time previously to fish. 
 
 " Sir, this treat \ operates upon the liberty alone," said the Hon. Zeno 
 S, udder, referring to the Treaty of [818, in the House of Representa- 
 tives, August [2th, [852, "which Lord Bathurst contended had been 
 affected by the war ; hut not one word is said or contained in it relative 
 to the right "\ fishery, which Lord Bathurst admitted was not affected 
 by the war. Now, sir, let me ask this committee and the country to refer 
 to the Treaty of [783, and see in what part of these fisheries we had a
 
 •» "> 
 
 right instead of a liberty. Sir, anion- other places we had and have still 
 a title of right in the whole of the Gulf of St. Lawrence. Let the British 
 ministry or any other power on earth construe the Treaty of 1818 as they 
 will, respecting the liberty on the bay, creek, and harbor, still it cannot 
 affect the title of right in the Gulf of St. Lawrence, which has never 
 been modified or altered since tin- Treaty of [783, and the subsequent 
 expression of Lord Bathurst, that it could not be modified or altered.. I 
 will leave it to the fishermen of the country to define the extent of the 
 Gulf of St. Lawrence to contain, besides the Magdalen Islands and 
 Prince Edward Island, many other important coasts, shores, &C, which 
 are resorted to for our fishing purposes." 
 
 Cong, (ilohc, 32d Cong., 1st Sess., vol. 25, p. 927. 
 
 It is therefore important to hoar in mind that at the nego- 
 tiation of the Treat}- of 1818 Great Britain expressly acknowl- 
 edged our fishing " rights " were not abrogated by the War 
 of 18 1 2, that our rights recognized and secured under the 
 Treaty of 1783 were not affected or intended to be affected by 
 the Treaty of 1818, the United States never admitted that the 
 " liberty to fish " was lost by the War of [812, and that by ac- 
 ceptance from us of a renunciation of a portion of the " liberty " 
 to take fish the British Government implicitly acknowledged 
 that our fishing liberties tinder the Treaty of 1783 were not 
 abrogated by the War of 1X12. 
 
 John Adams, speaking of the Treaty of 1818, said : — 
 
 " The United States have renounced forever that part of the fishing 
 liberties which they had enjoyed, or claimed, in certain parts of the ex- 
 clusive jurisdiction of the British Provinces and within three marine miles 
 of the shores. The first article of this convention affords a signal testimo- 
 nial of the correctness of the principle assumed by the American pleni- 
 potentiaries at Ghent for as by accepting the express renunciation by the 
 I 'ni/ett States of a small portion of the pi ivilege in Question, ami by con- 
 firming and enlarging all tin- remainder of the privilege forever, the 
 British Government have implicitly acknowledged that the liberties of the 
 third article of the Treaty of IJ83 have not been abrogated by the rear." 
 
 The treaty of 1818 worked well for about twenty years, 
 until disturbing elements arose. A new generation of Cana- 
 dians had grown up, knowing or caring nothing for the treaty 
 of 1783, or of our proprietary rights or joint ownership in 
 the fisheries. The mackerel fishery in the Gulf of St. Law- 
 rence had been discovered to be of great value. The various 
 non-intercourse acts had been repealed, and the markets of
 
 23 
 
 the United States were open under certain restrictions t<> 
 Canadian enterprise. II those restrictions could be entirely 
 removed Canada would be immediately and immeasurably 
 benefited, and it was thought that the quickest and surest 
 way to obtain this result would be to harass American fisher- 
 men until they cried out for relief. 
 
 To furnish the pretext the pretension was revived that the 
 entire fishing rights and liberties of the United States under 
 the Treat}' of [783 were annulled by the war of 18 I 2, and the 
 announcement was made that American ^fishermen had no 
 rights except those which were granted them l>y thetTreaty of 
 [8l8, and that the terms of that treaty would be literally exe- 
 cuted until such concessions were made as Canada desired. 
 Everything possible to harass and anno}- our fishermen was 
 the policy adopted and persistently pursued. The spirit in 
 which Canada has always dealt with our treaty rights is well 
 illustrated by what was lately said by Mr. Davies, of Prince 
 Edward's Island, a member of the Canadian Parliament, with 
 reference to the recent course of Canada: "Tile}' were not 
 satisfied with putting a construction upon the treat}-, and then 
 carrying out that construction in a firm and reasonable way, 
 but were determined that the custom laws of this country 
 should be dragged in to harass, to irritate and worry, and 
 drive to desperation the American fishermen, as it did drive 
 them to desperation." This programme, though carried out 
 with varying severity, and after long periods of intermission, 
 resulted in the reciprocity treaty of U54. This triumph of 
 British diplomacy admitted into the United States free of duty 
 everything which Canada had to sell, and admitted into Canada 
 free of duty only the articles which she produced herself. It 
 came to an cn<.\, by notice from the United Slates, in [866. 
 
 The next agreement — the treaty of Washington — was ne- 
 gotiated in 1S71 ; but the fisheries clauses of this treat}- were 
 also annulled by notice from the United States, and expired 
 on Jul}- ist, [885, leaving the twenty-ninth or transportation 
 clause in force. 
 
 The rights, therefore, of the United States in the North 
 Atlantic fisheries at this date are to be measured by the pro-
 
 24 
 
 visions o\ the treaties of [783 and of 1818, and by the addi- 
 tional privileges derived under the concurrent action in 1830 
 of Great Britain and the United States in annulling their re- 
 spective non-intercourse laws as to the British colonies in 
 North America, and under the twenty-ninth clause of the Treaty 
 o\ [871. T1k_\- are not fishery privileges of one nation in the 
 jurisdictional waters of .mother, but are rights in the nature 
 of a joint ownership, rights common with the Canadians and 
 fully as great ami the same as those of Canada itself. They 
 were vested in the United States on the same foundation and 
 at the same time as our independence and our territorial sov- 
 ereignty, and they are rights existing in the United States 
 without any corresponding or reciprocal rights in British 
 subjects on our coast. 
 
 The fisheries are not " Canadian." They are " our fisher- 
 (to use the expression of Thomas Jefferson) as much as 
 those of Canada, and should be designated as the North 
 Atlantic or Northeastern or the American Fisheries, and not by 
 the term "Canadian " or any word that would imply an exclu- 
 sive ownership or sovereignty ol Canada with regard to them. 
 
 T11 addition to the proprietary rights possessed 
 by the United States in the North Atlantic 
 fisheries, the fishing vessels of the United 
 States, under the concurrent action of the two 
 countries in 1830 and under the twenty-ninth 
 clause of the treaty of 1871, are entitled to 
 unrestricted commercial and transportation 
 privileges to the same extent and in the same 
 manner as those engaged in any other business. 
 
 When the treat of [783 and [818 were signed, foreign 
 nations were prohibited from intercourse by sea with the col- 
 onies oi Great Britain, and the rights acknowledged to be- 
 in the United States under these treaties being distinctively 
 fishery rights, and not commercial rights, conferred no right 
 in the United States to trade with British North America. 
 
 "The policy first expressed by the act of 12 Car., II. had beeivto pro- 
 hibit foreign nations from intercom * by sea with her colonies, either to
 
 25 
 
 import tnl ixport from them in theirvessels. This policy was in U 
 
 when Hi.- treat} of [783 was made. The rights of the United States, th 
 in acknowledged, to use the porl , cre< k .. and shores for the purpose of 
 its fishery conferred no right to trade with British North America. In 
 isi.s the laws of the l faked States also prohibited British vessi I fr< m im- 
 porting from or exporting to the colonies from the ports ol the 1 Inited 
 States, and continued so to prohibil them long after the treaty of 1818." 
 
 Letter of ('has. Levi Woodbur>' to Senator Morgan, 
 American Law Rev., vol. xxi, p. 432. 
 
 In a decision under the treaty in the vice-admiralty court 
 in 1S06 (the " Fame," Stewart's Rep., 95), it was said that al- 
 though American vessels could supply their own fishing vessels 
 with necessaries and enter an uninhabited port in the course ol 
 such trading, the Treaty of [783 gave no authority to trade with 
 the shore, so that the words "for no other purpose whatever" 
 in the Treaty of 1818 were merely declaratory of the then ex- 
 isting relations between the two countries so far as the three- 
 mile limit was concerned, a prohibition of all commercial 
 and other privileges beyond those expressed. 
 
 By the concurrent action of Great Britain and the United 
 States in [830 the prohibition of commercial intercourse be- 
 tween the United States and the colonies of Great Britain was 
 annulled. 
 
 •• In [825, alter several efforts, the legislatures of the two governments 
 began to open trade, and the act of Charles 11. was subsequently re- 
 pealed. In [830 the United States and Great Britain dropped their re- 
 spective non intercourse laws as to British North America, and opened 
 their ports to each other, upon being satisfied that neither imposed on 
 the other's vessels 'any restrictions or discrimination's.' 
 
 "'His Majesty declares,' says Mr. Secretary Buller, November 6th, 
 [S30, 'that the ships of and belonging to the United States of Ameri< 1 
 may import tr-.m 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.' 
 
 "General Jackson's proclamation, October 5th, [830, says: 'British 
 vessels and their cargoes are admitted to an entry in the ports oi the 
 United States from the islands, provinces, and colonies of Great Britain on 
 
 near the Ameri< an continent and north or east of the United States.' 
 
 " Thus was the right of the vessels of each to the pri\ ileges ol foreign 
 commerce in the ports of the other established without any class restric- 
 tions. Buj ing .i\\i\ selling bait, like the importation or exportation ol it,
 
 26 
 
 are commercial transactions, and therefore, by the pledged faith of the 
 proclamation of [830 open to commerce by the vessels of each country." 
 
 Letter (.'has. Levi Woodbury, Am. Law Rev., vol. 
 
 xxi. page 431. 
 See also Niles Register, vol. 7, appendix, page [91 ; 
 
 appendix, page 66. 
 
 Bv this action of the two countries commercial privileges 
 
 - 
 
 were thus extended in 1850 to fishing and all other vessels of 
 the United States, and to this extent the language, " for no 
 other purpose whatever," in the Treaty of 1818, declarator}- of 
 the then existing general prohibition of all commercial privi- 
 leges between the two countries, was modified. 
 
 The twenty-ninth article of the Treaty of Washington, of 
 1 87 1, is as follows : — 
 
 ARTICLE XXIX. 
 
 " It is agreed that, fur the term of years mentioned in Article XXXIII. 
 of this treaty, goods, wares, or merchandise arriving at the ports of New 
 York, Boston, and Portland, and any other ports in the United States 
 which have been or may from time to time lie specially designated by 
 the President of the United States, and destined for Her Britannic 
 Majesty's possessions in North America, maybe entered at tin- proper 
 custom-house and conveyed in transit, without the payment of duties, 
 through the territory of the United States, under such rules, regulations, 
 and conditions for the protection of the revenue as the Government ol 
 the United States may from time to time prescribe; and, under like 
 rules, regulations, and conditions, goods, wans, or merchandise may 
 be conveyed in transit, without the payment of duties, from such pos- 
 ions through the territory of the United States for export from the 
 said ports of the United States. 
 
 "It is further agreed that, for the like period, goods, wares, or mer- 
 chandise arriving a1 anj oi the ports of Her Britannic Majesty's posses- 
 sions in North America and destined for the United States, may be 
 entered at the proper < u itom-house and conveyed in transit, without the 
 payment of duties, through the said possessions, under such rules and 
 regulations and conditions lor ih' protection of the revenue as the < Gov- 
 ernments ot the iid possessions may from time: to lime prescribe ; and, 
 under like rules, regulations, and conditions, goods, wares, or merchan- 
 dise maybe conveyed in transit, without payment of duties, from the 
 United States through the said possessions to other places in the United 
 States, or for export from ports in the said possessions." 
 
 Article XXIX., treaty of Washington, 1871, Wheaton's 
 International Law, second edition, 700.
 
 -7 
 
 Thus, by the action of the two countries in [830, and by 
 the twenty-ninth section of the Treaty of 1S71, have the pro- 
 prietary and ancient rights and liberties of this country in the 
 North Atlantic fisheries been supplemented by c< >mmercial and 
 transportation privileges. The existence of these privileges is 
 emphasized by the fact that when during the negotiation oi 
 the Treaty of [818 a proposition was made by the British 
 Commissioners to insert a stipulation that "it shall not he- 
 lawful for the vessels of the United States engaged in the said 
 fishery to have on board any goods, wares, or merchandise 
 whatever, except such as may be necessary for the prosecu- 
 tion of the fishery or support of fishermen," it was objected 
 to by the American Commissioners on the ground that it 
 "would expose our fishermen to endless vexations," and it 
 was withdrawn. 
 
 These commercial and transportation privileges have been 
 and are at this time freely and fully exercised by the Canadians. 
 Their fishing and other vessels enter and use our ports, enjoy- 
 ing without restriction and to the fullest extent every privil 
 claimed by the fishing vessels of the United States under the 
 concurrent action of the two countries in 1830, and the twenty- 
 ninth clause of the Treat}- of Washington. 
 
 The "headland" doctrine <»f the Canadians, and 
 the construction attempted to be put upon our 
 proprietary rights whereby the American fish- 
 ermen are denied the right to enter bays and 
 harbors to purchase coal tor fuel, and bait, ami 
 to transship their catch, are "new doctrines," 
 ami have been set up not only in defiance of the 
 plain intent of the treaties and legislation un- 
 der which our rights are recognized, and the 
 rulings upon them, but as after-thoughts, and 
 contrary to the views of the British Govern- 
 ment. 
 
 Considering the origin and nature of the rights of the 
 United States in the North Atlantic fisheries, the relative sit- 
 uation of the two countries and the close commercial relations
 
 28 
 
 existing between them, and construing the Treaty of 1 8 1 8 as 
 one of" friendship and not o( hostility," and according to the 
 customary rules applicable to instruments of this character, 
 the rights of the United States and of its fishing vessels in 
 
 the North Atlantic fisheries and their privileges in Canadian 
 ports would seem to be clear under the treaty stipulations and 
 the concurrent legislation of the two countries. 
 
 The liberty of American vessels to fish within three miles 
 of certain parts of the shore was practically the only privilege 
 which under the Treat)- of 1818 was renounced by the United 
 States, and, with this restriction only, the fishery rights of the 
 United States are the same as those of Canada itself. 
 
 The buying of bait and supplies by fishing or any other 
 vessels of the United States in Canadian ports is a commer- 
 cial privilege to which they are entitled under the action of 
 the two countries in 1 830 ; and the right of American fishing 
 vessels to transship their catch from Canadian ports to points 
 in the United States is secured to them by the twenty- 
 ninth clause of the Treat}- of 1S71. 
 
 Canada, however, now insists that the fishing vessels of 
 the United States have no right to enter any bays of Canada, 
 no matter how wide, and have no right to buy bait and sup- 
 plies or transship their catch from Canadian ports to points in 
 the United States ; and has endeavored so to harass and annoy 
 our fishing vessels in the exercise of rights which it admits 
 them to possess as to make these rights, for the present, 
 worthless. The position assumed is that the fishery rights 
 of the United States are nothing more than the ordinary 
 rights of fishing which are permitted to citizens of another 
 ereignty by a country having the exclusive territorial 
 jurisdiction over them, and the proprietary rights of the 
 United States in them are ignored. 
 
 Wheaton, in describing the right of fishing of one nation 
 in the jurisdictional waters of another, says: — 
 
 "The right of fishing in the waters adjacent to the coasts 
 of any nation, within its territorial limits, belongs exclusively 
 to the subjects of the State. The exercise of this right be- 
 tween France and Great Britain was regulated by a convert-
 
 tion concluded between these two powers, in [839; by the 
 ninth article of which it is provided, that French subjects 
 shall enjoy the exclusive right of fishing along the whi 
 extent of the coasts of France, within the distance ol three 
 geographical miles from the shore at low-water mark-, and 
 that British subjects shall enjoy the same exclusive right alo 
 the wlmle extent of the coasts of the British Islands, within 
 the same distance; it being understood, that upon that part 
 of the coasts of France lying between Cape Carteret and the 
 point of Monga, the exclusive right of French subjects shall 
 only extend to the fishery within the limits mentioned in the 
 fust article of the convention; it being also understood, that 
 the distance of three miles, limiting the exclusive right oi 
 fishing upon the coasts of the two countries, shall be meas- 
 ured, in respect to bays of which the opining shall not exceed 
 ten miles, by a straight line drawn from one cape to the other." 
 Section 180, Wheaton's International Law. (Boyd's ed.), 
 page 241. 
 
 A privilege of this kind is very different in its character 
 from the proprietary rights possessed by the United States in 
 the North Atlantic fisheries. 
 
 Consequent upon the three-mile limit from the shore, pro- 
 vided under the treaty of [818, the United States has never 
 since claimed the right to fish within bays whose headlands 
 were less than six miles apart. But Canada asserts that the 
 fishine vessels of the United States have no right to fish in 
 anv <»f its bays, no matter how wide between the headlands, 
 a claim which was not set up until some twenty years after 
 the treaty of [818 had been concluded. 
 
 The position now assumed by Canada took no definite shape 
 until some time after the year 1S41, when the opinion of the 
 law officers of the Crown in England was given on certain 
 questions submitted by the Nova Scotia Government, which 
 set forth and were based on the fundamental error that the 
 United States had obtained the " right to take fish on the 
 Grand Banks," &c, at the peace and under the Treaty of 1 
 This error in the questions submitted was only equaled by the
 
 3° 
 
 recklessness of the opinion that held unqualifiedly "that the 
 Treaty of 1783 was annulled by the War of 18 12," and that 
 " n^ right exists on the part of American citizens to enter the 
 bays "t" 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 the opinion that 
 the term headland is used in the treaty to express that part of 
 the land we have before mentioned, excluding the interior of 
 oay>. 
 
 Sabine's Report on the Fisheries, pages 405, 472 ; 
 
 Speech of Hon. Lewis Cass, U. S. Senate, Aug. 3, 1852, 
 Appendix Cong. Globe, vol. 25, page 896. 
 
 As has already been shown, the British Government had 
 not, in the negotiations of the Treaty of i8i8,claimed that the 
 Treaty of 1783 was entirely abrogated by the War of 18 12. 
 By the language of the Treaty of 181 8 they were and are 
 estopped from asserting that the fishery liberties -reserved by 
 the Treaty of 1783 were annulled. The argument of the 
 American Commissioners, in the negotiations of the Treaty of 
 Ghent and the Treaty of 1818, was conclusive that the War 
 of 1812 had not deprived us of our fishery rights and liber- 
 ties under the Treaty of 1783. The rule, as stated by writers 
 on international law, was and is substantially that treaties stip- 
 ulating for a permanent arrangement of territorial and other 
 national rights are not annulled by war. 
 
 Wharton's International Dig., ii., chapter vi., section - 
 
 135- 
 
 The Supreme Court of the United States (8 Wheaton, 464, 
 
 1823), held that— 
 
 " Where treaties contemplate a permanent arrangement of territorial 
 and other national rights, or which in their terms are meant to provide 
 for the event of an intervening war, it would be against every principle 
 of just interpretation to hold them extinguished by the event of war. If 
 su< li were the law even the Treaty of 1783, so far as it fixed our limits 
 and acknowledged our independence, would be gone, and we should 
 have had again to struggle for both upon original revolutionary princi- 
 ple. Such a construction was never asserted and would be so mon- 
 strous as to supersede all reasoning."
 
 3i 
 
 In the case of Sutton vs. Sutton, i Rus. & .M., 675, [830, it 
 was held by Sir J. Leach, Master of the Rolls, that territorial 
 rights given under the Treaty of 1794 between Great Britain 
 and the United States, were permanent in their character, and 
 were not abrogated by the War of 1812. This case; the de- 
 bate in Parliament relating to the Treat}- of Amiens, in 1802 
 (Hansard's Deb., vol. xxiii., page 1147); ant ' tnc opinions -of 
 Sir James Marriot, in 1765, and of Attorney-General Ryder 
 and Solicitor-General Murray-, in 1753, to the effect that the 
 fishery clause in the Treaty of November 16th, 1686, between 
 England and France, was not annulled by war (Opinions of 
 Eminent Lawyers, &c, Geo. Chalmers, vol. ii., pages 344, 355, 
 1 8 14), must be presumed to have been known to the law offi- 
 cers of Crown in 1841. 
 
 The disregard of these precedents and the statement in the 
 opinion that '"the term headland is used in the treat}," when 
 that word is not found anywhere in it, do not render the 
 opinion creditable to the accuracy or professional reputation 
 of the gentlemen who gave it. 
 
 The Hon. Hannibal Hamlin, in 1852, referring to the 
 Treaty of 18 18, and the new doctrine set up by Canada under 
 the opinion referred to, said : — 
 
 "The only tiling claimed through all the negotiations was that we 
 should be excluded from coming within three miles of the shore, 
 not bays that were leagues in extent. Had such been the intention ot 
 any party to the treaty, we should find somewhere such a claim. 
 None such was made. Had there been, it would have been promptly 
 denied. That clause which says, 'that the I'nited States hereby re- 
 nounce, forever, any liberty heretofore enjoyed or claimed by the in- 
 habitants thereof, to take, dry, or cure fish on or within three marine 
 miles of any of the coasts, bays, creeks, or harbors, &c.,' is to exclude 
 us from the great bays and gulfs. Was such the intention of Great Brit- 
 ain ? She never made any such pretensions during all the negotiations, 
 and when we renounced our right to the shore fisheries, as we did in the 
 treaty, and of taking tisli within three marine miles of the coasts, bays, 
 creeks, and harbors, that language became necessary to exclude us from 
 the small bays, creeks, and harbors within three miles of the shore — 
 within the jurisdiction of (beat Britain, and which we had formerly en- 
 joyed claimed as a right, 'that such was the intention of the parties 
 must be interred from the facts to which I have alluded, which took place 
 during the negotiations.
 
 3^ 
 
 •• But the last clause of the article contained in the proviso at the end, 
 will explain what bays, creeks, and //ardors were surrendered up by our 
 Government. The article says:— 
 
 •• ' American fishermen shall be admitted to enter such bays and harbors 
 for tin- purpose of shelter, and for repairing damages Unrein, purchas- 
 ing wood, and obtaining water.' 
 
 "The bays and harbots which are surrendered up by the Americans 
 are the bays and harbors into which the American fishermen may go to 
 find a shelter, repair damages, purchase zvood, and obtain water. All 
 these things could only be done in the small harbors, which would afford 
 shelter, and where damage could be repaired. But to allow fishermen 
 to go into the Gulf of St. Lawrence or the Bay of Fundy for repair or 
 shelter! They might with far greater propriety seek the open sea for 
 shelter, tor with sufficient sea-room they might be safe, while in such 
 bays as the Bay of Fundy they would be sure of destruction upon a lee 
 shore. Better, far better, to seek the broad and trackless ocean for a 
 shelter, to repair for wood or water. The very uses to which these bays 
 and harbors art- to be appropriated must show what was intended— such 
 harbors and bays as could be used for the purposes named. The same 
 interpretation of the word bay in the treaty, when applied to Fundy, 
 Chaleur, or St. Lawrence, should lie understood as when applied to the 
 Bay of Biscay or the Gulf of .Mexico. 
 
 "Another view of this question will, it is believed, furnish us with what 
 is the true construction of the treaty, by which we are restricted in certain 
 bays, creeks, and harbors therein named. What were the rights enjoyed 
 by our fishermen under the Treaty of 1783.? They bad the right and did 
 use what is known as the shore fisheries inside of three miles from the 
 shore, and in the bays, creeks, and harbors, with which the whole coast 
 was indented. These were what we occupied, and for many purposes 
 they were very valuable. To them were claimed a right, and these were 
 the privileges which we renounced. A line drawn from indentation to 
 indentation along the- coast, as has always been contended for by our 
 Government, would exclude us from the shore fisheries, which were and 
 are so called in distinction from the sea fisheries more than three miles 
 fn 'in the shore. 
 
 " Besides, tin- intention ol our ministers who negotiated the treaty, and 
 tin- evidence whi< h the protocols furnish as the negotiations progressed, 
 all concur to aid us in our construction. These protocols and this evi- 
 dence of that time are of great importance, and cannot fail to carry con- 
 viction along with them as to what was intended by the language used 
 in the treaty and tin- reasons for which it was placid there." 
 
 Appendix in the Congressional ( rlobe, vol. 25, page 900, 
 August, 1852, Thirty-second Congress, First Session. 
 
 In his letter of July 18th, 1853, to Secretary of State 
 Marcy, Richard Rush, who was one of the commissioners on
 
 the pari of the United States in making the treaty of iXiK, 
 thus refers to the pretensions of Canada : — 
 
 " In signing it. we believed that we retained the right of fishing in the 
 sea, whether called a bay, gulf, or by whatever othei term designati d, 
 thai washed any part of the coast ol the British North American prov- 
 inces, with the simple exception that we did not come within a marine 
 league <>f the shore. We had this right by the law of nations. 
 
 " In confirmation was in the Treaty of [783. We retained it undimin- 
 ished, unless we gave it up by the first article of the convention of r8i8. 
 This we did not do. The article warrants no such construction. .Mr. 
 Everett, when minister in London, writing to Lord Aberdeen, August 
 10th, [843, under instructions from the Secretary ol State, remarks that 
 'the right of fishing on any part of the coast of Nova Scotia (conse- 
 quently in the Bay of Fundy) at a greater distance than three miles is so 
 plain thai it would be difficult to conceive on what ground it could be 
 drawn in question had not attempts been made by the provincial author- 
 ities ol' Her Majesty's Government to interfere with its exercise;' and 
 Mr. Stevenson, minister in London before Mr. Everett, while writing to 
 Lord Palmerston, March 27th, [841, in reference to our right to fish in 
 the large outer hays, says 'the stipulations of the Treaty (convention) of 
 i.sin .ne believed to be too plain and explicit to leave room tor doubt or 
 misapprehension.' 
 
 "As to the Hay of Fundy, part of its coast belongs to one of the States 
 of the Union, namely, Maine. I [ence Britain cannot claim it as her exclusive 
 dominion. Had Mr. Gallatin been told by the British plenipotentiaries 
 that the first article of the convention would close the extensive waters 
 of that bay against our fishermen, I do not believe he would have signed 
 it. I am sure I would not have signed it. The spirit, context, all the 
 concomitants of the article, pointed to a different meaning. I need not 
 cite all its words. You are familiar with them. It will be enough to 
 bring into view the proviso which follows the clause of renunciation. 
 That part runs thus : — 
 
 "And the United Stat.-, hereby renounce forever any liberty hereto- 
 fore 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 ni 't included 
 within the above-mentioned limits (those set out for us in the beginning 
 of the article) : Provided, however, Thai the American fishermen shall 
 be permitted to enter such bays or harbors for the purpose of shelter ami 
 ot repairing damages therein, of purchasing wood, and of obtaining water, 
 and for no other purpose whatever." 
 
 'These are the decisive words in our favor. They meant no more 
 than that our fishermen, whilst fishing in the waters of the Lav of Fundy, 
 should not go nearer than three miles to an) of those smaller inner 
 bays, creeks, or harbors which are known to indent the coast of Nova 
 Scotia and New Brunswick. ■
 
 34 
 
 "To suppose they were bound to keep three miles oil from a line 
 drawn from headland to headland on the extreme outside limits of that 
 haw a line which might measure fifty miles or more, according to the 
 manner of drawing or imagining it, would be a most unnatural suppo- 
 sition. I cannot think that it entered the minds of the British plenipo- 
 tentiaries any more than ours. For would it not be useless to tell fish- 
 ermen, when half wrecked, that they might cross such a line for the pur- 
 pose of seeking shelter in hays, creeks, and harbors, lying at an immense 
 distance inside of it? Tempest-tossed outside of a great sea-line like 
 that, damaged in sails and rigging, how were they to reach the shelter- 
 ing havens they desired? To suppose it is a mockery; and similar 
 reasoning applies to all the other large hays and gulfs. 
 
 "We inserted the clause of renunciation. The British plenipoten- 
 tiaries did not desire it. Without it room might have been left for the 
 inference that what we got under the convention was a grant from 
 Britain; whereas, our ground of argument being that, with the excep- 
 tion of shore privilege, our fishing rights remained as under the Treaty 
 of 1783, we could receive nothing which had been agreed upon by the 
 first article in the light of a concession or favor from her. We took it 
 only as part of a coequal agreement and in the sense of a compromise. 
 
 " In conformity with our construction was the practice of Britain her- 
 self after the convention was ratified. Our fishermen were waiting for 
 the word not of exclusion, but admission, to those large outer bays. 
 They had been shut out from them, some captured, and all warned away 
 after tin- Treaty of Ghent. The interval was an anxious one to them. 
 Accordingly, as soon as the convention went into operation, they 
 erly hastened to their ancient resorts, reinstated by the provident 
 care of their Government. Hence the significant motto of our Revo- 
 lutionary patriot and sage, that we would both fish and hunt over the 
 same grounds as heretofore. No complaint was made or whispered by 
 any member of the British Government of that day of which I ever. 
 heard. 
 
 " I remained minister at tiie court nearly seven years after the signa- 
 ture and ratification of this convention. Opportunities of complaint 
 were therefore never wanting. If intimated to me it would have been 
 my duty to transmit at once any such intimation to our Government. 
 Nor did I e V e|- hear of complaints through their legation in Washington. 
 It would have been natural to make objection when our misconstruction 
 of the instrument was fresh, if we did misconstrue it. The occasion 
 would have be< iportune when I was subsequently engaged 
 
 in extensive negotiations with England in 1823-24, which brought under 
 ration the whole relations, commercial and territorial, between 
 the two countries, including our entire intercourse by sea and land with 
 her North American colonies. Still, silence was never broken in the 
 metropolitan atmosph London whilst I remained there. 
 
 " Your letter informs me that for more than twenty years after the con- 
 vention there was no serious attempt to exclude us from those large
 
 35 
 
 bays, and Mr. Everett, writing as Secretary of State, only on the 4th of 
 
 tnber last, to Mr. [ngersoll, then our minister in London, rend 
 more definite the time you would indicate, by saying that ' it was just a 
 quarter ol a century after the date of the convention before the first 
 American fisherman was captured for fishing at large in Bay of Fundy.' 
 I find it extremely difficult, under any lights al present before me, to explain 
 the extraordinary circumstances which environ this international qi 
 tion consistently with the respect due to the high party on the other side ; 
 feelings the most friendly being ever due toherfromthe magnitudi 
 the interests bound up in the subsistence of harmonious relations be- 
 tween the two countries." 
 
 The claim of Canada was pronounced a " new doctrine" by 
 Mr. Bates, the umpire in the case of the " Washington " in [853, 
 who decided that the seizure of an American vessel while 
 fishing in the Bay of Fundy was illegal, and this doctrine was 
 again repudiated by the umpire in the case of the "Argus," 
 seized for fishing on Saint Ann's Hank within headlands. 
 
 These cases are thus referred to in Wharton's International 
 Law Digest, section 305a, vol. 3, page 59: — 
 
 " A construction of the terms ' coasts, bays, creeks, or har- 
 bors,' in the treaty of [818, was given by the mixed commis- 
 sion under the convention of 1853, in the case of the United 
 States fishing schooner ' Washington,' which was seized while 
 fishing in the Bay of Fundy, ten miles from shore, taken to 
 Yarmouth, Nova Scotia, and adjudged forfeited on the charge 
 of violating the treaty of 18 18 by fishing in waters in which 
 the United States had, by that convention, renounced the 
 right of its citizens to take fish. A claim of the owners of 
 the 'Washington' for compensation came before the coin- 
 mission above mentioned, and the commissioners differing, 
 the case was referred to Mr. Joshua Bates, the umpire, who, 
 referring to the theory that ' haws and coasts' were to he de- 
 fined by 'an imaginary line drawn alone, the coast from head- 
 land to headland, and that the jurisdiction of Her Majesty 
 extends three marine miles outside of this line, thus closing 
 all the bays on the coast or shore, and that great body of water 
 called the Bay of Fundy,' pronounced it a ' new doctrine,' 
 and, repudiating the decision of the provincial court based 
 thereon, awarded the owners of the vessel compensation for
 
 36 
 
 an illegal condemnation. The umpire also decided that as 
 the Bay of Fundy is from sixty-five to seventy-five miles wide 
 and from one hundred and thirty to one hundred and forty 
 miles long, with several ' bays' on its coasts, and has one of 
 its headlands in the United States, and must be traversed for 
 a long distance by vessels bound to Passamaquoddy Bay, and 
 contain- one United States island, Little Menan, on the line 
 between headlands, the Bay of Fundy could not be considered 
 as an exclusively British bay. (See President's message com- 
 municating proceedings of commission to Senate; also Dana's 
 Wheaton, section 274, note 142.) The ' headland ' theory was 
 again rejected by the umpire in the case of the schooner 
 'Argus,' which was seized while fishing on Saint Ann's Bank, 
 twenty-eight miles from Cape Smoke, the nearest land, taken 
 to Sydney, and sold for violation of the treaty of 1818 by fish- 
 ing within headlands. The owners were awarded full com- 
 pensation. 
 
 " Mr. Dana, in this connection, quotes (Dana's Wheat., sec. 
 274, note, 142) from the treaty between Great Britain and 
 France of 1839 the following provisions: 'It is agreed that 
 the distance of three miles, fixed as the general limit of the 
 exclusive right of fishing upon the coasts of the two coun- 
 tries, 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.' 
 
 " As to the British concession that the Bay of Fundy is an 
 open sea, see papers connected with message of President 
 Fillmore, February 28th, 1853, with Senate Confid. Doc. No. 4, 
 special session 1853, and see particularly Mr. Everett, Sec. of 
 State, to Mr. Ingersoll, Dec. 4th, 1852, MSS. Inst. Gr. Brit., 
 appended to message aforesaid. 
 
 "A- to detention of fishermen in the Bay of Fundy, see 
 President Monroe's message of Feb. 26th, 1825, House Doc. 
 No. 408, 1 8th Cong., second sess., 5 Am. St. Pap. (For Rel.), 735. 
 
 "Mr. Rush's not'-s of negotiation, Monroe papers, Dept. of 
 State." 
 
 The British Government has not supported the Canadian 
 authorities in their claim, and practically yielded the claim in
 
 57 
 
 favor of the United States. No better account of the course of 
 the British Government on this question can be given than 
 that by Mr. Phelps, in his letter of June 2d, [886, to Lord 
 Rosebury, of June 2d, [886. Senate Ex. Doc. No. i 13, 50th 
 ( longress, first sess., p. 413. 
 
 ••(Mi the 26th of May, [870, Mr. Thornton, the British minister at 
 Washington, communicated officially to the Secretary ol State of the 
 United States copies of the orders addressed by the British Admiralty to 
 Admiral Wellesley commanding Her Majesty's naval forces on the 
 North American station, and of a letter from the colonial department to 
 the Foreign < >ffice, in order that the secretary mighl 'see the nature ol 
 the instructions to be given to Her Majesty's and the Canadian officers 
 employed in maintaining order atthe fisheries in the neighborhood ol 
 the coasts of Canada. 1 Anion- the documents thus transmitted is a let- 
 ter from the Foreign ( iffice to the Secretary of the Admiralty, in which 
 the following language is contained : — 
 
 " 'The Canadian Government has recently determined, with the con- 
 current e of Her Majesty's minister, to in< rease the stringency of the 
 isting practice of dispensing with the warnings hitherto given and seizing 
 .1! 1 mi e any vessel detected in violating the law. 
 
 " • In view of this change and of the questions to which it may give 
 rise, I am directed by Lord Granville to request that you will move their 
 lordships to instruct the officers of llcr Majesty's ships employed in the 
 protection of the fisheries that they are not to seize any vessel unless it 
 is evident and can be clearly proved that the offense ol fishing has been 
 committed and the vessel itself captured within three miles ol land.' ' 
 
 In the letter from the lords of the Admiralty to Vice- 
 Admiral Wellesley of May 5th, 1870. in accordance with the 
 foregoing request, and transmitting the letter above quoted 
 front, there occurs the following Ian : — 
 
 "My lords desire me to remind yon of the extreme importance ol 
 commanding officers of the ships selected to protect the hsh.ri 
 
 ng the utmost discretion in carrying out their instructions, paying 
 special attention to Lord Granville's observation that no vessel should 
 be seized unless it is evidenl and can be clearly proved that the offensi 
 of fishing has been committed ami that the vessel is captured within 
 three miles ^( land." 
 
 Lord Granville, in transmitting to Sir John Young these 
 
 instructions, makes use of the following language: — 
 
 "Her Majesty's Government do not doubt that your ministers will 
 agree with them as to the proprietj of these instructions, and will give 
 corresponding instructions to the vessels employed by them."
 
 These instructions were again officially stated by the Brit- 
 ish minister at Washington to the Secretary of State of the 
 United States in a letter dated June I Ith, 1870. 
 
 Again, in February, 1871, Lord Kimberlv, Colonial Secre- 
 tary, wrote to the Governor-General of Canada as follows: — 
 
 "The exclusion of American fishermen from resorting to Canadian 
 ports, except for the purpose of shelter and of repairing damages therein, 
 purchasing wood, and of obtaining water, might be warranted by the 
 letter of the Treaty of r8i8 and by the terms of the imperial act 59 
 George III., chapter 38, but Her Majesty's Government feel bound to 
 state that it seems to them an extreme measure, inconsistent with the 
 general policj of the empire, and they are disposed to concede this 
 point to the United States Government under such restrictions as may 
 be necessary to prevent smuggling, and to guard against any substantial 
 invasion of the exclusive rights of fishing which may be reserved to 
 British subjects." 
 
 During Sir Charles Tapper's speech in the House of Com- 
 mons of Canada, April loth, 1888, the following colloquy 
 took place regarding the position taken by the British Gov- 
 ernment : — 
 
 "Sir Charles Tupper.— Here is a dispatch from Downing street, 
 elated 6th June, 1870 : — 
 
 " 'Her Majesty's Government are fully aware that no step should be 
 taken which should prejudge the question.' 
 
 " I want to draw the attention of the House to the fact that this was 
 not a settled or concluded question — that it was not a question upon 
 which the Governments of Great Britain and the United States had 
 agreed or on which they had arrived at a common interpretation ; and I 
 want to draw my honorable friend's attention to the doubt that Her Ma- 
 jesty's Government had upon the subject. What do they say? 
 
 " ' Her Majesty's Government are fully aware that no steps should be 
 n whii li would prejudge the question— what are Canadian waters? 
 hould admit the right of the United States fishermen to fish within 
 e waters except within the limits prescribed by the Convention of 
 
 '"But they do not abandon the hope that the question of abstract 
 right may yel be avoided by some arrangement between Canada and 
 the United States, or that the limits may be definitely settled by arbitra- 
 tion or otherwise; and while any expectation of this kind exists, they 
 ire to avoid all occasions of dispute, so far as this is possible, consist- 
 ently with the substantial protection of the Canadian fisheries. With 
 those objects, they think it advisable that I Fnited States fisherman should 
 not be excluded from any waters except within three miles from the 
 shore, or in tin- unusual case of a bay which is less than six miles wide
 
 39 
 
 at its mouth but spreads to a greater width within. It will, of i oursi 
 understood and explained to the 1 fnited States Government that this lib- 
 erty is conceded temporarily and wit In mi prejudice to the i ighl of < ireat 
 Britain to fall back on her treaty rights, if the prospect ol an arran 
 ment lessens, orifthe concession is found to interf tically with 
 
 the protection of the Canadian fisheries.' 
 
 " That was also a dispatch from Lord < iranville, June 6th, t87b. Now, 
 under the pressure of this, as my honorable friend lias stated, he 
 changed his instructions in reference to the ten miles, and put in six 
 miles, and forbade his officers to interfere with the American fishermen, 
 not as in the first instructions he gave, if they were within three mill 
 the mouth of the bay, but only if they were within three miles of the 
 shore, and he says : — 
 
 '•'Until further instructed, therefore, you will not interfere with any 
 American fishermen unless found within three miles of the shore or 
 within three miles of a line drawn across the mouth of a hay or creek, 
 which, though in parts more than six miles wide, is less than six geo- 
 graphical miles in width at its mouth. In the case of any other bay, as 
 Baie des Chaleurs, for example * * 
 
 " The very hay he excluded them from was more than ten miles wide. 
 
 " ' you will not interfere with any United States fishing vessel or 
 
 boat or any American fishermen, unless they are found within three miles 
 of the shore.' 
 
 •• Mr. Mitchell.— Under positive instructions from England, against 
 
 my representations and everything else. 
 
 "Sir Charles Ti pper. — 1 think I have satisfied my honorable friend 
 that as far as Her Majesty's Government were concerned, while they 
 maintained the abstract right under the treaty, they were unwilling to 
 
 raise the question of hays, and the result is, as my honorable friend 
 knows, that for the last thirty-four years, certainly since 1N54 -and 1 will 
 not go further back than [854 there has been no practical interference 
 with American fishing vessels unless they were within three miles of the 
 shore, in hays or elsewhere." 
 
 When it is remembered that our treaty relations are with 
 the British Government and not with Canada, that the re- 
 sponsibility <>f determining what is the true construction ol a 
 treaty made by Her Majesty with any foreign power must re- 
 main with Her Majesty's Government, that Canada's claim to 
 construe a treaty negotiated with the United States is admit- 
 ted neither by the United States nor by Great Britain, it must 
 be conceded that the course (A' the British Government in re- 
 gard to the headland theory shows in itself that the claim of 
 Canada has no substantial foundation. 
 
 It is evident, therefore, that the headland doctrine asserted
 
 40 
 
 by Canada was an after-thought, repudiated both times that 
 the question came before an umpire competent to pass upon 
 it, that the British Government has declined to enforce it, and 
 would yield the question in our favor if our position was 
 maintained with firmness. In all justice and fairness, how- 
 ever, the United States can and should maintain before the 
 world its fishery rights in the bays of Canada more than six 
 miles in width. 
 
 With no 'better claim on the part of Canada our fishing ves- 
 sels have been denied their commercial privileges under the 
 concurrent action of the two countries in 1830, and denied 
 the right to transport their catch under the twenty-ninth clause 
 of the Treat}- of 1 Sj 1 . 
 
 In [870, more than fifty years after the Treaty of [818, and 
 forty years after all the restrictions on the commercial inter- 
 course between the United States and British North America 
 were abolished, Canada for the first time set up the claim that 
 the American vessels had no right to buy bait in any of the 
 bays or harbors of Canada. Previous to 1870, anil during 
 the period from 1877 to 1886, our fishing vessels continued to 
 buy bait in Canadian ports without interference. 
 
 The Halifax Commission in 1877 decided that buying bait 
 was a commercial privilege, and declined to award damages 
 in favor of Canada, on the ground that it was not an incident 
 of the treaty of 1X71. 
 
 " Judicial authority," says Mr. Phelps in his letter of June 2d, 1SS6, to 
 Lord Rosebery, upon this question, "is to the same effect. 'That the pur- 
 rhase of bait by American fishermen in the provincial ports lias been a 
 common practice and is well known. But in no case, so far as I can 
 ascertain, has a seizure of an American vessel ever been enforced on 
 the ground of the purchase of hail, or of any other supplies. On the 
 hearing before the Halifax Commission in [877, this question was dis- 
 cussed and no case could he produced of any such condemnation. 
 Vessels shown to have been condemned were in all cases adjudged 
 guilty, either of fishing or preparing to fish within the prohibited limit. 
 And in the case of the " White lawn,'' tried in the Admiralty Court of 
 New Brunswick, before fudge Hazen, in 1870, I understand it to have 
 been distinctly held that the purchase of bait, unless proved to have- 
 been in the preparation for illegal fishing, was not a violation of the 
 treaty, nor of any existing law, and afforded no ground for proceeding 
 against the vessel. "
 
 4' 
 
 Judge I [azen, in the " \\ Kite Fawn " case, said : — 
 
 "Assuming thai the fact thai such purchase establishes a preparing to 
 fish, which I do not admit, I think before a forfeiture can be incurred it 
 must be shown that the preparations were for an illegal fishing in British 
 u aters." 
 
 The first libel against any American fishing vessel for buy- 
 ing bait in port was in 1870. The construction by the Hali- 
 fax Commission that the buying of bail is a commercial privi- 
 lege was in [877, and from 1877 to 1886 American fishing 
 vessels bought bait in Canadian ports without interference. 
 In [886 the Canadians seized the schooner " David J. Adams " 
 for purchasing bait in Annapolis Basin, Nova Scotia, and sent 
 her to St. John, N. B., for trial. It was "not pretended that 
 the vessel had been engaged in fishing or was intending to fish 
 in the prohibited waters, or that it had done or was intending 
 to do any other injurious act." 
 
 Mr. Bayard, in his letter of May 10th, 1886, to Sir Lionel 
 West, referring to this case, said: — 
 
 •• I ask you to consider the results of excluding American vessels duly 
 possessed of permits from their own government to touch and trad( 
 Canadian ports, as well as to engage in deep-sea fishing, from exert ising 
 freely the same customary and reasonable rights and privileges <»i trade 
 in the ports of the British colonies as are freely allowed to British vessels 
 in all the ports of the United States under the laws and regulations to 
 which 1 have adverted." 
 
 "Anion- these customary rights and privileges may lie enumerated 
 the purchase of ship supplies of every nature, making repairs, the ship- 
 ment of crews in whole or in part, and the purchase of ice and bait for 
 use in deep-sea fishing. Concurrently these usual rational and conven- 
 ient pri\ ileges are freelj extended to and are fully enjoyed by the Cana- 
 dian merchant marine of all occupations, including fishermen, in the 
 ports of the United States. The question therefore arises whether such 
 
 a construction is admissible as would convert the Treaty of 1S1S from 
 
 being an instrumentality for the protection of the iri-shore fisheries along 
 the described parts of the British-American coast into a pretext or means 
 ol obstructing the business of deep-sea fishing by citizens of tin- United 
 States, and of interrupting and destroying the commercial intercourse 
 that since the Treaty of [818, and independent of anj treaty whatever, 
 has grown up and now exists under the concurrent and friendly laws and 
 mercantile regulations ol' the respective countries. 
 
 " I may recall to your attention the fad that a proposition to exclude 
 the vessels ol the United States engaged in fishing from carrying also
 
 42 
 
 merchandise was made by the British negotiators, and was abandoned. 
 This fact would seem cl< arly to indicate that the business of fishing did 
 not then and does not now disqualify a vessel from also trading in the 
 regular ports of entry." 
 
 Thus in violation of treaty and other obligations, and while 
 Canadian fishing vessels have been permitted in our ports 
 without interference to purchase bait and supplies, Canada has 
 denied the right to American fishing vessels to purchase bait 
 and supplies. 
 
 The right of fishing vessels, under the Treaty of 1818, to 
 enter Canadian bays and harbors for " wood and water," 
 which plainly means, as these words were used in 1818, fuel 
 and water, has been taken away by denying them the right to 
 purchase coal, the fuel of fishing vessels of the present day. 
 
 While Canada, under the twenty-ninth clause of the Treaty 
 of 1 87 1, has been making shipments in bond to and from 
 Canada through the United States, estimated by President 
 Cleveland, in his message of August 23d, 1888, to Congress, 
 to have amounted in value for the past six years to about 
 5 J 70,000,000, the fishing vessels of the United States have 
 not been allowed to ship, under the same treaty provision, 
 their catch through Canada to the United States from Cana- 
 dian ports. 
 
 Where pretexts lor depriving American vessels of their 
 fishing and commercial privileges under strained constructions 
 were not afforded, Canada has endeavored so to harass and 
 annoy American vessels in the exercise of their admitted 
 treat}- right to enter bays and harbors for the purposes of 
 shelter and repairing damages, and of obtaining wood and 
 water, as to make these rights worthless. 
 
 An examination of the list of American vessels seized, 
 detained, or warned off from Canadian ports in the years 1886 
 and 1887 accompanying the Senate Document 113, of the 
 fust session of the Fiftieth Congress, shows that the " Helen 
 F. TVedick " was rein <d shelter and water; the "John W. 
 Bray " was refused shelter and supplies; the "Caroline 
 Vought" and "Christina Ellsworth" refused wood and 
 water; the 'Novelty" was refused coal and water; the
 
 43 
 
 ••St. .well Sherman." " Walter L. Rich," " Newell 15. Haw< 
 "Nellie M. Snow," "Gertrude Summi "Charles R. 
 
 Washington," "John M. Ball," "John Nye," "Asa II. 
 Perrere," " Nathan Cleaves," " Frank G. Rich," " Emma i I 
 Curtes," "Charles F. Atwood," "Gertie May," "Abbie M. 
 D ering," "Cora Louis," " Eben Dale," "Charles Haskell," 
 "Willie Parkham," " Eddie Davidson," " Cynosure," " Lottie 
 K Hopkins," "Andrew Burnham," "Harry G. French," 
 "Col. J. 11. French," " W. 11. Wellington," "Ralph 1 log- 
 don," " Hattie Evelyn," "Emma \Y. Brown," 'Mary II. 
 Thomas," "Hattie B. West," "Ethel Maud," were vc\\\>vi\ 
 food or provisions or supplies; the " Mary E. Whorf " was 
 n.>t permitted to make repairs; and the "Sarah 15. Putnam'' 
 and " Alice P. Higgins" were driven from port in storms.. 
 
 The " Mollie Adams " was driven off into a storm without 
 sufficient food, after entering the harbor of Mai Pe'que to land 
 and after she had safely landed a crew of seventeen ship- 
 wrecked British sailors she had -one out of her way to rescue 
 and whom she had fed for three days. The captain of the 
 Canadian cruiser " Critic," fully informed of the humane action 
 of the Mollie Adams and her needs, refused assistance, and 
 threatened to seize her if she landed any of the wrecked ma- 
 terial on board. 
 
 There are other cases reported where vessels seeking shelter 
 were driven to sea before the storm had abated, but the cases 
 referred to sufficiently show the flagrant violations by Canada 
 of treaty and all other obligations in a spirit of barbarism and 
 viciousness unworthy of a civilized nation. 
 
 Without commenting upon the action of Captain Quigley 
 of the Canadian cutler " Terror " in lowering the flag ol the 
 United States fishing schooner " Marion Grimes," or upon the 
 constant and arrogant stopping and boarding of American 
 fishing vessels, of which over two thousand cases were reported 
 in two years, it cannot be said that the language of Hon. 
 Daniel Manning, in his letter as Secretary of the Treasur) 
 February 5th, 1SS7, to the chairman of the House Committee 
 of Foreign Affairs, is either unjust or too severe where he re- 
 fers to "the inhumanity and brutality with which certain
 
 44 
 
 Canadian officials treated defenseless American fishermen 
 during the last summer, even those who had -one out of 
 their way to rescue Canadian sailors, and having entered a 
 Canadian bay to safely land those they had saved attempted 
 to procure f >od to sustain their own lives." 
 
 The acts to which the Canadians have been driven by adopt- 
 ing a strained construction of our treaty rights are as absurd 
 as they are barbarous and inhuman. Mr. Phelps, in his letter 
 of June 2d, [886, to Lord Rosebery, said: — 
 
 ••Such a literal construction is best refuted by considering its prepos- 
 terous consequences. It' a vessel enters a port to post a letter, or send 
 a telegram, or buy a newspaper, to obtain a physician, or even to lend 
 assistance to the inhabitants in fire, Hood, or pestilence, it would, upon 
 this construction, be held to violate the treaty stipulations maintained 
 between two enlightened maritime and friendly nations whose ports are 
 freely open to each other in all places and under all other circum- 
 0( es." 
 
 I le might have added : — 
 
 "Good faith clings to the spirit, and fraud to the letter of the con- 
 vention." 
 
 Phillimore's Int. Law, vol. ii., page 9/. 
 
 Yet John S. D. Thompson, the Canadian Minister of Justice, 
 gravely wrote to Lord Lansdowne, on July 22d, 1886. 
 
 "That which Mr. Phelps calls literal interpretation is by no means so 
 preposterous as he suggests when the purpose and object of the treaty 
 come- to be considered. It was necessary to keep oul foreign fishing 
 els, excepting in cases of dire necessity, no matter under what pre- 
 text they- might desire to come in. The fisheries could not be preserved 
 to our people if every one .,1 the United States fishing vessels that are 
 accustomed to swarm along our coasts could claim the right to enter our 
 harbors 'to post a letter or send a telegram, or buy a newspaper ; to 
 obtain a physician in case of illness, or a surgeon in case oi accident ; to 
 land or bring "it a passenger, or even to lend assistance to the inhabi- 
 tants in fire, flood, or pestilence,' or to ' buy medicine ' or to ' purchase 
 a new rope-.' The sligh I ■ 1 quaintance with the negotiations which led 
 to the Treaty of 1S1S induces the belief that if the United States nego- 
 tiators had suggested these as purposes for which their vessels should be 
 allowed to enter our waters, the proposal would have been rejected as 
 ' preposterous.' " 
 
 Previous to this time Mr. Bayard's public and official ex- 
 pressions in relation to the cases brought under his official
 
 45 
 
 nptice indicated an intention to insist upon the full and unin- 
 terrupted enjoyment of our fishing and commercial rights in 
 
 Canadian waters and pi »rts. 
 
 In his letter to Sir Lionel West on May 29th, 1886, refer- 
 ring to a bill authorizing the forcible search, seizure, and for- 
 feiture of any foreign vessel found within any harbor in 
 Canada, or hovering within three marine miles of the coast-, 
 bays, or creeks of Canada, where such vessel has entered 
 such waters for any purpose not provided for by the laws ol 
 Canada, the laws of Nations, or any treaty or convention 
 then in force, Mr. Bayard, said: — 
 
 "Such proceedings I conceive to be flagrantly violative of the recip- 
 rocal commercial privileges to which citizens of the United States are 
 lawfully entitled under the statutes of Great Britain and the well defined 
 and publicly proclaimed authority of both countries, besides being, in 
 respect of the existing conventions between the two countries, an as- 
 sumption of jurisdiction entirely unwarranted and which is wholly denied 
 by the United States." 
 
 Later Mr. Bayard said: — 
 
 ( In June 7th, 1SN6 : " I earnestly protest against this unwarranted 
 withholding of lawful commercial privileges from an American vessel 
 and her owners, and for the loss and damage consequent thereon the 
 government of Great Britain will be held liable." 
 
 On July 10th, 1886 : " Against this treatment 1 make instant and formal 
 protest as an unwarranted interpretation and application of the treaty by 
 the officers of the Dominion of Canada and the province of Nova Scotia, 
 as an infraction of the laws of commercial and maritime intercourse ex- 
 isting between the two countries and as a violation of hospitality, and for 
 any loss or injury resulting therefrom the government of Her Britannic 
 Majesty will be held liable." 
 
 On July 30th, [886: "These are flagrant violations of treaty rights of 
 their citizens lor which the United States expect prompt remedial action 
 bj Her Majesty's government, and 1 have to ask thai such instructions 
 may be issued forthwith to the provincial officials of Newfoundland and 
 of the Magdalen Islands .is will cause the treaty rights of citizens of the 
 United States to be duly respected. For the losses occasioned in the 
 two cases I have mentioned, compensation will hereafter be expected 
 from Her Majesty's Government when the amount shall have been accu- 
 rately ascertained." 
 
 ( m August 9th, 1SS6 : " The hospitality which all civilized nations pre- 
 scribe has thus been violated and the stipulations of a treaty grossly in- 
 fracted." 
 
 On August [8th, 1886: "The firing of a gun across their bows was a 
 most unusual and wholly uncalled for exhibition of hostility, and equally
 
 46 
 
 so was the placing of armed nun on board the lawful and peaceful craft 
 of a friendly nation." 
 
 On September 23d, 1SS6 : "An illustration of the vexatious spirit in 
 which the officers of the dominion o( Canada appear to seek to penalize 
 and oppress those fishing vessels of the United States lawfully engaged 
 in fishing which from any cause are brought within their reach." 
 
 On November 6th, [886: "If the unfriendly and unjust system of 
 which these cases now presented are a part, is sustained by Her .Majes- 
 ty's Government, serious results will almost necessarily ensue, great as 
 the desire of this Government is to maintain the relations of good neigh- 
 borhood." 
 
 These being the rights of the United States in the North 
 Atlantic fisheries, and these the claims and pretexts set up by 
 Canada, and this the resolute position taken by the present 
 Administration in the year 1 886, and previous thereto, with 
 regard to the unwarranted seizures and annoyances to our 
 fishing vessels, it would naturally be assumed that no treaty 
 attempting to settle the differences concerning our fishery 
 rights would subsequently be proposed or assented to by the 
 same Administration that did not restrict the headland theory 
 of Canada to bays of width less than six miles, that did not 
 confirm the right of our fishing vessels to buy bait and sup- 
 plies and exercise other ordinary commercial rights in Cana- 
 dian ports, and to transship their catch under the provisions 
 of the Treaty of [871, and that did not fully provide indem- 
 nity for the vessels illegally seized or deprived of treaty rights. 
 
 The Chamberlain-Bayard Treaty. 
 
 WHEREAS differences have arisen concerning the interpre- 
 tation of Article I. of the Convention of October 20th, 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 thi n to, and of promoting friendly intercourse and 
 hborhood between the United States and the Pos- 
 of Her Majesty in North America, have resolved to 
 conclude a Treat)' to that end, and have named as their Pleni- 
 potentiaries, that is to say: — 
 
 The President of the United States ; Thomas F. Bayard,
 
 47 
 
 Secretarydf State; William L. Putnam, of Maine ; and James 
 B. Angell, of Michigan ; 
 
 And Her Majesty the Queen of the United Kingdom of 
 Curat Britain and Ireland; the Right Honorable Joseph 
 Chamberlain, M. P.; the Honorable Sir Lionel Sackville \V< 
 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 Fi- 
 nance of the Dominion of Canada; 
 
 Who, having communicated to each other their respective 
 Full Powers, found in good and due form, have agreed upon 
 the following articles: — 
 
 ARTICLE I. 
 
 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 20th, l8l8, between 
 the United States and Great Britain, renounced forever any 
 liberty to take, dry, or cure fish. 
 
 ARTICLE 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 com- 
 missioner, or in the event of any commissioner omitting or 
 ceasing to act as such, the President of the United Stales or 
 Her Britannic Majesty respectively shall forthwith name an- 
 other person to act as commissioner instead ol the commis- 
 sioner originally named. 
 
 ARTICLE III. 
 
 The delimitation referred to in Article I. >>( this Treaty 
 shall be marked upon British Admiralty charts by a series dl
 
 48 
 
 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 shall be delivered to the Secretary of State of 
 the United States, and three copies to Her Majesty's Govern- 
 ment. The delimitation shall be made in the following manner, 
 and shall be accepted by both the High Contracting Parties as 
 applicable for all purposes under Article I. of the Convention 
 of ( >ctober 20th, 1818, between the United States and Great 
 Britain. 
 
 The three marine miles mentioned in Article I. of the Con- 
 vention of October 20th, 181 8, 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. 
 
 ARTICLE IV. 
 
 At or near the following bays the limits of exclusion under 
 Article I. of the Convention of October 20th, 18 18, 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 Escumi- 
 nac 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 Seotia, the line from 
 Cape Smoke to the Light at Point Aconi. 
 
 At Fortune Bay,in Newfoundland, the line from Connaigre 
 J had 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 P2ast Headland of Ragged 
 I [arbor.
 
 49 
 
 At or near the following bays the limits <>f exclusion shall 
 be three marine miles seaward from the following lines, name- 
 
 iy:- 
 
 At or near Rarrington Pay, in Nova Scotia, the line from 
 the Light on Stoddard Island to the Light on the south point 
 
 of Cape Sable, theme to the Light at Baccaro Point; at 
 Chedabucto and St. Peter's Bays, the line from Cranberry 
 Island Light to Green Island Light, thence to Point Rouge; 
 at Mira Day, 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. 
 
 Lou-;' Island and Brycr Island, at St. Man's Bay in Nova 
 Scotia, shall, for the purpose of delimitation, be taken as the 
 coasts of such bay. 
 
 ARTICLE V. 
 
 Nothing in this Treat}- 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 20th, 1S18. 
 
 articlp: 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 pro- 
 vided, with quadruplicate charts thereof; which lines so re- 
 ported shall forthwith from time to time be simultaneously 
 proclaimed by the High Contracting Parties, and be binding 
 after two months from such proclamation. 
 
 ARTICLE VII. 
 
 Any disagreement of the commissioners shall forthwith be 
 referred to an umpire selected by tin- Secretary of State of 
 the United States and Her Britannic Majesty's Minister at 
 Washington ; and his decision shall be final.
 
 5o 
 
 ARTICLE VIII. 
 Each of the High Contracting Parties shall pay its own com- 
 missioners 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 Con- 
 tracting Parties in equal moieties. 
 
 ARTICLE IX. 
 
 Nothing in this treaty shall interrupt or affect the free navi- 
 gation of the Strait of Canso by fishing vessels of the United 
 
 States. 
 
 ARTICLE X. 
 
 United States fishing vessels entering the bays or harbors 
 referred to in Article I. of this Treaty shall conform to harbor 
 re"-ulations 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 ob- 
 taining water; except that any such vessel remaining more 
 than twenty-four hours, exclusive of Sundays and legal holi- 
 days, 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 ob- 
 taining 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 20th, 1818. 
 
 ARTICLE XI. 
 
 United States fishing vessels entering the ports, bays, and 
 harbors of the Eastern and Northeastern coasts of Canada or
 
 5' 
 
 of tin 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 hoard, when such 
 unloading, transshipment, or sale is made necessary as inci- 
 dental 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. 
 
 Licenses to purchase in established ports of entry of the 
 aforesaid coasts of Canada or of Newfoundland, for the home- 
 ward voyage, such provisions and supplies as are ordinarily 
 sold to trading vessels, shall be granted to United States fish- 
 ing vessels in such ports, promptly upon application and with- 
 out 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. 
 
 ARTICLE 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. 
 
 ARTICLE XIII. 
 
 The Secretary of the Treasury of the United States shall 
 make regulations providing for the conspicuous exhibition by 
 every United States fishing vessel, of its official number ><n 
 each bow; ami 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 
 Treat)-. 
 
 Such regulations shall be communicated to Her Majesty's 
 Government previously to their taking effect.
 
 52 
 
 ARTICLE 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 unlaw- 
 fully fish therein, penalties shall be fixed by the court, not to 
 exceed those for unlawfully fishing; and for any other viola- 
 tion 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 
 convenient. 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 de- 
 fense 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. 
 
 ARTICLE 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 produce of fisheries carried on by 
 the fishermen of Canada and Newfoundland, including Lab- 
 rador, as well as from the usual and necessary casks, barrels, 
 kegs, cans, and other usual and necessary coverings contain- 
 ing 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
 
 53 
 
 the same, .is above described, shall be admitted free of duty 
 into the Dominion ol Canada and Newfoundland. 
 
 And upon such removal ol duties, and while the aforesaid 
 articles are allowed to be broughl into the United States by 
 British subjects, without duty being reimposed thereon, the 
 privilege of entering the ports, bays, and harbors of the afore- 
 said coasts of Canada and Newfoundland shall be accorded 
 to United States fishing vessels by annual licenses, free of 
 charge, for the following purposes, namely. — 
 
 i. The purchase of provisions, bait, ice, seines, lines, and 
 all other supplies and outfits. 
 
 2. Transshipment of catch, for transport l>y 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. 
 
 ARTICLE 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 Newfound- 
 land, and the ratifications shall be exchanged at Washington 
 as soon as possible. 
 
 In faith whereof, we, the respective Plenipotentaries, have 
 signed this Treat}-, and have hereunto affixed our seals. 
 
 Done in duplicate, at Washington, this fifteenth day of 
 February, in the year of our Lord one thousand eight hun- 
 dred and eighty-eight. 
 
 (Signed) T. F. BAYARD, [seal] 
 
 WILLIAM L. PUTNAM. [seal] 
 JAMES B. ANGELL, [si \i | 
 
 J. CHAMBERLAIN, [seal] 
 
 L. S. SACKVILLE WEST, [seal] 
 CHARLES fUPPER. [seal]
 
 54 
 
 A General Review of the Chamberlain- 
 Bayard Treaty. 
 
 The spirit that pervades the Treat}- of 1783 is that of the 
 Continental Congress, which by its resolution of May 27th, 
 1779, declared "That in no case by an)- treat)- of peace the 
 common right of fishing be given up." 
 
 John Adams, in his letter of May 30th, 18 14, to Richard 
 Rush, said " that the men Bayard, Russell, Clay, and even 
 Gallatin, would cede the fee simple of the United States as soon 
 as the}- would the fisheries." 
 
 We recall that Benjamin Rush, in his letter to Secretary 
 Marcy in 1853, says that " Had Mr. Gallatin been told by the 
 British plenipotentiaries that the first article of the convention 
 would close the extensive waters of that bay (referring to 
 the Bay of Fundy) against our fishermen, I do not believe he 
 would have signed it. I am sure I would not have signed it. 
 The spirit, context, all the concomitants of the article, pointed 
 to a different meaning." 
 
 Certainly the spirit of the treaty of 1818, and of the Ameri- 
 can commissioners of that treaty, was not to abandon our an- 
 cient fishery rights. 
 
 If that same spirit pervaded the commissioners on the part 
 of the United States in the proposed treaty of 1888, it is un- 
 fortunate that there is nothing in the treaty, or in what we 
 have been able to learn of its negotiation, to show it. On the 
 contrary the fundamental principles of "property and sovereign- 
 ty, which are the basis of our fishery rights, seem to have been 
 abandoned at the outset by our own commissioners and our 
 case to have been presented and considered, as Mr. Bayard 
 expresses it in his letter to a gentleman in Boston, on the 
 basis of the "fishery rights of one country in the jurisdic- 
 tional waters of another." 
 
 ' There was one subject," Sir Charles Tupper stated in his 
 speech in the House' of Commons of Canada, " on which I 
 was glad to find that the American plenipotentiaries and 
 myself were entirely as one. They expressed no - wish to 
 acquire the right to fish in the jurisdiction waters of Canada.
 
 55 
 
 With that expression of opinion on their part I heartily 
 concurred." 
 
 This certainly was not treating our fishery rights as " our 
 fisheries," to use the words of Mr. Jefferson, bul as " theirs," 
 and it is therefore not surprising to find the results of the ne- 
 gotiation in a treat)- which absolutely abandons the princip 
 and positions for which the United States " had so long and 
 so strenuously contended." 
 
 The discussions of the commissioners during the negotiation 
 have not been made public by our commissioners. They ha 
 not disclosed what occurred, and we are indebted for all that 
 we have learned with regard to the negotiations to the speech 
 of Sir Charles Tupper in support oi the treaty. lie declared 
 his surprise that they were not disclosed. " I have explained 
 to the house," he said, " my great surprise at finding that they 
 did not give what I assumed that the purely formal protocols to 
 which I assented would give, that is to say, all the proposals 
 made, and the counter proposals, and the replies on both 
 sides. I assumed that the protocols would contain those." 
 
 The British commissioners therefore expected them to b< 
 published, but our commissioners have declined to disclose 
 them. While the British commissioners not only did not 
 object to, but expected, the details concerning the negotia- 
 tions to be made public, when the Senate asked for tin 
 papers and information concerning the progress of the ne- 
 gotiations the President declined to furnish them. We are 
 left necessarily to Mr. Tupper to explain the reasons for 
 many of the provisions of the treaty. 
 
 The headland theory of Canada — the " new doctrine " which 
 the British Government itself declined to enforce, is admitted, 
 and our fishing vessels are excluded from all bays ten miles 
 wide at their mouth, and expressly from wider bays ranging 
 from fifteen to twenty one miles in width, such as the Bay ol 
 Chaleurs, the Bay of Mirumichi, Keanont Bay, O fife tan nes Bay, 
 Fortune Bay, Sir Charles Hamilton's Sound, and Barrington 
 Bay; and, consequently, with the exception of the Bay of 
 Fundy, and a few bays ^n the Newfoundland coast, every b.e 
 ol value to our fishermen is closed by the treaty.
 
 56 
 
 Thus the difference with Canada upon the headland theory 
 
 was proposed to be settled, and by articles I., II., III., IV., 
 Y., VI., and VII. of the treaty the position of the United 
 States was abandoned, and valuable rights, which would 
 probably have been conceded at all events not earnestly dis- 
 puted, were voluntarily surrendered. 
 
 Certainly the new American policy of concession shown 
 at the outset of the negotiations, and described by Sir 
 Charles Tupper, was fully maintained throughout. He says: 
 " I think the very spirit and policy of this commission 
 which was proposed, was to ascertain, to settle, and to remove 
 these doubts, and I say, when we met these gentlemen and 
 they proposed to us this ten-mile limit t and said : If you give up 
 the extreme contention that no bay, however broad its mouth, 
 can be entered by an American fisherman, we will agree to 
 take the ten-mile limit, and when they met its further and said 
 that, in addition to that they would take np and consider the 
 question of any special bays we thought ought not to be open to 
 foreigners, then we took this question up, as we were bound to 
 take it up, and found a solution by mutual concession. In- 
 stead of giving in to their contention that they could go into 
 the Baie des Chaleurs within three miles of the shore, we 
 made a treaty by which they cannot enter the Baie des Chal- 
 eurs at all. And the honorable gentleman knows that the 
 Miramichi Bay, and a number of other bays that we consider 
 of vital importance to be kept free from any kind of intrusion, 
 have been conceded to us." 
 
 Article XL provides: — 
 
 " 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, transshipment, 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, in- 
 cluding the shipping of crews."
 
 57 
 
 Without a treaty provision these rights should be secure. 
 Unless " in stress of weather or other casualty," when " neces- 
 sary as incidental to repairs," or "in case of death or sick- 
 ness," these privileges are not to be exercise:!. No civilized 
 
 nation would require a vessel to point to a treat)- provision to 
 secure the ordinary rights of shelter. 
 
 But the effect of inserting this provision is that it is an 
 admission on our part th.it without such a provision our fish- 
 in- vessels would not have the right, and therefore they have 
 not had the right in the past and they do not have the right 
 now. This is confirmed by the expression of Sir Charles 
 Tupper when he says, "Although this is a very considerable 
 and important concession, and although we were not com- 
 pelled in my judgment, under a strict literal interpretation of 
 the treaty of [818, to make it, yet it was a wise and judicious 
 concession to make." Evidently our commissioners agreed 
 with this view or they would not have assented to it. 
 
 A provision of this kind is a disgrace to any civilized 
 nation; a provision less liberal than that accorded to us by 
 articles IX. and X. of the treat}- with Algiers in 1S15, which 
 provide as follows : — 
 
 "Vessels of either of the contracting parties putting into 
 ports of the other, and having need of provisions or other 
 supplies, shall be furnished at the market price; and if any 
 such vessel should so put in from .1 disaster at sea, and have 
 occasion to repair, she shall be at liberty to land and re-em- 
 bark her cargo without paying any customs or duties what- 
 ever; but in no case shall she be compelled to land her 
 cargo. 
 
 " Should a vessel of either of the contracting parties be cast 
 on shore within the territories of the other, all proper 
 assistance shall be given to her crew; no pillage shall be 
 allowed; the- property shall remain at the disposal of the 
 owners; and if reshipped on board of any vessel for exporta- 
 tion no customs or duties whatever shall be required to be 
 paid thereon, and the crew shall be protected and succored 
 until the\' can be sent to their own country." 
 See Statutes at Large, vol. 8, page 224.
 
 5$ 
 
 That the X. and the XI. provisions should be admitted by 
 American commissioners as necessary amendments to the 
 treaties negotiated by John Adams, Benjamin Franklin, John 
 law 1 [enry Laurens, Albert Gallatin, and Richard Rush is 
 enough to make them turn in their graves. 
 
 The Hon. William Henry Trescott, with some indignation 
 says: "I refuse absolutely to discuss ' privileges ' granted to 
 us in distiess. They are not the grants of treaties or arrange- 
 ments. They are the common rights of humanity. If the 
 English and Canadian authorities desire to refuse shelter to 
 vessels in distress, to exclude a sick seaman from the rest 
 and aid of a hospital (if any such there be on the Canadian- 
 Newfoundland coast) or to compel a cargo of fish to be 
 thrown overboard, because it shall neither be sold nor trans- 
 shipped, let them do so. The common sense and resolution 
 of the American people and the public opinion of the civil- 
 ized world will correct such conduct sooner and surer than the 
 creak}' machinery of this diplomatic invention of our com- 
 missioners." 
 
 Notwithstanding Mr. T upper thought this was a wise and 
 judicious concession, yet it is evident from what he also says 
 that Canada, no matter what her claim, would be required by 
 every rule of humanity to grant this much to our fishermen, 
 without the treat}' provision. 
 
 "What would be thought of Canada," he says, "if an 
 American, or a United States fishing vessel — I do not like 
 to use the word American, because I think it is a term we 
 have as much right to as our neighbors; I prefer to speak of 
 them as the people of the United States, and ourselves as 
 Canadians, and when I speak of the whole continent of 
 America I do not hesitate to apply the term American to the 
 people of both Canada and the United States — but what 
 would be thought of Canada if a vessel of the United States, 
 loaded with fresh mackerel orfish of any other description, were 
 driven by stress of weather, and perhaps in a sinking condi- 
 tion, and compelled to resort to a Canadian port, and if, 
 instead of allowing her to transship her cargo or sell it on 
 paying the duty, and go upon a marine slip for repairs, we
 
 59 
 
 said : No; you must throw overboard the whole of your i 
 because we find you are not allowed to bring your fish into 
 Canada ? " 
 
 Article XII. provides : " Fishing vessels of Canada and New- 
 foundland shall have, on the Atlantic coast of the United 
 States, all the privileges reserved and secured by this treaty 
 to United Slates fishing vessels in the aforesaid waters of 
 Canada and Newfoundland." 
 
 Under the Treaties of 1783 and [818 the Canadians had no 
 reciprocal rights of fishing on our coast. Under the reciproc- 
 ity Treaty of [854 they were given the right in a restricted 
 degree, the provision being as follows: — 
 
 Article 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 thirty-sixth ; 
 allel of north latitude, and on the shores of the several islands thereunto 
 adjacent, and in the hays, harbors, and creeks of the said sea coasts and 
 shores of the United States and of the said island-, without being re- 
 stricted to any dist. mi i- 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, thej do not interfere with the rights of private property, or with 
 the fishermen of the United States in the pea/ eable use of any part 
 of the said coasts in their occupancy for the same purpose. 
 
 " It is understoi >d that the abi >ve menti< >ned liberty applies solely t< > the 
 sea fishery, and that salmon and shad fisheries, and all fisheries in rivers 
 and months of rivers are hereby reserved exclusively for fishermen ol 
 the I'nited States." 
 
 Under the Treat)' of 1S71 the right was renewed, hut re- 
 stricted to the sea coast north of the thirty-ninth parallel of 
 north latitude. 
 
 Article XIX. " It is agreed by the high contracting parties that British 
 subjects shall have, in common with the citizens of the I'nited Stal 
 the - liberty, for the term of years mentioned in Article XXXIII. of this 
 treaty, to take fish of every kind, except shell-fish, on the eastern sea 
 coast and shores of the United States north of the thirty-ninth parallel 
 of north latitude, and on the shores of the several islands thereunto ad- 
 jacent, ami in the bays, harbors, and creeks of the said ists and 
 shores of the United States, and of the said islands, without being re- 
 stricted to any distance from the shore, with permission to land upon 
 the s.iid coasts of the United States and ol' the islands aforesaid, for the
 
 6o 
 
 purpose of drying their nets and curing tlieir 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 fisher- 
 men of the United States." 
 
 Both the Treaties of 1854 and 1871 were careful to provide 
 that the right did not extend to shell-fish, that it applied only 
 to sea fishery, and did not extend to salmon, shad, or fisheries 
 in rivers or mouths of rivers. 
 
 No such restrictions are attached to the privileges given 
 under the XII. provision, but on the contrary the fishing ves- 
 sels of Canada and Newfoundland have on the Atlantic coast 
 all the privileges reserved and secured by this Treaty to the 
 United States fishing vessels in the aforesaid waters of Canada 
 and Newfoundland. 
 
 The opinion of the Hon. Chas. Levi Woodbury upon this- 
 provision shows that — 
 
 " The effect of this article is more extensive than would appear on a 
 cursory reading. What are the ' aforesaid waters,' and what ' the privi- 
 leges reserved and secured by this treaty,' which we are required to re- 
 ciprocate on our Atlantic coasts, and what is the measure of the recipro- 
 city that this article calls for? 
 
 "In ' the aforesaid waters ' we have the ' liberty ' to fish for all kinds 
 of tish near the shores, to land, cure, and dry the fish on a vast extent 
 of the coasts of Canada and Newfoundland, but on a limited portion are 
 excluded from fishing within three miles of the shore. 
 
 ' This February convention refers and relates to both these classes of 
 waters — see Article 1 1 — ' the ports, bays, and harbors of the eastern 
 and north-eastern coasts of Canada or of the coasts of Newfoundland.' 
 
 "Article 10. 'The bays and harbors of the renounced fishery district,' 
 (Article 1) 'including certain interior portions.' (Articles.) Thus the 
 whole waters of the British North American seacoast are included as the 
 field tor finding all the privileges which the treaty grants to the British 
 vessels on our coasts. 'All the privileges' must be gleaned from the 
 treaties. 
 
 ' ' This right to fish and land, to dry and cure, must be extended to them 
 on all our Atlantic coasts. No reservation is made of any kind of fishing 
 nor of any part of the coast, in or outside of the State lines, or of the 
 three-mile- line, or of private rights now vested. The treaty will become 
 supreme over State conventions and laws.
 
 6i 
 
 " It follows that the Canadians and Newfoundlanders can participate, 
 within three miles of the < oasl ol the i United States, in all the loi al fish- 
 eries, river, bay, and coast. The shad, herring, lobster, crab, snapper, 
 terrapin, bass, baitfish, oyster, shrimp, clams, turtle, and sponge fisher- 
 ies of the Southern coasts are all laid open to them as full) as the i od, 
 hake, and haddock, lobster, &c, of the Eastern States. 
 
 "State laws are annulled and the entire existing private rights in bays 
 and rivers now protected by laws are wiped out by this one articli 
 the treaty. Delaware and Chesapeake bays, the sounds of North Caro- 
 lina, South Carolina. Georgia, Florida, and their rivers, are all made 
 free to the fishing of the Canadians and Newfoundlanders, in season or 
 out of season, in any mode they please to employ. 
 
 " Aye, they may claim that the shores of the Gulf oi Mexico are pari of 
 the Atlantic coasts, and Alabama, Mississippi, Louisiana, and Texas 
 may be equally invaded. 
 
 "This is not an idle construction of Article 12. The treaty becomes 
 part of Article 1 of the treaty of iNiSiscc its preamble). It embr. 
 a wider scope than the renunciation clause, and, as the interpretation oi 
 the treaty of t8i8, its clauses become -rafted and incorporated integrally 
 as one substance with that treaty. There is no escape by saying that 
 Articles to, 11, and [2 are complete within themselves, for the last clause 
 of Article 10 says 'but this enumeration shall not permit other charges 
 inconsistent with the enjoyment of the liberties reserved and secured by 
 the convention of October 20th, 1818.' 
 
 "Can it be denied this clause 'reserves and secures' those' ' liberties ' 
 of [818, and brings them within the descriptive words of Article 12. as 
 'privileges reserved and secured by this treaty' which are to be recip- 
 rocally enjoyed by the Canadians and Newfoundlanders on the Atlantic 
 coast of the United States? The words "liberties" means privileges 
 rather than 'rights' in all the diplomatic correspondence of the En- 
 glish. The United States reserves nothing in Article 12. 
 
 " I think there can be no reasonable doubt thai Article [2 will justify 
 a British claim to participate in all our coast, bay, sound, and river fish- 
 eries, and will preclude Congress or the States from passing any laws on 
 the subject without British consent." 
 
 The catch of Canadian vessels on our coast are not imports 
 from foreign ports and could therefore be brought into any ol 
 our potts tree 1 >t chit}'. 
 
 Reply of Secretary of Treasury to Speaker i<( the 
 1 louse of Representatives, January 10th. 1887. 
 
 We have recognized the right which is now freely exercised 
 by Canadian vessels in our ports to buy bait and supplies and 
 transmit their catch to Canada.
 
 62 
 
 And as Mr. Bayard has said : — 
 
 " No governments have been more earnest and resolute in insisting 
 that vessels driven by stress of weather into foreign harbors should not 
 be subject to port exactions than the Governments of Great Britain and 
 the- United States. * Acting in this spirit the Government of 
 
 the United States has been zealous, not merely in opening its ports freely, 
 without charges, to vessels seeking them in storm, but in insisting that 
 its own vessels seeking foreign ports under such circumstances and ex- 
 clusively for such shelter are not, tinder the laws of nations, subject to 
 custom-house exactions ; * * while in cases of vessels driven 
 
 by storm on inhospitable coasts both Governments have asserted it, 
 sometimes by extreme measures of redress to secure indemnity for 
 vessels suffering under such circumstances from port exactions or from 
 injuries inflicted from shore." 
 
 The privilege therefore granted under the twelfth provision 
 of fishing on our coast to Canadian fishermen would un- 
 questionably be exercised by them free from the vexations 
 and annoyances inflicted by them upon our fishermen. 
 
 No matter what may be the local laws of our States on the 
 subject of fisheries, this article in the treaty would be the 
 supreme law of the land. 
 
 * All treaties made or which shall be made under 
 the authority of the United States shall be the supreme law of 
 the land ; and the Judges in every State shall be bound there- 
 by anything in the Constitution or laws of any State to the 
 contrary notwithstanding." 
 
 Constitution of the United States, Section 2, Article VI. 
 
 The stipulations of a treaty are paramount to the provisions 
 of the Constitution of a particular State of the United States 
 (Gordon's Lessee vs. Kerr, 1 Wash. C. C. R., 322), and the 
 adoption of a treaty with stipulations of which the provisions 
 of a State law are inconsistent is equivalent to a repeal of 
 such law (Fisher's Lessee vs. Harnden, 1 Paine C. C. R., 58). 
 
 From our experience with Canada we can be satisfied 
 that whatever possible claim could be asserted by her under 
 this or any other provision of the proposed Treaty would 
 be asserted whenever it appeared to be for her interest to 
 do so.
 
 6 3 
 
 As Canada is given the same privileges on our coast as are 
 "reserved and secured" to us in the waters on the coast ol 
 Canada, it cannot be said that Canada would obtain little by 
 this provision. It her privileges on our coast would be oi 
 little value then our fishery rights have been so whittled away 
 as to be of little value. The value and extent of her rights on 
 our coast must necessarily be the same under that provision as 
 ours on her coast. Our rights under the treaties of [783 and 
 181S have been considered invaluable, as these rights are oi 
 the same character as those of Canada itself. Canada has 
 been jealous oi them and endeavored to restrict them. It 
 the}- have been fully maintained by the proposed treaty and 
 none of them abandoned, then it has been proposed by this 
 provision to grant similar rights to her on our coast. If our 
 rights have 1 een maintained under the proposed treaty then 
 her rights are great. Nothing could express more clearly 
 than Article XII. the intention to give reciprocal privileges, 
 and, measuring the treat}' by this provision of it, nothing 
 can better show that privileges have been granted to Canada 
 which should not have been granted, or that rights have been 
 surrendered which should have been maintained at all hazards. 
 
 Article XIV. provides that the penalties for unlawful fish- 
 ing " may extend to forfeiture of the boat or vessel and appur- 
 tenances, and also of the supplies and cargo aboard when the 
 offense was committed." Under the British Sea Fisheries 
 Act of 1868 and 1883 this offense when committed in British 
 waters by French vessels and those of other countries is pun- 
 ishable by fine only, and that not exceeding ,£10 for the first 
 and ^"20 for the second offense. 
 
 Article XV. in effect says that our fishing vessels have not, 
 and until the United States shall remove the duties upon the 
 fish products of Canada and Newfoundland shall not have, 
 the right to enter the bays and harbors of Canada and New- 
 foundland to purchase bait or supplies, transship their catch, 
 or ship crews. We did not even retain what is allowed French 
 fishermen under their Treat}- of 1885 — 
 
 •Tlie French fishermen shall have the right to buy bait, herring, and 
 caplin, <>n land or at sea, in the harbors of Newfoundland, withoul tax or
 
 6 4 
 
 impediment of any kind, after the fifth day of April of each year, and 
 until the end of the fishing season." 
 
 Art. XVII., Treat}' between France and Great Britain, 
 Newfoundland Fisheries, Paris, Nov. 14, [885. 
 
 Article IX. of the treat}- provides that " nothing in this 
 treaty shall interrupt or affect the free navigation of the 
 Straits of Canso by fishing vessels of the United States." 
 
 In the spirit of a general denial and restriction of our rights 
 Canada suggested in 1836 a question with regard to our right 
 to navigate the Straits of Canso. While our fishermen do 
 not fish or claim to fish in the strait the use of the strait is 
 necessary to save a long, difficult, and at some seasons of the 
 year a dangerous voyage around the Island of Cape Breton, 
 in going to or coming from the Gulf of St. Lawrence where 
 our right to fish is unquestioned. The safety and convenience 
 of our vessels require the use of the strait, and its use by them 
 harms no one. 
 
 Sabine's Report on the Fisheries, page 465. 
 
 " Straits are passages communicating from one sea to another. If the 
 use of these seas is free, the communications ought to be equally free, 
 for otherwise the liberty of these seas would be a chimera. It is not 
 sufficient, therefore, in order that property in a strait may be attributed 
 to a nation mistress of its shores to say that the strait is actually in the 
 power of this nation, that it has the means of controlling the passage by 
 its artillery or by any other mode of action or defense ; in a word that it 
 is able to have the waters really in its possession." 
 
 Vol. I, page 146, Ortolan, Diplomatic de la Mer. 
 
 " Straits are passages communicating from one sea to another. If the 
 navigation of two seas thus connected is free, the navigation of the 
 channel by which they are connected ought also to be free. Even if such 
 strait be bounded on both sides by the territory of the same sovereign, 
 and is at the same time so narrow as to be commanded by cannon shot 
 from both shores, the exclusive territorial jurisdiction of that sovereign 
 over such strait is controlled by the right of other nations to communi- 
 cate with the seas thus connected." 
 
 Lawrence's Wheaton, Int. Law, page 328. 
 
 When it is remembered that our right to fish in the Gulf 
 of St. Lawrence is admitted; that it is necessary to use this 
 strait to reach the gulf; that Canada has never dared to seize
 
 65 
 
 a fishing vessel of the United States on its way to or coming 
 from the Gulf of St. Lawrence ; that it would be a violation 
 of a fundamental principle of international law and of comity 
 to interfere with our vessels while so using the strait, it can 
 hardly be conceived that Canada would insist upon her claim 
 to close the strait to American vessels. The British Commis- 
 sioners did not ever present this claim, but on the contrary 
 they of their own motion inserted this provision. 
 
 Mr. Tupper, in explaining this article to the House of 
 Commons, said : — 
 
 " I may explain to the house that that was not a sum nder 
 of British interests or Canadian interests at the dictation or 
 at the request of the plenipotentaries of the United State-. 
 That clause was inserted in tlie treaty by ourselves, and for 
 this reason: That the rule for the delimitation which was 
 adopted, the ten-mile rule, would have necessarily excluded, 
 if we took in Chedabucto Bay, which we did take in by making 
 the delimitation, as honorable gentlemen will sec. not from 
 one side of the main land of the bay to the other, which would 
 have opened it to the United State's, but from the island 
 between; by that delimitation the United States would have 
 been shut out altogether from passing through the Strait- ol 
 Canso, because they could not have gone into Chedabucto 
 Bay, and therefore they asked that Chedabucto Bay should 
 be excluded from the delimitation, which made it an exclusive 
 ba\ , in order to prevent their being shut out of the navigation 
 «.f the Straits of Canso. Well, sir, under those circumstan 
 we met that by providing nothing new. We provided simply 
 that nothing in this treaty should interrupt the free navigation 
 of the Straits <>f Canso, as previously enjoyed by fishing ves- 
 sels, t<> which we confined it, and in that way we avoided mak 
 ing an exception of Chedabucto Bay, which is the entrance 
 from the Atlantic side of the Straits of Cans,,." 
 
 Unfortunately this provision refers to"fishing vessels "only, 
 so that if the treaty had been ratified Canada could and would 
 have claimed that it recognized her right to close the strait to 
 all American vessels, and that American fishing vessels only 
 could navigate the strait.
 
 66 
 
 The article inserted by the British Commissioners on their 
 own motion is pointed out, however, as a great triumph by 
 our Commissioners. 
 
 " The uninterrupted navigation of the Straits of Canso is 
 expressly and for the first time confirmed," says President 
 Cleveland. 
 
 Under some circumstances it would not be said that the 
 IX. provision is one to be grateful for, but probably when the 
 treaty as a whole is examined we can join President Cleve- 
 land in his congratulations that this much, at all events, has 
 been retained for our fishing vessels. 
 
 We are told of the young physician who, having been 
 called in at an event in a family, was asked by an anxious 
 friend how the mother and child were doing, and of his en- 
 thusiastic reply, " Oh! the mother and child are dead, but the 
 old man is safe." So while the treaty rights of 1783 and 1 8 18 
 were surrendered under the proposed treat}-, we have the 
 enthusiastic declaration that our fishing vessels will still have 
 the right to navigate the Straits of Canso. 
 
 Without commenting upon the provision that " every 
 United States fishing vessel," without limiting its application 
 to those engaged in fishing on the Canadian coast, shall have 
 " its official number on each bow," or upon the words " wood 
 and water" in the tenth clause (after the denial of Canada that 
 the word " wood " in the Treaty of 18 18 means fuel, and that 
 consequently our vessels are forbidden to purchase coal for 
 fuel), or upon the absence of any provision securing indem- 
 nity for our vessels deprived of treaty rights, driven out of 
 port into storms, without food or supplies, or the inhumanity 
 and brutality inflicted on our fishermen, we have a treaty 
 based not upon our great and ancient fishing rights as evi- 
 denced by the Treaties of 1 783 and 18 18, but upon the theory 
 that the Treaty of 1783 has no existence and that we are 
 entitled only to the mere "fishing rights of one nation in the 
 jurisdictional waters of another," not upon the theory of" our" 
 fisheries but theirs, a treaty that absolutely surrenders princi- 
 ples which have at all hazards been strenuously contended for 
 and maintained since the organization of our Government — a 
 treaty that sells our birthright for ajmess of pottage.
 
 "7 
 
 The question naturally recurs, Why this desire, why this 
 anxiety to press the adoption of this treaty, when the Treat 
 of [783 and [818, if fairly complied with or enforced accord- 
 ing to their terms, are sufficient for our purposes; when our 
 experience with Canada in the past in performing treaty obli- 
 gations has not been such as to assure us that any new treaty 
 would receive from her any greater respect; when the Senate 
 by a majority of 25 declared in [886 that the appointment oi 
 commissioners to frame a new treat}' was not advisable; and 
 when the Executive has declined to furnish to the Senate the 
 papers and information concerning the progress of the m 
 tiations of the treat}', including the proposals and counterpro- 
 posals made ? 
 
 Altogether is there not reason for regret and for some ap- 
 prehension that the Chief Executive of this country, notwith- 
 standing the rejection of the proposed Treaty, should officially 
 reassert " that its provisions were adequate for our security in 
 the future from vexatious incidents, and for the promotion of 
 friendly neighborhood and intimacy, without sacrificing in 
 the least our national pride or dignity." 
 
 Certainly a change has come over the people of this country 
 if we cannot say, as Lewis Cass said in the Senate in [852 
 (vol. 25, App. Cong. Globe, page 895), in referring to our right 
 to fish in the North Atlantic and the methods then adopted 
 to harass and annoy our fishermen in the exercise of that 
 right: " We mean to hold on to it through the whole extent 
 of the great deep, now in the days of our strength, as our 
 fathers held on to it in the days of our weakness. Should 
 we abandon this attribute of independence, even in any ex- 
 tremity which human sagacity can foresee, we should prove 
 recreant both to the glories of the past and to the hopes of 
 the future, to the deeds of our fathers and to the j u-t expecta- 
 tions of our children. I know hut little of the character of 
 my countrymen, if they would not reject with indignation any 
 proposition thus to tarnish their history, and to write their 
 own dishonor upon it."