No. 321.
Mr. Bayard to Mr. Phelps .

[Extract.]
No. 659 bis.]

Sir: On March 24 last the Marquis of Salisbury made reply to your note to him of December 3, 1886, and communicated the views of the Canadian government upon the ad interim arrangement proposed by the Government of the United States, under date of the 15th of November preceding, for the settlement of the fishery disputes.

This reply of his lordship and the “observations”of the Canadian authorities upon the proposal for an arrangement were conveyed in Mr. White’s dispatch of March 30, and received at this Department April 11 last, when it had my immediate consideration.

An answer was prepared forthwith to the note of his lordship, as well as to the “observations,” and I now inclose two copies of the latter, which, for convenience and intelligibility, has been printed as a third parallel column to the original proposal and the Canadian “observations,”

I am, etc.,

T. F. Bayard.
[Inclosure in No. 659 bis.]

Fisheries Arrangement proposed by United States, with “Observations” of British Government and Reply of Government of United States.

Ad interim Arrangement proposed by the United States, Government. Observations on Mr. Bayard’s Memorandum. Reply to “Observations” on Proposal.
Article I.
WHEREAS, in the 1st Article of the Convention betweeen the United States and Great Britain, concluded and signed in London on the 20th October, 1818, it was agreed between the High Contracting Parties “that the inhabitants of the said United States shall have forever, in common with the subjects of His Britannic Majesty, the liberty to take fish of every kind on that part of the southern coast of Newfoundland which extends from Cape Hay to the Rameau Islands, on the western and northern coast of Newfoundland, from the said Cape Bay to the Quirpon Islands, on the shores of the Magdalen Islands, and also on the coasts, bays, harbours, and creeks, from Mount Joly on the Southern coast of Labrador, to and through the Straits on Belleisle, and thence northwardly indefinitely along the coast, [Page 481] without prejudice, however, to any of the exclusive rights of the Hudson’s Bay Company; and that the American fishermen shall also have liberty for ever to dry and cure fish in any of the unsettled bays, harbours, and creeks of the southern part of the coast of Newfoundland, here above described, and of the coast of Labrador; but so soon as the same, or any portion thereof, shall be settled, it shall not be lawful for the said fishermen to dry or cure fish a such portions so settied without previous agreement for such purpose with the inhabitants, proprietors, or possessors of the ground; “and was declared that” the United States hereby renounce forever any liberty heretofore enjoyed or claimed by the inhabitants thereof to take, dry, or cure fish on or within 3 marine miles of any of the coasts, bays, creeks, or harbours of His Britannic Majesty’s dominions in America not included within the above-mentioned limits; provided, however, that the American fishermen shall be admitted to enter such bays or harbours for the purpose of shelter, and of repairing damages therein, of purchasing wood, and obtaining water, and for no other purpose whatever. But they shall be under such restrictions as maybe necessary to prevent their taking, drying, or curing fish therein, or in any other manner whatever abusing the privileges hereby reserved to them;”and whereas differences have arisen in regard to the extent of the above-mentioned renunciation, the Government of the United States and Her Majesty the Queen of Great Britain, being equally desirous of avoiding further misunderstanding, agree co appoint a Mixed Commission for the following purposes, namely:
1.
To agree upon and establish by a series of lines the limits which shall separate the exclusive from the common right of fishing on the coast and in the adjacent waters of the British North. American Colonies, in conformity with the 1st Article of the Convention of 1818, except that the bays and harbours from which American fishermen are in the future to be excluded, save for the purposes for which [Page 482] entrance into the bays and bar-hours is permitted by said Article, are hereby agreed to be taken to be such bays and harbours as are 10 or less than 10 miles in width, and the distance of 3 marine miles from such bays and harbours shall be measured from a straight line drawn across the bay or harbour, in the part nearest the entrance, at the first point where the width does not exceed 10 miles, the said lines to be regularly numbered, duly described, and also clearly marked on Charts prepared in duplicate for the purpose.
2.
To agree upon and establish such Regulations as may be necessary and proper to secure to the fishermen of the United States the privilege of entering bays and harbours for the purpose of shelter and repairing damages therein, of purchasing wood, and of obtaining water, and to agree upon and establish such restrictions as may be necessary to prevent the abuse of the privilege reserved by said Convention to the fishermen of the United States.
3.
To agree upon and recommend the penalties to be adjudged, and such proceedings and jurisdiction as may be necessary to secure a speedy trial and Judgment, with as little expense as possible, for the violators of rights and the transgressors of the limits and restrictions which may be hereby adopted:
Provided, however, that the limits, restrictions, and Regulations which may be agreed upon by the said Commission shall not be final, nor have any effect, until so jointly confirmed and declared by the United States and Her Majesty the Queen of Great Britain, either by Treaty or by laws mutually acknowledged.

THE most important departure in this Article from the Protocol of 1868 is the interpolation of the stipulation, “that the bays and harbours from which American vessels are in future to be excluded, save for the purposes for which entrance into bays and harbours is permitted by said Article, are hereby agreed to be taken to be such harbours as are 10, or less than 10, miles in width, and the distance of 3 marine miles fom such bays and harbours shall be measured from a straight line drawn across the bay or harbour in the part nearest the entrance at the first point where the width does not exceed 10 miles.”

This provision would involve a surrender of fishing rights which have always been regarded as the exclusive property of Canada, and would make common fishing grounds of the territorial waters which, by the law of nations, have been invariably regarded both in Great Britain and the United States as belonging to the adjacent country. In the case, for instance, of the Baie des Chaleurs, a peculiarly well-marked and almost land-locked Indentation of the Canadian coast, the 10-mile line would be drawn from points in the heart of Canadian territory, and almost 70 miles distance from the natural entrance or mouth of the bay. This would be done in spite of the fact that, both by Imperial legislation and by judicial interpretation, this bay has been declared to form apart of the territory of Canada. (See Imperial Statute 14 & 15 Vict., cap. 63; and “Mouat v. McPhee,” 5 Sup. Court of Canada Reports, p. 66.)

The Convention with France in 1839, and similar Conventions with other European Powers, form no precedents for the adoption of a 10-mile limit. Those Conventions were doubtless passed with a view to the geographical peculiarities of the coast to which they related. They had for their object the definition of the boundary-lines which, owing to the configuration of the coast, perhaps could not readily be settled by reference to the law of nations, and involve other conditions which are inapplicable to the territorial waters of Canada.

This is shown by the fact that in the French Convention the whole of the oyster-beds in Granville Bay, otherwise called the Bay of Cancale, the entrance of which exceeds 10 miles in width, were regarded as French, and the enjoyment of them is reserved to the local fishermen.

A reference to the action of the United States Government, and to the admission made by their statesmen in regard [to] bays on the American coasts, strengthens this view; and the case of the English ship “Grange” shows that the Government of the United States in 1793 claimed Delaware Bay as being within territorial waters.

Mr. Bayard contends that the rule which he asks to have set up was adopted by the Umpire of the Commission appointed under the Convention of 1853 in the case of the United States’fishing-schooner “Washington,” that it was by him applied to the Bay of Fundy, and that it is for this reason applicable to other Canadian bays.

It is submitted, however, that as one of the headlands of the Bay of Fundy is in the territory of the United States any rules of international law applicable to that bay are not therefore equally applicable to other bays the headlands of which are both within the territory of the same Power.

The second paragraph of the 1st Article does not incorporate the exact language of the Convention of 1818. For instance, the words, “and for no other purpose whatever,” should be inserted after the mention of the purposes for which vessels may enter Canadian waters, and after the words, “as may be necessary to prevent,” should be inserted, “their taking, drying, or curing fish therein, or in any other manner abusing the privileges reserved,” &c.

To make the language conform correctly to the Convention of 1818, several other verbal alterations, which need not be enumerated here, would be necessary.

A prior agreement between the two Governments as to the proper definition of the “bays and harbors” from which American fishermen are hereafter to be excluded, would not only facilitate the labors of the proposed Commission, by materially assisting it in defining such bays and harbors, but would give to its action a finality that could not otherwise be expected. The width often miles was proposed, not only because it had been followed in Conventions between many other powers, but also because it was deemed reasonable and Justin the present case; this Government recognizing the fact that, while it might have claimed a width of six miles as a basis of settlement, fishing within bays and harbors only slightly wider would, be confined to areas so narrow as to render it practically valueless and almost necessarily expose the fishermen to constant danger of carrying their operations into forbidden waters. A width of more than ten miles would give room for safe fishing more than three miles from either shore, and thus prevent the constant disputes which this Government’s proposal, following the Conventions above noticed, was designed to avert.

It was not known to involve the surrender of rights “which had always been regarded as the exclusive property of Canada,” or to “make common fishing ground of territorial waters, which, by the law of nations, have been invariably regarded, both in Great Britain and the United States, as belonging to the adjacent country.”

The case of the Baie des Chaleurs, the only case cited in this relation does not appear to sustain the “observations” above quoted. From 1854 until 1866 American fishermen were permitted free access to all territorial waters of the provinces under treaty stipulations. From 1866 until 1870 they enjoyed similar access under special licenses issued by the Canadian Government. In 1870 the license system was discontinued, and under date of May 14 of that year a draft of special instructions to officers in command of the marine police, to protect the inshore fisheries, was submitted by Mr. P. Mitchell, Minister of Marine and Fisheries of the Dominion, to the Privy Council, and on the same day was approved. In that draft the width of ten miles, as now proposed by this Government, was laid down as the definition of the bays and harbors from which American fishermen were to be excluded; and in respect to the Bay des Chaleurs, it was directed that the officers mentioned should not admit American fishermen “inside of a line drawn “across at that part of such bay “where its width does not exceed “ten miles.”(See Sess. Pap., 1870; see also Appendix “A” to this Memorandum.) It is true that it was stated that these limits were “for the present to be exceptional.” But they are irreconcilable with the supposition that the present proposal of this Government “would involve a surrender of fishing “rights which have always been “regarded as the exclusive property of Canada.”

It is, however, to be observed that the instructions above referred to were not enforced, but were, at the request of Her Majesty’s Government, amended, by confining the exercise of police jurisdiction to a distance of three miles from the coasts or from bays less than six miles in width. And in respect to the Bay des Chaleurs, it was ordered that American fishermen should not be interfered with unless they were found within three miles of the shore. (Sess. Pap., Vol. IV, No. 4, 1871; see also Appendix “B.”)

The final instructions of 1870, being thus approved and adopted, were reiterated by their reissue in 1871. Such was the condition of things from the discontinuance of the Canadian license system, in 1870, until, by the Treaty of Washington, American fishermen again had access to the inshore fisheries.

As to the statute cited (14 and 15 Vict., cap. 63, August 7, 1851), it is only necessary to say that it can have no relevance to the present discussion, because it related exclusively to the settlement of disputed boundaries between the two British provinces of Canada and New Brunswick, and had no international aspect whatever; and the same may be said of the case cited, which was wholly domestic in its nature.

Excepting the Bay des Chaleurs, no case is adduced to show why the Emit adopted in the Conventions regulating the fisheries in the British Channel and in the North Sea would not be equally applicable to the provinces. The coasts bordering on those waters contain numerous “bays” more than ten miles wide; and no other condition has been suggested to make the limint established by Great Britain and other powers as to those coasts “inapplicable” to the coasts, of Canada.

The exception referred to (of the oyster beds in Granville Bay) from the ten-mile rule in the Conventions of 1839 and 1843, between Great Britain and France, Is found, upon examination of the latter Convention, to be “established [Page 483] upon special principles;” and it is believed that the area of waters so excepted is scarcely 12 miles by 19. In this relation it may be instructive to note the terms of the Memorandum proposed for the Foreign Office in 1870, with reference to a Commission to settle the fishing limits on the coast of British North America. (Sess. Pap., 1871; see also Appendix “C.”)

The Bay des Chaleurs is 16¼ miles wide at the mouth, measured from Birch Point to Point Macquereau; contains within its’ limits several other well-defined bays, distinguished by their respective names, and, according to the “observations,” a distance of almost seventy miles inward may be traversed before reaching the ten mile line.

The Delaware Bay is 11¼ miles wide at the mouth, 32 miles from which it narrows into the river of that name, and has always been held to be territorial waters, before and since the case of the “Grange”—an international case,—in 1793, down to the present time.

In delivering judgment in the case of the “Washington,” the Umpire considered the headland theory and pronounced it “new doctrine.” He noted among other facts that one of the headlands of the Bay of Fundy was in the United States, but did not place his decision on that ground. And immediately in the next case, that of the “Argus,” heard by him and decided on the same day, he wholly discarded the headland theory and made an award in favor of the owners. The “Argus” was seized, not in the Bay of Fundy but because (although more than three miles from land) she was found fishing within a line drawn from headland to headland, from Cow Bay to Cape North, on the northeast side of Cape Breton Island.

The language of the Convention of 1818 was not fully incorporated in the second paragraph of the 1st Article of the proposal, because that paragraph relates to regulations for the secure enjoyment of certain privileges expressly reserved. The words “and for no other purpose whatever” would in this [Page 484] relation be surplusage. The restrictions to prevent the abuse of the privileges referred to would necessarily be such as to prevent the “taking, drying, and curing” of fish. For these reasons the words referred to were not inserted, nor is the usefulness of their insertion apparent.

Ad interim Arrangement proposed by the United States’ Government. Observations on Mr. Bayard’s Memorandum. Reply to “Observations” on Proposal.
Article II. Article II.
Pending a definitive arrangement on the subject, Her Britannic Majesty’s Government agree to instruct the proper Colonial and other British officers to abstain from seizing or molesting fishing vessels of the United States unless they are found within 3 marine miles of any of the coasts, bays, creeks, and harbours of Her Britannic Majesty’s dominions in America, there fishing, or to have been fishing or preparing to fish within those limits, not included within the limits within which, under the Treaty of 1818, the fishermen of the United States continue to retain a common right of fishery with Her Britannic Majesty’s subjects.

This Article would suspend the operation of the Statutes of Great Britain and of Canada, and of the provinces now constituting Canada, not only as to the various offenses connected with fishing, but as to customs, harbours, and shipping, and would give to the fishing vessels of the United States privileges in Canadian ports which are not enjoyed by vessels of any other class, or of any other nation. Such vessels would, for example, be free from the duty of reporting at the Customs on entering a Canadian harbour, and no safeguard could be adopted to prevent infraction of the Customs Laws by any vessel asserting the character of a fishing vessel of the United States.

Instead of allowing to such vessels merely the restricted privileges reserved by the Convention of 1818, it would give them greater privileges than are enjoyed at the present time by any vessels in any part of the world.

The objections to this Article will, it is believed, be removed by a reference to Article VI, in which “the United States agrees to admonish its fishermen to comply” with Canadian customs regulations and to cooperate in securing their enforcement. Obedience by American fishing vessels to Canadian laws was believed and certainly was intended to be secured by this article. By the consolidation, however, of Articles II and VI the criticism would be fully met.
Ad interim Arrangement proposed by the United States’ Government. Observations on Mr. Bayard’s Memorandum. Reply to “Observations” on Proposal.
Article III. Article III.
For the purpose of executing Article I of the Convention of 1818, the Government of the United States and the Government of Her Britannic Majesty hereby agree to send each to the Gulf of St. Lawrence a national vessel, and also one each to cruise during the fishing season on the southern coasts of Nova Scotia.”Whenever a fishing vessel of the United States shall be seized for [Page 485] violating the provisions of the aforesaid Convention by fishing or preparing to fish within 3 marine miles of any of the coasts, bays, creeks, and harbours of Her Britannic Majesty’s dominions included within the limits within which fishing is by the terms of the said Convention renounced, such vessel shall forthwith be reported to the officer in command of one of the said national vessels, who, in conjunction with the officer in command of another of said vessels of different nationality, shall hear and examine into the facts of the case. Should the said commanding officers be of opinion that the charge is not sustained, the vessel shall be released. But if they should be of opinion that the vessel should be subjected to a judicial examination, she shall forthwith be sent for trial before the Vice-Admiralty Court at Halifax. If, however, the said commanding officers should differ in opinion, they shall name some third person to act as Umpire between them, and should they be unable to agree upon the name of such third person, they shall each name a person, and it shall be determined by lot which of the two persons so named shall be the Umpire.

This Article would deprive the Courts in Canada of their jurisdiction, and would vest that jurisdiction in a Tribunal not bound by legal principles, but clothed with supreme authority to decide on most important rights of the Canadian people.

It would submit such rights to the adjudication of two naval officers, one of them belonging to a foreign country, who, if they should disagree and be unable to choose an Umpire, must refer the final decision of the great interests which might be at stake to some person chosen by lot.

If a vessel charged with infraction of Canadian fishing rights should be thought worthy of being subjected to a “judicial examination,” she would be sent to the Vice-Admiralty Court at Halifax, but there would be no redress, no appeal, and no reference to any Tribunal if the naval officers should think proper to release her.

It should, however, be observed that the limitation in the second sentence of this Article of the violations of the Convention which are to render a vessel liable to seizure could not be accepted by Her Majesty’s Government.

For these reasons, the Article in the form proposed is inadmissible, but Her Majesty’s Government are not indisposed to agree to the principle of a joint inquiry by the naval officers of the two countries in the first instance, the vessel to be sent for trial at Halifax if the naval officers do not agree that she should be released.

They fear, however, that there would be serious practical difficulties in giving effect to this arrangement, owing to the great length of coast, and the delays, which must in consequence be frequent, in securing the presence at the same time and place of the naval officers of both Powers.

As the chief object of this Article is not unacceptable, to Her Majesty’s Government—i.e., the establishment of a joint system of inquiry by naval officers oft ho two countries in the first instance—it is believed that the objections suggested may be removed by an enlargement of the list of enumerated offenses so as to include infractions of the regulations which may be established by the Commission. And the treatment to be awarded to such infractions should also be considered by the same body.
Ad interim Arrangement proposed by the United States’ Government. Observations on Mr. Bayard’s Memorandum. Reply to “Observation” on Proposal.
Article IV. Article IV.
The fishing vessels of the United States shall have in the established ports of entry of Her Britannic Majesty’s dominions in America the same commercial privileges as other vessels of the United States, including the purchase of bait and other supplies; and such privileges shall be exercised subject to the same Rules and Regulations and payment of the same port charges as are prescribed [Page 486] for other vessels of the United States. This Article is also open to grave objection. It proposes to give the United States fishing vessels the same commercial privileges as those to which other vessels of the United States are entitled, although such privileges are expressly renounced by the Convention of 1818 on behalf of fishing vessels, which were thereafter to be denied the right of access to Canadian waters for any purpose whatever, except those of shelter, repairs, and the purchase of wood and water. It has frequently been pointed out that an attempt was made, during the negotiations which preceded the Convention of 1818, to obtain for the fishermen of the United States the right of obtaining bait in Canadian waters, and that this attempt was successfully resisted. In spite of this fact, it is proposed, under this Article, to declare that the Convention of 1818 gave that privilege, as well as the privilege of purchasing other supplies in the harbours of the Dominion.

The Treaty of 1818 related solery to Fisheries. It was not a commercial Convention, and no commercial privileges were renounced by it. It contains no reference to “ports,” of which, it is believed, the only ones then existing were Halifax, in Nova Scotia, and possibly one or two more in the other provinces; and these ports were not until long afterwards opened, by reciprocal commercial regulations, to vessels of the United States en gaged in trading.

The right to “obtain” (i. e., take, or fish for) bait, was not insisted upon by the American negotiators, and was doubtless omitted from the Treaty, because, as it would have permitted fishing for that purpose, it was a partial reassertion of the right to fish within the limits as to which the right to take fish had already been expressly renounced.

The purchase of bait and other supplies by the American fishermen in the established ports of entry of Canada, as proposed in Article IV, is not regarded as inconsistent with any of the provisions of the Treaty of 1818; and in this relation it is pertinent to note the declaration of the Early of Kimberly, in his letter of February 16, 1871, to Lord Lisgar, that “the exclusion of “American fishermen from re-“porting to Canadian ports, ex-“cept for the purpose of shelter, “and of repairing damages “therein, purchasing wood, and “obtaining water, might be war-“ranted by the letter of the “Treaty of 1818, and by the “terms of the Imperial Act 59, “Geo. III, Chap. 38, but Her “Majesty’s Government feel “bound to state that it seems “to them an extreme measure”inconsistent with the general “policy of the Empire, and they “were disposed to concede this “point to the United Spates “Government under such re-“strictions as maybe necessary “to prevent smuggling, and to “guard against any substantial “invasion of the exclusive “rights of fishing which may be “resolved to British subjects.”

It is not contended that the right to purchase bait and supplies, or any other privilege of trade, was given by the Treaty of 1818. Neither was any such right or privilege stipulated for or given by the Treaty of 1851, nor by the Treaty of “Washington; and the Halifax Commission decided in 1877, that it was not “competent” for that tribunal “to award compensation for “commercial intercourse between the two countries, nor “for purchasing bait, ice, supplies [Page 487] &c., nor for permission to transship cargoes in British “waters.” And yet this Government is not aware that, during the existence of the Treaty of 1854 or the Treaty of Washington, question was ever made of the right of American fishermen to purchase bait and other supplies in Canadian ports, or that such privileges were ever denied them.

Ad interim Arrangement proposed by the United States’ Government. Observations on Mr. Bayard’s Memorandum. Reply “Observations” on Proposal.
Article V. Article V.
The Government of Her Britannic Majesty, agree to release ail United States’ fishing vessels now under seizure for failing to report at custom-houses when seeking shelter, repairs, or supplies, and to refund all fines exacted for such failure to report. And the High Contracting Parties agree to appoint a Joint Commission to ascertain the amount of damage caused to American fishermen during the year 1886 by seizure and detention in violation of the Treaty of 1818, said Commission to make awards therefor to the parties injured.

By this Article it is proposed to give retrospective effect to the unjustified interpretation sought to he placed on the Convention by the last preceding Article.

It is assumed, without discussion, that all United States’ fishing vessels which have been seized since the expiration of the Treaty of Washington have been illegally seized, leaving, as the only question still open for consideration, the amount of damages for which the Canadian authorities are liable.

Such a proposal appears to Her Majesty’s Government quite inadmissible.

This Government is not disposed to insist on the precise form of this Article, but is ready to substitute therefor a submission to arbitration in more general terms.
Ad interim Arrangement proposed by the United States’ Government. Observations on Mr. Bayard’s Memorandum.
Article VI.
The Government of the United States and the Government of Her Britannic Majesty agree to give concurrent notification and warning of Canadian Customs Regulations, and the United States agrees to admonish its fishermen to comply with them and co-operate in securing their enforcement. This Article calls for no remark.

Appendix A..

“In such capacity, your jurisdiction must be strictly confided within the limit of ‘three marine miles of any of the coasts, bays, creeks or harbors,’ of Canada, with respect to any acti on you may take against American fishing vessels and United States citizens engaged in fishing. Where any of the bays, creeks or harbors shall not exceed ten geographical miles in width, you will consider that the line of demarcation extends from headland to headland, either at the entrance to such bay, creek or harbor, or from and between given points on both sides thereof, at any place nearest the mouth where the shores are less than ten miles apart; and may exclude foreign fishermen and fishing vessels therefrom, or seize if found within three marine miles of the coast.

Jurisdiction.—The limits within which you will, if necessary, exercise the power to exclude United States fishermen, or to detain American fishing vessels or boats, are for the present to be exceptional. Difficulties have arisen in former times with respect to the question, whether the exclusive limits [Page 488] should be measured on lines drawn parallel everywhere to the coast and describing its sinuosties, or on lines produced from headland to headland across the entrances of bays, creeks or harbors. Her Majesty’s Government are clearly of opinion, that by the Convention of 1818, the United States have renounced the right of fishing not only within three miles of the Colonial shores, but within three miles of a line drawn across the mouth of any British bay or creek. It is, however, the wish of Her Majesty’s Government neither to concede, nor for the present to enforce any rights in this respect, which are in their nature open to any serious question. 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 bay or creek which is less than ten geographical miles in width. In the case of any other bay, as the Bay de Chaleurs, for example, you will not admit any United States fishing vessel or boat, or any American fishermen, inside of a line drawn across at that part of such bay where its width does not exceed ten miles.”(Session Papers, Vol. III, No. 6, 1870.)

Appendix B.

“In such capacity, your jurisdiction must be strictly confided within the limit of ‘three marine miles of any of the coasts, bays, creeks or harbors’ of Canada, with respect to any action you may take against American fishing vessels and United States citizens engaged in fishing. Where any of the bays, creeks, or harbors shall not exceed six geographical miles in width, you will consider that the line of demarcation extends from headland to headland, either at the entrance to such bay, creek, or harbor, or from and between given points on both sides thereof, at any place nearest the mouth where the shores are less than six miles apart; and may exclude foreign fishermen and fishing vessels therefrom, or seize if found within three marine miles of the coast.

Jurisdiction.—The limits within which you will, if necessary, exercise the power to exclude United States fishermen, or to detain American fishing vessels or boats, are for the present to be exceptional. Difficulties have arisen in former times with respect to the question, whether the exclusive limits should be measured on lines drawn parallel everywhere to the coast and describing its sinuosities, or on lines produced from headland to headland across the entrances of bays, creeks or harbors. Her Majesty’s Government are clearly of opinion that, by the Convention of 1818, the United States have renounced the right of fishing not only within three miles of the Colonial shores, but within three miles of a line, drawn across the mouth of any British bay or creek. It is, however, the wish of Her Majesty’s Government neither to concede, nor for the present to enforce any rights in this respect which are in their nature open to any serious question. 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 bay or a creek which, though in parts more than six miles wide, is less than six geographical miles in width at its mouth. In the case of any other bay, as the Bay des Chaleurs for example, you will not interfere with any United States fishing vessel or boat, or any American fish, ermen, unless they are found within three miles of the shore.

Action.—You will accost every United States vessel or boat actually within three marine miles of the shore along any other part of the coast except Labrador and around the Magdalen Islands, or within three marine miles of the entrance of any bay, harbor, or-creek which is less than six geographical miles in width, or inside of a line drawn across any part of such bay, harbor, or creek at points nearest to the mouth thereof not wider apart than six geographical miles, and if either fishing, preparing to fish, or having obviously fished within the exclusive limits, you will, in accordance with the above-recited acts, seize at once any vessel detected in violating the law, and send or take her into port for condemnation; but you are not to do so unless it is evident, and can be clearly proved, that the offense of fishing has been committed, and that the vessel is captured within the prohibited limits.” (Session Papers, Vol. IV, No. 4, 1871.

Appendix C.—The secretary of state for the colonies to the governor-general.

Sir: I inclose a copy of a memorandum, which I have requested Lord Granville to transmit to Sir E. Thornton, with instructions to communicate with you before addressing himself to the Government of United States on the subject to which the memorandum relates.

The object of Her Majesty’s Government is, as you will observe, to give effect to the wishes of your Government, by appointing a joint commission, on, which Great Britain, the United States, and Canada are to be represented, with the object of inquiring what ought to be the geographical limits of the exclusive fisheries of the British North American colonies. In accordance with the understood desire of your advisers it is proposed that the inquiry should be held in America.

The proposal contained in the last paragraph is made with a view to avoid diplomatic difficulties, which might otherwise attend the negotiation.

I have, etc.,

Kimberley.

Governor-General the Eight Hon. Sir John Young, G. C. B., G. C. M. G.

[Page 489]

Memorandum for foreign office respecting a commission to settle limits of the right of exclusive fishery on the coast of British North America.

“A convention made between Great Britain and the United States, on the 20th October, 1818, after securing to American fishermen certain rights to be exercised on part of the coasts of Newfoundland and Labrador, proceeded as follows:

“‘And the United States hereby renounce forever any liberty heretofore enjoyed or claimed by the inhabitants thereof to take, dry, or cure fish on or within three miles of any of the coasts, bays, creeks, or harbors of His Britannic Majesty’s dominions in America not included within the above limits.’

“The right of Great Britain to exclude American fishermen from waters within three miles of the coast is unambiguous and, it is believed, uncontested. But there appears to be some doubt what are the waters described as within three miles of bays, creeks, and harbors. When a bay is less than six miles broad, its waters are within three miles limit, and therefore clearly within the meaning of the treaty; but when it is more than that breadth, the question arises whether it is a bay of Her Britannic Majesty’s dominions.

“This is a question which has to be considered in each particular case with regard to international law and usage. When such a bay, etc., is not a bay of Her Majesty’s dominions, the American fishermen will be entitled to fish in it, except within three miles of the ‘coast;’ ‘when it Is a bay of Her Majesty’s dominions,’ they will not be permitted to fish within three miles of it; that is to say (it is presumed), within three miles of a line drawn from headland to headland.

“It is desirable that the British and American Governments should come to a clear understanding in the case of each bay, creek, or harbor what are the precise limits of the exclusive rights of Great Britain, and should define those limits in such a way as to be incapable of dispute, either by reference to the bearings of certain headland, or other objects on shore, or by laying the lines down in a map or chart.

“With this object it is proposed that a commission should be appointed, to be composed of representatives of Great Britain, the United States, and Canada, to hold its sittings in America, and to report to the British and American Governments their opinion either as to the exact geographical limits to which the renunciation above quoted applies, or, if this found impracticable, to suggest some line of delineation along the whole coast which, though not in exact conformity with the words of the convention, may appear to them consistent in substance with the just rights of the two nations, and calculated to remove occasion for further controversy.

“It is not intended that the results of the commission should necessarily be embodied in a new convention between the two countries but if an agreement can be arrived at, it may be sufficient that it should be in the form of an understanding between the two Governments as to the practical interpretation which shall be given to the convention of 1818.”(Session Papers, 1871.)