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References are made to interferences with the Rattler, the Julia Ellen, and the Shiloh to illustrate the attitude then taken by the United States. But a perusal of the whole correspondence will establish that, although these vessels were refused commercial privileges, the objections made by the United States were to the manner in which the Customs Laws were enforced and to the alleged violent and hostile conduct of certain Canadian officers, rather than to the validity of the Canadian Customs Acts as applied to American fishermen.

For instance, the letter from Mr. Bayard, the United States Secretary of State, of the 9th August, 1886, from which an extract is given in the American Case, closes with the following request (United States Case, App., p. 824):

In the interests of amity, I ask that this misconduct may be properly rebuked by the Government of Her Majesty.

and Mr. Bayard's subsequent letter to Sir L. West of the 18th August, 1886, referring to all these cases (Rattler, Julia Ellen, and Shiloh), says (United States Case, App., p. 830) :—

Such conduct cannot be defended on any just ground, and I draw your attention to it in order that Her Britannic Majesty's Government may reprimand Captain Quigley for his unwarranted and rude

act.

The unwarranted and rude act referred to was that which is mentioned in the last paragraph of the letter:

The firing of a gun across their bows was a most unusual and wholly uncalled for exhibition of hostility, and equally so was the placing of armed men on board the peaceful and lawful craft of a friendly nation.

The correspondence regarding the David J. Adams is also significant as showing the attitude of the United States. In his letter of the 26th January, 1887, to the Marquis of Salisbury, Mr. Phelps (United States Ambassador at London) said (United States Case, App., p. 900) :—

"And quite aside from any question arising upon construction of the treaty, the provisions of the custom-house acts and regulations have been systematically enforced against American ships for alleged petty and technical violations of legal requirements in a manner so unreasonable, unfriendly, and unjust as to render the privileges accorded by the treaty practically nugatory.

"It is not for a moment contended by the United States Government that American vessels should be exempt from those reasonable port or custom-house regulations which are in force in countries.

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which such vessels have occasion to visit. If they choose to violate such requirements their Government will not attempt to screen them from the just legal consequences.

"But what the United States Government complain of in these cases is that existing regulations have been construed with a technical strictness, and enforced with a severity in cases of inadvertent

and accidental violation where no harm was done, which is both unusual and unnecessary, whereby the voyages of vessels have been broken up and heavy penalties incurred. That the liberal and reaonable construction of these laws that had prevailed for many years, and to which the fishermen had become accustomed, was changed without any notice given. And that every opportunity of unnecessary interference with the American fishing vessels, to the prejudice and destruction of their business, has been availed of. Whether in any of these cases, a technical violation of some requirement of law had, upon close and severe construction, taken place, it is not easy to determine. But if such rules were generally enforced in such a manner in the ports of the world, no vessel could sail in safety without carrying a solicitor versed in the intricacies of revenue and port regulations.

It is unnecessary to specify the various cases referred to, as the facts in many of them have been already laid before Her Majesty's Government."

The United States did not demand, and it certainly was not agreed, that American fishermen should be relieved from observing the requirements of the Canadian Customs Laws.

CUSTOMS ON TREATY COASTS.

upon

With reference to customs entries and harbour dues on treaty coasts, the United States Case contains no statement of the grounds which it is contended that such exactions are in violation of the treaty, except so far as they can be gathered from the correspondence of 1905, to which reference has already been made.

It is therefore not deemed necessary to add anything on this point to what has been said in the Case delivered on behalf of His Majesty's Government.

The contention of His Majesty's Government is that the treaty of 1818 applies to all bays, and that the 3-mile limit must be measured from a line drawn across the mouths of all bays on the non-treaty coasts. The argument by which this contention is supported has been stated in the British Case.

BAYS.

The contention of the Government of the United States (p. 248), on the other hand, is that the 3-mile limit must be measured from low water mark following the indentations of the coast of each bay. In the proceedings before the Halifax Commission in 1877 the assertion of the United States was different. It was then contended that the 3 miles ought to be measured from the shore only in cases of bays which exceeded (British Case, App., p. 256)—–

"six miles in width at the mouth upon a straight line measured from headland to headland,"

and the same ground was taken in the Report of the Committee of the Senate on Foreign Affairs in 1888. This argument has been discussed in the British Case, and the observations which are now presented to the Tribunal will be supplementary to the arguments presented in the British Case and directed more particularly to the new and different case now put forward on behalf of the United States.

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date.

At the outset His Majesty's Government submits that this question. must be decided according to the language of the treaty. That language is clear and unambiguous. It provides that American fishermen shall not fish within 3 miles of any of the bays of His Britannic Majesty's dominions in America. There is no qualification of any kind in regard to bays, and the necessary conclusion is that the treaty meant what it said and applied to all those tracts of water on the British American coasts which were known as bays at the date of the treaty. The plain language of a treaty cannot be defeated by conjectures as to the possible intention of the negotiators of one of the parties, nor by the diplomatic representations of a later

PRELIMINARY.

His Majesty's Government desire to enter a protest against the suggestion that any inference adverse to Great Britain can be drawn from the fact that she has not invariably enforced to the fullest extent the construction for which she now contends. The fact is that Great Britain has always exhibited the greatest leniency towards United States fishermen. The controversy on the point of bays arose between the years 1837 and 1841, and Great Britain has ever since consistently adhered to the view of the construction of the treaty which was then assumed and is now put forward. At times when negotiations have been in progress, and the history of the case shows they have not been infrequent, or at times when the relations between the two countries have unhappily been strained and other and wider issues have been at stake, Great Britain has been willing to make some temporary concession in order to avoid the possibilty of friction. But she has invariably coupled with these concessions a declaration of her full claim. If it were to be laid down by the Tribunal that concessions made in this way, and for these reasons, could be used as arguments against the nation which made them, the arrangement of many international differences would become impossible. No nation would then be able to forego even temporarily the enforcement of her strict rights without exposing herself to the risk of losing those rights for ever.

CONSTRUCTION OF THE TREATY.

It has been pointed out in the British Case that the only meaning which can give effect to all the clauses of Article I of the treaty is that for which His Majesty's Government contend.

The construction now proposed in the Case of the United States is open to the insuperable objection that it gives no meaning whatever to the words "bays, creeks, or harbours" in the clause. By the treaty, the United States renounced

any liberty heretofore enjoyed or claimed by the inhabitants thereof to take, dry, or cure fish on or within three marine miles of any of the coasts, bays, creeks, or harbors of His Britannic Majesty's Dominions. in America, not included within the above mentioned limits.

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It will be observed that the interpretation of the United States would necessitate the omission from this language of the words "bays, creeks or harbors; " and would require the three miles to be measured not from the bays, the creeks, and the harbours, but from the coast-line of those indentations.

Clearly if the language of the treaty were expanded so as to make the distance prescribed directly applicable to each of the places mentioned, it would read thus-

"three marine miles of any of the coasts; three marine miles of any of the bays; three marine miles of any of the creeks; or three marine miles of any of the harbors."