granting fishing licences to foreign vessels, under which they have heretofore been permitted to fish within the maritime jurisdiction of the said Dominion, that is to say, within 3 marine miles of the shores thereof;

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To this phrase the British Minister at Washington (Mr. Thornton) objected (British Case, App., p. 238)

inasmuch as it limits the maritime jurisdiction of the Dominion of Canada to three marine miles from the shores thereof, without regard to international usage which extends such jurisdiction over creeks and bays.

Mr. Fish (United States Secretary of State) replied that the expression (British Case, App., p. 239)

was used for the sake of brevity in expressing the interpretation which has been heretofore placed upon the 1st article of the Treaty of 1818 by this Government, and not with the expectation of renewing a controversial discussion upon the subject,

An example of the convenient use of the abbreviated expression may be found in the letter of the Earl of Clarendon to Sir F. Bruce (17th March, 1866). Referring to the British Statute of 1819 and certain colonial statutes, Lord Clarendon said (United States Case, App., p. 565)—

By those Acts, which were only suspended during the existence of the Treaty, severe penalties, extending to confiscation of their vessels, with the cargoes, tackle, stores, &c., are inflicted upon all persons, not British subjects, who shall be found fishing or to have been fishing or preparing to fish within the distance of 3 miles of the coast of Her Majesty's possessions in North America.

The statutory penalties applied to persons taking fish, not only within "three miles of the coast," but

within 3 marine miles of any coasts, bays, creeks, or harbours.

Nobody, however, would cite Lord Clarendon's language as an admission that the statute was something quite different from what it actually was.

Another example of the use of the abbreviated expression may be found in the instructions issued by the Canadian Department of Marine and Fisheries on the 14th May, 1870, in which were the words (United States Case, App., p. 582) :

In all other parts foreigners are precluded from fishing within 3 marine miles of Canadian shores.

But various other parts of the same instructions make perfectly clear (what, indeed, no one will question) that the Canadian Government intended to assert jurisdiction over (United States Case, App., p. 584)

"three marine miles of any of the coasts, bays, creeks, or harbours of Canada."

In conclusion, His Majesty's Government submits that this question must be decided by the plain language of the treaty, and not by other reasons, and that the treaty applies to all bays without qualification: that in any case the evidence before this Tribunal does not support the argument presented in the Case of the United States; and that the construction for which Great Britain contends, and for which, as has been shown, she has from the first contended, is correct.

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QUESTION SIX.

"COASTS" AND "SHORES.”

The United States Case deals very shortly indeed with this Question, stating that further discussion of it is reserved.

Under these circumstances His Majesty's Government does not propose at the present stage to add anything to the considerations already submitted in the British Case except to state that it cannot be admitted that (United States Case, p. 245)–

"the United States has always asserted the right of the American fisherman to take fish in the waters referred to, and American fishermen have ever since the treaty was made, openly exercised their right to take fish in these waters.'

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QUESTION SEVEN.

COMMERCIAL PRIVILEGES.

THE CONTENTIONS.

The question before the Tribunal is whether the inhabitants of the United States whose vessels resort to the treaty coasts for the purpose of exercising the liberties conceded in article 1 have for their vessels, when duly authorised by the United States in that behalf, the commercial privileges on the treaty coasts accorded by agreement or otherwise to vessels engaged only in trade. His Majesty's Government contends that the article confers no right of any kind on American vessels; and that it confers no right on the inhabitants of the United States in regard to trade. If that be so it follows, so far as the treaty of 1818 is concerned (and it is the construction of that treaty alone which is submitted to the judgment of this Tribunal), that there is nothing to prevent Great Britain from imposing such restrictions as she pleases on vessels seeking to trade as well as to fish on the treaty coasts.

In the Case of the United States (p. 249) it is admitted that the question is raised only in relation to the provisions of article 1, but the grounds on which it is contended that a right to trade is given by that article are not stated. The language of the article lends no support to such a contention, and His Majesty's Government submits that this Tribunal should not go behind the language of a treaty when that language is distinct and free from any ambiguity.

Moreover, the United States Government contended before the Halifax tribunal that an analogous treaty (the treaty of 1871) (British Case, pp. 132, 147) gave no right to trade, and in the diplomatic correspondence of 1887 relating to the arrangement proposed in that year, the same view was again advanced by the United States Government. The words used on the latter occasion were (British Case, App., p. 422):

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.

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If, then, the question is raised only in relation to article 1, and that article gives no right to trade, it follows that the question must be answered by this Tribunal in the negative.