sought to be prevented by various regulations and penalties;' and subsequently claims were asserted to

Headland Theory- exclude American fishermen from all bays Gut of Canso and even from all waters within lines drawn Question of Traffic. from headland to headland, to forbid them to navigate the Gut of Canso, and to deny them all privileges of traffic, including the purchase of bait and supplies in the British colonial ports. From 1839 down to 1854 there were numerous seizures, and in 1852 the home government sent over a force of war steamers and sailing vessels to assist in patrolling the coast.

Reciprocity Treaty of

1854.

With a view to adjust the various questions that had arisen, the British Government in 1854 sent Lord Elgin to the United States, on a special mission, and on June 5, 1854, he concluded with Mr. Marcy, who was then Secretary of State, a treaty in relation to the fisheries, and to commerce and navigation. By the first article of this treaty it was provided that, in addition to the liberty secured to the United States fishermen by the convention of October 20, 1818, of taking, curing, and drying fish on certain of the coasts of British North America, the inhabitants of the United States should have, in common with the subjects of His Britannic Majesty, "the liberty to take fish of every kind, except shellfish, on the seacoasts and shores, and in the bays, harbors, and creeks of Canada, New Bruns wick, Nova Scotia, Prince Edward's Island, and of the several islands thereunto adjacent, without being restricted to any distance from the shore, with permission to land upon the coasts and shores of those colonies and the islands thereof, and also upon the Magdalen Islands, for the purpose of drying their nets and curing their fish; provided that, in so doing, they do not interfere with the rights of private property, or with British fishermen in the peaceable use of any part of the said coast in their occupancy for the same purpose."

The liberty thus defined applied solely to the sea fishery. The salmon and shad fisheries, and all fisheries in rivers and the mouths of rivers, were expressly reserved exclusively for British fishermen.

On the other hand, it was provided by the second article of the treaty, that British subjects should have, in common with

Sen. Ex. Doc. 100, 32 Cong. 1 sess. 108.

the citizens of the United States, "the liberty to take fish of every kind, except shell-fish, on the eastern sea coasts and shores of the United States north of the 36th parallel of north latitude, and on the shores of the several islands thereunto adjacent, and in the bays, harbors, and creeks of the said sea coast and shores of the United States and of the said islands," on precisely the same conditions, including the reservation of the salmon, shad, and all river fisheries, as were made with respect to the reciprocal liberty secured to the American fishermen by the preceding article.

By the third article of the treaty, provision was made for reciprocal free trade between the United States and the British colonies in North America in various articles, being the growth and produce of either country; and by the fourth article, certain stipulations were established as to the navigation of the River St. Lawrence and Lake Michigan, and the use of such Canadian canals as formed part of the water communication between the Great Lakes and the Atlantic Ocean.

This treaty came into operation on March Termination of Reci16, 1855. It was terminated March 17, 1866, procity Treaty. in accordance with a notice given by the United States in conformity with its provisions. From 1866 to 1869 the Canadian Government granted licenses to American fishing vessels, at first at the rate of 50 cents and finally at the rate of $2 a ton for the enjoyment during each season of the same liberties as they had excised under the reciprocity treaty."

Licenses.

Dominion Legisla

tion.

In 1868, however, the Dominion Parliament passed an "act respecting fishing by foreign vessels," which was amended in 1870, and which practically reenacted, with increased stringency of regulations and penalties, the Nova Scotian statute of 1836.3

rial Government.

In 1870 the system of granting licenses was Position of the Impe- discontinued, and a copy of a letter addressed by the secretary of state for the colonies to the lords of the admiralty on April 12, 1866, defining the views of the British Government as to the construction of the conven

1 Dip. Cor. 1865, part 1, 93, 184, 259.

2 Dip. Cor. 1865, part 1, 235; Papers relating to the Treaty of Washington, VI. 286.

3 For. Rel. 1870, 408, 414.

4 For. Rel. 1870, 408.

tion of 1818 was communicated to the United States. In this letter it was said that Her Majesty's government were clearly of the opinion that by the convention of 1818 the United States had "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." But the question, What is a British bay or creek? was one that had been the occasion of difficulty in former times. The letter said:

"It is, therefore, at present the wish of Her Majesty's government neither to concede nor for the present to enforce any rights which are in their nature open to any serious question. Even before the conclusion of the reciprocity treaty Her Majesty's gov ernment had consented to forego the exercise of its strict right to exclude American fishermen from the Bay of Fundy, and they are of opinion that during the present season that right should not be exercised in the body of the Bay of Fundy, and that American fishermen should not be interfered with, either by notice or otherwise, unless they are 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 conformity with the arrangement made with France in 1839. Her Majesty's government do not desire that the prohibition to enter British bays should be generally insisted on, except when there is reason to apprehend some substantial invasion of British rights. And in particular they do not desire American vessels to be prevented from navigating the Gut of Canso, (from which Her Majesty's government are advised they may lawfully be excluded,) unless it shall appear that this permission is used to the injury of colonial fishermen, or for other improper objects."1

Instructions of 1870.

It appears that instructions were given in 1870 not to seize any vessel unless it were evident, and could be clearly proved, that the offense of fishing had been committed and the vessel itself captured within three miles of land. In view of the claims. previously made by the British Government, the United States recognized in the tenor of these instructions "a generous spirit of amity." But subsequently, during the same season, it was learned that the colonial authorities were Action of Colonial asserting the right to exclude American fishermen from entering the ports of the Domin

Authorities.

ion, either for the purpose of obtaining bait or supplies or of

1 For. Rel. 1870, 419-420.

2 Id. 421.

3 Id. 421-422.

transshipping their cargoes of fish under the system of bonded transit which had long been in existence.'

Commission.

When the Joint High Commission, which The Joint High negotiated the Treaty of Washington, met on February 27, 1871, the dispute as to the fisheries was one of the subjects that had been placed within its cognizance.

The British commissioners were instructed Instructions of Brit- that the two chief questions were: "As to ish Commissioners. whether the expression 'three marine miles of any of the coasts, bays, creeks, or harbors of his Britannic Majesty's dominious' should be taken to mean a limit of three miles from the coast-line, or a limit of three miles from a line drawn from headland to headland; and whether the proviso that 'the American fishermen shall be admitted to enter such bays or harbors for the purpose of shelter, and of repairing damages therein, of purchasing wood, and of obtaining water, and for no other purpose whatever,' is intended to exclude American vessels from coming inshore to traffic, transship fish, purchase stores, hire seamen, etc." While a preference was expressed for the conclusion of a definite understanding upon the disputed interpretation of the convention of 1818, the British commissioners were authorized to propose that "the whole question of the relations between the United States and the British possessions in North America, as regards the fisheries," should be "referred for consideration and inquiry to an international commission, on which two commissioners, to be hereafter appointed, in consultation with the government of the Dominion, should be the British representatives." As it was not probable that such a commission would be able to report, and that a treaty could be framed, before the commencement of the fishing season of 1871, the British commissioners were authorized to agree upon some means, by licenses or otherwise, by which disputes might in the mean time be avoided.'

American Commissioners.

In the instructions to the American comInstructions of missioners, the following grounds were taken: 1. That the acquisition of the inshore fisheries for the American fishermen was of more importance as removing danger of collision than on account

For. Rel. 1870, 422–434.

2 Lord Granville to Her Majesty's High Commissioners, February 9, 1871. (Papers relating to the Treaty of Washington, VI. 373–374.)

of its money value, the latter, probably, being overestimated by the Canadians.

2. That the headland doctrine had no foundation in the convention of 1818, and had been decided against Great Britain in the case of the schooner Washington, under the claims convention of February 8, 1853.

3. That the assumption to prevent American fishermen from purchasing bait, supplies, ice, etc., and from transshipping their fish in bond, under color of the convention of 1818, was never acquiesced in by the United States, and was carrying out in practice provisions which the American plenipotentiaries declined to insert in that convention.'

4. That as the mackerel fishery, out of which the trouble mostly arose, had come into existence since 1818, it was a subject for consideration whether the convention was fairly applicable to it.

For the adjustment of these questions it was suggested that provision might be made, either

1. By agreeing on the terms upon which the whole of the reserved fishing grounds might be thrown open to American fishermen, all obnoxious laws to be repealed, and the disputed reservation as to ports, harbors, etc., to be abrogated; or,

This allusion to the action of the American plenipotentiaries is based on the exchange of certain propositions, leading up to the conclusion of the convention. In the article first proposed by the American plenipotentiaries on September 17, 1818, the renunciation of the right to fish within three marine miles of the coasts, bays, creeks, and harbors, was followed by the proviso that the American fishermen should be permitted to enter those places "for the purpose only of obtaining shelter, wood, water, and bait, but under such restrictions as may be necessary to prevent their drying or curing fish therein, or in any other manner abusing the privilege hereby reserved to them." The British plenipotentiaries on October 6 presented a counter project, in which, after stipulating that United States fishing vessels should have the liberty to enter bays and harbors "for the purpose of shelter or of repairing damages therein, and of purchasing wood and obtaining water, and for no other purpose,” and that "all vessels so resorting to the said bays and harbors" should be "under such restrictions as may be necessary to prevent their taking, drying, and curing fish therein," they proposed to declare that it was "further well understood" that the "liberty of taking, drying, and curing fish" inshore, where it was granted by the article, should "not be construed to extend to any privilege of carrying on trade with any of His Britannic Majesty's subjects residing within the limits hereinbefore assigned to the use of the fishermen of the United States for any of the purposes aforesaid;” that, in order the more effectually to guard against smuggling, it should "not be lawful for the vessels of the United States engaged in the said fishery