DESPATCHES, REPORTS, CORRESPONDENCE, ETC. 463 



fish of every kind, except shell-fish, on the sea coast and shores, in 

 the bays, harbours, and creeks " of Newfoundland, is both seriously 

 "modified" and injuriously affected by "municipal legislation," 

 which closes such fishery absolutely for seven months of the year, 

 prescribes a special method of exercise, forbids exportation for five 

 months, and in certain localities absolutely limits the three-mile area 

 which it was the express purpose of the Treaty to open. 



But this is not all. When the Treaty of 1871 was negotiated, the 

 British Government contended that the privilege extended to United 

 States fishermen, of free fishing within the three-mile territorial 

 limit, was so much more valuable than the equivalent offered in the 

 Treaty, that a money compensation should be added to equalize the 

 exchange. The Halifax Commission was appointed for the special 

 purpose of determining that compensation, and, in order to do so, 

 instituted an exhaustive examination of the history and value of the 

 Colonial fisheries, including the herring fishery of Newfoundland. 

 Before that Commission, the United States Government contended 

 that the frozen herring fishery in Fortune Bay, Newfoundland, the 

 very fishery now under discussion, was not a fishery but a traffic ; that 

 the United States vessels which went there for herring always took 

 out trading permits from the United States custom-houses, which 

 no other fishermen did; that the herring were caught by the natives 

 in their nets, and sold to the vessels, the captains of which froze the 

 herring after purchase, and transported them to market; and that, 

 consequently, this was a trade, a commerce beneficial to the New- 

 foundlanders, and not to be debited to the United States account of 

 advantages gained by the Treaty. To this the British Government 

 replied, that whatever the character of the business had been, the 

 Treaty now gave the United States fishermen the right to catch as 

 well as purchase herring; that the superior character of the United 

 States vessels, the larger capacit}^ and more efficient instrumentality 

 of the seines used by the United States fishermen, together with their 

 enterprise and energy, would all induce the United States fishermen 

 to catch herring for themselves, and thus the Treaty gave certain 

 privileges to the United States fishermen which inflicted upon the 

 original proprietor a certain amount of loss and damage, from this 

 dangerous competition, which, in justice to their interests, required 

 compensation. The exercise of these privileges, therefore, as stated 

 in the British Case, as evidenced in the British testimony, as main- 

 tained in the British argument, for which the British Government 

 demanded and received compensation, is the British construction of 

 the extent of the liberty to fish in common, guaranteed by the Treaty. 



Mr. Whiteway, then Attorney-General of Newfoundland, and one 

 of the British Counsel before the Commission, said in his argument : 



And now one word with regard to the winter herring-fishery in Fortune Bay. 

 It appears that from forty to fifty United States vessels proceed there between 

 the months of November and February taking from thence cargoes of frozen- 

 herring of from 500 to 800 or 1,000 barrels. According to the evidence, these 

 herrings have hitherto generally been obtained by purchase. It is hardly possi- 

 ble, then, to conceive that the Americans will continue to buy, possessing, as 

 they now do, the right to catch. 



The British Case states the argument as to the Newfoundland fish- 

 eries in the following language: 



It is asserted, on the part of Her Majesty's Government, that the actual use 

 which may be made of this privilege at the present moment, is not so much in 



