702 



APPENDIX TO BRITISH CASE. 



Dominion, to the Privy 

 Council, and on the same 

 day was approved. In 

 that draft the width of 

 ten miles, as now pro- 

 posed by this Govern- 

 ment, was laid down as 

 the definition of the bays 

 and harbours from which 

 American fishermen were 

 to be excluded; and in 

 respect to the Bay des 

 Chaleurs, it was directed 

 that the officers men- 

 tioned should not admit 

 American fishermen " in- 

 side 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 Memoran- 

 dum.) It is true that it 

 was stated that these lim- 

 its 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 instruc- 

 tions above referred to 

 were not enforced, but 

 were, at the request of 

 Her Majesty's Govern- 

 ment, amended, by con- 

 fining the exercise of po- 

 lice jurisdiction to a dis- 

 tance of three miles from 

 the coasts or from ba,ys 

 less than six miles in 

 width. And in respect to 

 the Bay des Chaleurs, it 

 was ordered that Amer- 

 ican 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 ap- 

 proved and adopted, were 

 reiterated by their reissue 

 in 1871. Such was the 

 condition of things from 

 the discontinuance of the 

 Canadian licence 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 Vic., cap. 63, 

 August 7, 1851), it is only 

 necessary to say that it 

 can have no relevance to 

 the present discussion, 

 because it related exclu- 

 sively to the settlement of 

 disputed boundaries be- 

 tween 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 ad- 

 duced to show why the 

 limit adopted in the Con- 

 ventions regulating tnt* 

 fisheries in the British 

 Channel and in the North 

 Sea would not be equally 

 applicable to the prov- 

 inces. The coasts bor- 

 dering on those waters 

 contain numerous "bays" 

 more than 10 miles wide ; 

 and no other condition 

 has been suggested to 

 make the limit estab- 

 lished by Great Britain 

 and other Powers as to 

 those coasts " inappli- 

 cable " to the coasts of 

 Canada. 



The exception referred 

 to (of the oyster beds in 

 Granville Bay) from the 

 10-mile rule in the Con- 

 ventions of 1839 and 1843, 

 between Great Britain 

 and France, is found, 

 upon examination of the 

 latter Convention, to be 

 " established upon spe- 

 cial principles ; " and it 

 is believed that the area 

 of waters so excepted is 

 scarceh- 12 by 19 miles. 

 In this relation it may 

 be instructive to note the 

 terms of the Memoran- 

 dum proposed for the 

 Foreign Office in 1870, 

 with reference to a Com- 

 mission to settle the fish- 

 ing limits on the coast of 

 British North America. 

 (Sess. Pap., 1871; see 

 also Appendix " C.") 



419 The Bay d e s- 

 Chaleurs is 1>>^ 

 miles wide at the mouth, 

 measured from Birch 

 Point to Point Macque- 

 reau; contains within its 

 limits several other well- 

 defined bays, distin- 

 guished by their respec- 

 tive names, and, accord- 

 ing to the " observations," 

 a distance of almost sev- 

 enty miles inward may 

 be traversed before reach- 

 ing the ten mile line. 



The Delaware Bay is 

 Hi 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, be- 

 fore and since the case of 

 the " Grange " an inter- 

 national case, in 1793, 

 down to the present time. 



In delivering Judgment 

 in the case of the " Wash- 

 ington," the Umpire con- 

 sidered the headland the- 

 ory and pronounced it 

 " new d o c t r i n e." 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 im- 

 mediately 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 favour 

 of the owners. The " Ar- 

 gus " was seized, not in 

 the Bay of Fundy, but 

 because (although more 

 than three miles from 

 land) she was found fish- 

 ing within a line drawn 

 from headland to head- 

 land, from Cow Bay to 

 Cape North, on the north- 

 east 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 se- 

 cure enjoyment of cer- 

 tain privileges expressly 



