DESPATCHES, REPORTS, CORRESPONDENCE, ETC. 771 



Our construction has been that we did not renounce these "lib- 

 erties " in the bays, harbours, and creeks, except within 3 miles of the 

 coasts thereof, while the British contention has been that the word 

 " coasts " in the treaty relates only to the open sea-coasts, and not to 

 the coasts of bays, harbours, and creeks that are claimed and con- 

 trolled by the provincial governments as territorial waters. 



The British contention is also fortified by the argument, as they 

 insist, that, in the proviso to article 1 of the treaty, our right to enter 

 for shelter, wood, water, and repairs, is limited to "bays or har- 

 bours " and does not extend to " creeks " or to " coasts," and that these 

 were not opened to our right of entry, because of the difficulty of 

 enforcing the " restrictions " upon the use of these privileges, to 

 which we gave our consent in the treaty, on the coasts and creeks, at 

 places remote from their ports. 



It has been the duty of our diplomatists, forced upon them by the 

 importance of our interests, to endeavour to overcome these conten- 

 tions of the British Government, and to insist upon a more liberal 

 construction of the treaty. 



The task has not been an easy one, and the progress we have made 

 is scarcely discernible; for no admitted change in British opinion 

 seems to have been accomplished in respect of the exclusion, from our 

 treaty rights of fishery, of the creeks, bays, and harbours whose 

 names, limits, and location were known, and were recognised by their 

 laws as territorial waters in 1818, except in reference to the Bay of 

 Fundy. 



In 1854 and in 1871 we submerged these questions beneath others 

 of great importance, and paid heavily, in reciprocal tariff arrange- 

 ments in one case, and in money in the other instance, for the security 

 and protection of our fishermen against the British head-land theory, 

 as they claimed it, in territorial waters, and for the right of inshore 

 fishing. 



On the other branch of the subject, relating to the promulgation 

 and enforcement of " such restrictions as may be necessary to pre- 

 vent * * * * abusing the privileges * * * * reserved to " 

 American fishermen, the cases have been more numerous, the dis- 

 cussions more heated, the interferences with our fishermen and their 

 vessels, and with other vessels, more annoying and damaging, than 

 those that have arisen under the head-land theory. 



In most of these cases the provincial courts, or the privy council 

 of the local governments, have made decisions, or statements, ex- 

 pounding their laws, both provincial and imperial, and insisting 

 upon their right and jurisdiction, under the treaty, to do all that 

 has been done by them to our fishermen, except in the affair of 

 Fortune Bay. 



What is sometimes termed the reciprocity of 1830, by which the 

 interdict on commercial intercourse between the North American 

 British Provinces and the United States was relieved, and com- 

 mercial intercourse was established on a liberal footing, gave to our 

 merchant ships extensive privileges that the treaty of 1818, under the 

 British construction, denied to our fishing vessels. 



This so-called reciprocity was not established by positive law in 

 either country; but, under the proclamation of President Jackson, 

 authorised by law, and under the orders of the Privy Council of 

 Great Britain, the liberties of commerce were mutually accorded to 



