ABGUMENT OF SAMUEL, J. ELDER. 1573 



from fishing "in British North American territorial waters." Mr. 

 Bayard replied, at the same page: 



" In view of the enduring nature and important extent of the 

 rights secured to American fishermen in British North American 



territorial waters under the provisions of the treaty of 1818, 

 952 to take fish within the three-mile limit on certain defined parts 



of the British North American coasts, and to dry and cure 

 fish there under certain conditions, this Government has not found it 

 necessary to give to United States fishermen any notification that 

 ' they are now precluded from fishing in British North American 

 territorial waters.' " 



It would have been an opportune time, if it had then been thought 

 of, for Lord Rosebery to have suggested to Mr. Bayard that he 

 must advise them that they could not fish in the bays on the west 

 coast; but that had not occurred to him. And the British Foreign 

 Office contents itself with acknowledging the note, without contro- 

 verting it at all. 



In 1886, vol. ii, United States Case Appendix, p. 757, it is conceded 

 that the United States may land on the Magdalen Islands, not as 

 a matter of right, but as a matter of concession. That is the Canadian 

 special instructions, in the middle of the page, under the word 

 " jurisdiction " : 



" With regard to the Magdalen Islands, although the liberty to land 

 and to dry and cure fish there is not expressly given by the terms of 

 the convention to United States fishermen, it is not at present in- 

 tended to exclude them from these islands. 



The only question being, as the Tribunal will see, not whether we 

 had a right to the bays clear up to the shores that was conceded 

 but whether we had the right to land. 



In the British Case Appendix, p. 436, the minority report of the 

 Committee of the United States Senate shows clearly that it under- 

 stood that we had the right to the bays. 



In 1888 that is the one that I have just been referring to, at p. 

 436, British Case Appendix, the quotation is this : 



" It will be observed that the ancient right continued in all its 

 force in every bay, harbour, and creek of a described territory, and 

 that the renunciation of the right to fish on other coasts, bays, har- 

 bours, and creeks is in the same language, and is perfectly correlative 

 to the first." 



The proposed treaty of 1888, the Bayard-Chamberlain treaty, 

 showed distinctly that everybody then understood that we had the 

 right to the bays on the treaty coast, because it provided for the de- 

 limitation of bays on the non-treaty coasts only. Some of them, 

 Chaleur and a number of others, were provided for by exact bound- 

 aries ; but the bays that were to be delimited were those not included 

 in the treaty limits. Why not? There were bays over there that 



