1786 AWAKD OF THE FISHERY COMMISSION. 



kept all their vessels ont of the Bay of Fundy for fear of that construc- 

 tion being placed upon their use of these waters, we would have under- 

 stood it. But they have entered and used it ever since. 



Mr. DANA. The United States had fished there under a claim of right. 

 England agreed not to disturb them, but still contended that we had 

 not a right. Therefore our going in was not an acceptance of any favor 

 from Great Britain. This subject was referred to a Commission, and the 

 Commission decided, not on general grounds, but on the ground that 

 one headland was ou the American territory. Therefore it was a special 

 decision, and that decision settled the question as to the Bay of Fundy, 

 so that we have not accepted anything from Great Britain which pre- 

 cludes us from taking the position always that we had claimed from the 

 first, namely, that we had a right to fish in the Bay of Fundy. 



Mr. THOMSON. The two Commissioners, Mr. Hornby and Mr. Upham, 

 were authorized to decide whether the owners of the Washington should 

 or should not be paid for the seizure of their vessel. That was the ouly 

 authority they had. They had no more authority to determine the head- 

 laud question than you have, and it is conceded that you have no such 

 power. Neither had they. A fortiori, neither had Mr. Bates, the Umpire. 



Mr. DANA. That was the very thing they had to determine. 



Mr. THOMSON. They had to determine the legality of a seizure. Inci- 

 dentally the question of the headlands might come up, just as it would 

 have here, had evidence been given. 



Mr. FOSTER. Will you not read the paragraphs from the Umpire's de- 

 cision ? 



Mr. THOMSON. I haven't it here. 



Mr. FOSTER. He puts it on two grounds. It was impossible to decide 

 the question whether the United States could be paid without deciding 

 whether the Washington was rightly or wrongly seized. That depended 

 upon whether she was seized in British territorial waters. Mr. Bates, 

 the Umpire, decided she was not, and put it on two grounds, one of 

 which Mr. Dana has stated, viz, that one of the headlands of the Bay of 

 Fuudy was ou American waters, and the other that the headland doc- 

 trine was new and had received its proper limitation in the Convention 

 of 1839 between France and Great Britain, that it was limited to bays 

 not exceeding ten miles in width. 



Mr. THOMSON. While I do not dispute what Mr. Foster says, I go 

 back to what I was saying when I was interrupted, that these two gen- 

 tlemen, Mr. Hornby and Mr. Upham, had no authority to decide the 

 headland question. They had undoubted power to decide whether the 

 vessel was improperly seized, and, if so, to assess the damages ; and be- 

 cause Mr. Bates, in giving his decision against the British Government, 

 was pleased to base it upon the ground that one headland was in the 

 I, u i ted States and the other in British territory, according to his views 

 of the contour of the bay, is behind the question. He had no more 

 power to determine that important international question than, as it is 

 conceded, have your excellency and honors in this Commission. 



Mr. 'J KKsroT. Does not the question of damages for trespass settle the 

 right of possession ? 



Mr. THOMSON. I am quite willing that when the learned counsel 

 United St;ites think I am making misstatements of law or facts 



Sbould be interrupted, but I cannot expect them to concur in my argu- 



lents, and it is difficult to get ou in the midst of interruptions'. If I 



iderstand the arguments against the British case, able arguments 1 ad- 



they arc, ;iml it I understand the argument which I shall have the 



lonor to submit, I shall show that they have not one single leg to stand 



