168 CASE OF THE UNITED STATES. 



fishery absolutely for seven months of the 3"ear, prescribes a special 

 method of exercise, forbids exportation for five months, and, in cer- 

 tain localities, absolutely limits the tliree-mile area, which it was the 

 express purpose of the treaty to open. 



But this is not all. AMien 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 fish- 

 eries, 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 fisher}^, but a traffic ; that 

 the United States vessels Vvhich went there for herring always took 

 out trading permits from the United States custom-house, 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 Newfound- 

 landers, and not to be debited to the United States account of advan- 

 tages gained hy 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 pur- 

 chase herring; that the superior character of the United States ves- 

 sels, the larger capacity and more efficient instrumentality of the 

 seines used by the United States fishermen, together with their enter- 

 prise and energy, would all induce the United States fishermen to 

 catch herring for themselves, and thus the treaty gave certain privi- 

 leges 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 compensa- 

 tion. The exercise of these privileges, therefore, as stated in the 

 British case, as evidenced in the British testimony, as maintained 

 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 40 to 50 United States vessels 

 proceed there between the months of November and Febiiiarj", 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 possible, 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 question as the actual value of it to those who may, 



