948 



CORRESPONDENCE, ETC. 

 [Inclosure No. 1.] 



FISHERIES ARRANGEMENT PROPOSED BY UNITED STATES, WITH " OBSERVATIONS " 

 OF BRITISH GOVERNMENT AND REPLY OF GOVERNMENT OF UNITED STATES. 



Ad interim Arrangement pro- 

 posed by the United States, 

 Government. 



AETICLB I. 



WHEREAS, In the 1st Ar- 

 ticle of the Convention be- 

 tween the United States 

 and Great Britain, concluded 

 and signed in London on the 

 20th October, 1818, it was 

 agreed between the High 

 Contracting Parties " that 

 the inhabitants of the said 

 United States shall have 

 forever, ia common with the 

 subjects of His Britannic 

 Majesty, the liberty to take 

 fish of every kind on that 

 part of the southern coast 

 of Newfoundland which ex- 

 tends from Cape Ray to the 

 Rameau Islands, on the 

 western and northern coast 

 of Newfoundland, from the 

 said Cape Ray to the Quir- 

 pon Islands, on the shores 

 of the Magdalen Islands, and 

 also on the coasts, bays, 

 harbours, and creeks, from 

 Mount Joly on the South- 

 ern coast of Labrador, to 

 and through the Straits on 

 Belleisle, and thence north- 

 wardly indefinitely along the 

 coast, without prejudice, 

 however, to any of the ex- 

 clusive rights of the Hud- 

 eon's Bay Company ; and 

 that the American fisher- 

 men shall also have liberty 

 for ever to dry and cure 

 fish In any of the unsettled 

 bays, harbours, and creeks 

 of the southern part of the 

 coast of Newfoundland, here 

 above described, and of the 

 coast of Labrador ; but so 

 soon as the same, or any 

 portion thereof, shall be set- 

 tled, it shall not be lawful 

 for the said fishermen to 

 dry or cure fish at such 

 portions so" settled without 

 previous agreement for such 

 purpose with the inhabit- 

 ants, proprietors, or pos- 

 sessors of the ground ; " and 

 was declared that " the Unit- 

 ed States hereby renounce 

 for ever any liberty hereto- 

 fore enjoyed or claimed by 

 the inhabitants thereof to 

 take, dry, or cure fish on or 

 within 3 marine miles of 

 any of the coasts, bays, 

 creeks, or harbours of His 

 Britannic Majesty's domin- 

 ions in America not included 

 within the above-mentioned 

 limits ; provided, however, 

 that the American fisher- 

 men shall be admitted to en- 

 ter such bays or harbours 

 for the purpose of shelter, 

 and of repairing: damages 

 therein, of purchasing wood, 

 and obtaining water, and 

 for no other purpose what- 

 ever. But they shall be 

 under such restrictions as 



Observations on Mr. Bayard's 

 Memorandum. 



THE most Important de- 

 parture in this Article from 

 the Protocol of 1866 is the 

 interpolation of the stipula- 

 tion, " that the bays and 

 harbours from which Ameri- 

 can vessels are in future to 

 be excluded, save for the 

 purposes for which entrance 

 Into bays and harbours is 

 permitted by said Article, 

 are hereby agreed to be 

 taken to be such harbours 

 as are 10, or less than 10, 

 miles in width, and the dis- 

 tance of 3 marine miles 

 from such bays and har- 

 bours shall be measured 

 from a straight line drawn 

 across the bay or harbour in 

 the part nearest the en- 

 trance at the first point 

 where the width does not 

 exceed 10 miles." 



This provision would in- 

 volve a surrender of fishing 

 rights which have always 

 been regarded as the exclu- 

 sive property of Canada, 

 and would make common 

 fishing grounds of the ter- 

 ritorial waters which, by 

 the law of nations, have 

 been invariably regarded 

 both in Great Britain and 

 the United States as belong- 

 ing to the adjacent country. 

 In the case, for instance, of 

 the Bale des Chaleurs, a pe- 

 culiarly well-marked and al- 

 most land-locked indentation 

 of the Canadian coast, the 

 10-mile line would be drawn 

 from points in the heart of 

 Canadian territory, and al- 

 most 70 miles distance from 

 the natural entrance or 

 mouth of the bay. This 

 would be done in spite of 

 the fact that, both by Impe- 

 rial legislation and by ju- 

 dicial interpretation, this 

 bay has been declared to 

 form a part of the territory 

 of Canada. (See Imperial 

 Statute 14 & 15 Viet, cap. 

 63 ; and " Mouat v. Mc- 

 Phee," 5 Sup. Court of Can- 

 ada Reports, p. 66.) 



The Convention with 

 France in 1839, and similar 

 Conventions with other Eu- 

 ropean Powers, form no pre- 

 cedents for the adoption of 

 a 10-mile limit. Those Con- 

 ventions were doubtless 

 passed with a view to the 

 geographical peculiarities of 

 the coast to which they re- 

 lated. They had for their 

 object the definition of the 

 boundary-lines which, owing 

 to the configuration of the 

 coast, perhaps could not 

 readily be settled by refer- 

 ence to the law of nations, 

 and involve other conditions 

 which are inapplicable to 



Reply to " Observations " on 

 Proposal. 



A prior agreement be- 

 tween the two Governments 

 as to the proper definition 

 of the " bays and harbors " 

 from which American fisher- 

 men are hereafter to be 

 excluded, would not only 

 facilitate the labors of the 

 proposed Commission, by 

 materially assisting it in 

 defining such bays and har- 

 bors, but would give to its 

 action a finality that could 

 not otherwise be expected. 

 The width of ten miles waa 

 proposed, not only because 

 it had been followed in 

 Conventions between many 

 other powers, but also be- 

 cause it was deemed reason- 

 able and just in the present 

 case ; this Government rec- 

 ognizing the fact that, 

 while it might have claimed 

 a width of six miles as a 

 basis of settlement, fishing 

 within bays and harbors 

 only slightly wider would 

 be confined to areas so nar- 

 row as to render it prac- 

 tically valueless and almost 

 necessarily expose the fisher- 

 men to constant danger of 

 carrying their operations 

 into forbidden waters. A 

 width of more than ten 

 miles would give room for 

 safe fishing more than three 

 miles from either shore, and 

 thus prevent the constant 

 disputes which this Govern- 

 ment's proposal, following 

 the Conventions above no- 

 ticed, was designed to avert. 



It was not known to in- 

 volve the surrender of rights 

 " which has always been re- 

 garded as the exclusive 

 property of Canada," or to 

 " make common fishing 

 ground of territorial waters, 

 which, by the law of na- 

 tions, have been invariably 

 regarded, both in Great 

 Britain ajid the United 

 States, as belonging to the 

 adjacent country." 



The case of the Bale des 

 Chaleurs, the only case cited 

 in this relation, does not 

 appear to sustain the " ob- 

 servations " above quoted. 

 From 1854 until 1866 Amer- 

 ican fishermen were per- 

 mitted free access to all 

 territorial waters of the 

 provinces under treaty stip- 

 ulations. From 1866 until 

 1870 they enjoyed similar 

 access under special licenses 

 issued by the Canadian Gov- 

 ernment. In 1870 the li- 

 cense system was discon- 

 tinued, and under date of 

 May 14 of that year a draft 

 of special instructions to 

 officers in command of the 

 marine police, to protect the 



