PERIOD FKOM 1811 TO 1905. 



949 



may be necessary to prevent 

 their taking, drying, or cur- 

 Ing fish therein, or in any 

 other manner whatever 

 abusing the privileges here- 

 by reserved to them ; " and 

 whereas differences have 

 arisen in regard to the ex- 

 tent of the above-mentioned 

 renunciation, the Govern- 

 ment of the United States 

 and Her Majesty the Queen 

 of Great Britain, being 

 equally desirous of avoiding 

 further misunderstanding, 

 agree to appoint a Mixed 

 Commission for the follow- 

 ing purposes, namely : 



1. To agree upon and es- 

 tablish by a series of lines 

 the limits which shall sepa- 

 rate the exclusive from the 

 common right of fishing on 

 the coast and in the adja- 

 cent waters of the British 

 North American Colonies, in 

 conformity with the 1st Ar- 

 ticle of the Convention of 

 1818, except that the bays 

 and harbours from which 

 American fishermen are in 

 the future to be excluded, 

 Bare for the purposes for 

 which entrance into the bays 

 and harbours Is permitted by 

 said Article, are hereby 

 agreed to be taken to be 

 such bays and harbours as 

 are 10 or less than 10 miles 

 In width, and the distance of 

 3 marine miles from such 

 bays and harbours shall be 

 measured from a straight 

 line drawn across the bay or 

 harbour, in the part nearest 

 the entrance, at the first 

 point where the width does 

 not exceed 10 miles, the said 

 lines to be regularly num- 

 bered, duly described, and 

 also clearly marked on 

 Charts prepared in duplicate 

 for the purpose. 



2. To agree upon and es- 

 tablish such Regulations as 

 may be necessary and proper 

 to secure to the fishermen of 

 the United States the privi- 

 lege of entering bays and 

 harbours for the purpose of 

 shelter and repairing dam- 

 ages therein, of purchasing 

 wood, and of obtaining 

 water, and to agree upon and 

 establish such restrictions as 

 may be necessary to prevent 

 the abuse of the privilege re- 

 served by said Convention to 

 the fishermen of the United 

 States. 



3. To agree upon and rec- 

 ommend the penalties to be 

 adjudged, and such proceed- 

 ings and jurisdiction as may 

 be necessary to secure a 

 speedy trial and Judgment, 

 with as little expense as pos- 

 sible, for the violators of 

 rights and the transgressors 

 of the limits and restric- 

 tions which may be hereby 

 adopted : 



Provided, however, that the 

 limits, restrictions, and Regu- 

 lations which may be agreed 

 upon by the said Commission 

 shall not be final, nor have 

 any effect, until so jointly 

 confirmed and declared by 



the territorial waters of 

 Canada. 



This is shown by the fact 

 that in the French Conven- 

 tion the whole of the oyster- 

 beds in Granville Bay, other- 

 wise called the Bay of Can- 

 cale, the entrance of which 

 exceeds 10 mires in width, 

 were regarded as French, 

 and the enjoyment of them 

 is reserved to the local fish- 

 ermen. 



A reference to the action 

 of the United States' Gov- 

 ernment, and to the admis- 

 sion made by their states- 

 men in regard [to] bays 

 on the American coasts, 

 strengthens this view ; and 

 the case of the English 

 ship Orange shows that the 

 Government of the United 

 States in 1793 claimed Del- 

 aware Bay as being within 

 territorial waters. 



Mr. Bayard contends that 

 the rule which he asks to 

 have set up was adopted by 

 the Umpire of the Commis- 

 sion appointed under the 

 Convention of 1853 in the 

 case of the United States' 

 fishing-schooner Washington, 

 that it was by him applied 

 to the Bay of Fundy, and 

 that it is for this reason ap- 

 plicable to other Canadian 

 bays. 



It is submitted, however, 

 that as one of the headlands 

 of the Bay of Fundy is in 

 the territory of the United 

 States any rules of inter- 

 national law applicable to 

 that bay are not therefore 

 equally applicable to other 

 bays the headlands of which 

 are both within the terri- 

 tory of the same Power. 



The second paragraph of 

 the 1st Article deos not in- 

 corporate the exact lan- 

 guage of the Convention of 

 1818. For instance, the 

 words, " and for no other 

 purpose whatever," should be 

 inserted after the mention of 

 the purposes for which ves- 

 sels may enter Canadian 

 waters, and after the words, 

 " as may be necessary to 

 prevent, should be inserted, 

 " their taking, drying, or cur- 

 ing fish therein, or in any 

 other manner abusing the 

 privileges reserved, &c. 



To make the language con- 

 form correctly to the Con- 

 vention of 1818, several 

 other verbal alterations, 

 which need not be enumer- 

 ated here, would be neces- 

 sary. 



Inshore fisheries, was sub- 

 mitted by Mr. P. Mitchell, 

 Minister of Marine and Fish- 

 eries of the Dominion, to 

 the Privy Council, and on 

 the same day was approved. 

 In that draft the width of 

 ten miles, as now proposed 

 by this Government, was 

 laid down as the definition 

 of the bays and harbors 

 from which American fisher- 

 men were to be excluded ; 

 and in respect to the Bay 

 des Chaleurs, it was directed 

 that the officers mentioned 

 should not admit American 

 fishermen " inside of a line 

 " drawn across at that part 

 " of such bay where its 

 " width does not exceed ten 

 " miles." (See Sess. Pap.. 

 1870 ; see also Appendix "A 

 to this Memorandum.) It ia 

 true that it was stated that 

 these limits were " for the 

 present to be exceptional." 

 But they are irreconcilable 

 with the supposition that 

 the present proposal of this 

 Government " would involve 

 ' a surrender of fishing 

 ' rights which have always 

 ' been regarded as the ex- 

 ' elusive property of Can- 

 ' ada." 



It Is, however, to be ob- 

 served that the instructions 

 above referred to were not 

 enforced, but were, at the re- 

 quest of Her Majesty's Gov- 

 ernment, amended, by con- 

 fining the exercise of police 

 jurisdiction to a distance of 

 three miles from the coasts 

 or from bays less than six 

 miles in width. And in re- 

 spect to the Bay des Cha- 

 leurs, it was ordered that 

 American fishermen should 

 not be interfered with unless 

 they were found " within 

 three miles of the shore." 

 (Sess. Pap., Vol. IV, No. 4, 

 1871 ; see also Appendix 

 "B.") 



The final instructions of 

 1870, being thus approved 

 and adopted, were reiterated 

 by their reissue in 1871. 

 Such was the condition of 

 things from the discontin- 

 uance of the Canadian 

 license system, in 1870, 

 until, by the Treaty of Wash- 

 ington, American fishermen 

 again had access to the in- 

 shore fisheries. 



As to the statute cited 

 (14 and 15 Viet., cap. 63, 

 August 7, 1851), it is only 

 necessary to say that It can 

 have no relevance to the 

 present discussion, because 

 it related exclusively to the 

 settlement of disputed boun- 

 daries between the two Brit- 

 ish provinces of Canada and 

 New Brunswick, and had no 

 international aspect what- 

 ever ; and the same may be 

 said of the case cited, which 

 was wholly domestic in Its 

 nature. 



Excepting the Bay des 

 Chaleurs, no case Is adduced 

 to show why the limit 

 adopted in the Conventions 

 regulating the fisheries In 



