QUESTION FIVE. 117 



treaty, and at a time when controversy had arisen on the point (Brit- 

 ish Counter Case, p. 46). 



There is nothing whatever in the records of the negotiations them- 

 selves to support the contention of the United States (United States 

 Case, p. 66). Reliance is placed in the United States Case on a 

 passage in the Report of the American negotiators to their 

 132 own Government. That Report was not part of the negotia- 

 tions, and it is submitted that the treaty can not be construed 

 by private communications from the negotiators of one side not com- 

 municated to the other. The passage in question was as follows 



(British Case, A pp., p. 94) : 



!ii ,'JiiH ni.'hr// ij.,l|', H i;-t ' 



" We insisted on it [the renunciation clause] with the view 1st. 

 Of preventing any implication that the fisheries secured to us were 

 a new grant, and of placing the permanence of the rights secured 

 and of those renounced precisely on the same footing. 2d. Of its 

 being expressly stated that our renunciation extended only to the 

 distance of three miles from the coasts. This last point was the more 

 important, as, with the exception of the fishery in open boats within 

 certain harbors, it appeared, from the communications above men- 

 tioned, that the fishing-ground, on the whole coast of Nova Scotia, is 

 more than three miles from the shores; whilst on the contrary, it is 

 almost universally close to the shore on the coasts of Labrador. It 

 is in that point of view that the privilege of entering the ports for 

 shelter is useful, and it is hoped that, with that provision, a consider- 

 able portion of the actual fisheries on that coast (of Nova Scotia) will, 

 notwithstanding the renunciation, be preserved." 



It is submitted 



First, that this passage is absolutely inadmissible for the purpose 

 of construing the treaty in favour of the United States. It occurs in 

 a Report made after the conclusion of the treaty by the American 

 negotiators to their own Government, and never communicated to the 

 'British Government. Such a document is, it is submitted, worthless 

 for the purpose of construing the treaty. 



Second, the passage is, it is submitted, in favour of the contention 

 of the British Government and not of the United States Government. 

 The American negotiators were calling attention to the fact that the 

 fisheries off Nova Scotia were situate more than three miles out to 

 sea ; while the fisheries on the coast of Labrador, to which they had 

 access under the treaty, were close inshore. They point out that 

 the renunciation extends only to the distance of three miles from the 

 coasts, and claim that in this way the American fishermen get what 

 was desired, the deep-sea fisheries off Nova Scotia, and the right of 

 shelter, &c., under the clause in question. The passage lends no coun- 

 tenance to the contention of the United States as to bays, and, in fact, 

 was cited in the Minority Report of the Committee of the 

 133 Senate in 1888 as supporting Mr. Webster's contention that 

 the treaty had given up all such bays to the British Govern- 



