122 ARGUMENT OF GREAT BRITAIN. 



The contention was made at the time when United States fishermen 

 were thrown back on their bare rights under the treaty of 1818 by 

 the Newfoundland legislation of 1905, which prohibited the purchase 

 of fish by American fishermen. 



NON-USER OF BAYS. 



In support of the foregoing statements as to the non-occupation 

 of the Newfoundland inshore waters by American fishermen atten- 

 tion is called to the letter of Mr. Labouchere (Colonial Secretary) to 

 the Governor of Newfoundland (16th January, 1857), in which, 

 referring to the claim of the French on the west coast of Newfound- 

 land, he said (United States Counter-Case, App., p. 252, 254) : 



"Whether the terms conveying the French right were logically 

 equivalent or not to the term ' exclusive ' they were at all events prac- 

 tically so ; since English fishermen could not interrupt French fisher- 

 men by ' competition ' it was of little importance whether they had 

 in theory 'a concurrent' right, since they would always be warned 

 off by the French. 



******* 



" Now on the assumption that the French right on that coast is 

 exclusive (which, as has been said, must be practically the case) 

 the Americans could acquire no right, under this convention of 1818, 

 during the period of the year occupied by the French fishery, and it 

 is believed that in point of fact no claim to interfere with the French 

 has ever been sustained by Americans; nevertheless Her Majesty's 

 Government are of opinion, in order to preserve consistency with 



the language of the convention of 1818, it was necessary to 

 139 declare the French right on points between Cape Ray and the 



Quirpons to be exclusive ' against British subjects,' in order to 

 leave no semblance of interference with nominal (although not in 

 fact exerciseable) rights on the part of the United States." 



Attention is also asked to the remarks of the Hon. Mr. Dwight 

 Foster during the Halifax Arbitration. Referring to the fact that 

 the evidence had shown that there was no fishing in the waters which 

 might, or might not, be thought to be "bays," he said (British 

 Counter-Case, App., p. 183, 184) : 



"The headland question, therefore, gentlemen, I believe may be 

 dismissed as, for the purpose of this inquiry wholly unimportant," 

 ******* 



"Of territorial fishing in Newfoundland waters, there is hardly 

 any evidence to be found since the first day of July, 1873, when the 

 fishery clauses of the Treaty of Washington took effect, with one 

 exception, that I will allude to hereafter. There is certainly no cod- 

 fishing done by our people in the territorial waters of Newfoundland ; 

 none has been proved, and there is no probability that there ever will 

 be during the period of the treaty or afterward. The American cod 

 fishery is everywhere deep sea fishing. There is a little evidence of 

 two localities in which a few halibut are said to have been taken in 



