88 



In regard to Newfoundland, no special remarks seem to be required at this 

 point, except that by Article XXXII the jirovisions and stipulations of Articles XVUl 

 to XXV inclusive arc extended to that island, so far as they are applicable. But 

 there is no jircvious mention of Newfoundland in the Treaty ; and it seems a 

 strained and unnatural construction of Article XXXll to hold that, by tiiis general 

 language, it was intended to make the provisions as to this Coniniission applicable 

 thereto. The Uniteil States assert that the jurisdiction of the Conimissioncrs does 

 not extend to inquiring whether compensation shouki be made for the inshore 

 fisheries of that island, both because the language of the Treaty does not authorize 

 them to do so, and because the extensive rights to the inshore fisheries of that 

 island, and to dry and cure fish upon its shores, already possessed by the United 

 States inider the Convention of 1818. render it extremely improbable tiiat any idea 

 of possible compensation to that island could have been entertained by either of the 

 High Contracting Powers when the Treaty was framed. 



III. 



It is proposed next io consider the value of the advantages which the United 

 States derive from the provisions of Article XVIIl. This will be done in the light 

 of the principles already laid down, which, it is trusted, have been established to 

 Lne satisfaction of the Commissioners. 



The only material concession is that of fishing within British territorial waters 

 over which jurisdiction exists to such an extent as to authorize the exclusion of the 

 rest of mankind. Such jurisdiction only exists within three miles from low-water 

 mark, both'on the shores of the sea and within bays less than six miles wide between 

 their headlands, for all bays and gulfs of larger size are parts of the open ocean ; and 

 whatever lies' beyoiul is the gift of Goil to all, incapable of being monopolized by 

 any kingdom, or State, or people. 



The necessity of reiterating and emphasizing these positions arises from the 

 surprising circumstance, that the Case of Her INIajcsty's Government throughout 

 completely and studiously ignores any such <listinction. " From the IJay of Fundy 

 to the (julf of St. Lawrence inclusive," over " an area of many thousands of square 

 miles,"' it claims the whole as British property ([). 18). This is not r'one, indeed, in 

 formal and explicit terms : if it had been, the pretension would have been more 

 easily refuted, or rather its extravagance would have refuted itself. But all the 

 assertions as to value, and all the statistics of the case, though vague and indefinite, 

 nevertheless arc based constantly upon this untenable and long-since exploded 

 theory. The affirmative lies upon Her Majesty's Government to show the value to 

 American fishermen of the inshore fisheries as separated and distinguished from those 

 of the deep sea ; but this distinction the British case nowhere attempts to draw. 

 The United States insist that the true issue c. ,;. be evaded thus; and that the 

 party claiming compensation is bound, by every princijjle of law, cipiity, and 

 justice, to show, with some degree of definitcness and precision, wherein consist 

 the privileges which are made the foundation of an enormous pecuniary demand. 



(1.) The fisheries pursued by the United States' fishermen in the waters 

 adjacent to the British provinces on the Atlantic coast are the halibut and cod 

 fishery, and the mackerel and herring fishery. The halibut and cod fisheries include 

 hake, haddock, cusk, and pollock. These fish arc caught exclusively on the banks, 

 far beyond the jurisdiction of any nation. The cod Jishcnj, tlierrforc, is solely a drcp 

 sea fislter]!, and not a subject inlh'ni the cognizance of this Commission. This rppears 

 even by the inspection of the maps attached to the British Case, highly coloured and 

 partial as those are believed to be, they having been drawn ard markc; u it! out 

 any discrimination between territorial waters and the open sea. ^lorcovc. a ■ill 

 appear in evidence, conclusivelj', that there is substantially no inshore cod i^s'.ing 

 done by the Americans. 



Nor do they land on the shores to dry their nets or cure their lish. These 

 customs belonged to the primitive mode of catching codfish practised by former 

 generations oi' fishermen, and iiave been disused for many }ears p-ast. Cotlfisii are 

 now salted for temporary preservation on shipboard; but are cured in large estab- 

 lishments at home, by fisii packeis and carers, who make this a separate business, 

 and to whom the fi.sh are sold from the vessels in a green state. 



(li.) Nor do tile Ameriean cod fishermen fish for l)aii to any considerable 

 exteni in the territorial waters of the British dominions. Their vessels are so large, 

 and their outfit is so expensive, that tliey find it more economical when the first 



