145 



y : Imt when it is more than tliat breaJth, the question arises whether it is a hay of Her 

 Britimnii,' Majesty's dominions. 



"Tills is a (Hiestion wliith has to he considered in each partieuhir case, with re^jard to inter- 

 national law aTid usajje. When s\ich a hay, Su:, is not a bay oi' Iter Alajesty's dominions, the American 

 fishermen will ho entitled to tish in it, excoiit within three miles of the' coast ; when it is a hay of 

 Her Majesty's dominions,' they will not ho entitled to fish within three miles of it, that is to sav 

 (it is presumed), within three miles of a line drawn from headland to headland." 



The following arc, however, the subsequent passages in tlie JMcmorandum, 

 which are entirely omitted in the Brief: — 



'' It is desirable that the liritish and American (iovernnients should come to a clear underslundinS 

 in the case of each bay, creek, or harbcjur, what are the precise limits of the exclusive ri<,'hts of 

 (ireat ]5ritaiii, and shoidd define these limits in such ii way as to bo incapable of dispute, either by 

 reference to the bearings of certain headlands, or other objects on shore, or l>y laying the lir.es 

 down on aniaj) or chart. 



"With this oliject, it is ]nTi]io.sed that a Connnissien .should be appointed, to he composed of 

 representatives of (ircat liritain, the United States, and Canada, to hold its sittings in America, and 

 to report til the liritisli and Ana-rican (Soveruments their opinion, either as to the exact geograpiiical 

 llinits to which the reiuinciation above (pioted ap]ilies, or, if this is imjiracticahlo, to suggest some line 

 of delineation along the whole coast, which, though not in exact conformity with the words of the 

 Convention, may apjiear to them consistent in sukstance with the just rights of the two icitions, 

 and calculated to remove occasion for i'uture controversy.'' 



" It is not intended that the lesult of the C'omuiissimi should necessarily he embodied in a new 

 Convention bel ween the two countries, but if an agreement can be arrived at, it may be sufficient that 

 it .should be in the form of an understanding between the two (iovernments, as to the practical 

 iuteqiretation which shall be given to the Convention of 1S18." 



It would be difficult for the Commissioners, with the context of the Memorandum 

 thus before them, to understand, even if this document had been officially communi- 

 cated to the United States' Government, how by it any doctrine was laid down to 

 vary or alter the Convention of 1818, and it is submitted that nothing was intended 

 by the Memorandum, as in fact nothing was expressed therein in any manner 

 waiving or abandoning the rights secured to Great Britain by that Convention. 



As to the instructions from Mr. Mitchell, quoted at pages 31 and 32* of the 

 Brief, it is only necessary to say, that instead of contributing to the establishment 

 of the ''status" claimed in the Brief, they are of a character to prevent any such 

 misapprehension. They re-affirm the doctrine of the headlands in its fullest sense ; 

 but in view of impending negotiations, which resulted in tho Washington Treaty, 

 the authorities, both in England and in Canada, were desirous of removing all 

 obstacles by the temporary relaxation of their rights, and thereby promoting a 

 friendly and amicable settlement. This consideration may explain the language of 

 Mr. Rogers, in his letter to the Admiralty of April 30, 1870, quoted at page 30* of 

 the Brief. 



It may be here added that the Joint High Commissioners, when the Washington 

 Treaty was in course of negotiation, could not and did not ignore the difference 

 which had from to time arisen as to the interpretation of the 1st Article of the 

 Convention of 1818. In fact, these differences had given birth to the Reciprocity 

 Treaty of 1854, and being revived by the termination of that Treaty in 186G, the 

 Joint High Commission was proposed primarily to dispose of that difficulty. In 

 the order of the subjects to be submitted to that Commission, according to the letter 

 from Mr. i^'ish to Sir E. Thornton, 30th January, 1871, the question of the fisheries 

 is first mentioned. It was " deemed of importance to the good relations which 

 they were ever anxious should subsist and be strengthened between the United 

 States and Great Britain, that a friendly and com|)lcte understanding should be 

 come to between the two Governments as to the extent of the rights- whicii belong- 

 to the citizens of the United States, and Her Majesty's subjects, rcsiectively, with 

 reference to the fisheries on the coasts of Her ftlajesty's possessions in North 

 America, and as to any other (juestions, &.c." 



Had the "status" contended for in the United States' Brief been contemplated, 

 it is reasonable to suppose that it would have been formally adopted or referred to 

 in the Treaty. Not only, however, are the Protocols of the Conference silent on 

 this subject, but no record exists that such a status was over entertained as a basis 

 of negotiation on the part of either Government. On the contrary, and as if to 

 exclude the possibility of doubt, the words of the Convention of 1818 are adopted in 

 their integrity, and tluis constituted the legal and actual basis on which the 

 indemnity to be paid is to be assessed. 



• I'age U4 of tliis volume. 



