357 



whether the contention of the British or of the American Government, in reference to that 

 question were the correct one; because, had it Iiecii shown that large catches had been 

 made by tlic American fishermen within the bodies of great bays, such as Miramichi and 

 Chalcurs, it would have become at once necessary to come to a decision as to whether we 

 were entitled to be credited with those catches. But, in fact, no such evidence has been 

 given. And that course was taken somewhat with the view of spariivj; you the trouble of 

 investigating that question, when the Treaty did not empower you to efiect a final decision 

 of it. Tlie learned Counsel, associated with mc on behalf of Her Majesty's Government, 

 and mysell', shaped our evidence as much as possible with reference to the inshore fisheries. 

 Wc concluded that if the American Government, who had put tiiis matter prominently 

 forward in their Brief, intended to challenge a decision from this Commission, they would 

 have p;iven evidence of large catches made by their vessels in those bays. They have 

 not done so. The evidence on our side has shown that, to a very great extent, the value 

 of the fisheries is inshore ; that, undoubtedly, very large catches could be made in the 

 bodies of those bays, and that the fish frequent the body of the bays as well as the portion 

 within three miles from the contour of the coast all around those bays ; but we tendered 

 evidence chiefly with relation to tlie fisheries within three miles of the shore, by no means 

 mtending to have it understood — in fact, we expressly disclaimed the intention of havina: 

 it understood — that there was not in the bodies of those bays valuable fisheries. I can 

 only say, however, that before this Commission tlicre is no evidence of that, and you may 

 dismiss it, therefore, from your minds. When this headland question shall hereafter arise 

 (if it should unfortunately arise), then I beg to say that the position laid down when the 

 Convention of 1818 was niade, has since been in no way departed from. My learned 

 friends on tlic other side point to tiic Bay of Fundy. They say, there is a bay which. 

 Great Britain contended, came within the Conveutioii of 1818, and yet she was obliged, in 

 consetpience of the decision given by Mr. Bates, in the case of the " Washington," in 18.'>4, 

 to recede from that position in reference to that bay. I beg to say that Great Britain did 

 not recede. It was stated on the other side that it was res adjudicatu. I say it is not. It 

 is wholly improbable that the Bay of Fundy will ever again become a matter of contest 

 between the two nations, but the fact in regard to that case is, that Great Britain gave the 

 United States the right to do in that Bay tliat which answered their purpose quite as well 

 as if she hud abandoned her claim. She relaxed any claim that she hud by the Convention 

 of 1818, and that relaxation has never been departed from, and in all human probability 

 never will be departed from for all time to come. But it is relaxation, and nothing else. 

 My learned friend rather assumed, than distinctly stated, that the decision in regard to the 

 Bay of Fimday would have considerable weight in reference to other bays. I deny that. 

 Great Britain expressly guarded herself against any such construction. And, moreover, 

 she guarded herself against another construction placed upon the negotiations between 

 the two Governments, vi/., th.it the Gut ol'Canso was common to the two nations. The 

 British Government, so l.ir as I am informed (I have no special knowledge on the subject, 

 except that afforded by the correspondence and negotiations between the two Governments) 

 cmplnitieally deny that doctrine. The tiut of Caiiso is a mare clausum, bclonning to Great 

 Britain, to the Dominion of Canada. It is a strait on either side of wliich is the territory 

 of ihe Dominion. There is no foreign shore upon tiiat strait. It is not necessary for me to 

 argue, nor shall I argue, what would be the etfect on the international (juertion, assuming 

 the (Julf of St. Lawrence to be an open sea, whose waters could be traversed by the keels 

 of other nations, and to which the Gut of Canso was the only entrance. How far the 

 position 1 assume might be modified, if that were the case, I shall not consider ; but such 

 is not, in fact, the case. There is another entrance north of the Island of Cape l3rcton, 

 and also one by the Straits of Belle Isle. 



In connection with this subject, permit me to call your attention to the instructions 

 issued by the British Government to the Admiralty, immediately after tlie Rceiprocity 

 Treaty had been abrogated by the United State,-;. These instructions are dated ihc 

 12th April, 186(j, and were issued by Mr. Cardwell, then Secretary of State for the 

 Colonies, to guide the fleet about to protect the British North American fisheries: — 



" l( is, tiR'rcfiivi', 111 iin'soiil, tlic wish nf Uw 'Miijcsty's (ioviu'iiiuent neither to coiieode, nor, I'ortho 

 pros'.'iit, lo enforce, iiiiy rij^lils in this ri'spi'd wliicli iiro In their nature o])eii to uiiy serious qiujstioii. 

 Kveu tH't'iire thi! ciini'lusioii <it the lli'cipnicity 'i'rcaiy, Hit Majesty's Goveriinieut hud consouled to 

 fore;^;) tlu' exoivise nt its sirii't rii,'ht to exeluilo Anicricii., lisliuruieu tVoui the liay of Kunily, anil they 

 ;iro 111' niiiuinu lluit ihuiiii; tlie )ii'i:scut seiisoii lli;il iij;lil slioulil not be exercised in the body ol' the Bay 

 of Funily. and thul AnieiicMi; lislrernii'ii siunilil nut bi' interfered with, either by notice or otherwise, 

 utdess tiiev lUi' I'm'-iil tviiiiin three niiU'S nf the shore, or within three miles of u line diniwn across tlio 

 mouth of a buy nr creek, wliicli is less than ten geographical miles in width, iu couformity with the 

 arrangement made with Franco iu 1839. 



[i,'80] 3 B 



