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363 



Mr. Foster. — That corrcBpondeiice was before the decision in the case of the 



Wasliinqtuii. 



Mr. Thomson. -Lord Aberdeen wiolc tlic (iL'sptitcli containing the relaxation on 

 Miin:li Ktiii. 184.'). The schooner had been seized in 1843. and the decision of Mr. Bates, 

 lis uiiipne, was lmvi-u in 18;')4, in DccomlxT. The reason why ' f ited flic- letter to Rush 

 'AH'* lo slum rhal in 18.J3, in July, the United States had lull Icnowledj^e of the con- 

 struction '.vhicli lia.i liojn platrd upon that relaxation. It is true, say.s Mr. Rush, they 

 have been purniitted to fish in the Buy of i'undy, but that is conceded as a matter of 

 favour and not of right, and that was in 1845. 



Mr, Dana. — But you recollect that after we had that decision, we did not accept the 

 concession as a favour. 



Mr. T/iomson. —Great Britpin has expressly adiiered to her opinion from the beginning 

 to the end as I said before. It is no use to quarrel about the terms of relaxation. 

 Whetiier tiie terms mean a relaxation or not is behind the question. It is a ])ractical 

 abandonment since Great Britain has said that as regards tln^ Kay of b'lnuly she has 

 rel.ixed her claim and does not purpose to enforce it again. No such claim has been 

 made since that time, and we have given no evidence of any fishinij; in the Bay of Fundy, 

 except the tishing within territorial limits, around (jrand iManan, Campobello, Deer Island, 

 and the coasts ot the county of Charlotte and the Province of Nova Scotia. 



Mr. Trescot. — No one objects to the view that Great Britain adheres to the con- 

 struction you insist upon, so long as you admit that the United States adheres to its 

 eonstruetion under which the waters of the Bay of Fundy are not British territorial waters. 



Mr. Thomson. — I only wish to say that the United States tiiemselves unde'rstood the 

 position ol the British Government, and that they must take the concessions in the terms 

 und with the meaninff that the British (iovernment attached to it. A man who accepts a 

 gift cannot quarrel with the terms of it. 



Mr. Dunn. — Mr. liverett declined to accept it as a courtesy. 



Mr. Thomson. — As a matter of fiict the United States have not declined to accept it. 

 They have acted upon it ever since. If they had kept all their vessels out of the Bay of 

 Fundy for fear of that construction being plac( d upon their use of these waters, \yr 

 would have understood it. But they have entered and used it ever since. 



Mr. Dana. — The United States had fished there under a claim ot right. England 

 agreed not to disturb •them, but still contended that we had not a right. Therefore our 

 going in was not an acceptance of any favour from Great Britain. This subject was 

 rclcrred to a Commission and the Commission decided, not on general grounds, but on the 

 ground that one headland was on the American territory. Therefore it was a special 

 decision, and that decision settled the question as to the Bay of Funciy.so that we have not 

 accepted anything from (iireat Britain wiiich precludes us from taking the position always, 

 that we had claimed from the first, namely, that we had a right to fish in the Bay of Fundy. 



Mr. Thomson. — The two Commissioners. Mr. Hornliy and Mr. Upham, were 

 authorized to decide whether the owners of the Washington should or should not be paid 

 lor the seizure of their vessel. That was tiie only authoiity they had. They had no more 

 authority to determine the headland (lutstion th;m you have, and it is conceded that you 

 have no such jjower. Neither had they. A !i)rtiori neither had Mr. Bates, the umpire. 



Mr. i)rt«a.-— 'I'liat was the very thing they had to determine. 



Mr. Tliomson. —'i'\wy had to determine the legality of a seizure. Incidentally the 

 question of the headlands miglit come up. just as it would have here, had evidence been given. 



Mr. Fostrr. — Will you not read the para'j;rai)hs from the umpire's decision? 



Mr. Thomson. — 1 haven't it here. 



Mr. Foster. — He puts it on two grounds. It was impossible to decide f,he question 

 whether the United .States could he paid without deciding whether the \VashinL;ton was 

 riglitly or wrongly seized. That depended upon whether she was seized in Britisli territorial 

 waters. .Mr. Bates, tin; Umpire, decided she was not, and put it on t\\o grounds, one of 

 which Mr. Dana has stated, viz. : that laie of tlie headlands of the Bay ol Fundy was on 

 Anieiiean waters, and the other that the headland doctrine was new antl had received its 

 propi r_ limitation iu the Convention of l-^i!' , between France and Great Britain, that it 

 was limited to bays not exceeding ten miles in width. 



Mr. 77/()i»,vo)i.-- While I do r.oi dispute what Mr. Foster says — I go hai'k to v hat 1 

 was saying when I was interru|)ted, that these two gentlemen. i\ir. iioniOy and 

 Mr. Upham, had no authority to decide the headland question. Tiiey had undoubted 

 power to decide wiiether the vessel was inq)roperly seized, and if .so, lo assess the damages, 

 and because Mr. Bates in giving his decision against the British Government was pleased 

 to base it upon the ground that one headland was in the United Slates .iiid lIic otiier in 

 British territory, according to his views of the contour of the bay, is behind the question. 



