waters or ports of British North America, for the status of things was such, that it could not be done in the case of any American vessel without regard to her character as a vessel engaged in fishing upon the high seas or in the British territorial waters, wherein, as was provided, she might continue to fish, or to her commercial character.

The right (except in the cases before stated) of the British to exclude such vessels and all others of the United States from her ports in British North America, as the matter stood until 1830, is fully conceded, and it is also conceded that during that time the only right of any vessel of the United States to enter the waters of British North America depended upon the treaty of 1818 alone, and in order to obtain the benefit of that treaty for such purposes, the American vessel must have been a fishing vessel, and must have resorted to those particular waters for some one of the purposes mentioned in the treaty, and no others.

The foregoing statement is, of course, subject to the limitation implied in whatever rights might have existed by the general law of nations in respect of vessels under circumstances requiring the exercise of humanity, etc. It must be also remarked that at the time of the conclusion of the treaty of 1818 the ports of British North America were very few and far between, and that there could be very little motive for American vessels either fishing or other, to resort to such ports for the purposes of trade until the British colonial policy should have been abandoned or very largely modified. The matter, then, under the treaty of 1818 was a very simple one and can be restated thus:

(1) No American vessel had any right to resort to British North American ports for any commercial or other purpose, and no British North American vessel had any right to resort to any port of the United States for such purposes. (2) But American fishing vessels had a right to resort to certain of the coasts, bays, harbours, and creeks of that part of British North America described in the treaty of 1818 for all purposes of fishing which they had anciently enjoyed.

(3) But American fishing vessels, and fishing vessels only, had also a right to resort to all other British North American waters for the special purposes named in the treaty.

(4) The general result of this was, as to American fishing vessels, that they had, on all the British North American coasts and in all her bays and harbours, the right to shelter, to repair damages, and to obtain wood and water. but on certain named parts of the same coasts, etc., they had not the right to take or cure fish; and

(5) As a consequence of the situation embraced in the British laws and in that treaty, the matter of resorting to British North American ports either by American fishing or other vessels was entirely outside of and unaffected either way by that treaty.

From 1818 forward, until after the reciprocal arrangements of 1830 concerning commerce, it is not known that any serious difficulties occurred in respect of the rights of American fishermen pursuing their calling in those regions of the sea.

Two or three instances only of seizure appear to have occurred until after 1830 and none of those touched or raised the bay or headlands question. In 1835 the British Government brought to the notice of our own the complaints of the Canadian authorities concerning alleged infractions of the treaty of 1818 by our fisherThese complaints did not involve the bay or headlands question or any commercial question, and the complaints were imme

men.

diately attended to by our Government to the satisfaction of that of Great Britain (Ex. Doc. 100, Thirty-sixth Congress, first session, pp. 56 and 58).

In 1838-39 there were a few more seizures, but none of them appear to have raised the bay or headlands question. One was seized at the Gut of Canso but released; and none of these seizures appear to have involved any commercial or trade question excepting the Shetland, which, being driven inshore by a storm, anchored, and the master was enticed into selling a boy who came on board, a pair

of trousers and a little tea and tobacco, for which the vessel 438 was immediately seized, it being evident that the boy had been sent by the authorities to entrap the master (Ex. Doc. 100, Thirty-sixth Congress, first session, pp. 65 and 66); and excepting the Magnolia which purchased a barrel of herring for bait; and excepting the Hart, which, running into Tusket Harbour in heavy weather, and while the master was on shore procuring wood and water, a British subject asked some of the crew to help him clear his nets. Some of the crew accordingly went on board the British vessel and assisted in clearing the nets, for which the British owner gave two barrels of fresh herring and excepting the Eliza, which, being at anchor in a gale, carried away one of her larboard chains, and ran into Bevet Harbour, and got it repaired by a British subject, and was accordingly seized.

These instances are specially referred to to show that the bay and headlands question almost never practically arose, and that the offenses, if offenses they were, of the seized vessels, were of the most trivial and unimportant character, scarcely worthy the notice of a Government.

In 1818 (and before the treaty of that year) Congress passed an Act closing our ports against British vessels coming from colonial ports which were closed against vessels owned by citizens of the United States (Stats., vol. iii, p. 432); and in 1820 Congress passed a supplementary Act upon the same subject and upon the same principle of mutuality, applied particularly to British North American ports and certain West Indian ones (Stats., vol. iii, p. 602); and in 1823 Congress passed an Act suspending the former Acts so far as they applied to sundry ports named-the Canadian ones being St. John and St. Andrew's New Brunswick; Halifax, Nova Scotia; Quebec, Canada; and St. John's, Newfoundland.

But this Act was passed with the condition that the enumerated British colonial ports should be open for the admission of the vessels of the United States, and provided that, if trade and intercourse should be interrupted by the British authority in those ports, similar action should be taken by the President in respect of our own.

The Act of Congress of May 29, 1830, provided for opening of all American ports to certain British colonial vessels on a mutual opening of British colonial ports to American vessels. Section 2 of that Act declared that

Whenever the ports of the United States shall have been opened, under the authority given in the first section of this Act, British vessels and their cargoes shall be admitted to an entry in the ports of the United States from the islands, provinces, or colonies of Great Britain, on or near the North American continent, and north or east of the United States (Stats., v. iv, p. 420).

Pursuant to this Act, President Jackson, on the 5th of October, 1830, in accordance with a mutual understanding upon the subject with the Government of Great Britain, issued his proclamation, putting this Act of 1830 into effect (Stats., v. 4, p. 817). And on the 18th of November, 1830, a British Order in Council was issued, declaring among other things

That the ships of, and belonging to, the United States of America may import from the United States aforesaid into the British possessions abroad goods with produce of those States, and may export goods from the British possessions abroad to be carried to any foreign country whatever (British Foreign and State Papers, v. 17, p. 894.)

It is clear that under this Act of Congress all British vessels, without regard to their occupation, whether fishing or other, coming from British North America, were entitled to admission into our ports for all purposes of trade and commerce. Canadian fishing vessels had the same rights as any other, for they fell within the general description stated in the statute. So, too, reciprocally, our fishing vessels fell within the general description of "ships of and belonging to the United States." Before this time all American vessels were excluded from British North American ports with the then recent exception before stated; then, under this arrangement all ships of the United States were to be admitted into British North American ports. The former almost universal exclusion was abolished without reserve. If any literal reading of this British Order in Council can be suggested as of a narrower construction, it would destroy the mutuality of the action of the two Governments and be unworthy of a Gov

ernment.

Surely no nation not in a state of vassalage would consent that its citizens or subjects should for a moment be treated in or by another nation in a less favourable way than it treated the citizens and subjects of the same class and occupation of such other nation.

From the conclusion of the treaty of 1818 down to nearly 1840. as we have seen, the incidents of collision or difficulty in respect of the rights of the purely American fishing vessels under that treaty were comparatively few; and, so far as the committee is advised, such incidents of difficulty as occurred did not arise under any bay or headland pretension of Great Britain, but came out of a few American vessels, from time to time having come within 3 miles of the British North American shores, being seized upon one accusation or another.

In the year 1836 the province of Nova Scotia passed laws of a more stringent and unjust character than any that had existed before, and in the year 1838 that province complained, in an address to the Queen, of American aggressions and asking for a naval force to prevent them. It appears that a British force was accordingly placed on the British North American coast and the seizures of American vessels became much more numerous. (See reports and papers on the subject, Senate Ex. Doc. 100, thirty-second Congress, first session.)

It appears from these papers that most of the cases of British seizure were for alleged violations of the customs laws. That others of them were for violations of the privileges secured by the treaty of 1818, by coming within 3 miles of the shore; and so far as it is known, it was not until the 10th May, 1843, that any American vessel was

seized for fishing more than 3 miles from the shore in a bay indenting the British North American coast.

439

But in the diplomatic correspondence of that period the pretension was asserted by the British Government that bays more than 6 miles wide, and of indefinite width, if bays indenting British shores, were within the exclusion of the treaty of 1818, and under this pretension the American fishing vessel The Washington was seized for fishing in the Bay of Fundy, but more than 3 miles from the shore. This pretension of the British Government was denied by our own, but no agreement upon the subject was come to.

This state of things, with more or less of collision and harassment to our fishing vessels, continued, but without very serious difficulty, until, in 1852, an attempt was made by the British Government to induce the United States to conclude a reciprocity treaty, which failing, the British Government sent a strong force of war steamers and sailing vessels to these waters for the alleged purpose of enforcing the provisions of the treaty of 1818, but, as was believed by the people and Government of the United States, intended not only for that, but as an overawing enterprise, which should frighten the American fishermen from resorting to British waters for any of the purposes mentioned in the treaty, and to so much disturb American fishing interests as to seriously cripple or destroy them, and thus lead the United States to enter into reciprocity with British North American provinces.

Documentary papers and discussions in the Senate at the time will show how fully this matter was understood, and how it was regarded by the people and Government of the United States. Mr. Webster, then Secretary of State, thereupon issued a circular notice to American fishermen in which he states what the rigid and strict construction of the treaty of 1818 would be, as claimed by the British, as it respected the entrance of fishing vessels into the bays or harbours indenting the British provinces. He stated the British pretension in respect of drawing lines from headland to headland and their asserted pretension of a right to capture all American fishermen who should follow their pursuits in bays inside of such lines. But he distinctly also stated, in the same circular, that he did not agree to the construction thus put by the British upon the treaty, or that it was conformable to the intention of the contracting parties; but he informed the public of the British pretension, "to the end that those concerned in American fisheries may perceive how the case at present stands and be on their guard." (H. R. Mis. Doc. No. 32, Forty-second Congress, second session.)

This circular of Mr. Webster was of July, 1852, and on the 23d August of the same year, twenty-two years after the laws of 1830, the provincial secretary of Nova Scotia issued a notice that "no American fishing vessels are entitled to commercial privileges in provincial ports," etc. (Memorandum respecting North American fisheries, prepared for the information of the American commissioners who negotiated the treaty of 1871.)

Following these operations, the Claims Convention of the 8th of February, 1853, between the United States and Great Britain, was concluded, and under that convention the case of the Washington seized for fishing in the Bay of Fundy, as before mentioned, was

heard, and the umpire decided that the true meaning of the treaty of 1818 made it lawful for the Washington to fish more than three miles from the shore in the Bay of Fundy, and in respect of the headland pretension he says:

That the Bay of Fundy is not a British bay, nor a bay within the meaning of the word as used in the treaties of 1783 and 1818.

He refers to the convention of 1839 between France and Great Britain in respect of reciprocal fishing by the subjects of each country along the shores of the other, providing that their conventional arrangements shall exclude the fishermen of each from bays which do not exceed 10 miles in width within the shores of the other as a proper limit of the doctrine of headlands.

But upon this point (immaterial to the question before him) it is to be observed that the 10-mile headland arrangement between France and Great Britain was a mutual one, applying to the shores and bays of both countries along which the fishermen of each were accustomed to ply their calling, and if, therefore, that convention had agreed upon a distance of 10 miles from shore, and 20 miles for the width of the waters between the headlands, it would have furnished no argument in respect of the principle of public law applicable to such questions or in respect of the ancient rights of the citizens of the United States in regard to the fisheries in northeastern waters, for the fishermen of each country were put upon a precisely equal footing in respect of the waters and ports of the other, which, on the British theory, strangely enough, has not existed between British and American fishermen since the Act of Congress of 1830, and will not exist if the treaty under consideration should go into effect.

In 1854, however, the objects of British and Canadian desire were at last accomplished by the conclusion of the treaty of the 5th of June of that year, by which an extensive reciprocity, so called, of trade was agreed upon, and the right granted to the Americans to fish within the limits prohibited by the treaty of 1818 under a variety of restrictions and limitations, and a similar right granted to British fishermen in the waters of the United States north of latitude 36°.

In the same treaty were various other provisions respecting navigation of the St. Lawrence, American and Canadian canals, etc., and the treaty was terminable on notice after the expiration of ten years. The experience of the United States and their citizens under that treaty led Congress to terminate it in the winter of 1864-'65 by a vote of nearly 2 to 1 in the House of Representatives and by a vote of nearly 5 to 1 in the Senate.

440

The Canadian Government then for a few years resorted to a system of licensing American fishermen to fish in the waters from which they were excluded for fishing purposes by the treaty of 1818. For the first year the number of licenses is reported to have been 354, at 50 cents per ton. The next year, 1867, the license fee was made $1 per ton; the number of licenses is reported to have been 281. The next year, 1868-'69, the license fee was again doubled $2 per ton-and in 1868 only 56 licenses were taken out, and in 1869 only 25.

In 1868 the Dominion Government proceeded to enact the most harsh and stringent laws on the subject of American fishermen calculated and, it is thought, undoubtedly designed to so harass Ameri