to be recorded in detail. I will use the language of the protocol itself, "were to be recorded in detail"; and the protocols will be searched in vain for any reference to any map of any kind drawn by anybody as being before the Tribunal, or as being referred to in any connection with the treaty subsequently signed.

I desire to refer, in passing, to a statement on p. 103 of the Case of Great Britain filed before this Tribunal.

The reading of pp. 103 and 104 is, unless analysed, liable to be very misleading, and I desire to read some paragraphs there for the purpose of commenting on them. Reading first from p. 103 :—

"These indentations had all been surveyed and named at the time the convention was entered into. They were well known to mariners and fishermen and were known under the names which they now bear. In other words, the waters to which this discussion relates were known as bays in 1818.

"Maps of the coasts had been published before that date. Of these, probably the most important were a wall map known as Mitchell's map (1755), and a book of maps called 'The American Atlas,' prepared by Thomas Jeffreys, geographer to the King and others. In the appendix to this Case will be found reproductions of Mitchell's map, and of such of Jeffrey's maps as cover the territory in question. Not only were these maps available to the negotiators in 1783, but the report of the American Commissioners proves that the Mitchell map was actually being used by them during the negotiations. They said:

6

The map used in the course of our negotiations was Mitchell's.' "When, therefore, in 1783, an agreement was entered into with reference to the 'bays' in these territories, no one could have been in the slightest doubt as to what was intended."

I have shown that it does not make any difference what the bays were in 1783; that there was no attempt to define the jurisdiction, because the rights of the fishing vessels of the United States were to go to the shores under the terms of the treaty.

Continuing the reading:

"The maps showed it, and every fishermen knew it without looking at the maps. And the word was used in the same sense in 1818. It appears from an entry in Mr. John Quincy Adams' diary, 8th July, 1823, that the same map (Mitchell's) was made use of in subsequent negotiations."

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The extract referred to as being in Mr. Adams's diary is on p. 108 of the Appendix to the Case of Great Britain. It bears date the 8th July, 1823, and will be found at the bottom of p. 108:

"The Count de Menou came to inquire where were the Quirpon Islands; I showed him upon Mitchell's map. We had much conversation upon the subject of the French claim to exclusive fishery from them to Cape Ray. He said he had received further instructions from the Viscount de Chateaubriand on this affair, but there were still two previous instructions which he had not received. He saw it was an affair of great delicacy, and he did not see how they and we could enjoy a concurrent right of fishery on the same coast."

If the Tribunal please, Mr. Adams was negotiating with and talking with the Minister from France about the controversy that arose in 1822 on the coast of Newfoundland between the vessels of the United States and the French vessels, and the words in the British Case, "that the same map was made use of in subsequent negotiations," must be understood as referring to the subsequent negotiations in 1822 and 1824, and not to subsequent negotiations in 1818, because the diary of Mr. Adams shows what negotiation Mr. Adams was writing about.

Before passing to a consideration of the actions of the two Governments immediately after the making of the treaty, there is one matter brought into the discussion by the counsel for Great Britain, which should be cleared up, if possible. Sir Robert Finlay said at p. 59 of the report of his oral argument:

"From the year 1819 to 1836 there is a lull with regard to matters affecting this treaty of 1818. There are only two points which I shall notice in regard to the interval and they are both of considerable importance. The first relates to the sort of collision which took place in 1822 between the United States and France with regard to the exclusion by French vessels of United States fishermen from the bays on the west coast of Newfoundland over which the French, under their treaties with Great Britain, claimed exclusive rights. I shall refer to what took place then for the purpose of bringing out clearly what was the extent of the French claim, and the very strong assertions that were made by the United States with regard to the jurisdiction of the British in the waters on that western coast of Newfoundland. The second incident which I shall notice relates to a statement which was made in the argument of the United States to the effect that it is established by overwhelming evidence that the American fishermen, during these years before 1836, habitually fished in the Bay of Fundy, and that the British Government acquiesced in their doing so unless they came within 3 miles of land."

The distinguished counsel, as reported at p. 61, also said:"The correspondence which ensued between the United States Government and the French Government will be found beginning at page 101 of the Appendix to the British Case. It extends from page 101 to page 113, and it is necessary, not to read that correspondence throughout, but to refer to it for the purpose of seeing the very strong assertions made by the United States as to the jurisdiction of Great Britain in the bays upon that coast."

The correspondence relating to this incident is printed in the Appendix to the Counter-Case of the United States, commencing on p. 105, and continuing through p. 129.

I have no intention of delaying the Tribunal for the purpose of analysing that evidence, and I shall be quite content to refer to one or two extracts which I respect fully submit are entirely conclusive as to what was the nature of the assertion of France, and as to what was done as between the Governments of Great Britain and the United States and as between France and the United States.

I submit that the correspondence, while showing that the vessels were fishing in the bays, Port-au-Port and Bay of Islands, which are under any theory territorial bays, and in two instances were fishing in St. George's Bay, conclusively establishes that the discussion involved the right of the United States vessels to fish on the entire west coast; and it is also apparent that when the words appearing on p. 128 of the United States Counter-Case Appendix "within the strictest territorial jurisdiction of the island" were used, the reference was to the waters lying within 3 marine miles of all that coast of Newfoundland.

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This shows, I submit, that the vessels were fishing within the 3-mile limit, for in the note of Richard Rush, who, of course, will be remembered as one of the negotiators of the treaty of 1818, to Mr. Canning, dated the 3rd May, 1824, found on p. 127 of the Appendix to the Counter-Case of the United States, Mr. Rush states:

"After the ratification of the above convention, the fishermen of the United States proceeded, according to its stipulations, to take fish on the western and northern coast of Newfoundland, between the limits of Cape Ray and the Quirpon Islands, as aforesaid; but, in the course of the years 1820 and 1821, whilst pursuing in a regular manner their right to fish within these limits, and being also within the strictest territorial jurisdiction of the island, these fishermen found themselves ordered away by the commanders of the armed vessels of France, on pain of seizure and confiscation of their fishing vessels."

The gist of this controversy is well stated in the 10th protocol of the Conference of the American and British Plenipotentiaries, held at the Board of Trade in London, the 29th March, 1824, found in the Appendix to the United States Counter-Case, commencing with p. 123 and continuing to p. 129.

In these protocols will be found a copy of the statement of Mr. Rush, embodying the claim of the United States.

I will read from the bottom of p. 124 of the Appendix to the Counter-Case of the United States, from a paper made a part of the 10th protocol of those conferences. The Tribunal undoubtedly recalls that these negotiations did not refer to the matters here in dispute, but to quite another matter.

"Finally, by the convention of October 20, 1818, between the United States and Great Britain, it is provided, article first, that the inhabitants of the said United States shall have forever, in common with the subjects of his Britannic Majesty, the liberty to take fish of every kind on that part of the southern coast of Newfoundland which extends from Cape Ray to the Rameau islands, and on the western and northern coast from the said Cape Ray to the Quirpon Islands." By the same convention the United States are allowed to dry and cure

fish on the southern part of the coast of this island, as above described, but not on the western coast.

"From the preceding statement, it follows that the French have the right of taking and drying fish on the western coast of the Island of Newfoundland. The United States claim for their citizens the right of taking fish on the same coast. But this France denies, saying that the right both of taking and drying belongs to her EXCLUSIVELY. Her cruisers have, accordingly, in 1820 and 1821, ordered off the American fishing vessels whilst within the acknowledged jurisdiction of the coast, threatening them with seizure and confiscation in case of refusal."

And on the top of p. 126 of the same volume I read from the same document prepared by Mr. Rush, and incorporated in the protocols of this conference as follows:

"The above summary may serve to present the general nature of the question which has arisen between the United States and France respecting fishing rights, and which Great Britain will doubtless desire to see settled in a manner satisfactory to the United States. It is obvious that, of Great Britain cannot make good the title which the United States hold under her to take fish on the western coast of Newfoundland, it will rest with her to indemnify them for the loss. Another question which it is supposed will also be for her consideration is, how far she will deem it proper that France should be allowed to drive or order away the fishermen of the United States from a coast that is clearly within the jurisdiction and sovereignty of Great Britain.”

On p. 129, still reading from the same volume, Mr. Rush stated, in a note to Mr. Canning, dated London, the 3rd May, 1824:

"The United States seek only the fair and unmolested enjoyment of the fishing rights which they hold at the hands of Great Britain under the convention of 1818, satisfied that Great Britain, whether as regards the guarantee of those rights, or the maintenance of her own sovereign jurisdiction over this island and its immediate waters, will take such steps as the occasion calls for, and above all, as are appropriate to the just and amicable intentions which it may be so confidently supposed will animate the Government of his most Christian Majesty, as well as that of His Britannic Majesty, towards the United States, touching the full rights of the latter under the convention aforesaid."

We are fortunate in having knowledge as to the rights Mr. Rush thought had been renounced by the treaty of 1818, for, turning to the report of Mr. Rush and Mr. Gallatin on p. 306 of the United States Case Appendix, I read :

"The exception (writing then as to the exception concerning Hudson's Bay) applies only to the coasts and their harbors, and does not affect the right of fishing in Hudson's Bay beyond three miles from the shores, a right which could not exclusively belong to, or be granted by, any nation."

92909-S. Doc. 870, 61-3, vol 10– -17

695

If the Tribunal will now kindly follow me to p. 319 of the Appendix to the Case of the United States there will be found an extract from the book of Richard Rush, published in 1833, entitled, "Memoranda of a Residence at the Court of London," concerning which I spoke at this morning's session, and from which I desire to read the following extract:—

"It was by our act that the United States renounced the right to the fisheries not guaranteed to them by the Convention. That clause did not find a place in the British counter-projet. We deemed it proper under a three-fold view: (1) to exclude the implication of the fisheries secured to us being a new grant; (2) to place the rights secured and renounced, on the same footing of permanence; (3) that it might expressly appear, that our renunciation was limited to three miles from the coasts. This last point we deemed of the more consequence from our fishermen having informed us, that the whole fishing ground on the coast of Nova Scotia, extended to a greater distance than three miles from the land; whereas, along the coasts of Labrador it was almost universally close in with the shore. To the saving of the exclusive rights of the Hudson's Bay Company, we did not object. The charter of that company had been granted in 1670, and the people of the United States had never enjoyed rights in that bay that could trench upon those of the company. Finally, it is to be remarked, that the liberty of drying and curing on certain parts of the coast of Newfoundland, as secured in the article, had not been allotted to the United States even under the old treaty of 1783."

Mr. Rush stated, after these negotiations with France in 1822 and 1824, and after taking up the matter with England, his idea of what the United States had renounced.

I am now going to pass by the consideration of the affidavits, correspondence and documents in connection with this controversy found in the Appendix to the Counter-Case of the United States, from pp. 105 to 129 inclusive, with the statement that the affidavits therein. found, and the notes and documents therein found, will abundantly establish that the American fishing-vessels were fishing within the strictest territorial jurisdiction of Great Britain, which, according to Mr. Rush, was 3 miles from land, and that Mr. Rush was not presenting to the British Government any claim that involved an admission of exclusive jurisdiction of Great Britain over all the waters of St. George's Bay.

I respect fully submit to the Tribunal the evidence referred to, and pass the subject, believing that an examination of the material in the Appendix to the Counter-Case of the United States bearing on this controversy will abundantly establish the position which I have just submitted to the Tribunal.

I have now come to the consideration of the acts of the two Governments during the period immediately following the making of the treaty.