visions of the treaties of 1783 and of 1818, and by the additional privileges derived under the concurrent action in 1830 of Great Britain and the United States in annulling their respective non-intercourse laws as to the British colonies in North America, and under the twenty-ninth clause of the Treaty of 1871. They are not fishery privileges of one nation in the jurisdictional waters of another, but are rights in the nature of a joint ownership, rights common with the Canadians and fully as great and the same as those of Canada itself. They were vested in the United States on the same foundation and at the same time as our independence and our territorial sovereignty, and they are rights existing in the United States without any corresponding or reciprocal rights in British subjects on our coast. 66 66 The fisheries are not Canadian." They are our fisheries" (to use the expression of Thomas Jefferson) as much as those of Canada, and should be designated as the North Atlantic or Northeastern or the American Fisheries, and not by the term "Canadian" or any word that would imply an exclusive ownership or sovereignty of Canada with regard to them. In addition to the proprietary rights possessed by the United States in the North Atlantic fisheries, the fishing vessels of the United States, under the concurrent action of the two countries in 1830 and under the twenty-ninth clause of the treaty of 1871, are entitled to unrestricted commercial and transportation privileges to the same extent and in the same manner as those engaged in any other business. When the treaties of 1783 and 1818 were signed, foreign nations were prohibited from intercourse by sea with the colonies of Great Britain, and the rights acknowledged to be in the United States under these treaties being distinctively fishery rights, and not commercial rights, conferred no right in the United States to trade with British North America. 66 The policy first expressed by the act of 12 Car., II. had been to prohibit foreign nations from intercourse by sea with her colonies, either to import into or export from them in their vessels. This policy was in force when the treaty of 1783 was made. The rights of the United States, therein acknowledged, to use the ports, creeks, and shores for the purpose of its fishery conferred no right to trade with British North America. In 1818 the laws of the United States also prohibited British vessels from importing from or exporting to the colonies from the ports of the United States, and continued so to prohibit them long after the treaty of 1818." Letter of Chas. Levi Woodbury to Senator Morgan, In a decision under the treaty in the vice-admiralty court in 1806 (the "Fame," Stewart's Rep., 95), it was said that although American vessels could supply their own fishing vessels with necessaries and enter an uninhabited port in the course of such trading, the Treaty of 1783 gave no authority to trade with the shore, so that the words "for no other purpose whatever" in the Treaty of 1818 were merely declaratory of the then existing relations between the two countries so far as the threemile limit was concerned, a prohibition of all commercial and other privileges beyond those expressed. By the concurrent action of Great Britain and the United States in 1830 the prohibition of commercial intercourse between the United States and the colonies of Great Britain was annulled. "In 1825, after several efforts, the legislatures of the two governments began to open trade, and the act of Charles II. was subsequently repealed. In 1830 the United States and Great Britain dropped their respective non-intercourse laws as to British North America, and opened their ports to each other, upon being satisfied that neither imposed on the other's vessels 'any restrictions or discriminations.' "His Majesty declares,' says Mr. Secretary Buller, November 6th, 1830, '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 the produce of those States, and may export goods from the British possessions abroad to be carried to any foreign country whatever.' “General Jackson's proclamation, October 5th, 1830, says: 'British vessels and their cargoes are admitted to an entry in the ports of the United States from the islands, provinces, and colonies of Great Britain on or near the American continent and north or east of the United States.' "Thus was the right of the vessels of each to the privileges of foreign commerce in the ports of the other established without any class restrictions. Buying and selling bait, like the importation or exportation of it, are commercial transactions, and therefore, by the pledged faith of the proclamation of 1830 open to commerce by the vessels of each country." Letter Chas. Levi Woodbury, Am. Law Rev., vol. xxi, page 431. See also Niles Register, vol. 7, appendix, page 191; appendix, page 66. By this action of the two countries commercial privileges were thus extended in 1830 to fishing and all other vessels of the United States, and to this extent the language, "for no other purpose whatever," in the Treaty of 1818, declaratory of the then existing general prohibition of all commercial privileges between the two countries, was modified. The twenty-ninth article of the Treaty of Washington, of 1871, is as follows:— ARTICLE XXIX. "It is agreed that, for the term of years mentioned in Article XXXIII. of this treaty, goods, wares, or merchandise arriving at the ports of New York, Boston, and Portland, and any other ports in the United States which have been or may from time to time be specially designated by the President of the United States, and destined for Her Britannic Majesty's possessions in North America, may be entered at the proper custom-house and conveyed in transit, without the payment of duties, through the territory of the United States, under such rules, regulations, and conditions for the protection of the revenue as the Government of the United States may from time to time prescribe; and, under like rules, regulations, and conditions, goods, wares, or merchandise may be conveyed in transit, without the payment of duties, from such possessions through the territory of the United States for export from the said ports of the United States. "It is further agreed that, for the like period, goods, wares, or merchandise arriving at any of the ports of Her Britannic Majesty's possessions in North America and destined for the United States, may be entered at the proper custom-house and conveyed in transit, without the payment of duties, through the said possessions, under such rules and regulations and conditions for the protection of the revenue as the Governments of the said possessions may from time to time prescribe; and, under like rules, regulations, and conditions, goods, wares, or merchandise may be conveyed in transit, without payment of duties, from the United States through the said possessions to other places in the United States, or for export from ports in the said possessions.” Article XXIX., treaty of Washington, 1871, Wheaton's 700. Thus, by the action of the two countries in 1830, and by the twenty-ninth section of the Treaty of 1871, have the proprietary and ancient rights and liberties.of this country in the North Atlantic fisheries been supplemented by commercial and transportation privileges. The existence of these privileges is emphasized by the fact that when during the negotiation of the Treaty of 1818 a proposition was made by the British Commissioners to insert a stipulation that “it shall not be lawful for the vessels of the United States engaged in the said fishery to have on board any goods, wares, or merchandise whatever, except such as may be necessary for the prosecution of the fishery or support of fishermen," it was objected to by the American Commissioners on the ground that it "would expose our fishermen to endless vexations," and it was withdrawn. These commercial and transportation privileges have been and are at this time freely and fully exercised by the Canadians. Their fishing and other vessels enter and use our ports, enjoying without restriction and to the fullest extent every privilege claimed by the fishing vessels of the United States under the concurrent action of the two countries in 1830, and the twentyninth clause of the Treaty of Washington. The "headland" doctrine of the Canadians, and the construction attempted to be put upon our proprietary rights whereby the American fishermen are denied the right to enter bays and harbors to purchase coal for fuel, and bait, and to transship their catch, are “new doctrines,” and have been set up not only in defiance of the plain intent of the treaties and legislation under which our rights are recognized, and the rulings upon them, but as after-thoughts, and contrary to the views of the British Government. Considering the origin and nature of the rights of the United States in the North Atlantic fisheries, the relative situation of the two countries and the close commercial relations existing between them, and construing the Treaty of 1818 as one of “friendship and not of hostility," and according to the customary rules applicable to instruments of this character, the rights of the United States and of its fishing vessels in the North Atlantic fisheries and their privileges in Canadian ports would seem to be clear under the treaty stipulations and the concurrent legislation of the two countries. The liberty of American vessels to fish within three miles of certain parts of the shore was practically the only privilege which under the Treaty of 1818 was renounced by the United States, and, with this restriction only, the fishery rights of the United States are the same as those of Canada itself. The buying of bait and supplies by fishing or any other vessels of the United States in Canadian ports is a commercial privilege to which they are entitled under the action of the two countries in 1830; and the right of American fishing vessels to transship their catch from Canadian ports to points in the United States is secured to them by the twentyninth clause of the Treaty of 1871. Canada, however, now insists that the fishing vessels of the United States have no right to enter any bays of Canada, no matter how wide, and have no right to buy bait and supplies or transship their catch from Canadian ports to points in the United States; and has endeavored so to harass and annoy our fishing vessels in the exercise of rights which it admits them to possess as to make these rights, for the present, worthless. The position assumed is that the fishery rights of the United States are nothing more than the ordinary rights of fishing which are permitted to citizens of another sovereignty by a country having the exclusive territorial jurisdiction over them, and the proprietary rights of the United States in them are ignored. Wheaton, in describing the right of fishing of one nation in the jurisdictional waters of another, says:— "The right of fishing in the waters adjacent to the coasts of any nation, within its territorial limits, belongs exclusively to the subjects of the State. The exercise of this right between France and Great Britain was regulated by a conven |