QUESTION FIVE. From where must be measured the "three marine miles of any of the coasts, bays, creeks or harbours,” referred to in the said article? SCOPE AND MEANING OF THE QUESTION. The renunciatory clause of the treaty of 1818 is to be construed in answering this Question. And the United States hereby renounce forever any liberty heretofore enjoyed or claimed by the inhabitants thereof, to take, dry or cure fish on, or within three marine miles of any of the coasts, bays, creeks or harbors of His Britannic Majesty's Dominions in America not included within the above mentioned limits; Provided however, That the American fishermen shall be admitted to enter such bays or harbors for the purpose of shelter and of repairing damages therein, of purchasing wood, and of obtaining water, and for no other purpose whatever. But they shall be under such restrictions as may be necessary to prevent their taking, drying or curing fish therein or in any other manner whatever abusing the privileges hereby reserved to them. The Case presented on behalf of the Government of Great Britain states "that the three marine miles specified in Article I must be measured in the case of unindented coasts from the shore line at low tide." a With that statement the United States agrees. There remains to be determined what is the true interpretation of the provision, within three marine miles of any of the "bays, creeks or harbours of His Britannic Majesty's Dominions in America," used in connection with the provision, "on or within three marine miles of any of the coasts." The Government of Great Britain in 1870 prepared an instruction, which was forwarded the governor-general of Canada and the British minister in Washington, relating to the construction of this clause: When a bay is less than six miles broad, its waters are within the three mile limit, and therefore clearly within the meaning of the a British Case, 122. treaty; but when it is more than that breadth, the question arises whether it is a bay of Her Britannic Majesty's Dominions." The decision of this Question, in the view of the United States, necessitates the determination of the coasts referred to, and the extent prior to 1818 of the dominion of Great Britain, with the acquiescence of the United States, in respect of the fisheries, over the waters adjacent to the shores of its possessions in America, bordering the North Atlantic Ocean; or the extent of the territorial sea over which Great Britain exercised sovereignty, in respect of the fisheries, with the acquiescence of the United States. Article I of the treaty of 1818 recites: Whereas differences have arisen respecting the liberty claimed by the United States for the inhabitants thereof to take, dry and cure fish on certain coasts, bays, harbors and creeks of His Britannic Majesty's dominions in America, it is agreed between the high contracting parties that the inhabitants of the said United States shall have forever certain rights. It is apparent that differences had arisen which the treaty intended to adjust. The true interpretation of the words of the treaty is connected inseparably with the antecedent facts disclosing these differences which existed, and with the practical difficulties which the treaty was intended to remove. The orderly presentation of the facts and of the arguments therefrom bearing upon the true interpretation of this clause divides naturally under four heads: 1. What were the "differences" existing between the United States and Great Britain referred to in the treaty of 1818, and in what manner did the plenipotentiaries of the two powers compose them? 2. What meaning was given this clause contemporaneously with the signing of the treaty? 3. Do the actions of the two Governments during the years immediately following the signing of the treaty disclose the true interpretation? 4. What was the origin of the contention now advanced by the Government of Great Britain, and what has been the attitude of the United States and Great Britain with reference thereto? The United States will not attempt in this printed argument to refer specifically to the large number of erroneous assertions of fact a U. S. Case, Appendix, 628. in the presentation of the British contention as to this Question, but the facts, disclosed by the evidence, will be stated without in each instance calling attention to and correcting the errors of statement in the British Case and Counter Case. THE “DIFFERENCES" REFERRED TO IN TREATY OF 1818, AND THE MANNER IN WHICH THEY WERE COMPOSED. 66 The differences arose primarily from the contention on the part of Great Britain with the close of the war of 1812, that the second clause of Article III of the treaty of 1783 was abrogated by the War of 1812, while the United States claimed for its inhabitants the enjoyment of all the rights and liberties confirmed by the entire Article. This renunciatory clause is not found in the treaty of 1783. It was brought forward by the plenipotentiaries on behalf of the United States, and became a part of the treaty of 1818 when the "differences,” which had arisen respecting the liberty claimed by the United States for its inhabitants under the treaty of 1783, were adjusted. THE TREATY OF 1783. The complete understanding of the "differences" to be adjusted manifestly requires an examination of the provisions of the treaty of 1783, and a consideration of the respective rights of the two nations under its provisions, and of the respective claims after the War of 1812. In the negotiations for the preliminary treaty of 1782, to terminate the War for Independence, which finally became the definitive treaty of 1783, the American Commissioners proposed a series of articles, among which was: Thirdly. That the subjects of His Britannic Majesty and people of the said United States shall continue to enjoy unmolested, the rights to take fish of every kind on the banks of Newfoundland, and other places where the inhabitants of both countries used formerly, to-wit: Before the last war between France and Britain, to fish and also to dry and cure the same at the accustomed places, whether belonging to his said Majesty or to the United States; and His Britannic Majesty and the said United States will extend equal privileges and hospitality to each other's fishermen as to their own." This article was agreed to ad referendum by the British Commissioner, but was not, however, approved by the British Government; and a new article subsequently agreed upon by the Commissioners of the two powers also proved unacceptable to the British Government." A fresh proposal was at length delivered to the American Commissioners, in which Article III appeared in this form: The citizens of the said United States shall have the liberty of taking fish of every kind on all the banks of Newfoundland, and also in the Gulf of St. Lawrence; and also to dry and cure their fish on the shores of the Isle of Sables and on the shores of any of the unsettled bays, harbors and creeks of the Magdalen Islands, in the Gulf of St. Lawrence, so long as such bays, harbors and creeks shall continue and remain unsettled; on condition that the citizens of the said United States do not exercise the fishery but at the distance of three leagues from all the coast belonging to Great Britain, as well as those of the continent as those of the islands situated in the Gulf of St. Lawrence. And as to what relates to the fishery on the coast of the island of Cape Breton out of the said gulf, the citizens of the said United States shall not be permitted to exercise the said fishery but at the distance of fifteen leagues from the coasts of the island of Cape Breton.c This proposal that "the citizens of the said United States do not exercise the fishery but at a distance of three leagues from all the coast belonging to Great Britain, as well those of the continent as those of the islands situated in the Gulf of St. Lawrence," and "but at a distance of fifteen leagues from the coasts of the island of Cape Breton," proved entirely unacceptable to the American Commissioners, who refused to consider any such limitations. The proposal was thereupon abandoned by the Commissioner for Great Britain, who reported to his Government, after the conclusion of the negotiations: If we had not given way in the article of the fishery, we should have had no treaty at all, Mr. Adams having declared that he would never put his hand to any treaty, if the restraints regarding the three leagues and fifteen leagues were not dispensed with, as well as that denying his countrymen the privilege of drying fish on the unsettled parts of Nova Scotia. Article III of the treaty was finally agreed upon as proposed by the American Commissioners with slight amendments by the British Commissioner. a U. S. Case, Appendix, 217. CU. S. Case, Appendix, 219. It is agreed that the people of the United States shall continue to enjoy unmolested the right to take fish of every kind on the Grand Bank, and on all the other banks of Newfoundland; also in the Gulf of Saint Lawrence, and at all other places in the sea where the inhabitants of both countries used at any time heretofore to fish. And also the inhabitants of the United States shall have liberty to take fish of every kind on such part of the coast of Newfoundland as British fishermen shall use, (but not to dry or cure the same on that island) and also on the coasts, bays and creeks of all other of His Britannic Majesty's dominions in America; and that the American fishermen shall have liberty to dry and cure fish in any of the unsettled bays, harbors and creeks of Nova Scotia, Magdalen Islands and Labrador, so long as the same shall remain unsettled; but so soon. as the same or either of them shall be settled, it shall not be lawful for the said fishermen to dry or cure fish at such settlements, without a previous agreement for that purpose with the inhabitants, proprietors or possessors of the ground.a Therefore, in these first negotiations and the subsequent treaty between the people of the United States and Great Britain, all broad claims to extensive jurisdiction in respect of the fisheries over the waters adjoining the coasts of His Majesty's dominions in North America were abandoned by the Government of Great Britain with the recognition of the independence of the United States. The people of the United States were henceforth to enjoy the fisheries in common with the subjects of Great Britain along the coasts and in the bays and creeks of all the British possessions in North America. This article is clear in meaning. What the people of the independent colonies had theretofore enjoyed they were to continue to enjoy. The colonists had fought for, and used these fisheries. They were demanded in the partition of empire upon their independence and became a part of their domain. The possession of these fisheries was the moving cause of the early conflicts with the French in America. At the beginning of the year 1776 Great Britain possessed seventeen colonies upon the North American continent. The time had come when they must decide upon a permanent form of government. The thirteen southern colonies chose independence, and on July 4th, 1776, published their Declaration of Independence. The four northern colonies, Quebec, Nova Scotia, St. John's Island, and Newfoundland, chose to remain a part of the British Empire. In 1782 the independence of the thirteen colonies was recognized a U. S. Case, Appendix, 24. |