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The treaty between Great Britain and the United States, to be interpreted by this Tribunal, was concluded on the 20th October, 1818. It is thought desirable, however, to submit a brief statement as to the position of the British American colonies at the time of the war of independence (terminated by the treaty of 1783), and a short chronological summary of the more material subsequent incidents, in order to enable the Tribunal better to appreciate the questions which are presented for their decision.
POSITION BEFORE 1783.
British American Colonies.-Prior to the 4th July, 1776, Great Britain possessed upon the American continent seventeen colonies. On that date the thirteen southern colonies declared their independence, and afterwards became the United States of America. The four northern colonies-Newfoundland, Nova Scotia, St. John's Island (now known as Prince Edward Island), and Quebec (afterwards Upper and Lower Canada)—adhered to the United Kingdom. The questions involved in the present reference relate to liberties claimed within the territorial waters, or on the land, of these colonies; and it is material to call attention to some points in their history.
Newfoundland.-The ownership of Newfoundland was, at one time, a matter of dispute between Great Britain and France; but by the treaty of Utrecht, in 1713, France ceded all her claims to Great Britain, subject to the following clause (App., p. 7) :—
Moreover, it shall not be lawful for the subjects of France to fortify any place in the said Island of Newfoundland, or to erect any buildings there, besides stages made of boards, and huts necessary and
usual for drying of fish; or to resort to the said island, beyond 5 the time necessary for fishing and drying of fish. But it shall
be allowed to the subjects of France to catch fish, and to dry them on land, in that part only, and in no other besides that, of the said Island of Newfoundland, which stretches from the place called Cape Bonavista to the northern point of the said island, and from thence, running down by the western side, reaches as far as the place called Point Riche.
Nova Scotia.--By the same treaty of Utrecht (1713), France ceded to Great Britain "Nova Scotia, or Acadie, with its ancient boundaries." A question as to whether these boundaries did, or did not,
92909°-S. Doc. 870, 61-3, vol. 4-2
include the north coast of the peninsula was settled by the later treaty of 1763, France giving up all claim. By this later treaty, too, Cape Breton Island passed from France to Great Britain. At the date of the 1783 treaty, therefore, Great Britain was possessed of the whole of Nova Scotia (including New Brunswick and Cape Breton) and all of its coast fisheries. (App., p. 7.)
Prince Edward Island.-By the treaty of 1763, this island (then called St. John's Island) was ceded by France to Great Britain. At first, part of Nova Scotia, it was afterwards, in 1768, made a separate province. (App., p. 8.)
Quebec.-Prior to 1763, France was possessed of much of that which now constitutes the Provinces of Ontario and Quebec in Canada; but ownership of the territory lying between the thirteen British colonies on the Atlantic coast and the River Mississippi was in dispute between Great Britain and France.
By the treaty of 1763, France ceded to Great Britain "Canada with all its dependencies," including all the territory in dispute to the east of the Mississippi. In the same year, part of the ceded territory was constituted a province under the name of the Province of Quebec. In 1774, there was a re-arrangement, and all the territory now known as the Provinces of Ontario and Quebec (in Canada) and as the States of Indiana, Ohio, Illinois, Wisconsin, and Michigan, and the eastern part of Minnesota (in the United States), together with all the great lakes (except the southern half of Lake Ontario), were united as the Province of Quebec.
Labrador and the Magdalen Islands formed part of the Province of Quebec in 1783. A portion of Labrador was annexed to Newfoundland prior to the treaty of 1818. (App., p. 8.)
POSITION BEFORE 1783.
Fisheries.-There were, and are, two sorts of fisheries: (1) 6 the bank fisheries of the ocean; and (2) the coast fisheries within the territorial waters of the respective colonies.
In respect of the bank fisheries (lying more than 35 miles from the shore), Great Britain at one time asserted an exclusive right. By the treaty of 1763, Spain had relinquished the pretensions of the Guipuscoans, and other Spanish subjects to fish there; and France had agreed not to (App., p. 10)-
exercise the said fishery but at the distance of 3 leagues from all the coasts belonging to Great Britain, as well those of the continent as those of the islands situated in the said Gulf of St. Lawrence. And as to what relates to the fishery on the coasts of the Island of Cape Breton out of the said gulf, the subjects of the Most Christian King shall not be permitted to exercise the said fishery but at the distance of 15 leagues from the coasts of the Island of Cape Breton. (App., p. 8.)
Each of the seventeen colonies owned the fisheries on its own coasts, and colonial laws regulative of them were of frequent occur
The Colonial System and the Navigation Laws.-Another factor in the situation in 1783 must be remembered, namely, the mutually exclusive policy which all European nations had for many years pursued with reference to the trade of their respective colonies. The clause of the 1818 treaty permitting American fishermen to enter British bays and harbours (App., p. 31)—
for the purpose of shelter and of repairing damages therein, and of purchasing wood, and of obtaining water, and for no other purpose
can scarcely be appreciated, at the present day, unless the fact is borne in mind that, in 1818, no foreign vessel of any kind was, unless under exceptional circumstances, permitted to enter a colonial harbour.
Nationality. One other factor in the situation should be mentioned, namely, the strength of the conception which at that date prevailed as to the advantages to be derived by any nation from an increase in the number of its seamen.
It was with a view to naval strength that England had from an early period confined to British subjects residing on the European side of the Atlantic the right to dry and cure fish on Newfoundland shores. Such was the policy of the statute of 1699 (10 & 11 Wm. III, cap. 25), and the meaning of that statute was, by the statute of 1775 (15 Geo. III, cap. 31), rendered clear. Not only were foreigners excluded, but British subjects residing in the American 7 colonies (other than Newfoundlanders) were refused liberty to exercise the privilege. (App., p. 525; App., p. 543.)
It was to prevent depletion of her force of sailors that Great Britain insisted upon the right to stop United States vessels on the high seas in order to search for British seamen. And it was the enforcement of that claim which was one of the causes of the war of 1812.
The exclusion of the Spaniards from the bank fisheries in 1763, and the partial exclusion of the French in the same year, were thought valuable to Great Britain, not simply because of the effect upon the business of fishing, but because of the loss to Spain and France of those "nurseries for seamen." (App., p. 10.)
1776-1782.-War of the American Revolution.
TREATY OF 1783.
1782-3.-Negotiations for the termination of the war were carried on in Paris-at first informally, between Mr. Richard Oswald (instructed by Lord Shelburne, British Colonial Minister) and Dr. Franklin (representing the United States). Afterwards, at various
periods, Mr. Oswald received assistance from Mr. Strachey, Mr. Vaughan, and Mr. Fitzherbert (British Minister at Paris). Dr. Franklin's colleagues, Mr. John Adams and Mr. John Jay, joined him towards the end of the summer, and Mr. Laurens (a third colleague) arrived late in November. Preliminary articles were signed on the 30th of that month. The final treaty bears date the 3rd September, 1783.
The following is the text of article 3 which relates to the fisheries (app., p. 13):
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 St. Lawrence, and at all other places in the sea, where the inhabitants of both countries used at any time heretofore to fish. And also that 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, harbours, 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. Attention is called to the difference in the stipulations affecting the two sorts of fisheries. As to the bank-fisheries,
It is agreed that the people of the United States shall continue to enjoy unmolested the right;
whereas, in regard to the coast fisheries, the agreement is
that the inhabitants of the United States shall have liberty to take fish.
According to the contention of His Majesty's Government, the former was a recognition of a "right" to fish in the ocean and the gulf: the latter was a liberty or license to take fish in British territorial waters conceded by Great Britain for political reasons.
In addition to the fishing liberty, a grant was made at the same time of a large extent of territory that had been part of the Province of Quebec, and was at the date of the treaty in the occupation of Great Britain.
TREATY, GREAT BRITAIN AND FRANCE 1783.
On the same day a treaty of peace was signed by Great Britain and France. Among other provisions it was stipulated that French fishing rights should be exercised on the coast of Newfoundland from Cape St. John to Cape Ray, instead of from Cape Bonavista to Point Riche, as in the Treaty of Utrecht. (App., p. 11.)
1789.-A British statute (29 Geo. III, cap. 53) enacted (App., p. 563)—
that no fish, taken or caught by any of His Majesty's subjects, or other persons, arriving at Newfoundland, or its dependencies, or on the banks of the said island, except from Great Britain, or one of the British dominions in Europe, shall be permitted to be landed or dried on the said Island of Newfoundland,
but excepted the rights of the citizens of France.
This statute shows how jealously Great Britain guarded the shores of Newfoundland at this time.
DELAWARE BAY 1793.
1793.-The French frigate "L'Embuscade" captured the British ship "Grange" in Delaware Bay, at a distance from the shore of more than 3 miles. Declaring that the whole of the bay was within its jurisdiction, the United States required the restoration of the frigate. France complied. The bay has a headland width of 101 miles.
UNITED STATES CLAIM TO TERRITORIAL WATERS, 1806.
1806. During the negotiations with reference to freedom of United States vessels from British seizure, an attempt was made to fix the limit of United States jurisdiction upon its coasts, and the United States, suggesting that a fair distance would be as far out as (App., p. 60)
the well-defined path of the Gulf Stream
asked that the following might be agreed to:
It is agreed that all armed vessels belonging to either of the parties engaged in war, shall be effectually restrained by positive orders, and penal provisions, from seizing, searching, or otherwise interrupting or disturbing vessels to whomsoever belonging, whether outward or inward bound, within the harbours or the chambers formed by headlands, or anywhere at sea, within the distance of four leagues from the shore, or from a right line from one headland to another:
After negotiations the limit was fixed at "five marine miles from the shore"; but the convention never became effective.
1812.-War again broke out between the two nations.
1814.-The treaty of Ghent, which terminated the war, contained no provision as to the fisheries. Great Britain declined to renew the coast liberties except in return for equivalent concessions. The United States contended that renewal was not necessary-that the war had not affected the liberties of the previous treaty. (App., p. 25.)
TREATY OF 1818.
1818.-After long negotiations the treaty of 1818 was agreed to. It provided as follows (App., p. 30) :—
Whereas differences have arisen respecting the liberty, claimed by the United States for the inhabitants thereof, to take, dry, and cure