GREAT BRITAIN, FISHERIES.

The words of delimitation of the convention of 1818 are as follows: "On or within 3 marine miles of any of the coasts, bays, creeks, or harbors of His Britann.c Majesty's dominions in America." The prohibition of 1818 covered in terms not only the coasts, but also the bays, of the British dominion, so that a fair construction of the language could not be met by running a line which at all points followed the windings of the shore. Such was apparently the theory of Edward Bates, the umpire, in his opinion given in the case of the Washington, decided under the convention of 1853, wherein he used the following language: "The conclusion is therefore irresistible that the Bay of Fundy is not a British bay within the meaning of the word as used in the treaties of 1783 and 1818." So, also, Mr. Everett, in his note of May 25, A. D. 1844, said: "The vessels of the United States have a general right to approach all the bays in Her Majesty's colonial dominions w.thin any distance not less than 3 miles." It is not, however, to be understood by this suggestion that the "headland" theory is at all accepted. That assumed to run a line shutting in all sinuosities of the coast, without considering whether or not particular headlands marked jurisdictional bays, or, in other words, bays which were properly parts of the British dominions, and it is now approved.

That there may be no misunderstanding, let us follow this distinction a little further. The Washington was seized in the Bay of Fundy in A. D. 1843, and that raised a question of the "bays;" that is, whether the whole of Fundy was a part of the British dominions. The Argus was seized at nearly the same time in the great bend of Cape Breton. As the affidavits on file at Halifax show, she was captured less than 2 miles within a line from Cape North to Cow Bay, and that capture marked the "headland" disputes.

The opinion of the law officers of the Crown of 1841, in answer to the second and third queries, said, erroneously, of course. The term 'headland' is used in the treaty to express the part of land we have before mentioned, including the interior of the bays and the indents of the coast." It may here be said that the same opinion in answer to the fourth query den.ed the free right of navigating the Gut of Canso. Mr. Stephenson, our minister at London, recognized the distinction in his note to Lord Pa merston of March 27, A. D. 1835, where he said: "The provincial authorities assume a right to exclude the vessels of the United States froin all their bays, including those of Fundy and Chaleur, and likewise to prohibit their approach within 3 miles of a line drawn from headland to headland," etc. So Mr. Everett, in his note to Earl Aberdeen of May 25, A. D. 1844, admitted that it was "the intent of the treaty, as it is in itself rea onable, to have regard to the general line of the coast and to consider its bays, creeks, and harbors-that is, the indentations usually so accounted-as included within that line."

Now, the present treaty apparently holds to the rule stated by Mr. Everett, except that it defines what has heretofore been undefined. This, of course, is subJect to the qualification that, except in special cases, in A. D. 1818 jurisdiction bays were limited to those not exceeding 6 mile in width between their headlands, or even to narrower ones, while the present treaty has adopted the more modern rule of the 10 miles opening as a practical and not injurious solution of this whole dispute concerning bays and headlands.

Therefore, under the convention of 1818 the question arises in every case: What is a jurisdictional bay-that is, a British bay, or, in other words, a bay which was then a part of His Britannic Ma esty s dom nions in America?" This having been ascertained, another question arises, whether any bay which was not jurisdictional in A. D. 1818 has since become so inclosed by the growth of population that, on the principles by which we claim as our exclusive waters Chesapeake and De aware bays and Long Is and Sound, we may properly concede it to Great Britain according to its existing circumstances as an inducement to a suitable and just arrangement of all questions of delim tation? With reference to this question, and, indeed, with reference to all this branch of the case, the United States, with its extensive coasts, its numerous bays, its rapidly increasing population and commercial interests, can not wisely permit a nariow precedent.

The Bay of Chaleur, the shores of which in A. D. 1818 were uninhabited, has by the advance of population become a part of the adjacent territory for all jurisdictional purposes, and it has ceased to be of special value to our vessels except for shelter or supplies. The same observations apply with greater force to the Bay of Miramichi. The bays of Egmont and St. Anns are hardly more than mere sinuosities of the coast; but they and the excluded parts of the Newfoundland bays are of no value to our vessels for fishing. It is not unreasonable to grant the release of all of them, in view of the fact that as to all other waters we remove long-standing disputes. It is not to be overlooked that all these bays have long been claimed by Great Britain as of right.

At the mouths of all the bays designated in the treaty by name, the fourth article makes special lines of delimitation. There seems to be an impression with some that the exclusion is 3 miles seaward therefrom; but this is plainly errone

ous. Each of these lines is run from one powerful light to another, except one terminus at Cape Smoke, which is a promontory over 700 feet in height. The external peripheries of visibility of these lights overlap each other very considerably on each of these lines, so that for our vessels danger is not where bays have been specifically released. This will be found at the 3-mile limit from the open shore, where it always has been. There is, however, confusion about this, and some debit the treaty just negotiated with the inevitable hazards consequential on the principles of that of 1818. If the commission of delimitation is appointed as the treaty provides, this commission, of course, will, as Mr. Seward and Mr. Fish foresaw, diminish the danger on the open coast by giving on the charts which it prepares bearings of lights and other marked points, so that vessels by the aid of these bearings will be able to protect themselves in some degree. Nevertheless, there are the nights and thick weather, but the consequences of these are inherent in the principles of the convention of 1818, and will be diminished and not enlarged by the practical workings of the present treaty.

In the case of the Washington, Mr. Bates referred to the treaty between France and Great Britain of 1839, excluding from the common right of fishing all bays the mouths of which did not exceed 10 miles in width, and indorsed this as a proper limit. In the treaty between France and Great Britain of 1867 the same limit was adopted, and it was approved by the common judgment of Great Britain, the German Empire. Belgium. Denmark, France, and the Neth rlands, in the treaty concerning the North Sea fisheries, signed at The Hague May 6, A. D. 1882. With the weight of international consensus in its favor, aud in view of the interest of the United States to aid precedents which will enable us to afford proper protection to our extensive coasts, and admitting the necessity of finding some practical method of delimitation, this rule seems, on the whole, convenient, wise, and not unjust. Moreover, considering the inability of our mackerel vessels, substantially all of which use the purse seine to fish in shallow waters along the coast, and that very few American fishermen, perhaps none. in the pursuit of halibut or cod desire to fish there, it is impossible to believe that this rule surrenders anything of essential value to us.

It is fair to add that the ten-mile rule was apparently not congenial to Canada. In the proposals made to Great Britain in the autumn of A. D. 1886, Mr. Bayard, after reciting substantially the suggestions made by Mr. Seward, and elaborating them, offered this rule: but the Marquis of Salisbury, in his reply of March 24, 1887. commented that this would involve a surrender of fishing rights which have always be en regarded as the exclusive property of Canada.”

The specific delimitations at several smaller bays will, on examination, be found to be in harmony with the views of the United States as to the proper results of the general rules of 1818. On the whole. by this part of the treaty a long and troublesome dispute affords promise of being ended without either party giving up anything of value.

Next, the treaty touches the matters which have involved our fishing vessels in their most serious troubles, fully covering reports to custom-houses, fees, and other charges, cases of disaster and distress, and incidental supplies such as merchant vessels buy. It is of course impossible to anticipate all the questions which may arise as between coterminous peoples, even with the most careful phraseology: and there are some matters which can not be confined within fixed terms without limiting the rights of one party or the other to an extent to which neither could be expected to submit. Among these is that discretion which must be exercised on the one side by the "skipper" who runs in for shelter in deciding whether or not it is prudent to put to sea, and on the other side by the revenue authorities in determining whether or not the vessel is hovering or loitering unlawfully within the waters of Canada. Such matters must in the main be disposed of satisfactorily by the practical operation of what is expressed and by the limitation imposed in the article which will immediately be considered.

The treaty next seeks to alleviate the hardships of the legal proceedings which various statutes of the province and the Dominion have imposed on foreign vesse's. These statutes extended to fishing vessels systems of procedure which are with less injustice applied to merchantmen. The latter come voluntarily into port and are ordinarily furnished either with credit or cash through their consignees, enabling them to protect themselves in case of litigation. Fishing vessels. however, especially those putting into strange waters merely for shelter, have no such aids and frequently have with them very little cash; and the result has been that the forms of proceedings, which might not be burdensome for merchantmeu, have, with reference to fishing vessels, obstructed the course of justice. Through the intervention of counsel employed by the Secretary of State for observing the trials of the David J. Adams and the Ella M. Doughty, there have been received practical lessons in the difficulties surrounding fishing vessels under the

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statutes and proceedings of the courts of the Dominion. As already explained, these had been allowed to thrive so long without any successful effort on the part of the United States to prevent their growth that they had become too deeply rooted in the general mass of Canadian legislation to permit their being entirely drawn out. It is believed, however, that so far as this article may fail to remove all these difficulties detail by detail, its limitation of penalties, except for illegal fishing or preparation therefor, will do very much to prevent injustice under any circumstances, while as to vessels poaching it is for the interest of each Government that they shall be restrained by severe punishments.

To follow out the matter more in detail: A fishing vessel is seized in the Bay of St. Anns or up in the Gulf of St. Lawrence. Under existing statutes, first of all, and before she can claim a trial or take testimony or other steps toward a trial, she is required to furnish security for costs not exceeding $240. The practical experience is that fishing vessels taken into strange ports are rarely provided with funds or credit, and therefore they are compelled to communicate with their owners for assistance, and by reason of the consequent delay are unable to take even the preliminary steps before the sharesmen scatter and the witnesses are lost, because sharesmen not being ordinarily on wages, can not be held to a vessel moored to a pier. This provision of the Canadian law is not singular; in our own admiralty courts no person can ordinarily claim a fishing vessel. or whatever vessel she may be, without furnishing like security. Under the treaty this disappears, and in practice this relief will be found to be of great benefit to our fishermen.

Next, the courts into which all the cases of these fishing vesse s have been brought are not provincial, but are imperial vice admiralty courts, established and governed by the uniform rules of the imperial statute, although presided over by a local judge designated for that purpose. As a consequence, all the paraphernalia and fees of imperial courts are met, and the progress of the trial requires the early disbursement of large sums of money common in all of them, but unknown in our own and in the provincial courts. These are necessarily so large that our consular correspondence shows the burden of securing the costs and advancing fees was alone sufficient in some instances to compel owners to abandon the defense of vessels of moderate value. The statutes to which we have already referred, moreover, stipulated that no vessel should be released on bail without the consent of the seizing officer; and although it must be admitted that in practice this has not yet been found to create difficulty, it is annulled by the treaty. While it is impossible to anticipate or prevent all causes of legal delays and expenditures, yet there is no reasonable ground for denying that this thirteenth article will essentially moderate these enumerated rigors.

The punishment for illegally fishing in the prohibited waters has always been forfeiture of the vessel and the cargo aboard at the time of seizure. It was not possible nor was it for the interests of either country to demand that the penalty imposed on actual poachers should not be severe, but this article provides that only the cargo aboard at the time of the offense can be forfeited, and the provincials can not lie back until a vessel has taken a full cargo and then sweep in the earnings of the entire trip for an offense committed perhaps at its inc ption. Moreover, the article provides the penalty shall not be enforced until reviewed by the Governor-General in council, giving space for the passing away of temporary excitement and for a calm consideration of ali mitigating circumstances. Also, from the passage of the statute of 1819 the penalty for illegally preparing to fish" has been forfeiture. This has at times been construed to extend not only to preparing to fish illegally, but also to a preparation within the Dominion waters for fishing elsewhere. The J. H. Nickerson, already referred to, was forfeited in A. D. 1870 on this principle without any specific protest from the United States or any subsequent reclamation.

If the plenipotentiaries had been working new ground, in view of the indefiniteness of the words and of the fact that preparation is ordinarily accepted as of lower grade than actual accomplishment, it may be that the penalty of forfeiture under any circumstances for this offense would have been surrendered: but a statute which has stood for nearly seventy years without successful objection can not easily be wholly overthrown. The treaty, however, clearly eliminates every principle on which were based the forfeiture of the J. H. Nickerson and the proceedings against the Adams and the Doughty; and also, taking into consideration the other elements already referred to. it makes forfeiture the extreme penalty, but directs that the punishment shall be fixed by the court not exceeding the maximum, so that, if circumstances justify in any case, it may be reduced to a minimum. In lieu of all the other penalties rising to forfeiture, imposed by the Dominion statutes concerning the fisheries for technical offenses and offenses known and unknown, the maximum for all such will be $3 for every ton of the

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boat or vessel concerned. Under the provisions of this treaty the Ella M. Doughty, caught in the ice, would have gone free, and the David J. Adams, which ran across from Eastport into Digby Basin for bait, if she had found herself snarled in the intricacies of foreign statutes and legal proceeding, had the option to pay $3 per ton, or less than $200-in other words, less than the amounts heretofore required as security for costs and to pay expenses of defense in the vice-admiralty court and go free-or she could have demanded a summary and inexpensive trial at the place of detention.

It should be borne in mind that the statutes of Canada which we have been discussing are not aimed particularly at vessels of the United States, but include ail foreign fishing vessels. While in all respects, even with the modifications which the thirteenth article imposes on them, they are not our statutes, and therefore not what we would make them, yet several of these modifications are concessions from principles and provisions which are found in our own statutes, and concessions which we ourselves would not willingly make in behalf of foreign vessels. On the whole, a careful examination of this section, taken in the light of the ordinary methods of criminal proceedings wherever the common law exists, will show a present desire on the part of Great Britain and Canada to remove just cause of offense, and to cultivate the friendship of the United States; and take it by and large, the net result must be a modicum of those evils and misfortunes, through legal proceedings, which inevitably await strange vessels in foreign ports.

Concerning the fifteenth article, further reference to the protocol of May 4, 1871, of the joint commissioners who negotiated the treaty of Washington will show, as already explained, that the American commissioners preferred a settlement of the fishery questions "on a comprehensive basis." After setting out other propositions, pro and con, which were not agreed to, the protocol proceeds as follows: The subject of the fisheries was further discussed at the conferences held on the 20th, 22d, and 25th of March. The American commissioners stated that, if the value of the inshore fisheries could be ascertained, the United States might prefer to purchase for a sum of money the right to enjoy in perpetuity the use of those inshore fisheries in common with British fishermen."

Our commissioners afterwards named $1,000,000 as the sum they were prepared to offer. The British commissioners replied that this offer was inadequate, and made some other objections to it. Subsequently our commissioners proposed as an equivalent for the inshore fisheries that coal, salt, and fish should be reciprocally admitted free at once and lumber after the 1st of July, A. D. 1874. On the 17th of April the British commissioners replied that they regarded this latter offer as inadequate. Thereupon our commissioners withdrew it, and the equivalents were finally negotiated, as found in the treaty.

In framing the present convention this principle of negotiation seems to have been held by the United States not admissible, but it ought not be denied, if to purchase bait and in other ways to make the shores of Canada and Newfoundland the base of our fishing operations have a pecuniary or property value to the United States, an equivalent the efor may justly be demanded by Great Britain. In any bargaining for the same, however, all the parties concerned should stand free and on equal footing. Great Britain in this article freely states what she is willing to accept, and if the convention is ratified Congress may freely adopt its terms if it deems it for the interest of the country so to do.

The objections that the treaty does not secure privileges for bait, shipping men, and transshipping fish are not considered here, as they have been fully discussed elsewhere. Also discussion of the other ill-founded objection that the treaty gives us nothing worth purchasing is omitted, because it makes no attempt to purchase anything. It gives no consideration whatever for the benefits which we receive under it.

Much has been said by the opponents of the treaty concerning the reciprocal arrangement of A. D. 1830, and indeed some of them apparently suppose a treaty with Great Britain was then made. The most convenient way of understanding that arrangement is to turn to Jackson's proclamation of May 29, A. D. 1830. by which it was brought to its completion, and its entire practical effect is made clear from the circular of the Secretary of the Treasury to the collectors of customs of October 6, A. D. 1830, and by the order in council of November 5 of the same year. While this marked a long step forward in reciprocal arrangements with the neighboring provinces, so that it afforded the Secretary of State, Mr. Bayard, very just and persuasive arguments in favor of the most liberal treatment by Canada of our fishing vessels, yet its very letter, as well as its spirit, related exclusively to vessels engaged in commerce and to merchandise carried from the ports of one country to the ports another. Not only did it not contemplate the purchase of fishing supplies to be used on the ocean and other facilities for fishing vessels, but its phraseology clearly excluded any such purpose. Are we any more entitled to

demand under it as a right reciprocity in matters of this sort than Great Britain or Canada can demand under it reciprocity in the coasting trade or in the registering of vessels: And is there anything either in this reciprocal arrangement or in any other between the United States and Great Britain or Canada which renders the refusal to our fishermen of the special benefits of the near locality of Nova Scotia to the fishing grounds more unfriendly, in that sense which justifies retaliation, than our refusal to permit British, including Canadian, vessels to enter our coasting trade, while ours freely engage in the larger coasting trade of the British Empire; or than the refusal to permit the sale by the British, including the Cauadians, of their vessels to our citizens with registration, while we may freely sell and register our vessels in any part of the British possessions? There is a wide gulf between this class of privileges which nations grant or refuse in accordance with their own broad or narrow views of their own interests and that class which affects the comfort of strangers and their property in foreign ports. All the latter the treaty just negotiated secures and perpetuates.

In the official pamphlet of the National Fishery Association of March 1, 1888, there is given on the twelfth page the following alternative for this treaty: "It may be asked how shall we deal with this matter? What can be done to settle the fishery question between the British North American provinces and the United States? This can be done, and it has the sanction of the Forty-ninth Congress. Wipe out all legislative commercial arrangements and let us go back where we were, so far as commercial intercourse with the British provinces is concerned, when the treaty of 1818 was made. In other words, declare nonintercourse. Put Canada in the same relation to the United States as she was seventy years ago. Then our fishermen would have the same rights they have now under the treaty of 1818, and we should then be in a position to say to her: Are you willing this should continue, or do you prefer to deal with us on a fair basis and give to all our vessels, as we are willing to give to yours, full commercial rights in your ports?'" It is not proposed here to dwell on this alternative nor to discuss the propriety of the assumption of a representative character by the National Fishery Association. But in the event the treaty is rejected, if the President heeds this demand, as perhaps under the law he may, neither the association nor whomsoever it represents, if anybody, nor, more particularly, that part of the community which now fails to rise up against its pretensions, can justly complain.

The fishing interests of New Eng and welcomed with great expectations the expiration of the treaty of 1871, which came about in June, A. D. 1885; but the result has shown how little the prosperity of these interests can rely on political events. The seasons of 1886 and 1887, so far as the mackerel catch was concerned, were disastrous through natural causes, both for our own fleets and for those of Nova Scotia, though less for the latter than for the former. Although the catch for these two seasons was only one-third of the catch for 1882 and 1883, yet the prices made no corresponding advance, so that the money aggregate for the two latter seasons, including all grades of mackerel, could not have been much in excess of one third of that for the two earlier seasons named. With eference to cod and other ground fish, t' ere was a considerable diminution in the catch for the seasons of 1886 and 1887, with an extremely low market in 1886 and a somewhat improved market in 1887, the net money yield for each being comparatively small. In neither branch of the fisheries, however, were these evils caused by Canadian complications. This is well understood with reference to mackerel, and becomes entirely plain as to cod when the fact is considered that in A. D, 1883, A. D. 1884, and A. D. 1885 the catch on the New England shoes and Georges Banks exceeded that on the Grand and Western Banks, while the reverse occurred in A. D. 1886 and A. D. 1887. Before the Senate Committee on Foreign Relations, in A. D. 1886, Sylvester Cunningham, of Gloucester, testified that

"The price of fish is so low now that if we should allow Canadian fish to come in free our vessels would not sail. The price is very low."

Mr. O. B. Whitten, vice-president of the Fishery Union, also testified before the same committee, October 6, 1886, as follows:

"Q. Have you ever noticed that the duty has inc: eased or that the absence of duty has decreased the price of fish to the consumer during the la t 1.fteen years? "A. I do not know that the duty has anything to do with it whatever. In fact, it is strange that salt fish were never so low as they are at the present time with the duty on."

Mr. L. R. Campbell, deputy commissioner of labor for the State of Maine, in an interview with a reporter of the Kennebec Journal, on the 17th day of November last, said:

The fishermen are in a worse condition to-day than they have been for a number of years, for the reason that they had two bad seasons in succession,"