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QUESTION SIX.

"COASTS" AND "SHORES."

Have the inhabitants of the United States the liberty under the said article or otherwise to take fish in the bays, harbours, and creeks on that part of the southern coast of Newfoundland which extends from Cape Ray to Rameau Islands, or on the western and northern coasts of Newfoundland from Cape Ray to Quirpon Islands, or on the Magdalen Islands?

THE QUESTION.

The question is whether United States fishermen are, under the treaty of 1818, entitled to take fish, not only on that portion of the "coast" of Newfoundland specified in article one of the treaty, and the "shores" of the Magdalen Islands, but also in the bays, harbours, and creeks thereof. While the treaty grants to American fishermen liberty to take fish

on the coasts, bays, harbours, and creeks from Mount Joly, on the southern coast of Labrador, &c.

it gives liberty on the "coast" merely of Newfoundland, and on the "shores" of the Magdalen Islands. And the question is, whether the more restricted liberty in these two localities is to be construed as meaning the same as the more ample liberty on the Labrador coast.

ANALYSIS OF THE TREATY.

For the present purpose the provisions of the treaty may be divided into three parts:

1. American fishermen are to have liberty to take fish in the following places:

(a.) Part of the southern, western, and northern "coast of Newfoundland."

(b.) "On the shores of the Magdalen Islands."

(c.) "On the coasts, bays, harbours, and creeks" of Labrador. 2. American fishermen are to have liberty to dry and cure fish-in any of the unsettled bays, harbours, and creeks of the southern part of the coast of Newfoundland, hereabove described, and of the coast of Labrador.

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3. The United States renounces any liberty theretofore enjoyed or claimed—

to take, dry, or cure fish on or within three marine miles of any of the coasts, bays, creeks, or harbours of His Britannic Majesty's dominions in America not included within the above-mentioned limits.

DISTINCTION BETWEEN THE PHRASES.

The word "coast" is used throughout the treaty as something distinct from bays, harbours, and creeks; and it is submitted that— (a.) The word "coast" alone is used in the first part, because coast alone was meant.

(b.) The word "coasts" was followed by "bays, harbours, and creeks" in the third part, because the intention was to include those indentations.

(c.) And when the indentations alone are intended (as in the second part of the provision), the word "coast " is omitted altogether.

Possibly, if the word "coast" had been used alone, without any such context as is to be found in this treaty, it might have been held to include the indentations of the coast. But the language under examination makes a clear distinction between "coasts," on the one hands, and "bays, harbours, and creeks," on the other, as the treaty of 1783 had already done, and as the treaties of 1854 and 1871 subsequently did.

NEGOTIATIONS, 1814-18.

Between the peace treaty of 1814 and the treaty of 1818, Great Britain was contending that the liberty of fishing granted by the treaty of 1783 had been terminated by the war of 1812, and the United States was contending that the war had not determined it. During the negotiations for a settlement, Lord Bathurst (the Secretary of State for Foreign Affairs for Great Britain), in writing (30th October, 1815) to Mr. Adams (the Minister of the United States in London), stated that His Majesty's Government felt (App., p. 69.) — every disposition to afford to the citizens of those States all the liberties and privileges connected with the fisheries which can consist with the just rights and interests of Great Britain, and secure His Majesty's subjects from those undue molestations in their fisheries which they have formerly experienced from citizens of the United States. It was not of fair competition that His Majesty's Government had reason to complain, but of the preoccupation of British harbours and creeks in North America by the fishing vessels of the United States and the forcible exclusion of British vessels from places where the fishery might be most advantageously conducted.

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INSTRUCTIONS, 1815.

In the same year in the instructions with regard to fishing by the United States (which were communicated to the United

States Government) special stress was laid upon the exclusion of its fishermen from bays, harbours, rivers, creeks, and inlets of all His Majesty's possessions. It is obvious that, in those places, the fisheries were of special and peculiar value, and the treaty of 1818, it is contended, gave effect to this consideration. (App., p. 63.)

It is true that liberty was granted to take fish in the "bays, harbours, and creeks," as well as on the "coasts" of Labrador, but this concession emphasises the limitation of the liberty granted in respect of the rest of the treaty coast, and may have been due both to the necessity of making some concession (if an agreement was to be reached), and to the fact that it was less important to restrict the rights conferred in connection with Labrador than to limit the liberty granted in respect of the territorial waters of the more populous island of Newfoundland.

FRENCH CLAIMS.

Moreover, the existence of the French claim to a large portion of the coast, with regard to which these liberties were conceded, may have supplied an additional reason for not extending the grant to bays, harbours, and creeks, in which, for the reasons above indicated, there would be a greater probability of collision with the French fishermen.

OTHER TREATIES.

The treaties under discussion are by no means singular in their use of the word "coasts." In the treaty of 1854 (known as the Reciprocity Treaty) between Great Britain and the United States, for example, the word means, as in the 1818 treaty, something different from the indentations of the shore. By that treaty liberty was given to United States fishermen to take fish (App., p. 36.)— on the sea-coasts and shores, and in the bays, harbours, and creeks of Canada, New Brunswick, Nova Scotia, Prince Edward Island, and of the several islands thereunto adjacent.

And liberty was given to British subjects to take fish—

on the eastern sea-coasts and shores of the United States north of the 36th parallel of north latitude, and on the shores of the several islands thereunto adjacent, and in the bays, harbours, and creeks of the said sea-coasts and shores of the United States and of the said islands.

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p. 39).

By the treaty of 1871 (articles 18 and 19) provision was made for reciprocal rights of fishing in similar terms. (App.,

THE SHORES OF THE MAGDALEN ISLANDS.

The word "shores" in article one of the treaty is used to express the same idea as coasts" in other parts of the article. Messrs. Gal

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latin and Rush, the United States negotiators of the treaty, so understood, for in their report to their Secretary of State (the 20th October, 1818) they said (App., p. 37):

1. Fisheries. We succeeded in securing, besides the rights of taking and curing fish, within the limits designated by our instructions as a sine quâ non, the liberty of fishing on the coasts of the Magdalen Islands, and of the western coast of Newfoundland, and the privilege of entering for shelter, wood, and water, in all the British harbours of North America.

The above argument with regard to the "coast" of Newfoundland, therefore, applies to the "shores" of the Magdalen Islands.

CONCLUSION.

His Majesty's Government therefore submits that the liberty to fish on the southern, western, and northern coasts of Newfoundland, and on the shores of the Magdalen Islands, does not include the liberty to fish in the bays, harbours, and creeks on such coasts or shores.

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