submitted simultaneously with their written arguments, so that the British side might reply both orally and in writing. Mr. Trescot, for the American counsel, declined this proposal, saying that the object of the American counsel was to have the British counsel reply orally to their oral arguments, and then to file the United States printed argument, leaving to the British counsel their right of final printed reply to the printed argument of the United States. What they desired was a full statement of the case, as regarded by the British counsel.

On the 1st of September the commissioners decided, Mr. Kellogg dissenting, that, having due regard to the right of Her Majesty's government to the general and final reply, they could not modify the rules in such manner as to impair or diminish that right; but that each party would, within the period fixed by the rules, be allowed to offer its concluding argument, either orally or in writing; and that, if it was offered orally, it might be accompanied with a written summary, for the convenience of the commissioners.

tions of "Commercial Intercourse."

The other important point to which referJurisdiction of Com- ence has been made related to the basis on mission as to Ques- which the award of the commissioners should rest. During the progress of the proofs offered in support of the British Case it became evident that a large part of the British claim was based on alleged advantages of a commercial character. Mr. Foster took the ground that these advantages, whether valuable or not, were certainly not secured to the citizens of the United States by the articles of the Treaty of Washington. He therefore, on the 1st of September, submitted to the commission the following motion:

"The counsel and agent of the United States ask the honorable commissioners to rule and declare that it is not competent for this commission to award any compensation for commercial intercourse between the two countries, and that the advantages resulting from the practice of purchasing bait, ice, supplies, etc., and from being allowed to transship cargoes in British waters, do not constitute good foundation for an award of compensation, and shall be wholly excluded from the consideration of this tribunal."

Mr. Foster proceeded to support this motion by argument.' By Article XXII. of the Treaty of Washington the question

Documents and Proceedings of the Halifax Commission, II. 1539.

before the commission was, said Mr. Foster, the amount of any compensation which ought to be paid by the United States for the privileges secured to their citizens under Article XVIII. of the Treaty of Washington. By that article, the privileges secured to the citizens of the United States were the liberty of inshore fishing and that of landing on uninhabited and desert coasts for the purpose of drying nets and curing fish. These were, he maintained, the sole concessions to which the jurisdiction of the commission extended. All other questions, such as the purchase of bait, ice, and supplies, the conduct of commercial intercourse, and alleged damages to British fisheries, were beyond the commission's cognizance. The Treaty of Washington conferred no such privileges on the inhabitants of the United States, who enjoyed them merely by sufferance, and could at any time be deprived of them by the enforcement of existing laws or the reenactment of former oppressive statutes.

In reply, Mr. Thomson maintained that the privileges in question were embraced in and incidental to the grant under Article XVIII. of the Treaty of Washington. By Article I. of the convention of 1818, the American fishermen were, he said, permitted to enter British waters for four specified purposes, and "for no other purpose whatever." The object of the Treaty of Washington was to do away altogether with these restrictions and to place the American fishermen on the same footing as the British fishermen in respect of the inshore fisheries. According to the argument of Mr. Foster, if an American fisherman landed for the purpose of obtaining a barrel of flour in exchange for fish, or of purchasing bait, or of obtaining a gallon or two of kerosene oil, he would be subject to punishment, and render his vessel liable to forfeiture.' Mr. Doutre, Mr. Wetherbe, and Mr. Trescot also participated in the discussion.2

The argument on Mr. Foster's motion was closed on the part of the United States by Mr. Dana. He contended that American fishermen possessed by comity the right to run into British ports and buy bait and other necessaries, unless they were specially excluded on some proper ground. Great Britain might regulate their entry, require them to report at the custom-house and be searched in order to see whether they were

1 Documents and Proceedings of the Halifax Commission. II. 1547-1557. 2 Id. 1557-1570.

merchants in disguise, and levy duties upon them. But, in the absence of a prohibition, there was no right to prevent fishermen from buying bait and supplies; and he maintained. that there was no law preventing the exercise by American fishermen of the privileges in question.

mercial Question.

On the 6th of September the commission Decision on Com- unanimously rendered the following decision: "The Commission having considered the motion submitted by the agent of the United States at the conference held on the 1st instant, decide:

"That it is not within the competence of this tribunal to award compensation for commercial intercourse between the two countries, nor for purchasing bait, ice, supplies, etc., nor for the permission to transship cargoes in British waters."

After this decision was read, Sir Alexander Galt stated the grounds on which he had acquiesced in it. The definition of the tribunal's jurisdiction was, he said, undoubtedly important in its consequences, since it eliminated from the consideration of the commision an important part of the Case submitted on behalf of Her Majesty's government. At the same time it had the further important effect of defining and limiting the rights conceded to the citizens of the United States, under the Treaty of Washington. He could foresee that, under certain circumstances, the exercise of the privileges in question might produce inconveniences, which, if they should arise, were matters properly within the control and judgment of the two governments, and not within that of the commission. At the same time, he did not think that counsel for the United States had correctly stated the position of the two parties at the time when the Treaty of Washington was entered into. By the convention of 1818 the United States renounced for their fishermen the right to do anything except what they were permitted to do by the words of that instrument. The legislation subsequently adopted, to give effect to the restrictions of the convention, produced great irritation, which resulted in the adoption of the reciprocity treaty of 1854. By that treaty it was understood that the restrictictions imposed upon the American fishermen were removed, and that the statutes which had operated against them were suspended. At the termination of the treaty, the restrictions of the convention of 1818 were revived, the statutes were again enforced, and laws of a still more stringent character were passed. In his annual message to Congress of 1870, President Grant complained of

the annoyances to which the American fishermen were subjected. The Treaty of Washington was intended to put an end to these annoyances; and the impression left upon his mind by an examination of the provisions of that treaty was, said Sir Alexander, that it must necessarily have been supposed that, as in the case of the reciprocity treaty, so in the case of the Washington Treaty, the rights of traffic and of obtaining bait and supplies, were conferred, being incidental to the fishing privilege. He therefore believed that it was the intention of the parties to the Treaty of Washington to direct the tribunal to consider all the points relating to the fisheries which had been set forth in the British Case; but he was now met by the most authoritative statement as to what the parties to the treaty intended. The agent of the United States had distinctly stated that it was not the intention of his government to provide by the treaty for the continuance of those incidental privileges, and that the United States were prepared to take the whole responsibility, and to run all the risk of the reenactment of the vexatious statutes to which reference had been made. From this argument as to the true, rigid, and strict interpretation of the Treaty of Washington, he "could not escape." The responsibility must rest upon those who appealed to the strict words of the treaty as their justification.'

The introduction of evidence on the part of Close of Evidence. the United States began on the 19th of September, and was closed on the 24th of October. During that time 78 witnesses were examined orally, nearly all of whom came from the fishing towns of Maine and Massachusetts. Many of them were fishermen and commanders of fishing schooners, but there was also a large number of fish dealers and owners of fishing vessels in the United States. Mr. Foster also introduced 280 affidavits and a mass of statistics gathered from the United States Bureau of Statistics, the customhouses at Boston and Gloucester, and the returns of the Massachusetts inspector general of fish.

On the 25th of October evidence in rebuttal was offered on behalf of the British Government, and on the 1st of November Mr. Doutre announced that the Case of Her Majesty's government was altogether closed. The commission then adjourned till the 5th of November, when Mr. Foster stated that he hoped to be prepared to address the tribunal.

'Documents and Proceedings of the Halifax Commission, II. 1585-1588.

Mr. Foster began his closing argument on Oral Arguments. the 5th of November, and completed it on the 6th. On the 8th of November the tribunal was addressed by Mr. Trescot, and on the 9th and 10th by Mr. Dana. On the 15th of November Mr. Whiteway began the closing argu ment on behalf of the British Government. He was followed on the 16th by Mr. Doutre, who finished his speech on the 17th, and was followed by Mr. Thomson on the 19th. Mr. Thomson continued his argument on the 20th and 21st of November; and at its conclusion on the latter day he announced that the argument on the part of Her Majesty's government was finally closed. The president of the tribunal then requested the secretary to enter on the minutes the thanks of the commissioners to Mr. Bergne, for his services as secretary of the commission, and their sense of the zeal, intelligence, and accuracy which had marked the discharge of his duties.

The commission then adjourned until Friday, the 23d of November, at 2 o'clock.

two Governments.

As the tribunal, when it next met, had deContentions of the termined upon its award, it will be proper, before proceeding to the session of the 23d of November, to summarize the contentions of the two governments, as they appear in the British Case, the Answer of the United States, and the British Reply.

eries.

The British Case opened with a review of British Case: Value the fishery question from 1783 down to the of the Coast Fish- conclusion of the Treaty of Washington, and then, after analyzing the pertinent clauses of that treaty, proceeded separately to estimate the value of the coast fisheries of Canada and of Newfoundland. In the coast fisheries of Canada it embraced the fisheries on the coasts and in the bays, harbors, and creeks of the Dominion, from the Bay of Fundy to the Gulf of St. Lawrence, inclusive. The value of these fisheries, of which the principal products are mackerel, codfish, herring, halibut, haddock, hake, pollack, and many small varieties of fishes taken for bait, was represented as constantly increasing.

Of the advantages derived by the United The Liberty of In-States from the Treaty of Washington, the

shore Fishing.

first that was mentioned in the British Case was the liberty of fishing in British waters. The official records of the United States and other sources of information