United States.

the treaty directed the commission to regard in its comparison and adjustment of equivalents, were described Inshore Fisheries of as (1) the admission of British subjects to the fishing grounds of the United States down to the thirty-ninth parallel of north latitude, where all descriptions of fishes found in the colonial waters, including the best quality of mackerel, abounded, and where were exclusively found the menhaden and porgies, which were not only the best bait for mackerel, but of which the former was valuable for its oil and as a fertilizer; and (2) the "enormous Remission of Duties. pecuniary value of the right to import fish and fish oil, free of duty, into the markets of the United States." Various Canadian authorities were quoted as to the value of this right, and evidence was presented to show that the remission of duties to Canadian fishermen, during the four years that had elapsed since the treaty went into effect, had amounted to $400,000 annually.

In conclusion, the Answer recapitulated the Recapitulation. contentions of the United States as follows:

"First. That the province of this Commission is limited solely to estimating the value to the inhabitants of the United States of new rights accorded by the Treaty of Washington to the fisheries within the territorial waters of the British North American provinces on the Atlantic coast; which comprise only that portion of the sea lying within a marine league of the coast, and also the interior of such bays and inlets as are less than six miles wide between their headlands; while all larger bodies of water are parts of the free and open ocean, and the territorial line within them is to be measured along the contour of the shore, according to its sinuosities, and within these limits no rights existing under the convention of 1818 can be made the subject of compensation.

"Second. That within these limits there are no fisheries, except for mackerel, which United States fishermen do or advantageously can pursue; and that of the mackerel catch only a small fractional part is taken in British territorial waters.

"Third. That the various incidental and reciprocal advantages of the treaty, such as the privileges of traffic, purchasing bait, and other supplies, are not the subject of compensation; because the Treaty of Washington confers no such rights on the inhabitants of the United States, who now enjoy them merely by sufferance, and who can at any time be deprived of them by the enforcement of exhisting laws or the re-enactment of former oppressive statutes. Moreover, the treaty does not provide for any possible compensation for such privileges; and they are far more important and valuable to the subjects of Her Majesty than to the inhabitants of the United States.

"Fourth. That the inshore fisheries along the coast of the

United States, north of the 39th parallel of north latitude, are intrinsically fully as valuable as those adjacent to the British provinces; and that British fishermen can, and probably will, reap from their use as great advantages as the Americans have enjoyed, or are likely to enjoy, from the right to fish in British

waters.

"Fifth. That the right of importing fish and fish oil into the markets of the United States is to British subjects a boon amounting to far more than an equivalent for any and all the benefits which the treaty has conferred upon the inhabitants of the United States.

"Sixth. In respect to Newfoundland, the United States, under the convention of 1818, enjoyed extensive privileges. But there are no fisheries in the territorial waters of that island of which the Americans make any use. There, as everywhere else, the cod fishery is followed in the open sea, beyond the territorial waters of Great Britain. No herring, mackerel, or other fishery is there pursued by Americans within the jurisdictional limits. The only practical connection of Newfoundland with the Treaty of Washington is the enjoyment by its inhabitants of the privilege of free importation of fish and fish-oil into the United States markets. The advantages of the treaty are all on one side, that of the islanders, who are immensely benefited by the opening of a valuable traffic, and by acquiring free access to a market of forty millions of people."

Brief on Territorial
Waters.

Accompanying the Answer of the United States, there was a "Brief for the United States upon the Question of the Extent and Limits of the Inshore Fisheries and Territorial Waters on the Atlantic Coast of British North America." In this brief the discussions between the two governments subsequent to the convention of 1818 are reviewed, and various writers on international law are cited, and it is maintained "that, prior to the Treaty of Washington, the fishermen of the United States, as well as those of all other nations, could rightfully fish in the open sea more than three miles from the coast; and could also fish at the same distance from the shore in all bays more than six miles in width, measured in a straight line from headland to headland."1

'Documents and Proceedings of the Halifax Commission, I. 119–167, The Brief cites, on the question of territorial waters, Queen v. Keyn, L. R. 2 Exch. Div. 63; Bluntschli, Law of Nations, book 4, §§ 302, 309; Klüber, Droit des Gens Modernes de l'Europe, Paris, 1831, vol. 1, p. 216; Ortolan, Diplomatie de la Mer, ed. 1864, pp. 145, 153; Hautefeuille, Droits et Devoirs des Nations Neutres, tom. 1, tit. 1, ch. 3, § 1; Manning's Law of Nations, by Amos; Martens, Précis du Droit des Gens Modernes de l'Europe, ed. 1864, Pinheiro-Ferriera, §§ 40, 41; De Cussy, Phases et Causes Célèbres du Droit Maritime des Nations, Leipzig, 1856, liv. 1, tit. 2, §§ 40, 41.

British Reply.

In the "Reply on Behalf of Her Britannic Majesty's Government to the Answer of the United States of America," the positions taken in the Answer of the United States as to inshore fishing were analyzed and controverted, and the claims of the British Case maintained; and, supplementing the Question of Territo- Reply, there was a "Brief on behalf of Her

rial Waters. Majesty's Government in Reply to the Brief on behalf of the United States," on the subject of territorial waters. In this brief it is declared to be admitted by all authorities, whether writers on international law, judges who have interpreted that law, or statesmen who have negotiated upon or carried it into effect in treaties or conventions, that every nation has the right of exclusive dominion and jurisdiction over those portions of its adjacent waters which are included by promontories or headlands within its territories;"3 and it is maintained that by the convention of 1818 the United States fishermen are prohibited from fishing, not merely within three miles from the shore, but within three marine miles of the entrance of any of the bays, creeks, or harbors of His Britannic Majesty's dominions in America. The British agent also filed certain "Official Correspondence from the Years 1827 to 1872, inclusive, Showing the Encroachments of United States Fishermen in British North American Waters since the Conclusion of the Convention of 1818."5

The closing arguments of Messrs. Foster, Closing Arguments. Trescot, and Dana, on the part of the United States, and of Messrs. Whiteway, Doutre, and Thomson, on the part of Great Britain, occupy nearly 300

1 Documents and Proceedings of the Halifax Commission, I. 169–241. 2 Documents and Proceedings of the Halifax Commission, II. 1887–1906. 3 Citing Kent Comm. I. 32; Lawrence's Wheaton, 2d ed. p. 320.

4 The Brief cites various documents and authorities as to the construction of treaties. As to the meaning of the terms coasts, creeks, bays, and harbors, and the extent of marine jurisdiction, it cites Bee's Adm. Rep. 205; act of Congress, 3 Stats. at L. 136; The Anna, 5 Rob. 385; United States v. Grush, 5 Mason, 298; United States v. Bevan, 3 Wheat. 387; Hargrave's Tracts, chapter 4; De Lovio r. Boit, 2 Gallison, 462; Church r. Hubbart, 2 Cranch, 187; 1 Op. At. Gen. 32; Martin v. Waddell, 16 Pet. 367; Life of Sir Leoline Jenkins, II. 726; Azuni, Droit Maritime de l'Europe, ch. II. art. 2, § 3; Vattel, b. I. ch. 23; Queen v. Keyn, L. R. 2 Exch. Div. 63; The Direct United States Cable Co. r. The Anglo-American Telegraph Co., L. R. 2 App. Cas. 394.

5 Documents and Proceedings of the Halifax Commission, II. 1457-1508.

pages of the printed records of the commission,' and practically exhaust the subject submitted to it.

Award.

On the 23d of November 1877 Mr. Delfosse, the president of the tribunal, announced its award, which was to the effect that the United States should pay to Great Britain, in accordance with the provisions of the treaty, the sum of $5,500,000 in gold. This award was signed by Mr. Delfosse and Sir Alexander Galt. Mr. Kellogg dissented from it on two grounds: (1) That the advantages accruing to Great Britain under the treaty were greater than those accruing to the United States, and (2) that it was questionable whether the tribunal was competent to make an award, except with the unanimous consent of its members. The text of the award is as follows:

"The undersigned Commissioners appointed under Articles XXII. and XXIII. of the Treaty of Washington of the 8th of May, 1871, to determine, having regard to the privileges accorded by the United States to the subjects of Her Britannic Majesty, as stated in Articles XIX. and XXI. of said treaty, the amount of any compensation which in their opinion ought to be paid by the Government of the United States to the Government of Her Britannic Majesty, in return for the privileges accorded to the citizens of the United States under Article XVIII. of the said treaty;

"Having carefully and impartially examined the matters referred to them according to justice and equity, in conformity with the solemn declaration made and subscribed by them on the fifteenth day of June, one thousand eight hundred and seventy-seven:

"Award the sum of five millions five hundred thousand dollars, in gold, to be paid by the Government of the United States to the Government of Her Britannic Majesty in accordance with the provisions of the said treaty.

"Signed at Halifax, this twenty-third day of November, one thousand eight hundred and seventy-seven.

"MAURICE DELFOSSE. "A. T. GALT.

The dissent of Mr. Kellogg was expressed in the following terms:

"The United States Commissioner is of opinion that the advantages accruing to Great Britain under the Treaty of Washington are greater than the advantages conferred on the United States by said treaty, and he can not therefore concur in the conclusions announced by his colleagues.

'Documents and Proceedings of the Halifax Commission, II. 1588-1885.

"And the American Commissioner deems it his duty to state further that it is questionable whether it is competent for the board to make an award under the treaty, except with the unanimous consent of its members.

"E. H. KELLOGG, Commissioner."

After the award was read, Mr. Foster adReservation by dressed the commission, saying that he had American Agent. no instructions from his government as to the course to be pursued in the contingency of such a result as had been announced, but that if he were to accept in silence the paper signed by two commissioners, it might afterward be claimed that he had, as agent of the United States, acquiesced in treating it as a valid award. Against such an inference he said he deemed it his duty to guard, and he asked that his statement be placed on record, which was done.

Adjournment.

Mr. Kellogg expressed his thanks and those of Sir A. T. Galt to Mr. Delfosse for the manner in which he had fulfilled the duties of president of the commission; and Mr. Delfosse then announced that the commission was adjourned sine die.

Absence of any Dissenting Opinion.

The amount of the award was a surprise to the government of the United States, as well as to those who represented it before the Halifax commission. As to the process of reasoning and of computation by which the result was reached, nothing was disclosed either in the award itself or in the dissent of the American commissioner. While the mere declaration of conclusions, without any disclosure of the reasons on which they are based, possesses certain advantages, it is not unreasonable to expect, in an important case of difference, some statement of the grounds on which at least the dissent proceeds; but, in the case of the Halifax commission, though the difference between the American commissioner and his colleagues was radical and far-reaching, there is nothing in the proceedings of the tribunal to show to what extent this difference was subjected by him to a critical analysis and examination, in conference with the other commissioners. His dissent is entered of record in a purely formal manner.

Question as to Mr.
Delfosse.

In his annual message to Congress on the 3d of December 1877 President Hayes announced that the Fisheries Commission had concluded its sessions at Halifax, and that the result of its deliberations,