of Quebec, Nova Scotia, and New Brunswick, and the colony of Prince Edward's Island, and of the several islands thereunto adjacent, without being restricted to any distance from the shore, with permission to land upon the said coasts and shores and islands, and also upon the Magdalen Islands, for the purpose of drying their nets and curing their fish; provided that, in so doing, they do not interfere with the rights of private property, or with British fishermen, in the peaceable use of any part of the said coasts in their occupancy for the same purpose." And it was provided that the liberty thus defined applied solely to the sea-fishery, and that the salmon and shad fisheries, and all other fisheries in rivers and the mouths of rivers, were reserved exclusively for British fishermen.

On the other hand, it was agreed by Article XIX. that British subjects should have, in common with the citizens of the United States, and subject to such terms, conditions, and limitations as were expressed in the preceding article, the liberty to take fish, and to land for the purpose of drying nets and curing fish, on the eastern seacoast and shores of the United States north of the thirty-ninth parallel of north latitude, and on the shores of the adjacent islands, and in the bays, harbors, and creeks of such seacoasts and islands.

Reservations.

By Article XX. it was provided that the places designated by the commissioners appointed under Article I. of the Reciprocity Treaty of June 5, 1854, upon the coasts of the two countries, as places reserved from the common right of fishing under that treaty, should in like manner be regarded as reserved from the common right of fishing under the present article; and that, in case any question should arise as to the common right of fishing in places not thus designated as reserved, a commission should be appointed to designate such places, in precisely the same manner as under the treaty of 1854.

Free Admission of

In addition to these stipulations, it was Fish and Fish Oil. agreed by Article XXI. that, for the term of · years mentioned in Article XXXIII. of the treaty, "fish-oil and fish of all kinds, (except fish of the inland lakes, and of the rivers falling into them, and except fish preserved in oil,) being the produce of the fisheries of the United States, or of the Dominion of Canada, or of Prince Edward's Island," should "be admitted into each country, respectively, free of duty."

Arbitration as Question of Compensation.

a

Provisions for
Mixed Commission.

It being asserted by Great Britain, but not to admitted by the United States, that the privileges accorded to the citizens of the United States under Article XVIII. of the treaty were of greater value than those accorded to British subjects under Articles XIX. and XXI., it was provided by Article XXII. that commissioners should "be appointed 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 this 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 this Treaty." It was agreed that any sum of money which the commissioners might so award should be paid by the United States in a gross sum, within twelve months after such award should have been given. For the purpose of carrying into effect the foregoing agreement to arbitrate, provision was made (Article XXIII.) for the appointment of three commissioners, one to be named by the President of the United States, one by Her Britannic Majesty, and a third by the President of the United States and Her Britannic Majesty, conjointly; or, in case they should not have named him within a period of three months after the article took effect, by the representative at London of His Majesty the Emperor of Austria and King of Hungary. The commissioners were to meet in Halifax, Nova Scotia, at the earliest convenient period after they should have been named, and, before proceeding to any business, to make and subscribe a solemn declaration that they would impartially and carefully examine and decide the matters referred to them to the best of their judgment, and according to justice and equity, such declaration to be entered on the record of their proceedings. Each government was authorized to name one person to attend the commission as its agent, to represent it generally in all matters connected with the commission; and the commission was authorized to employ a secretary and any other necessary officer or officers to assist it in the transaction of its business. Each of the high contracting parties was to pay its own commissioner and agent or counsel, and all other expenses were to be defrayed by the two governments in equal moieties.

5627-46

sioners.

The commissioners were invested with power Powers of Commis- to determine the order of their procedure. They were required to receive such oral or written testimony as either government might present; and if either party offered oral testimony, the other had the right of cross-examination, under such rules as the commissioners should prescribe. If, in the case submitted to the commissioners, either party specified or alluded to any report or document in its own exclusive possession, without annexing a copy, such party was bound, if the other saw fit to apply for it, to furnish the latter with a copy; and either party was authorized to call upon the other, through the commissioners, to produce the originals or certified copies of any papers adduced as evidence, giving in each instance such reasonable notice as the commissioners might require.

sion.

It was further provided that the case on Duration of Commis- either side should be closed within a period of six months from the date of the organization of the commission, and that the commissioners should be requested to give their award as soon as possible thereafter. But it was agreed that the period of six months, for the closing of the case on either side, might be extended for a period of three months in case of a vacancy occurring among the commissioners.

Newfoundland.

By Article XXXII. of the treaty it was agreed that the stipulations of Articles XVIII. and XXV., inclusive, should extend to the colony of Newfoundland, so far as they were applicable; but that, if the Imperial Parliament, the legislature of Newfoundland, or the Congress of the United States should not embrace that colony in the laws passed to give those articles effect, then the article (XXXII.) should be of no effect.

Provisional Pro

posals.

On May 8, 1871, the day on which the treaty was signed, Mr. Fish, in the name of the Presi dent, proposed to Sir Edward Thornton that, pending the adoption of the legislation necessary to give the fisheries articles effect, Her Majesty's government should be prepared, in the event of the ratification of the treaty, to make on their own behalf, and to urge the governments of the Dominion of Canada, Prince Edward Island, and Newfoundland to make such relaxations and regulations as might be neces

sary to admit American fishermen to the liberty which they would enjoy under the treaty, the Government of the United States to admit British subjects to the exercise of the right of fishing in the American waters specified in the treaty, and to recommend that Congress authorize the refunding of duties collected after July 1, 1871, on fish and fish oil the produce of Canada and Prince Edward Island, if a similar arrangement was made with respect to the admission into the British possessions of fish and fish oil being the produce of the United States. Sir Edward Thornton, on behalf of his government, accepted this proposal, saying, however, that the ultimate decision of the question of immediately granting fishing rights in the British waters must rest with the colonial governments, just as the refund of duties paid on fish in the United States after the 1st of July was contingent on the action of Congress;2 and he subsequently stated that, though Her Majesty's gov ernment continued to hold that, under the convention of 1818, United States fishermen were prohibited from frequenting colonial ports and harbors for any purposes but shelter, repairing damages, purchasing wood and obtaining water, the prohibition would not be enforced during the pending season, and that American fishermen would be allowed to enter Canadian ports for the purposes of trade and of transshipping fish and procuring supplies, as well as to fish outside of the threemile limit in bays more than six miles wide at the mouth.3 On July 25, 1871, the government of Prince Edward Island decided not to enforce the fishery laws during the pending season and while the treaty was under consideration by the colonial legislature. The government of the Dominion, however, did not assent to Mr. Fish's proposal, and the proffered arrangement consequently was not carried into effect."

Adoption of Legislation.

For a time the question raised as to the jurisdiction of the Geneva Tribunal to entertain the indirect claims presented by the United States rendered it doubtful whether the Treaty of Washington itself would ever go into operation. This obstacle,

For. Rel. 1871, 485.

2 For. Rel. 1871, 486.

3 Sir Edward Thornton to Mr. Fish, For. Rel. 1871, 490.

4 For. Rel. 1871, 492.

"For. Rel. 1872, 215, 217, 219–222.

however, having been removed, legislation was in due time. adopted to put all the provisions of the treaty in force. Acts in relation to the fishery articles were passed by the Imperial Parliament and by Canada and Prince Edward Island.' These acts were to take effect at a time to be appointed by proclamation, in order that the beginning of their operation might be simultaneous with that of the legislation to be enacted by the United States. The corresponding legislation on the part of the United States was adopted on March 1, 1873, to take effect on the 1st of the following July, the beginning of the new fiscal year. On the 3d of March 1873 the committee of the privy council of Canada recommended that, pending the coming into force of the United States act, American vessels should not be prevented from fishing within the three-mile limit. On the 7th of June 1873 Mr. Fish and Sir Edward Thornton signed at Washington a protocol in which, after reciting the reciprocal legislation on the subject, they declared that the fishery articles would take effect on the 1st of the following July. The colony of Newfoundland, having passed the necessary laws, was admitted to the benefits of the treaty and the act of Congress on the 1st of June 1874.5

Reciprocity Negotia

tions.

The appointment of the mixed commission under Article XXIII. of the treaty was postponed not only by the delay in the adoption of the legislation required to give the fishery articles effect, but also by the consideration of a draft of a treaty for the reciprocal regulation of trade between the United States and Canada, with provisions for the enlargement of the Canadian canals and for their use by United States vessels on terms of equality with British vessels. By the fourteenth article of this project it was provided that when the ratifications of the new treaty should have been exchanged and the necessary legislation adopted to give it effect, the articles of the Treaty of Washington in relation to the Halifax commission should become

1 For. Rel. 1873, I. 402, 403, 407.

217 Stats. at L. 482.

3 For. Rel. 1873, I. 418, 419.

4 Treaties and Conventions, 1776-1887, 498.

Treaties and Conventions, 1776-1887, 499; For. Rel. 1873, I. 419, 427, 429; 1874, 554, 557, 558, 559. All of Labrador, outside of the province of Quebec, came into the arrangement as part of the colony of Newfoundland. For. Rel. 1874, 567, 572, 573; 1875, I. 643,