mission to name them after such adjournment as might be decided on, after the presentation of the Case of the British Government.

British Case.

Mr. Ford then presented to each of the commissioners a copy of the Case of the British Government, and duplicate copies to the American agent, accompanied with a list of the documents to be filed with the secretary in support of the Case. The commission then adjourned till the next day, the 16th of June, when it met and adjourned until Saturday, the 28th of July, in order that the Counter Case of the United States and the Reply of Great Britain might be prepared and filed.

On the 28th of July the commission met purAmerican Counsel. suant to adjournment, and began its regular sessions. The secretary announced that the rules in regard to the filing of the Counter Case and Reply had been duly complied with. Mr. Foster then named as counsel on behalf of the United States:

Mr. William H. Trescot, of Washington, and

Mr. Richard H. Dana, jr., of Boston.

Other Officials.

Mr. George B. Bradley and Mr. John A. Lumsden, and later Mr. Benjamin Russell, were appointed by the commissioners as stenographers. On the 30th of July, Mr. Foster introduced to the commission Mr. J. S. D. Thompson, of Halifax, and Mr. Alfred Foster, of Boston, who were to attend the commission to perform such duties on behalf of the United States as might be assigned to them. He added that Mr. Henry A. Blood, of Washington, would also attend, to render clerical assistance.

Reading of Cases and Answers.

On the same day, Mr. S. R. Thomson proceeded to open for the British Government, by reading the printed Case submitted in its behalf to the commission. The documents referred to in the Case were read in due order by the secretary. When Mr. Thomson had concluded, Mr. Foster read the Counter Case or Answer of the United States, printed copies of which had already been submitted to the commissioners. He stated, however, that such reading formed no part of his opening, in the course of which he proposed to quote extracts from the Answer. The reading of the Answer was unfinished when the commissioners adjourned till the next day. On the 31st of July, Mr. Foster completed the reading of his Answer, and at its conclusion Mr. S. R.

Thomson read the Reply of the British Government. On the conclusion of the reading of this Reply, Mr. Thomson said that the Case of Her Majesty's government, the Answer of the United States, and the Reply of Her Majesty's government having been read, he would leave the subject, as brought out in evidence, in the hands of the commissioners, who, he was confident, would carefully and impartially decide it.

Taking of Testimony.

The commission then proceeded to take testimony in support of the British Case, beginning with the examination of a fisherman from Prince Edward Island. From the 28th of July till the 18th of September the sessions of the commission were principally occupied in the examination of witnesses and the reading of affidavits in support of the British Case. During that time, however, two important discussions took place.

On the 28th of August counsel for the Order of Arguments. United States made an effort to obtain an arrangement by which the arguments should be alternated, so as to give them notice of the positions to be maintained in the final reply on behalf of Great Britain, especially as to the bearing of the British testimony and statistics. This was deemed especially important, because no oral opening had been made by the British agent or counsel. The American counsel represented that, according to the existing arrangement it would be their duty to open their case in advance of their testimony, by laying before the commission the general scheme of their argument and indicating the points on which evidence would be submitted in its support. They suggested that a practical discussion of the real issues would be more certainly secured, and the time and patience of the commission more wisely economized, if they were allowed to submit such views as they might desire to maintain at the close instead of in advance of the examination of their witnesses. This privilege, they contended, would not deprive counsel on the other side of any advantage, since, besides the right to make a written reply to the printed arguments, a right which they already possessed, they might also be allowed the right of oral reply, if they desired to exercise it. The application of the American counsel was taken into consideration, and, on the 29th of August, Mr. Thomson stated that the British agent was willing to afford counsel for the United States an opportunity to make oral arguments in closing, if these were

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 regarded by the British

a full statement of the case, as 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 "Commer

The other important point to which referJurisdict.on of Com- ence has been made related to the basis on mission as to Ques- which the award of the commissioners should cial Intercourse." 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.1 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

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.

Decision on mercial Question.

On the 6th of September the commission 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