Lord Rosebery, then Secretary of State for Foreign Affairs, promptly wrote to the British Minister at Washington on July 23, 1886, instructing him to inform Mr. Bayard of this explanation of the occurrence, which was done by the British Chargé at Washington in his note of August 2, 1886, to Mr. Bayard, thus closing the incident."

Negotiations for a new fisheries arrangement resulting in the proposed Treaty of 1888.

During this period many expressions are found in the diplomatic correspondence on both sides indicating a desire to settle the entire controversy by entering into some arrangement for adjusting the fisheries question on some new basis mutually acceptable to both sides. In recognition of this situation, Mr. Bayard forwarded in his letter of November 15, 1886, to Mr. Phelps, a draft agreement which he had caused to be prepared, with instructions to propose it to Lord Iddesleigh in the hope that it would be found "to contain a satisfactory basis for the solution of existing difficulties and assist in securing an assured, just, honorable, and, therefore, mutually satisfactory settlement of the long-vexed question of the North Atlantic Fisheries." b

To this proposal Lord Salisbury replied in his note of March 24, 1887, to the American Chargé at London, commenting at some length upon Mr. Bayard's draft, and enclosing a memorandum of observations; and Mr. Bayard in turn sent on July 12, 1887, to Mr. Phelps for transmission to Lord Salisbury, a series of observations in reply to the British observations.d

It is unnecessary to examine the terms of Mr. Bayard's proposal or the observations exchanged with reference thereto, inasmuch as they were intended rather as a basis of compromise than as an expression of opinion or interpretation of the true intent and meaning of the fisheries provisions of the treaty of 1818, and the main feature of Mr. Bayard's proposal was the appointment of a mixed commission for the purpose of agreeing upon the meaning of some of the disputed provisions of the treaty of 1818, subject to certain conditions and directions limiting the scope of the commissioners' powers.

While these negotiations were proceeding, it was proposed and agreed that a joint commission should be appointed to negotiate a

a Appendix, pp. 809-823.

Appendix, pp. 908-912.

new treaty, with the result that plenipotentiaries were appointed and negotiations undertaken for that purpose. In these negotiations the plenipotentiaries on the part of the United States were Thomas F. Bayard, William L. Putnam and James B. Angell; and the plenipotentiaries on the part of Great Britain were Joseph Chamberlain, Sir L. S. West and Sir Charles Tupper.

These plenipotentiaries reached an agreement for a treaty on February 15, 1888, but the proposed treaty, on which they agreed, when submitted to the Senate of the United States for its advice and consent, failed to secure its approval; and, as under the Constitution of the United States a treaty cannot be made without the advice and consent of the United States Senate, this proposed treaty never became effective.

Under this proposed treaty, Article I. of the treaty of 1818 was left undisturbed, but the questions of difference which had arisen with respect to it were dealt with by the new provisions. It was proposed that a mixed commission should be appointed to delimit, in the manner prescribed, the British waters, bays, creeks, and harbors on the coasts of Canada and of Newfoundland as to which the United States by Article I. of the treaty of 1818 renounced the liberty to take, dry or cure fish. It was provided that in this delimitation the three marine miles mentioned in the earlier treaty should be measured seaward from low water mark; or, in the case of bays, creeks, and harbors, from a straight line drawn across the bay, creek, or harbor in the part nearest the entrance at the first point where the width does not exceed ten marine miles, except in the following cases:

At or near the following bays the limits of exclusion under Article I. of the Convention of October 20, 1818, at points more than three marine miles from low water mark, shall be established by the following lines, namely:

At the Baie des Chaleurs the line from the Light at Birch Point on Miscou Island to Macquereau Point Light; at the Bay of Miramichi, the line from the light at Point Escuminac to the Light on the Eastern Point of Tabisintac Gully; at Egmont Bay, in Prince Edward Island, the line from the Light at Cape Egmont to the Light at West Point; and off St. Ann's Bay, in the Province of Nova Scotia, the line from Cape Smoke to the Light at Point Aconi.

At Fortune Bay, in Newfoundland, the line from Connaigre Head to the Light on the South-easterly end of Brunet Island, thence to Fortune Head; at Sir Charles Hamilton Sound, the line from the South-east point of Cape Fogo to White Island, thence to the North end of Peckford Island, and from the South end of Peckford Island to the East Headland of Ragged Harbor.

At or near the following bays the limits of exclusion shall be three marine miles seaward from the following lines, namely:

At or near Barrington Bay, in Nova Scotia, the line from the Light on Stoddard Island to the Light on the south point of Cape Sable, thence to the Light at Baccaro Point; at Chedabucto and St. Peter's Bays, the line from Cranberry Island Light' to Green Island Light, thence to Point Rouge; at Mira Bay, the line from the Light on the East Point of Scatari Island to the North-easterly Point of Cape Morien; and at Placentia Bay, in Newfoundland, the line from Latine Point, on the Eastern mainland shore, to the most Southerly Point of Red Island, thence by the most Southerly Point of Merasheen Island to the mainland.

Long Island and Bryer Island, at St. Mary's Bay, in Nova Scotia, shall, for the purpose of delimitation, be taken as the coasts of such bay.

It was further provided that

United States fishing vessels entering the bays or harbors referred to in Article I. of this Treaty shall conform to harbor regulations common to them and to fishing vessels of Canada or of Newfoundland.

They need not report, enter, or clear, when putting into such bays or harbors for shelter or repairing damages, nor when putting into the same, outside the limits of established ports of entry, for the purpose of purchasing wood or of obtaining water; except that any such vessel remaining more than twenty-four hours, exclusive of Sundays and legal holidays, within any such port, or communicating with the shore therein, may be required to report, enter, or clear; and no vessel shall be excused hereby from giving due information to boarding officers.

They shall not be liable in any such bays or harbors for compulsory pilotage; nor, when therein for the purpose of shelter, of repairing damages, of purchasing wood, or of obtaining water, shall they be liable for harbor dues, tonnage dues, buoy dues, light dues, or other similar dues; but this enumeration shall not permit other charges inconsistent with the enjoyment of the liberties reserved or secured by the Convention of October 20, 1818.

And also that

United States fishing vessels entering the ports, bays, and harbors of the Eastern and Northeastern coasts of Canada or of the coasts of Newfoundland under stress of weather or other casualty may unload, reload, tranship, or sell, subject to customs laws and regulations, all fish on board, when such unloading, transshipment, or sale is made necessary as incidental to repairs, and may replenish outfits, provisions and supplies damaged or lost by disaster; and in case of death or sickness shall be allowed all needful facilities, including the shipping of crews.

Licenses to purchase in established ports of entry of the aforesaid coasts of Canada or of Newfoundland, for the homeward voyage, such provisions and supplies as are ordinarily sold to trading vessels, shall be granted to United States fishing vessels in such ports promptly upon application and without charge; and such vessels having obtained licenses in the manner aforesaid, shall also be accorded upon all occasions such facilities for the purchase of casual or needful

but such provisions or supplies shall not be obtained by barter, nor purchased for re-sale or traffic.

- Provision was also made regulating the penalties to be imposed and the procedure to be taken in case of the violation of the provisions agreed upon.

The proposed treaty also contemplated reciprocal trade arrangements for which provision was made.

The text of this unratified treaty will be found printed in full in the Appendix.a

Modus Vivendi of 1888.

At the close of the negotiations for the unratified treaty of 1888, the British plenipotentiaries offered to make "a temporary arrangement for a period not exceeding two years in order to afford a modus vivendi pending the ratification of the treaty."

The modus vivendi thus proposed was established by the protocol of February 15, 1888, of those negotiations and was in terms as follows:

1. For a period not exceeding two years from the present date, the privilege of entering the bays and harbors of the Atlantic coasts of Canada and Newfoundland shall be granted to United States fishing vessels by annual Licenses at a fee of $1 per ton-for the following purposes:

The purchase of bait, ice, seines, lines and all other supplies and outfits.

Transshipment of catch and shipping of crews.

2. If during the continuance of this arrangement, the United States should remove the duties on fish, fish oil, whale and seal oil (and their coverings, packages, &c.), the said Licenses shall be issued free of charge.

3. United States fishing vessels entering the bays and harbors of the Atlantic coasts of Canada or of Newfoundland for any of the four purposes mentioned in Article I. of the Convention of October 20, 1818, and not remaining therein more than twenty-four hours, shall not be required to enter or clear at the custom house, providing that they do not communicate with the shore.

4. Forfeiture to be exacted only for the offences of fishing or preparing to fish in territorial waters.

5. This arrangement to take effect as soon as the necessary measures can be completed by the Colonial Authorities."

PERIOD FROM 1888 TO 1909.

During this period no new question involving the interpretation of the fisheries article of the treaty of 1818 in its relation to the Canadian coasts came up for discussion between the United States and Great Britain, and no question involving its interpretation in relation to the Newfoundland coasts arose until 1905.

Although the modus vivendi of February 15, 1888, was entered into for a period not exceeding two years in order to afford a temporary arrangement pending the ratification of the proposed treaty of 1888, and the United States Senate refused its consent to the proposed treaty in August of that year, nevertheless the modus vivendi has been regarded as continuing in force for the period of two years following its date. So far as Canada is concerned this modus vivendi has been continued in practical effect down to the present time by action of the Canadian Government without formal extension, and during this period no change has taken place in the attitude either of the United States or British Governments on the questions of difference which had previously arisen in the fisheries controversy with reference either to the so-called treaty coasts or other coasts of Canada. So far as Newfoundland is concerned, the laws of that colony in force during this period down to 1905 authorized the granting of licenses to foreign fishing vessels, permitting such vessels, within the jurisdiction of that colony, to purchase bait and ice and fishing supplies and outfits generally, and to ship fishing crews for such vessels. These laws provided for the seizure and forfeiture of such vessels for purchasing bait or other supplies, or engaging members of the crew without first obtaining a license therefor; and although no distinction is made in the acts referred to between the treaty coasts and those covered by the renunciatory clause, except that entering within the three mile limit on the latter coasts for any purposes not permitted by treaty is made a ground for seizure, nevertheless the acts referred to contained the usual provision, found in all Newfoundland fishery legislation, that nothing therein should affect "the rights and privileges granted by treaty to subjects of any state or power in amity with Her Majesty." It does not appear that any questions involving the interpretation of the fisheries provisions of the treaty of 1818 arose between the United States and Great Britain in connection