PART I.

STATUS PRIOR TO THE TREATY OF 1818.

The Special Agreement of January 27, 1909, between the United States and Great Britain, under which this case is presented, requires the Tribunal of Arbitration thereby constituted to answer a series of questions submitted for its decision growing out of differences which have arisen between the United States and Great Britain as to the scope and meaning of Article I of their treaty of October 20, 1818" and of the liberties therein referred to and otherwise in respect of the rights and liberties which the inhabitants of the United States have or claim to have in the waters or on the shores therein referred to."

It will be observed that the differences under consideration include not only those which have arisen as to the scope and meaning of the said Article and of the liberties therein referred to, but also those which have arisen otherwise in respect of the rights and liberties which the inhabitants of the United States have or claim to have in the waters or on the shores mentioned in that Article. It will also be observed upon an examination of Article I of the treaty of 1818 that its provisions which are now the occasion of differences were themselves the outcome of differences existing with respect to these fisheries when that treaty was made, the introductory recital of Article I of that treaty being as follows:

Whereas differences have arisen respecting the liberty claimed by the United States for the inhabitants thereof to take, dry and cure fish on certain coasts, bays, harbors and creeks of His Britannic Majesty's Dominions in America, its is agreed, etc.

Therefore, before discussing the provisions of Article I of the treaty of 1818 and in order that the various differences above referred to and their relation to that Article may be clearly understood, it will be convenient to examine into the antecedent conditions and course of events leading up to the treaty of 1818 with a view to showing the respective positions of the two Governments at that time so far as they relate to the questions now in controversy.

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THE TREATY OF SEPTEMBER 3, 1783.

The first discussion with Great Britain of the interests of the United States in these fisheries will be found in the negotiations for the treaty of peace at the close of the Revolution in 1782.

The Commissioners who took part in these negotiations were John Adams, Benjamin Franklin, John Jay and Henry Laurens on the part of the United States, and Richard Oswald on the part of Great Britain assisted by Mr. Strachey and Mr. Fitzherbert who were present and took part in the discussions during the closing conferences.

In entering upon these negotiations the United States stipulated as an indispensible condition that at the outset Great Britain should acknowledge their independence and should treat with them as an independent nation.a In Franklin's report of these negotiations, made immediately after the treaty was signed, he says that the use of any expressions in the powers given by Great Britain to its commissioners which might imply an acknowledgment of American independence seemed at first to be industriously avoided, and much of the summer was taken up in removing these objections, but that the refusal otherwise to treat finally induced Great Britain to overcome that difficulty and the negotiations were then entered upon. Great Britain having finally acquiesced in this demand, such acknowledgment of independence was incorporated in the original draft of the proposed treaty and was carried without change through the negotiations and into the treaty as finally agreed upon, where it appears as Article I in the following form:

His Britannic Majesty acknowledges the sd United States, viz. New Hampshire, Massachusetts Bay, Rhode-Island & Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, & Georgia, to be free sovereign & Independent States; that he treats with them as such, and for himself his Heirs and Successors, relinquishes all claim to the Government Propriety & Territorial Rights of the same & every Part thereof.c

The United States and Great Britain thus met as independent nations negotiating for the purpose of concluding a treaty of peace

dividing between them the British Empire in North America; and standing on this basis the Commissioners on the part of the United States asserted and insisted throughout the negotiations that the British interests in the North Atlantic Coast fisheries were subject to such division and that the pre-existing rights of the Colonies therein must be recognized and continued by the treaty.

The people of the Massachusetts Bay Colony and of the other Colonies had continuously and freely resorted to these fisheries and exercised unrestricted fishing rights and liberties there until the time of the Revolution, and had borne almost unaided the burden of maintaining and defending their own and British interests in these fisheries against the aggressions of the French during the wars between Great Britain and France. In view of such continuous usage and enjoyment and by virtue of the services rendered by them in defence of these fisheries, the American Colonies asserted and insisted that they had in them at least the equal rights of joint owners with Great Britain and the other British Colonies. John Adams, one of the American Commissioners in the peace negotiations, bears witness, in a statement written by him in 1822 in review of these negotiations, that the grounds and principles on which the fisheries article of the treaty of 1783 was contended for on their part and finally yielded on the part of Great Britain were among others the following:

That New England, and especially Massachusetts, had done more in defence of them than all the rest of the British empire. That the various projected expeditions to Canada, in which they were defeated by British negligence, the conquest of Louisburg, in 1745, and the subsequent conquest of Nova Scotia, in which New England had expended more blood and treasure than all the rest of the British empire, were principally effected with a special view to the security and protection of the fisheries.

That the inhabitants of the United States had as clear a right to every branch of those fisheries, and to cure fish on land, as the inhabitants of Canada or Nova Scotia; that the citizens of Boston, New York, or Philadelphia, had as clear a right to those fisheries, as the citizens of London, Liverpool, Bristol, Glasgow, or Dublin. And further:

We considered that treaty as a division of the empire. Our independence, our rights to territory and to the fisheries, as practised before the Revolution were no more a grant from Britain to us than the treaty was a grant from us of Canada, Nova Scotia, England,

Scotland, and Ireland to the Britons. The treaty was nothing more than mutual acknowledgment of antecedent rights."

The course of the negotiations was briefly as follows:

Before the arrival of the other American Commissioners, Messrs. Franklin and Jay proposed a series of articles which, under date of October 8, 1782, were agreed upon ad referendum by the British Commissioner and sent to England by him for the King's consideration, in which articles it was provided

3rd. That the subjects of his Britannic Majesty and people of the said United States, shall continue to enjoy unmolested, the rights to take fish of every kind on the banks of Newfoundland, and other places where the inhabitants of both countries used formerly, to wit, before the last war between France and Britain, to fish and also to dry and cure the same at the accustomed places, whether belonging to his said Majesty or to the United States; and his Britannic Majesty and the said United States will extend equal privileges and hospitality to each other's fishermen as to their own."

The articles thus proposed were not approved by the British Government and a new series of articles, under date of November 5, 1782, was agreed upon and signed by the British and American Commissioners, in which series the fisheries article appeared in the following form:

That the subjects of his Britannic Majesty and the people of the said United States shall continue to enjoy unmolested the right to take fish of every kind on all the banks of Newfoundland, also in the Gulf of St. Lawrence, and all other places where the inhabitants of both countries used at any time heretofore to fish; and also to dry and cure their fish on the shores of the Isle of Sables; Cape Sables, and the shores of any of the unsettled bays, harbors, or creeks of Nova Scotia, and of the Magdalen Islands. And his Britannic Majesty and the said United States will extend equal privileges and hospitality to each other's fishermen as to their own.c

It will be noted that the chief difference between these articles is that the Gulf of St. Lawrence is specifically mentioned as among the places where the inhabitants of both countries used formerly to fish and where, under the provisions of both articles, they are to continue to enjoy unmolested such right; and that the places to be used for drying and curing fish, which in the first proposal were described as the "accustomed places," whether belonging to his Majesty or to the United States, in the second proposal are specifically named, and that all of the places thus named are on the

coasts which fell to Great Britain in the division of territory. So that, although still reciprocal in form as in the original proposal, the article was no longer reciprocal in effect with respect to the drying and curing of fish.

The articles thus agreed upon were again sent to England for the King's consideration and having proved unacceptable there fresh proposals from the British Ministry were delivered by Mr. Oswald to the American Commissioners on November 25, 1782, containing the following fisheries article:

Article III. The citizens of the said United States shall have the liberty of taking fish of every kind on all the banks of Newfoundland, and also in the Gulf of St. Lawrence; and also to dry and cure their fish on the shores of the Isle of Sables and on the shores of any of the unsettled bays, harbors, and creeks of the Magdalen Islands, in the Gulf of St. Lawrence, so long as such bays, harbors, and creeks shall continue and remain unsettled; on condition that the citizens of the said United States do not exercise the fishery, but at the distance of three leagues from all the coast belonging to Great Britain, as well those of the continent as those of the islands situated in the Gulf of St. Lawrence. And as to what relates to the fishery on the coast of the Island of Cape Breton out of the said gulf, the citizens of the said United States shall not be permitted to exercise the said fishery, but at the distance of fifteen leagues from the coasts of the Island of Cape Breton."

It is evident from this proposal that Great Britain acquiesced in the elimination under the previous proposal of any reciprocal right of using the coasts of the United States for drying and curing fish, for no attempt is made to renew such provision, and even the provision for the extension of equal privileges and hospitality to each other's fishermen, which is found at the end of the previous proposals, is omitted here. In all other respects, however, this proposal shows a marked departure by Great Britain from the proposals previously agreed upon by the British Commissioner. Not only does it fail to reserve to the inhabitants of the United States any of the inshore or coast fisheries which were provided for in the earlier proposals, but it greatly reduces the shore space open to the Americans for drying and curing fish and it fails to recognize the American rights in the off-shore fisheries as a continuation of pre-existing rights in such fisheries, and further it proposes that American fishermen should not be permitted to enjoy such off-shore fisheries "but at the distance of three leagues from all the coast belonging to Great Britain as well a Appendix, p. 219.