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been lost, if the statement just quoted from the British Case, and if the argument of counsel in this submission is also true, that there was no fishing in the bays until after the mackerel came there in 1838.

The author referred, in the quotation used in the British Case, to the fact that the fishing was so important formerly as to confer a name on a particular description of fish as well as vessels. Of course he referred to the American fishing there.

I respectfully submit, that if the Tribunal will take the second. volume of Lyman's "Diplomacy of the United States," and turn to p. 100, from which this extract is cited so frequently by counsel for Great Britain, it will be discovered that the citation does not bear out the purpose to support which it is cited.

The author states:

"In other words, we have renounced the right to come within three marine miles of any British shore, west of longitude about 62, and south of latitude about 47. Even, therefore, if we fish on the prohibited grounds outside the marine league, we can neither approach the shore to dry or take bait, both important considerations. And, indeed, as the cod strike in for the shores in pursuit of small fry (called by the fishermen capling, and used by them for bait) the fishing is probably not good outside the limit. One object the British government had in view, in restraining our vessels to a distance of three miles, was probably to afford less opportunity for smuggling, a practice of which they made great complaints. In the stipulation there is no provision, that the right shall not be abrogated by a future war; a permanent character only is given to it in the manner, usual in treaties. By this convention we have relinquished a large portion of the original fishing ground, secured by the treaty of '83, at least, wherever the fishery lies within three marine miles of the coast, and as near as that the laws of nations would permit us to go. On Newfoundland we have obtained an enlarged limit of curing and drying, but the fishery remains the same, for we before possessed a right to fish, wherever British fishermen drew the line. We have lost the bay of Chaleur fishing, so important formerly, as to confer a name. on a particular description of fish as well as vessels. Another obvious consideration is, that under the present arrangement our vessels are obliged to go a greater distance than formerly, all the neighbouring grounds being forbidden. Whether the grounds, relinquished, are inferior, or exhausted, or deserted, by our fishermen, are important considerations, but we believe the codfish, though migratory in its habits, pursuing its food along the shore, returns periodically with a wonderful instinct to regular haunts;-and that the success, heretofore, attending the American fisheries, has been owing to the greater degree of enterprize, industry and economy, with which they were managed. Our fishermen have under-worked the British, taking and curing the fish almost at their own doors."

It is, of course, at this distant day, difficult to determine, with any degree of accuracy, the merits of the numerous disputes between the Government of Nova Scotia and the fishermen of the United States

resorting to the small bays, harbours, and creeks of the British possessions in North America and it is, fortunately for the present purpose, quite immaterial to determine the justice of those claims on behalf of Great Britain, or the justice of the claims asserted by the masters of American fishing vessels. It is apparent that these disputes arose from the interpretation put upon the proviso clause of the treaty that a vessel, when resorting to harbours for one of the four purposes provided in the clause, should be in evident distress, or in evident need of repairs, or in evident need of wood or water.

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Sir Robert Finlay, in his oral argument, after reviewing the operations of the fishing-vessels of the United States seized in the Bay of Fundy in 1824, said on p. 73 of the report of his very able argument:

"So that I claim to have shown that there is no ground for the very important allegation made on behalf of the United States that, during this period from 1819 to 1836, the American fishermen fished in the Bay of Fundy and in other similar bays as of right and without being challenged until they came within three miles of the shore. The truth is that the question of fishing in the bays was not, at that time, one of any importance and that it was only about the year 1836 that the question of fishing in the bays became of importance owing to the circumstance that the mackerel supply on the American coasts, failed, and that the American fishermen came to the coasts of the British possessions, and notably into the Bay of Fundy in pursuit of mackerel. It was then, and not till then, that the controversy as to bays came out. The attempt to show that the right was asserted before 1836 fails."

Learned counsel rests this argument upon the assumption that the mackerel fishery was the only fishery pursued by American fishing vessels in the bays and that the mackerel, about 1836, abandoned the coasts of the United States, and that it was not until after that time, or about that time, that American fishing vessels resorted to these large bodies of water adjacent to the British possessions.

The chief support for this position is the statement made by Mr. Tuck in a speech, in 1852, in the House of Representatives. Mr. Tuck was a representative from the State of New Hampshire, which has a very limited frontage on the Atlantic Ocean, some few miles only, and he, evidently, as far as anyone knows, had no special knowledge about the fisheries. But I am not going to rest any contradiction of Mr. Tuck's statement upon any general remarks that may be made by counsel now as to the special information possessed by Mr. Tuck in 1852, but I shall proceed to show what Mr. Tuck was talking about and where he drew his information from, and will show how extensively fishing operations were carried on in those days before the mackerel came in 1836, as claimed by counsel for Great Britain.

In dealing with this speech of Mr. Tuck's, Sir Robert questioned, as being an error, the date 1838 in the last sentence of the quotation which he used. I might say that it was erroneously printed in the Appendix to the Case of Great Britain, submitted to this Tribunal, as 1838, and that it was corrected in the Counter-Case of the United States and reprinted as 1828. There is conclusive evidence, however, that Mr. Tuck used the date, 1828, correctly, and that he only referred to a matter which a member of Congress might be expected to refer to, namely, an Act of Congress authorising the licensing of fishing-vessels.

I refer now to Sabine's Report on the Fisheries in which he deals with the mackerel fishery from the settlement of New England until the year 1852. A portion of this work appears in the British Case Appendix. I read from Sabine's Report itself at p. 162:—

"Soon after the peace of 1783, a writer in a Boston newspaper, in a series of articles on American commerce, said that the mackarel fishery was of more value to Massachusetts than would be the pearl fisheries of Ceylon.""

Also, further down on the same page, speaking of the mackerel fishery, he said :—.

"Its legal existence as a branch of maritime industry does not appear to have been so much as recognized by the Government of the United States until 1828, when an act was passed by Congress which authorized the collectors of the customs to issue special licences for its prosecution, and extended to the vessels employed in it the provisions of the laws then in force relative to enrolled and licensed tonnage generally."

THE PRESIDENT: Was this mackerel fishery in British or American waters?

MR. WARREN: I am coming to the mackerel, cod, and other fisheries in these treaty waters, Mr. President, in a moment. I was just citing Sabine for the purpose of explaining what Mr. Tuck meant in his speech in Congress when he used the date 1828, which is challenged as incorrect. The statement has been made that it should be 1838. I have shown that what Mr. Tuck, then a member of Congress, evidently referred to was the Act of Congress passed in 1828, which licensed vessels especially for the mackerel fishery, although the mackerel fishery had existed, as I have shown by this extract, since immediately after the peace of 1783, and, as far as I know, before. Coming, Mr. President, to the question which you just put to me, I would say in reply that the fact is that food fishes of all varieties, including cod, haddock, and herring, abounded in the inshore waters of the North Atlantic before the Treaty of Peace of 1783, which admitted our fishermen to the very shores of the waters now in dispute. This fact appears in a statement made by

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John Adams, one of the negotiators of the Treaty of Peace of 1783, to the British negotiators at Paris in 1782, when the preliminary articles were signed which finally became the definitive Treaty of Peace of 1783. I read from the Appendix to the British CounterCase on p. 101, where is found an extract from Mr. Adams' diary under date the 25th November, 1782.

66

"I related to them"

By" them," he means the British negotiators—

the manner in which the cod and haddock came into the rivers, harbors, creeks, and up to the very wharves, on all the northern coast of America, in the spring, in the month of April, so that you have nothing to do but step into a boat and bring in a parcel of fish in a few hours; but that in May they begin to withdraw; we have a saying at Boston, that when the blossoms fall, the haddock begin to crawl'; that is, to move into deep water, so that in summer you must go out some distance to fish. At Newfoundland it was the same; the fish, in March or April, were in shore in all the creeks, bays, and harbors, that is, within three leagues of the coasts or shores of Newfoundland and Nova Scotia."

As to the presence of cod in the bays I desire to submit an extract from Sabine's Report on the Fisheries, found at p. 1287 of the second volume of the Appendix to the Case of the United States:

"I conclude the topic with expressing the conviction-to which all practical men will assent that, if the new construction of the convention of 1818 be persisted in and actually enforced, we shall lose quite one-third of our cod and mackerel fisheries."

I also wish to refer to the statement made by the AttorneyGeneral of Nova Scotia in 1844, found in the Appendix to the British Case on p. 139:

"In conclusion it is humbly urged upon the consideration of Her Majesty's Government that the Bay of Fundy furnishes very valuable and productive fisheries of herring, mackerel and shad as well as cod and Her Majesty's Government cannot appreciate too highly the importance and value set by the Legislature and people of Nova Scotia upon the exclusion of American fishermen from the fisheries in the Bay of Fundy."

In support of the fact that there were fish in those bays before the period mentioned by the counsel for Great Britain, I also cite an extract from a report by the Superintendent of Trade and Fisheries at Canso in the Gut of Canso between Cape Breton and Nova Scotia dated the 10th November, 1802. This letter is found in the British Case Appendix, on p. 57, and I will content myself by citing it and asking the Tribunal to read the report.

In the book, "Fisheries and the Mississippi," by John Quincy Adams, pp. 211-215, there is a letter from a Mr. Lloyd to Mr. Adams

which bears date the 8th March, 1815, from which I desire to quote the following:

"The shores, the creeks, the inlets of the Bay of Fundy, the Bay of Chaleurs, and the Gulf of St. Lawrence, the Straits of Bellisle, and the Coast of Labrador, appear to have been designed by the God of Nature as the great ovarium of fish; the inexhaustible repository of this species of food, not only for the supply of the American, but of the European continent. At the proper season, to catch them in endless abundance, little more of effort is needed than to bait the hook and pull the line, and occasionally even this is not necessary. In clear weather, near the shores, myriads are visible and the strand is at times almost literally paved with them.

"All this was gradually making itself known to the enterprise and vigilance of the New England fishermen, and for a few seasons prior to the year 1808, the resort to this employment had become an object of attention, from the Thames, at New-London, to the Schoodie; and boats and vessels of a small as well as a larger size, were flocking to it from all the intermediate parts of the United States. In the fishing season, at the best places for catching the cod, the New-England fishermen, I am told, on a Sunday, swarmed like flies upon the shores, and that in some of these years, it probably would not make an over estimate to rate the number of vessels employed in this fishery, belonging to the United States, at from 1500 to 2000 sail, reckoning a vessel for each trip or voyage, and including the larger boat fishery; and the number, if the fisheries were continued, would shortly be still further and very greatly extended."

Also on p. 214 of the same work this statement is found:

"The Coast and Labrador Fisheries are prosecuted in vessels of from 40 to 120 tons burthen, carrying a number of men, according to their respective sizes, in about the same proportion as the vessels on

the Bank Fishery. They commence their voyages in May, 700 and get on the fishing ground about the 1st of June, before

which time bait cannot be obtained. This bait is furnished by a small species of fish called capling, which strike in shore at that time, and are followed by immense shoals of cod fish, which feed upon them. Each vessel selects its own fishing ground, along the coasts of the Bay of Chaleurs, the Gulf of St. Lawrence, the Straits of Bellisle, the Coast of Labrador, even as far as Cumberland Island, and the entrance of Hudson's Bay, thus improving a fishing ground reaching in extent from the 45th to the 68th degree of North latitude. "In choosing their situation, the fishermen generally seek some sheltered and safe harbour, or cove, where they anchor in about sir or seven fathoms water, unbend their sails, stow them below, and literally making themselves at home, dismantle and convert their vessels into habitations at least as durable as those of the ancient Scythians. They then cast a net over the stern of the vessel, in which a sufficient number of capling are soon caught to supply them with bait from day to day. Each vessel is furnished with four or five light boats, according to their size and number of men, each boat requiring two men. They leave the vessel early in the morning, and seek the best or sufficiently good spot for fishing, which is frequently found

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