March 2, 1911

ROBERT BACON.


In this document brought down to the British House of parliament on September, 1909, a reference is made to an understanding entered into on the 27th January of that year, the same date that this special agreement for the submission of these matters to the Hague Tribunal was signed and sealed. And the strange part is that in the document brought down in February no reference is made to any such understanding, and the agreement, as brought down to the Imperial House misht well be misleading so far as the scope of question 5 is concerned. For would not the members of the Imperial House have the right to believe that every question with regard to bays in His Majesty's North American possessions on the Atlantic, was to be settled by that tribunal under question 5? Yet here we have this mysterious understanding which suddenly crops up in this blue-book submitted to the imperial parliament in (September, 1909.


CON

George Eulas Foster

Conservative (1867-1942)

Mr. FOSTER.

The other was February.

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CON

Clarence Jameson

Conservative (1867-1942)

Mr. JAMESON.

Yes, and this was in September, or eight months after the clandestine understanding was arrived at.

I ask the hon. minister why it was that this understanding was entered into, at whose instance, upon whose advice, with whose consent, and who is to accept the responsibility. The minister in effect stated that this understanding was arrived at under his instructions or with his knowledge and consent.

One thing is sure, and that is that this government cannot escape responsibility

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CON

Clarence Jameson

Conservative (1867-1942)

Mr. JAMESON.

for it; because that responsibility is absolutely nailed down by Article 2 of this treaty of 1909, which I have already read, but which I will repeat at this juncture:

His Majesty's government reserving the right, before concluding a special agreement affeoting any of the self-governing dominions of the British Empire, to obtain the concurrence therein of the government of that dominion.

So that it is to be presumed, apart altogether from the statement of the Minister of Justice, that the government had full cognizance of this matter-they were party and privy to it, and the responsibility is entirely upon them for the failure to include the Bay of Fundy in the subjects submitted to the Tribunal under question 5.

I must say that it is a surprising thing to me, notwithstanding the statement of the Minister of Justice, that the understanding was arrived at with his concurrence, that he preferred to have the understanding separate and apart-as I gather from his remarks-from the special agreement itself. I cannot understand the .advisability of that. Here was a special agreement entered into on the 27th of February, 1909,-the documents signed and sealed at Washington on that day. The documents were exchanged between Messrs. Bryce and Root., on the 6th of February, 1909. Up to that time, there was not a word upon the record, or in the document itself that any change had been made or was to be made in respect 4o its scope. Again, on the 16th of February, 1909, we find that the Senate of the United States approves of that special agreement, subject to the exclusion from the operation thereof of the question regarding the Bay of Fundy, the ' innocent passage of the Gulf of Canso,' and some question with respect to Conception Bay. We cannot find out what was said in the Senate of the United States, with regard to this matter, because what went on there, was carried on in camera. There were secret proceedings all Tound. And it was not until the 18th of February, 1909, that 'the injunction of secrecy was raised in the United States Senate from the special agreement between the United States and Great Britain for the submission to the permanent court of arbitration at the Hague, of questions relating to the fisheries of the North Atlantic coast.' That is the record that appears in the congressional record of February 20, 1909, in regard to the Senate of the United States. Now, this understanding, as I have said, was evidently arrived at with the concurrence and by the consent of the government of this country or of its representatives in that behalf.

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CON

George Eulas Foster

Conservative (1867-1942)

Mr. FOSTER.

Were the papers not brought down?

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CON

Clarence Jameson

Conservative (1867-1942)

Mr. JAMESON.

No papers with regard to this subject have ever been brought down, printed and distributed to this House, with the exception-I think I am stating the facts-of this blue-book distributed on the 27th of February last, entitled: ' Papers in regard to differences between Canada and the United States, referred to the Hague Tribunal, also amended fishery regulations ' {in other words, the award of the Hague Tribunal and some fishery regulations enacted thereunder) and a return brought down in response to a motion of the leader of the opposition (Mr. Borden, Halifax), on the 27th of February, 1909, which embraced, I believe, the copy of the special agreement entered into on the 27th of January, 1909. It, however, was not printed. But no correspondence relating to this matter-none of the notes which passed on the 27th of January, 1909, and which varied this special agreement-have been laid before this parliament or so far as the documents in our hands evidence were ever presented to the imperial parliament.

The mysterious part of the matter is, here is a special understanding arrived at on the 27-th of January, 1909, between Mr. Bryce and Mr. Root, excepting the Bay of Fundy from the scope of this inquiry and from the operation of the award. The United -States Senate, according to all the records we have, did not pass upon that matter until the 16th of February, 1909, so we have an agreement on the part of the representatives -of the Canadian government that the Bay of Fundy should -be excluded from the award, actually entered into twenty days before the Senate of the United States demanded it. I say that is a most extraordinary condition of affairs, and is something which certainly needs explaining by the Minister of Justice, or whoever it was had this matter in charge.

It will be observed, also, that, while Mr. Bryce agreed to exclude these questions, of the Bay of Fundy from submission to The Hague Tribunal, he clung to our rights by the paragraph in his letter to which I have alluded. Although the minister has stated, in effect, that he does not Tegard us as having any territorial rights in the Bay of Fundy outside the three-mile limit, I wish to enter now a protest against that statement in the strongest terms possible, because I do not think the statement is one which should go unchallenged. Though a layman, I take that stand, and I trust I shall be supported in it by gentlemen of legal attainments whose opinion on that matter would be worthy of consideration. I feel it would be detrimental to -the interests of the country and detrimental to our interests in any future negotiations we may have in regard to this important bay that the statement should go unchallenged.

In what condition are we placed by reason of this ' understanding ' arrived at on the same day the special agreement was entered into ? Where does that leave us with regard to future arbitration in respect to the Bay of Fun-dy? Are we precluded by it from arbitrating in regard to the Bay of Fun-dy? Are we precluded for any,specific time, by this mysterious understanding of which we get no particulars? Or are we shut out for all time? I -say, these are important questions. The life of the treaty of 1908 between Great 'Britain and the United States, as I have pointed out, is five years from the 4th of June, 1908. It expires on the 4th of June, 1913, that is, there is practically only two years left of -the life of that treaty. I do not know, from any information I have, or can obtain, whether or not we are shut out from arbitrating our rights with respect to the Bay of Fundy by reason of -any ' understanding,' which may have been arrived at between Mr. Bryce and Mr. Root by the consent, and with the concurrence of the government of Canada or their representative.

What the toiling fishermen of the Bay of Fundy shores want to know is, what are the Canadian rights in the Bay of Fundy. Are they certain or are they indefinite? Are they exclusive, or are they otherwise? If indefinite, when will the government ever have another opportunity -such as they had in 1909, to clear up -the question and settle it for all -time ? If our Tights are exclusive does the United States recognize them as such, and does the government of Canada intend to enforce our rights in that regard? Two considerations hang upon this, if the Bay of Fun-dy is British territorial waters, the government of Canada can first exercise supervision and control of these fisheries from shore to shore. And, secondly, that the fishermen of the world can be excluded from the benefit of those fisheries.

1 have heard it stated in this House by supporters of the government that the fishermen of the maritime provinces are going to serve as recruits for the Canadian Naval Service. Sir, I believe that the fishermen of the Atlantic coasts of Canada will always be found ready and willing to do their duty to their country whenever they are called on. Of that I am absolutely confident, and I do not think it needs assertion or reassertion. But, Sir, what I say is, that if the fishermen of the maritime provinces are to be expected to recruit our navy, if they are to be expected to come to the rescue, the defence, and protection of Canada and Canadian interests, surely it is the duty of the government to guard and protect their interests when they are entrusted to them, as they were on the occasion to which I have alluded. In that connection the government has absolutely failed of its duty. It was the most complete backdown in matters diplomatic which has ever taken

place in connection with any Canadian affair. The people of this country wish to live on friendly terms with the people of the United States, of that there can be no question whatever. The two peoples are sprung largely from the same stock, speak pretty generally the same language, have largely the same laws, literature and customs, but with all that I believe that the people of Canada would hesitate to purchase that friendship at the cost of their rights as British subjects in our own fisheries. I believe that the people of Canada will shut their eyes to irregularities in different departments of government, that they will even shut their eyes to worse than extravagance in that connection, but if I know their temper and their mettle they are not likely to tolerate a sacrifice of their national interests either through weak-kneed diplomacy, or through the inefficiency of this or any other government; and so far as the documents I have inspected give me light on this subject, the government of this country has absolutely failed of its duty in connection with the Bay of Fundy, and with the preservation of the rights of our fishermen in that most important bay.

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LIB

Allen Bristol Aylesworth (Minister of Justice and Attorney General of Canada)

Liberal

Sir ALLEN AYLESWORTH (Minister of Justice).

When my hon. friend in the course of his remarks asked an answer to a question not long ago, I made an answer, which was possibly longer than it ought to have been. I understand it was long enough to lead to complaint of its length on the part of the hon. gentleman. That was my fault, my misapprehension, I suppose, because I had in all sincerity taken it that the question was asked because he wanted information. I think he has made it evident enough that it was not information that he was seeking, but rather some foundation, if by any possibility, even a foothold or a toehold for it could be obtained, for making an attack on this government, and I am agreeably disappointed in the gravamen of the complaint which is made by the hon. gentleman. The hon. gentleman gave notice last night that to-day he would discuss some points in connection with this award. The points in connection with the Hague award are literally too numerous to mention. A matter that took the better part of the summer for discussion and in respect to which the award itself, which is probably as compendious a summary of the points involved as could possibly be put upon paper, and'which extends over the number of foolscap pages this award occupies, is of such a character that to speak of some of the points in regard to the case, is like saying that all the words he intends to use would be found in an unabridged dictionary. Thus, I was not able to refresh my memory on particular points or to bring with me the papers Mr. JAMESON.

bearing on the matters to be brought up. The burden of the hon. gentleman's complaint is that the government is very seriously to blame because something or other has been lost or has been given away or somebody's case has been weakened or prejudice has in some manner or another arisen out of these recent proceedings in regard to the rights of Canadian' fishermen in the Bay of Fundy. The answer to that is very simple, very brief; the answer is simply that whatever such Canadian rights were before this arbitration was entered upon such and no less are Canadian rights to-day since this arbitration is ended and an award has been made. The reference to arbitration did not touch the Bay of Fundy one way or the other, and the notes which were exchanged between Mr. Bryce and the American authorities on that subject pursuant to the verbal arrangement in that behalf which had been entered into, say in so many words that nothing in connection with these proceedings is to prejudice the rights of either party or the contentions which either party is at liberty to make in regard to the effect of the treaty of 1818 upon the Bay of Fundy. Surely nothing can be plainer than the position in which matters with regard to the Bay of Fundy are left by that arrangement. There was no arbitration about the Bay of Fundy, that is all that has happened in regard to it. There was arbitration in regard to the remainder of our bays, and whatever position the Bay of Fundy was in before this agreement to have an arbitration was entered into, in that identical position the Bay of Fundy is to-day unless it may be, as I think it may well be, that the position of Canada in regard to that bay is made stronger by the success which Canada's contentions have had before the tribunal last summer.

It is all very well for the hon. gentleman to deplore the fact that the Bay of Fundy was excluded from the arbitration of last summer. The position which was taken by the United States with regard to that sheet of water was simply: We will not arbitrate about it. It takes two people to make a bargain, it takes two people to make an agreement to arbitrate just as much as it takes two people to make any other agreement and with the United States saying: We will not submit any question to The Hague Tribunal with regard to the Bay of Fundy, the position of Great Britain was just simply this: Will we arbitrate with regard to the other bays, will we arbitrate with regard to the other question? which are in issue, leaving any question with regard to the Bay of Fundy untouched by this arrangement for arbitration? The hon. gentleman may have the opinion that it would have been wiser for Great Britain to have refused to arbitrate at all than to have entered into any submission to arbitrate when the Bay of Fundy was excluded

from that submission. He is entitled to that opinion if he entertains it. Speaking for myself, I entertain exactly the opposite opinion, and I think it was a vast advantage to this country to obtain the submission of the leading, in fact, all the questions which had ever, in the course of ninety years, arisen with regard to this treaty, even although we did not at the same time get the decision made applicable to the Bay of Fundy. We have not in any degree lessened our rights in the Bay of Fundy. The agreement which is made with regard to that piece of water and the notes which have been referred to expressly declare that the rights or claims of Canada are not to be prejudiced as far as the Bay of Fundy is concerned by anything which takes place in this arbitration. Equally the rights and claims of the United States with regard to that bay are preserved and kept from being prejudiced by this arbitration. It was, as I said when I was on my feet a little while ago, simply made, on the part of the United States, a sine qua non of entering into this arbitration that nothing with respect to the arbitration should affect the position of either party with regard to the Bay of Fundy. I am not concerned, I think, in discussing the effect of the correspondence of 1845 and of the earlier years with regard to that bay. I am perfectly aware that the effect of that correspondence is a matter about which a good deal can be said on either side, and from more than one point of view. If the hon. member will take the trouble to peruse the oral argument which took place last summer at The Hague he will find pages and pages of discussion by the learned gentlemen on both sides of this matter devoted entirely to a minute and critical dissection and analysis of all the correspondence which culminated in the letter of 1845 written by Lord Aberdeen. The attitude of both parties in the previous years in the course of the prolonged diplomatic discussion, while it related immediately to the Bay of Fundy, had the most important possible bearing upon the general question of the interpretation of this clause of the treaty, and just for that reason every word, I may say every letter, of that long diplomatic correspondence was scrutinized with the utmost care, was presented before the tribunal and was discussed over and over again on both sides of the question by the various counsel who were concerned in the case. In those circumstances I should be a very bold man if I were to express my own opinion in so far as I have formed one as to the effect of that correspondence, and it would not, in any circumstances, be fitting that I should do so. The hon. gentleman indicates the opinion of it which he has and he believes that there is nothing in it which in anv way precludes Great Britain or

Canada asserting to-day the right to exclude the fishermen of the United States from the whole Bay of Fundy. That may be so, but if that is a matter which is ever to be again in debate between the United States and Canada I think it would not be desirable that I, at any rate, whatever other hon. gentleman may see fit to do, should discuss it in this House, or express an opinion with regard to it.

At six o'clock, House took recess.

After Recess.

House resumed at eight o'clock.

PRIVATE BILLS. '

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CONSIDERED IN COMMITTEE-THIRD READINGS.


Bill (No. 101) respecting the Huron and Ontario Railway Company.-Mr. Sealey. Bill (No. 106) to incorporate the Lake Erie and Northern Railway Company.- Mr. Harris.


SECOND READING.


Bill (No. 126) respecting the Quebec, Montreal and . Southern Railway Company.-Mr. Fortier. SUPPLY-HAGUE ARBITRATION;


ATLANTIC FISHERIES.


The Order for Public Bills having expired, the House resumed the adjourned debate on the motion to go into Committee of Supply.


LIB

Allen Bristol Aylesworth (Minister of Justice and Attorney General of Canada)

Liberal

Sir ALLEN AYLBSWORTH.

When you left the Chair at six o'clock, Mr. Speaker, I had shown, I think conclusively, that whether or not Great Britain gave away the Bay of Fundy in 1845, we certainly did nothing in the nature of giving away either the bay or any contention with regard to the bay when we entered into the arrangement for arbitration on the subject of the fisheries, two years ago. But the hon. gentleman who addressed you this afternoon makes the complaint as well that the reservation of the rights of the respective parties with regard to the Bay of Fundy which took place in 1909, was something secret, clandestine, mysterious, which nobody can understand. Well, I do not know what the grievance is if that were so. It is not so as a matter of fact; there is not a particle of foundation for it that I am able to discover anywhere. But if it were so, who is injured by it? What is the grievance? What difference would there have been if it had been published in all the official gazettes between here and Kamschatka? The arrangement was entered into in the shape of an interchange of notes between the British embassy and the United States Secretary of

State simply as a means of recording the agreement which had been come to. An agreement of any kind does not take shape at once, as any one knows who has had anything to do with the practical work of framing an agreement between parties. Ordinarily it is built up piece by piece and by slow degrees; always it must be preceded by either verbal negotiations or written communications between the parties, and in this instance, just as in the case of the most ordinary business agreement which might be entered into between any two men, there were a great many verbal communications on the subject of what should be submitted to arbitration, between the British Ambassador, on the one part, and representatives of the United States Department of State on the other part. Ultimately, out of these negotiations and .communications there came to be something put into writing as a proposed draft of, it may be the terms which were embodied in the formal document of agreement to arbitrate, or it may be at first of the questions which it was proposed to have submitted-I cannot say which, as a matter of memory. It was the subject of communication backward and forward between the different people who were interested in the matter for months before the final meeting in January, 1909, at which the terms of the agreement were definitely put into their last shape. It had been an understanding more or less distinct, for more than a year before that, that these differences would be referred to arbitration before a tribunal at the Hague. At the Imperial Conference of 1907, Sir Robert Bond, then First Minister of .Newfoundland, asked the help of his colleagues from the sister colonies in the effort to get these differences settled. It is to be remembered that Canada had at that time, no question of acute difference with the United States with regard to the fisheries. Canada had been getting along for 20 years or more under the modus vivendi of 1888, and there had been, so far as I at present recollect, not a single dispute, unless it might have been some letter or protest about some more or less trifling matter which may have occurred in that interval. But in 1907 things had come to be in a very acute condition between the United States and Newfoundland, and Sir Robert Bond asked his fellow-members of the Imperial Conference to exert their influence and assist him with the British government in an effort to get these 'difficulties referred to arbitration at the Hague. Finally, perhaps some time during the year 1908, it came to be understood or more or less definitely agreed, that the matters would be referred to a tribunal to be arranged out of the members of the Sir ALLEN AYLESWORTH.

permanent court at the Hague. Then the question arose of what points should be submitted to this tribunal. Any agreement for arbitration would of course be between the United States on the one part, and on the other part, not Canada, not Newfoundland, but the whole British Empire; and the British government was not merely theoretically but literally taking charge of the work of the negotiations for this refer-once to the Hague. Communications were had from time to time with this government in Canada, and we were kept informed of what was going on, and the proposed drafts of submission to arbitration were from time to time forwarded here whether those drafts were proposed on the part of the British Ambassador, or on the part of the United States. I cannot now, speaking from memory, state at what stage of the matter the first reference to the Bay of Fundy appeared; but I am quite sure that it was at a very early stage of the efforts to frame the questions which should be submitted. It was Canada which was mainly interested in having settled the question as to the bays. Quite true, Newfoundland was interested in that question also. They have many large bays upon their eastern coast and upon the eastern half of their southern coast, in regard to which it was their contention, just as it was ours in Canada, that in the treaty of 1818 the United States renounced their' right to fish. But the question of the bays, so far as Newfoundland was concerned, was not presented as being of the first consequence. To us it seemed probably the most important question of any which had been suggested, so that from the first time that Canada had anything to do with suggesting questions which ought to be included among those to be submitted to arbitration, the question which now appears in the list of questions as number 5-how the 3-mile limit is to be measured, or, in other words, what are the bays from which the United States fishermen are to be excluded-always had a place. That was in the first draft that went from Ottawa in connection with this matter; and it always remained there in some shape or other until its final inclusion, when the agreement to arbitrate was settled two years ago. As soon as that question appeared upon any draft going from here, I venture to say, speaking from recollection, the United States at once said: Very well, we have no objection to arbitrate that question with you, but it must not affect our position with reference to the Bay of Fundy, that question must not include the Bay of Fundy; we are not prepared to arbitrate with reference to the Bay of Fundy. And let me remind the hon. gentleman who has spoken that there is a great deal of reason in that position.

Without saying anything as to the true

meaning of the arrangement with regard to the Bay of Fundy which was made in 1845, this at all events is certain as a matter of history, namely, that from the time when that letter of Lord Aberdeen was written in 1845 up to the present, no one on the British side has asserted a right to exclude the fishermen of the United States from that Bay. Whether or not that be what the letter means, that is what has happened. The United States fishermen, ever since that letter was received by them from the British government, have exercised what they call their right to fish in the Bay of Fundy, and no attempt has been made to prevent the exercise by them of that right. Sixty and odd years had gone by when, in 1909, we were framing a submission to arbitration. Was it unreasonable on the part of the United States to say to us: We will arbitrate, if you like, with regard to the bays which you say we are excluded from, but we will not arbitrate with regard to the Bay of Fundy. There are no differences to arbitrate with regard to that bay. There have been no quarrels regarding it ever since 1845. What, then, was there to arbitrate? If we had resisted their demand that the Bay of Fundy should not be included, and if they had taken the position I have just mentioned, what answer could we have given? It is all very well for hon. gentlemen opposite to cry out now in the light of our victory and inquire why we did not include the Bay of Fundy and succeed as to that as well as to the1 others, but the fact is we had been making no claim to exclude the fishermen of the United States from that bay for sixty-four years when this treaty of arbitration was entered into. There was, in fact, no question then outstanding with regard to it.

As the United States took the position that they did not intend to submit any question with regard to the Bay of Fundy to arbitration, there was no other course left if we were to have an arbitration at all than to arbitrate the remaining questions which had arisen, some before 1845 and some later and some of which were of pressing, practical importance.

Then, the manner in which the understanding was expressed that the Bay of Fundy was not to be included in the arbitration seems to me a matter of very trifling consequence. It had been originally proposed as an independent article of the agreement to arbitrate. It appeared in this draft agreement to arbitrate which reached us from Washington. I do not know which side framed it, and I do not suppose there was any dispute about it. It was simply a couple of lines saying that this agreement to arbitrate was not to affect the claims of either party in respect of the Bay of Fundy. That was the position of the draft, or proposed terms, of the arrangement- in January, 1909, when I went to Washington in order to get the matter brought to a final termination. In the verbal discussions we had over the subject it was, as I have said, myself, I think, who suggested that instead of having that clause on the face of a formal instrument it would answer every purpose and be better if put into the shape of an exchange of letters between the British ambassador on the one part and the United States Secretary of State on the other. That form of expressing a collateral understanding, or agreement, is a very common one among lawyers when for any reason it is thought preferable by either party not to express on the face of a formal instrument some understanding or provision. Instead of doing this, letters expressing such understanding are interchanged between the parties, and are of equal weight. This is done just as a matter of convenience, or probably because some one connected with the affair expresses a preference to have it that way. Everybody else agreed, and it was done accordingly. My hon. friend (Mr. Jameson) thinks, however, that there was something terribly mysterious about this, that it was secret, clandestine and improper. _ Well, one hears a good deal on some occasions of such expressions. I suppose they are intended to impress somebody ot other somewhere in the country with the idea that things are done in a sort of underhand fashion. I do not know for what other purpose such charges are made or such expressions used in this House. Similar charges might be made regarding the most ordinary transactions. If two men enter into a bargain in every-day life, do they unnecessarily publish it abroad? Why should they? If any lawyer, making an agreement between his client and the client of a fellow-practitioner, were asked that this agreement or the pourparlers which preceded it should be published in the newspapers, he dare not consent under penalty of losing his practice. If he. did consent, nobody would go to him. Why on earth should we act differently in public affairs? Again, let me remind the hon. gentleman that it was not Canada making this agreement with the United States. This agreement was, not only in terms and name, but- literally, the agreement of His Majesty under the advice of his own advisers in Great Britain. It may be said that it was the home authorities who led Canada and Newfoundland into this difficulty. It was certainly they who got them out of this difficulty. They made it, as they might very properly do, their own matter, and this treaty, or agreement, of arbitration was entered into by them through their ambassador. It is perfectly true that they consulted Canada and Newfoundland and acted with the concurrence

of these colonies, but it is none the less true that they acted upon their own view as to what was right and proper.

The hon. gentleman says that nobody knew of this agreement until it appeared in a British blue-book in September, 1909. He might quite as well have said that it appeared contemporaneously in the printed appendix to these proceedings, and, as a matter of course, was open to any one to read who was interested enough to look through the volume. It is something which took place contemporaneously with the signed agreement; to arbitrate, and the documents show on their face the nature of the circumstances which led to that agreement being entered into. The agreement to submit these differences to arbitration was signed on the 27th January, 1909, between Mr. Root and Mr. Bryce. I may now say that another understanding, which is not expressed in this agreement, an understanding verbally expressed, was that it was not to be acted upon unless the government of Newfoundland afterwards assented to it. It was of great importance that it should be signed at the time it was, the 27th January, 1909. Mr. Root was leaving office immediately after affixing his signature to this document, and it was he who had negotiated on the part of the United States the whole matter from the beginning.

He was the man who had conducted the diplomatic correspondence with Sir Edward Grey in connection with these disputes for years before 1909; and, this being something which he was, on the part of the United States, more familiar with than any other single person, it was certainly of some consequence to get it closed, if possible, before his final retirement from the official position of Secretary of State. He resigned immediately after the signature of this document. It had been, up to that date, impossible to submit the document in its final shape to the government of Newfoundland. The Attorney General of Newfoundland was in Washington, but he was insisting that it should be submitted to his first minister, Sir Robert Bond, and, although the document was actually signed by Mr. Bryce and Mr. Root on the 27th January, it was with the understanding that it would not be acted upon unless and until it had the approval of Sir Robert Bond and of his government. Receiving that approval, in due course it came to be submitted to the Senate of the United States; and, being so submitted, at some date before the 21st February, 1909, within the next three or four weeks after it was signed, the Senate agreed to it' only upon the condition that all question with regard to the Bay of Fundy should be excluded. The Senate made that an integral part of their acceptance of this arrangement. The resolution is worded:

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LIB

Allen Bristol Aylesworth (Minister of Justice and Attorney General of Canada)

Liberal

Sir ALLEN AYLESWORTH.

It is agreed by the United States and Great Britain that question 5 of the series submitted namely, ' from where must be measured the three marine miles of any of the coasts, bays, creeks, or harbours referred to in said article,' dees not include any question as to the Bay of Fundy, considered as a whole apart from its bays or creeks.

Then, there is the reference to innocent passage through the gulf of Canso and to the respective views or contentions of the United States and Great Britain not being in any-wise prejudiced by anything in the present arbitration, ' and this agreement on the part of the United States will be mentioned in the ratification of the special agreement, and will, in effect, form part of the special agreement.' So, the Senate of the United States, having given its assent to this matter being sent to the Hague only on the terms of that resolution; it became absolutely necessary that the resolution should be notified officially to the government of Great Britain as one of the terms of the ratification. It was in that way that these notes were exchanged between Mr. Bacon, who, by that time, had succeeded Mr. Root as Secretary of State, and Mr. Bryce. Mr. Bacon wrote his letter immediately on the resolution being passed on the 21st February to Mr. Bryce, stating:

In giving this advice and consent to the ratification of this special agreement, and as a part of the act of ratification, the Senate states in the resolution its understanding

the effect of which I have already given. Mr. Bryce, having received that letter on the 21st February, when he came, under the proper authority from London, to exchange the formal ratification of the agreement with the government of the United States, wrote his letter of 4th March, 1909, to Mr. Bacon in which he acknowledged the receipt of the letter of 21st February and proceeded to say that the British understanding of the situation with regard to the Bay of Fundy was exactly that which was expressed in the resolution of the Senate. These notes having been exchanged between the representatives of both nations and the agreement to refer this matter to the Hague having been ratified and entered into only on the condition that anything resulting from the arbitration should prejudice in no way the claims of the United States to the Bay of Fundy-and equally should prejudice in no way the claims of Great Britain in regard to the Bay of Fundy-who is hurt by it? What foundation is there in fact for the charge of the hon. gentleman that there has been some dereliction of duty on the part of this government in not having the Bay of Fundy included, and the Bay of Fundy settled? It was simply in the position that the United States was willing to arbitrate other ques-

tions, but refused to arbitrate that one, saying that there was nothing to arbitrate in regard to it, and the whole question for determination was whether we would arbitrate all the rest-which were the only things we were quarrelling about-leaving the Bay of Fundy in regard to which there had been no question of difference for nearly seventy years, on one side, I think we should have been very remiss in our duty, if we had insisted on making the inclusion of the Bay of Fundy a point in this matter, if we had endeavoured to waken up questions which had remained absolutely quiescent for nearly seventy years in regard to the Bay of Fundy and had made the inclusion of them a condition precedent to entering into arbitration with regard to the others. As I have pointed out, nobody has been in any way damnified by the fact that the Bay of Fundy has not been included in this arbitration. The condition in regard to it remains exactly what it was five years ago-not any worse certainly for us; I think it is a good deal better, because the result of the award having been to confirm our contention in regard to bays generally, it has gone a very long distance toward confirming the like contention about the Bay of Fundy if we are in a position to set up that contention about the Bay of Fundy. The hon. gentleman (Mr. Jameson) thinks we are, upon his view of the correspondence of 1845. It may be so; I am not disputing it for a moment. I know that other people take a very different view. I know the United States takes a very different view. I know that ever since 1845 the United States has treated that letter of 1845 as an absolute concession to them on the part of Great Britain of all their contentions in regard to the Bay of Fundy. I am not saying they are right in doing so; I am only stating as a matter of fact that they have done so all these years. Now, if at any time it is thought desirable on the part of Canada to revive the contention which Nova Scotia made before 1845, to reassert in 1911, or at any subsequent date, the position which Nova Scotia took in 1841 and the subsequent years, there is nothing in the arrangement for this arbitration of last summer to interfere in the least degree with their doing so. Whether or not it would be desirable that it should be done is for hon, gentlemen to consider. Let me say in that connection that I think there are a great many other things to be considered than those which have been mentioned this afternoon. And, whatever there may be to be considered now, there were a very great many more to be considered two years ago.

It is always very easy to be wise after the event, but I ask hon. gentlemen to reflect upon the position matters were in in

January, 1909. I am able to say I think, having followed the course of these proceedings day by day and hour by hour last summer with the keenest interest, that with things as they were, our success upon this important question of bays was a close enough affair. There were five members of that tribunal, one of whom in the end was adverse; of the other four members of that tribunal one was the representative of the United States. Looking at the situation as it existed before the argument and before any indication of opinion had been given by the arbitrators on the subject of bays, it was reasonably manifest that the fate of our bays depended upon one of the five arbitrators who was not a representative of either of the nations interested, and it was certainly, on the part of all the counsel or lawyers who were engaged in the case, a matter of not only the greatest doubt and anxiety, but literally of the greatest uncertainty until the very moment when the award was handed out what the decision on the subject of bays would be. We were undertaking a pretty heavy task, when, in the face of the declared policy of the British government in regard to the non-territoriality of European bays which are more than six miles across we were undertaking to argue that great bays like the Baie des Chaleurs, 16 miles across at the entrance, were territorial, inland, closed waters to which other nations had no right of access, and I say again, as I said before when I was speaking three months ago, that in my opinion we are vastly indebted to the ability, the learning and the skill of the Attorney General of England and his argument before the tribunal that we succeeded upon our bays at all. Looking at the situation as it existed when this agreement of arbitration was being negotiated in 1909, I am certainly by no means prepared to say that it would have been a wise thing for us to have asked that the Bay of Fundy should have been included, that it would have been a reasonably prudent thing for us to have included the Bay of Fundy in the subjects for submission to the tribunal at the Hague, and looking at it to-day, after the event, and in the light of what took place during the argument, and of the words in which the award itself is made, I am glad that we got through that arbitration without the Bay of Fundy being included and without having had to have the burden of proving that a sheet of water 60 miles in width at its entrance was a territorial bay of Great Britain.

Topic:   WAYS AND MEANS-RECIPROCAL TRADE WITH THE UNITED STATES.
Subtopic:   ATLANTIC FISHERIES.
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CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BORDEN (Halifax).

How does its width compare with that of Placentia bay?

Topic:   WAYS AND MEANS-RECIPROCAL TRADE WITH THE UNITED STATES.
Subtopic:   ATLANTIC FISHERIES.
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LIB

Allen Bristol Aylesworth (Minister of Justice and Attorney General of Canada)

Liberal

Sir ALLEN AYLESWORTH.

Speaking from memory I am not able to say, but of course it would depend entirely on where you marked the entrance to Placentia bay.

Topic:   WAYS AND MEANS-RECIPROCAL TRADE WITH THE UNITED STATES.
Subtopic:   ATLANTIC FISHERIES.
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CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BORDEN (Halifax).

I mean the entrance as marked by the tribunal?

Topic:   WAYS AND MEANS-RECIPROCAL TRADE WITH THE UNITED STATES.
Subtopic:   ATLANTIC FISHERIES.
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LIB

Allen Bristol Aylesworth (Minister of Justice and Attorney General of Canada)

Liberal

Sir ALLEN AYLESWORTH.

Again I am not able to say from memory what the length of the lines would be across Placentia bay, which the tribunal has recommended the parties to adopt. The hon. gentleman, of course, will not overlook the fact that the tribunal has decided nothing in regard to Placentia bay, but has recommended simply that the parties interested should adopt certain lines which it has defined.

Topic:   WAYS AND MEANS-RECIPROCAL TRADE WITH THE UNITED STATES.
Subtopic:   ATLANTIC FISHERIES.
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March 2, 1911