March 2, 1911

CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BORDEN (Halifax).

In what respect has it not decided with regard to Placentia bay what it has decided with regard to the Baie des Chaleurs?

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.

The position in regard to Placentia bay is the same as in regard to Baie des Chaleurs, the tribunal has not undertaken to pronounce any piece of water to be a bay but it has declared in answer to the question how the three marine miles mentioned in the treaty are to be measured that when you are dealing with bays, you ought to treat as the entrance of the bay the place where the bay first loses the characteristics and configuration of a bay, and contenting itself with making that general answer that you are to mark as the entrance to the bay the point at which if you were proceeding seaward, you would first cross the line which would mark the situation where the bay( ended or where the characteristics and configuration of the bay came to an end, the tribunal has proceeded to recommend that certain lines be adopted across Placentia bay, Baie des Chaleurs, Bay Miramichi and the other large bays in question.

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).

Having regard to the general character ol the award what would have been the danger of including the Bay of Fundy in the terms of the submission?

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.

The idea was as I have stated that it would have increased the burden of difficulty upon us which was already heavy enough; it would have been certainly the largest of the bays we would have had to contend for, and would have given our adversaries opportunity to point to it as being the thing we were contending for and to say to the tribunal: Is it possible to hold that that

sheet of water is territorial and not open sea? In making that argument, the United States would also have had the advantage of the concession, whatever it was, which was made in 1845, and if the Bay of Fundy had been included as a thing to be arbitrated upon, the United States would have been able to point with the utmost confidence to the course, which Great Britain had herself taken in regard to that Sir ALLEN AYLESWORTH.

bay in 1845 as being not only an indication of willingness to give up all further contention about the Bay of Fundy, but equally an indication of willingness to d.o the same thing in regard to other bays, if the Bay of Fundy had been before the tribunal in the same category with the remaining bays upon the coast. I venture to think our position was better before the tribunal without any reference to the Bay of Fundy being included in the matters for decision, the arrangement being that nothing in the proceedings should prejudice our claims with reference to the Bay of Fundy or the claims of the United States in reference to the Bay of Fundy. That bay was simply put upon one side.

It could be referred to for the purpose of illustration and for matters of argument, but it was not anything that we were fighting over upon that particular occasion. We are not in the least degree precluded from fighting over it as a separate matter, if at any future time it is thought desirable to do so. But, before that course could be taken, either two years ago, or at any future time, you have first to get the consent of the British government, and, secondly,, the consent of the government of the United States. It is not for me to offer any opinion as to what course the British government would take, if they were asked by Canada to raise now the old question with regard to the Bay if any such proposition were now made by 1845. I have not any doubt, however, that if any such proposition were now made bv Canada to Great Britain, the exact language of the letter of Lord Aberdeen in 1845 would be carefully considered and no British statesman of to-day -would, for a moment, be willing to recede at all from what, nj his opinion, the fair meaning of that letter may have been. But, if the British government agreed with us, that it was desirable to arbitrate now any question with reference to the Bay of Fundy, it is plain surely that the assent of the United States to such an arbitration is equally necessary, and unless the United States were put in such n Position by reason of seizures in the Bay of Fundy or by reason of. our seeking by active means to exclude their fishermen from that bay, that they felt it a matter if importance to them to go to arbitration with regard to it, I am not able to see what other inducement would exist for them ever to agree to any arbitration in the world about it. They are perfectly content with the present situation. My hon. friend thinks that the letter of 1845 does not mean any more than a temporary relaxation of the right of Great Britain with regard to the bay. The United States is-, at any rate, quite content with its present situation upon the language of the letter and the manner in which, since the letter was written, the fisheries of the Bay of Fundy have been

administered by Great Britain and by Canada. The bon. gentleman urged that the effect of these contemporaneous letters upon the agreement to arbitrate was, in his judgment, greatly to weaken the .case of Great Britain. I have tried to show why I think that is not so, but I am quite willing to let it go in the shape in which the hon. gentleman put it. He thinks that our arranging to leave the Bay of Fundy out greatly weakened our case. Be it so, weakened as it was, our case was strong enough to succeed.

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

Clarence Jameson

Conservative (1867-1942)

Mr. JAMESON.

The hon. minister misunderstood me. I said that the omission of the question of the Bay of Fundy would weaken any future case which we might desire to press, with regard to the Bay" of Fundy.

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.

If the hon. gentleman, when speaking of the case being weakened, was not referring to the case which has been already arbitrated, I have nothing additional to say. As to the future, I think I have plainly enough shown and that the language of the document abundantly establishes that nobody's case is weakened any, but that on the contrary, the reasons for the decisions which have been given by the arbitrators in their considered judgment, certainly do not weaken, but rather strengthen any claim which we may now put forward with regard to the Bay of Fundy. They have, as the hon. gentleman himself has pointed out, in the extracts which he has read, used words which might fairly be applied to the Bay of Fundy, and which in any future arbitration, if any future arbitration ever exists, could certainly De used as a strong argument in favour of the contention that the Bay of Fundy is territorially altogether British.

With regard to the animadversion which has been made with respect to the papers not having been brought down, I am utterly astonished. There has never been the slightest idea on the part of anybody of keeping back papers. There is certainly nothing to keep back. While the matter was yet under consideration before the tribunal, however, probably a different situation would have arisen had anybody asked for papers. As I have said, it was the British government conducting this arbitration, literally and entirely so. They were in charge of it and anything we had to do, was under their direction. I was attending there not only in the capacity of a member of the government of Canada, but as the agent for Great Britain, under the appointment of Sir Edward Grey, responsible to him, reporting to him periodically during the arbitration, and the arbitration was in every sense of the word conducted on the British

side by the British government assisted, ns far as it was possible, by the governments of Canada and of Newfoundland. I may say to the hon. gentleman that long after this arrangement or agreement to arbitrate was entered into, even down to the 1st of June, 1910, when the actual oral argument began, the British government placed its prohibition upon this government and, I have no doubt, upon the government of Newfoundland as well, against the making public of any papers in connection with the case. Even the documents and the case which were printed and interchanged between counsel and between the governments on the 1st of October, 1909, were held as confidential. Only a few copies were in Canada, and these copies were under the strictest injunctions of confidence or secrecy down to the very day of the beginning of the oral proceedings at the Hague. I was not myself, able to understand the necessity for these injunctions of secrecy, hut they were given me personally and given to others in the strictest possible manner, and for reasons which were considered sufficient, the British government preferred to insist upon the papers in connection with this matter remaining of a confidential nature, until the actual hearing of the case had begun. In these circumstances, if any application for the production of these papers had been made twelve months ago, it is quite possible that it could not have been acceded to. But, im the absence of any suggestion from any person of a desire to have these papers brought down to examine them or to look into them, or even a verbal request to see them, I do not understand upon what principle it is that the hon. gentleman now complains that the government has been remiss or has been attempting to hide something or to keep back from the information of the public, any of the papers in connection with this matter. No cause whatever, exists for seeking to attach to this government or to anybody, any blame in connection with the preparation or custody of these papers or the exclusion of the Bay of Fundy from the arbitration. Nobody has been in the least degree injured by it, and the whole gist of the complaint is, that whereas we submitted seven questions to the tribunal, we did not submit an eighth question in regard to the Bay of Fundy which would have been one in reference to which the United States told us distinctly they had nothing to arbitrate, and would not consent to any submission.

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

James William Maddin

Liberal-Conservative

Mr. J. W. MADDIN (South Cape Breton).

Mr. Speaker, it is much to be deplored that the Minister of Justice did not reply to the able argument of the hon. member for Digby (Mr. Jameson) in the urbane and dignified manner which usually characterizes him. I cannot understand why the

Minister of Justice should charge the hon. gentleman (Mr. Jameson) with attempting to get a toehold of him in this debate; I cannot appreciate by what process of mental gymnastics or' intellectual athletics the minister should introduce a toehold into a debate on arbitration before the Hague Tribunal. I submit, Sir, that the hon. member for Digby, realizing that the wealthy and important [DOT]fisheries of the Bay of Fundy had been withdrawn from submission to the Hague, owed it to his constituents, to the people ,of his province, and to the whole Dominion to endeavour to ascertain the true reason why the Bay of Fundy was excepted pnd to fix the responsibility. The Minister of Justice complained that short notice had been given him, but I would remind the minister that when he saw that a paragraph appeared in the speech from the Throne attaching what I .consider a great deal of undue importance to this decision, and when on the 2nd of December he rose as Minister of Justice in this House to describe the proceedings before the tribunal, he did not give notice beforehand that he would do so, nor has he up to the present hour placed before this House the docu ments in connection with this alleged important arbitration.

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

Louis-Philippe Brodeur (Minister of the Naval Service; Minister of Marine and Fisheries)

Liberal

Mr. BRODEUK.

When the Minister of Justice made his statement on the 2nd of December he laid on the table a report of the proceedings before the Hague Tribunal.

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

James William Maddin

Liberal-Conservative

Mr. MADDIN.

All of which had been published in the press a long time before. My complaint is that on the 2nd of December when the minister discussed the treaty under which the tribunal was constituted, and the special agreement, he pointed out that the Bay of Fundy had been excluded, and he offered reasons why, but he did not submit to the House previous to that date a copy of the agreement, nor the correspondence under which the signed agreement was interchanged between the plenipotentiaries, or the correspondence concerning the final confirmation and ratification of the agreement as executed by Mr. Bryce and Mr. Bacon. I point out that article one of the treaty of the 4th of June, 1908, provides:

Differences which arise of a legal nature or relating to the interpretations of treaties between the two contracting parties and which it may not have been possible to settle by diplomacy shall be referred to the permanent court of arbitration established at the Hague

Now, Mr. Ewart, K.C., in his letter to the press points out that the important functions discharged by the Minister of Justice, were the constituting of the Arbitration Committee of the Hague Tribunal, and framing the questions which were to be submitted to it, and there certainly being differences with regard to the Bay of Fundy why were they not submitted under article Mr. MADDIN.

one of that treaty. When the Minister of Justice spoke on the 2nd of December he was not obliged to explain why the Bay of Fundy had been excluded, but he did undertake to offer reasons, although he did not furnish to the House the documents which should have been furnished long before, and which he says were preserved with the greatest secrecy. Let me tell him that one of these very secret papers was laid before the imperial parliament, printed in September, 1909, and offered for sale by the King's Printer in Great Britain at a penny a copy. This was one of the documents, which according to the Minister of Justice, no one was to look at until June of 1910. But, the Minister of Justice not having laid these documents before the House on the 2nd of December, he got before the Canadian Club at Ottawa, and he offered them explanations in regard to the efficiency of this award.

He went before the Barristers' Society in Osgoode Hall in Toronto, and there again extolled the virtues of this splendid piece of arbitration at the Hague. Now,

I submit that it was not incumbent upon him to offer any reason why the Bay of Fundy had been excepted; but when he * did take it upon himself to explain how it was that it had been excepted, I submit that it was his duty to take this House into his confidence and tell them the true and correct reason. He did not do it when he spoke here on the 2nd of December; he did not do it when he addressed the Canadian Club; he did not do it when he spoke before the Bar Society of this province at Osgoode Hall; but he did it tonight in his effort to reply to the hon. member for Digby. When this matter was under discussion by the hon. minister on the 2nd of December, speaking of the Bay of Fundy, he said:

The colonists of Nova Scotia, I have no doubt, felt their case immensely strengthened and thought they would have behind them all the prestige and power of the British government itself in defending the claim they were making to the Bay of Fundy as part of their territorial waters. But in 1845, the Lord Aberdeen of that day, then Foreign Secretary of Great Britain, wrote a letter which had been prepared as a piece of diplomatic correspondence, after the most careful and matured consideration, in which while affirming the right of the colonies, while standing upon the opinion which had been expressed by their legal advisers and by the legal advisers of the British government, none the less, on the part of His Majesty's government, as a pure matter of grace and concession, expressed Ms willingness to forego, so far as the Bay of Fundy was concerned, the extreme right of the British subject in that regard, and assented to the use, by the fishermen of the United States, of the fisheries of the Bay of Fundy, in common with the inhabitants of the British colonies, upon which stipulation that as to the remainder

of the maritime coasts of Nova Scotia, New Brunswick and Quebec, the claims of United States fishermen should cease. The representative of the United States government at the court of St. James, to whom that letter was addressed, acknowledged courteously the concession which had been made, but continued to argue that it was really no concession, but only the recognition of a right which the United States fishermen had. And I am sorry to say, that the stipulation which had been attached by the British government to the concession was, I think, at no time recognized by the United States, and their claims continued as strongly pressed as before to equal enjoyment in all the .other bays of the maritime coast of British North America. But the result of the argument made during the present summer and the award pronounced two months ago has been to uphold to the fullest extent the British contention and to demonstrate, I think, that if the concession regarding the Bay of Fundy had not been made in 1845, that bay, as well as the other large bays of our maritime provinces, would to-day be declared British territorial waters.

To-night the hon. Minister of Justice tells this House that he is glad and proud that this question with regard to the Bay of Fundy was not submitted to the tribunal. On the 2nd of December he was frank enough to say that if it had been submitted, the Bay of Fundy would have been declared to be British territorial waters.

There is one other aspect of this treaty which I propose to deal with, and that is the part of article 2 which says:

It is understood that such special agreement on the part of the United States will be made by the President of the United States by and with the consent and advice of the Senate thereof.

After these documents changed hands and were signed on the 27th of January, 1909, they went before the Senate of the United States on the 16th of February for confirmation, as required by this part of article 2. The same article goes on to say:

His Majesty's government reserves the right, before concluding a special agreement in any matter respecting a self-governing dominion of the British Empire, to obtain the concurrence therein of the government of that dominion.

Why, Sir, it is not so very long ago that the distinguished Prime Minister of this administration said: 'Where is the man or woman in Canada who will not be thankful for the day when this country will be rid of British diplomacy? ' Here is a provision expressly set out in the treaty of 1908 which gives this government. in regard to disputes which affect the Dominion of Canada, the right to affirm and approve of an agreement regarding this country before it becomes

effective. But the hon. Minister of Justice said: I was there as the appointee of Sir Edward Grey, responsible to him .alone; I was not there as representing the government. Who, Mr. Speaker, was representing this government at Washington? Who was acting on behalf of this administration? Who was going to discharge the duties that are placed upon this government by section 2 of the treaty? For the first time in our lives we were to be free from the difficulties involved in the clumsiness of British diplomacy, and were going to have a matter settled to our own liking. But how does it turn out? The hon. minister says that the British diplomats took charge of the case absolutely, every detail of it, that he was not responsible, that he had nothing to do with it. If that be so, he was remiss in his duty, or the government of this country was remiss in its duty, in not seeing that the agreement was approved of by this government as well as ratified by the Senate of the United States. The hon. minister says that the question of the Bay of Fundy was raised very early in the discussion. He says that an agreement of any kind will never be carried out in the market place, that it is not published in the press, that a lawyer would not think of drawing an agreement and publishing it, or if he did he would have to close his office. That is absolutely true; but, Sir, this was a matter affecting the people of Canada and the government of Canada; it had been negotiated up to the point at which the result of the agreement was submitted to the tribunal; the tribunal had passed judgment upon it; His Majesty had referred to it in the speech from the Throne; the hon. minister was to explain the operation of it, and I say that was the time to have come out in the market place and to have taken this House into his confidence and to have exhibited every document connected with the matter, in order that a fair and intelligent discussion might be had in regard to the award and the manner in which it has been arrived at. The hon. minister says that it was very early in the discussion that the question of the exclusion of the Bay of Fundy and the right to navigate the Gut of Can-so for peaceful purposes weTe introduced into the negotiations. He says that it was himself who suggested that the question of the Bav of Fundy be abandoned.

He offered also the suggestion that it is not unusual to incorporate in the interchange of notes an exception from the original agreement. Well, as a lawyer, I can understand how, when a document is drawn up, signed and sealed, and the parties subsequently agree to some exception or alteration, instead of disfiguring the original agreement by interlineations

4624*

they make a supplementary agreement, which could only be done in writing by an interchange of notes or otherwise. But that is not the position in this case. The hon. minister says that in the oral negotiations, an understanding was entered into that the Bay of Fundy should be excluded from the operation of question 5. Then I ask, if that were the case, why was it not expressed in the document signed and sealed on the 27th of January, 1909?

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).

Hear, hear.

Mr. MADDljN. The agreement was signed on the 27th of January, 1909, and on the 6th of February we find Mr. Bryce writing to Mr. Bacon as follows:

I have the honour to inform you, under instructions from His Majesty's principal Secretary of State for Foreign Affairs, that I am now in a position to complete the formalities incident to the conclusion of the special agreement for submission to arbitration of the question of the fisheries on the North Atlantic coast. I transmit herewith signed copy of the agreement in my possession which, when signed on the 27th ultimo, was for the terms to be held in suspense, and I have to request you to be so good as to acknowledge its receipt in a note forwarding to me the copy now in your possession and to take note of the fact that formal delivery of the document lias now been duly effected by our action on behalf of our respective governments.

I shall not read the whole of this note because time will not permit, but suffice it to say that on February 6, 1909. ten days after the original agreement had been signed and sealed, signed copies of the subversion were exchanged between Mr. Root and Mr. Bryce as it went before the Hague Tribunal; and neither in the signed agreement nor in the notes exchanged under date of February 6, was there one syllable excepting the Bay of Fundy. I submit that , if, in the oral negotiations leading up to the execution of these documents, the understanding had been arrived at to except the Bay of Fundy, that should have appeared on the face of the agreement dated 'January 27; but if it was subsequently to be referred to in an interchange of notes, the time to have made that interchange was on February 6, when this exchange of signed documents took place between Mr. Bryce and Mr. Root, as shown by the White document brought down to the imperial parliament. This however, was not done. At a later date, on April 4, there was a letter written by Mr. Bryce to Mr. Bacon, who had succeeded Mr. Root. In that letter, Mr. Bryce says:

I have the honour to inform you that I have been instructed by His Majesty's principal Secretary of State for Foreign Affairs to place on record, on behalf of His Majesty's government, with reference to the general ar-Mr. MADDIN.

bitration treaty just signed by you and myself, that the final sentence of article 2 has been inserted in order to reserve to both governments the freedom of action secured to United States government under their constitution until any agreement which may have been arrived at shall have been notified to be finally binding and operated by an exchange of notes.

To this Mr. Root replied on April 4, and in this correspondence there is no reference made to the exception of the Bay of Fundy. On March 4. 1909, Mr. Bryce wrote to Mr. Bacon as follows:

I have the honour to acknowledge the receipt of your note informing me that the-Senate of the United States has approved the special agreement for the referenec to arbitration of the questions relating to the fisheries on the North Atlantic coast and of the-terms of the resolution in which that approval is given.

It is now my duty to inform you that the government of His Britannic Majesty confirms the special agreement aforesaid, and in doing so confirms also the understanding arrived at by us that question 5 of the series of questions submitted for arbitration-namely, from

where must be measured ' the 3 marine miles of any of the coasts, bays, creeks or harbours ' referred to in the said articles-is submitted in its present form with the agreed understanding that no questions as to the Bay of Fundy, considered as a whole, apart from its bays'or creeks, or as to innocent passage through the Gut of Canso. is included in this question as one to be raised in the present arbitration.

Here on March 4, 1909, is the first in-'t-imation that the Bay of Fundy is to be excluded from the operation of this agreement to arbitrate.

I would like to draw the attention of the House to the last paragraph of the award of the tribunal with regard to question 5 In that paragraph the arbitrators say:

It is understood that nothing in these rules refers either to the Bay of _ Fundy, considered as a whole, apart from its bays and creeks, or as to the innocent passage through the. Gut of Canso, which were excluded V>- th* agreement made by exchange of notes between Mr. Bacon and Mr. Bryce, dated February 21, 1909, and March 4, 1909.

Now the hon. minister (Sir Allen Ayles-worth) tells us that it was by an oral agreement, which led up to the consummation of the special agreement dated 27th of January, that the Bay of Fundy was excepted.' We are told in a letter signed by Mr. Bryce, that the hay was excepted by an understanding had some time before, but the arbitrators discover an entirely different letter and one to which, up to the' present, hon. members on this side have not had access. There was a letter written on the 21st of February. 1909, and it was in that letter as well as in the letter of the

4tli March, that the Bay of Fundy was excepted. In reply to that letter of the 4th March, Mr. Bacon wrote to Mr. Bryce:

I have the honour to acknowledeg the receipt of your note of the 4th inst., in which you confirm the understanding in the matter of the special agreement submitting to arbitration the differences between the governments of the United States and Great Britain concerning the North Atlantic fisheries, as expressed in the resolution of the Senate of the 16th February, 1909, and as previously agreed upon by the interchange of notes with my predecessor of the 27th January, 1909.

It. is to be observed that Mr. Bacon refers to this understanding as expressed in an interchange of notes on the 27th January, 1909. The special agreement also sneaks for itself, which was executed on the 27th January, 1909. Both these authorities are in direct contradiction with the Minister of Justice, who says the exception of the Bay of Fundy was an oral understanding. but I submit that the significant part of the matter is this, and the hon. minister gave it to us to-night. For the first time he gave the real reason why the bay was excepted from the operation of this agreement. He said that the United States refused to arbitrate on any other condition and that the Senate of the United States on February 16 made the same exception of the Bay of Fundy. Well, the hon. minister suggested to the hon. member for Digby (Mr. Jameson) that if our foresight was as keen as our aftersight, we should be very superior men. And I must confess to him that, in preference to having the perfect subsequent knowledge of events, I would like to have that prescience by which the hon. minister and his friends arrived at the conclusion on the 27th of January that the Senate of the United States on the 16th of February, would strike out the Bay of Fundy from this arbitration.

So much with regard to the manner in which this agreement was brought before The Hague Tribunal. I would like to point . out to the minister that when he made the statement that he thought he should not discuss this question of the Bay of Fundy in view of the fact that there might be future negotiations, he is closing the door a little too late, and, perhaps, he has been talking too much already with regard to this award. At pages 73-74 of the oral argument, which took placq, in connection with this case, we find Sir Robert B. Finlay pressing upon the tribunal with regard to no less a sheet of water than the Bay of Fundy-and pressing with considerable force and effect-the speech made by Hon. Amos Tuck in the House of Representatives of the United States in 1851, as reported in the ' Congressional Globe.' Sir Robert quoted from this speech as follows:

From the first of September to the close of this season, the mackerel run near the shore.

and it is next to impossible for our vesesls to obtain fares without taking fish within the prohibited limit. We differ with England m regard to the measurement of these ' limits/ they claiming to run from 'headland to headland ' and we to follow the indentations of the coast. But the real difficulty is not here. The British have never taken a vessel as a trespasser when not within the limits which we acknowledge that we have renounced. They have given particular directions to the officers of their vessels not to do so, and the reason is plain. They know that if_ they exact a strict observance of our renunciation, on our own construction they break up our mackerel fishery. Hence, it would be a folly in them to raise an issue on the 'headland' doctrine, on which most people, I think, would hold our construction to be tlie true one. '

Sir Robert Finlay says:

I am not going to stop to controvert the statements there made by Mr. Tuck, for I am citing him for the purpose of showing the facts with regard to the mackerel fishery, which led to the raising of this controversy. Mr. Tuck goes on:

I do not think it generally known that the whole difficulty about the fisheries is about our right to take mackerel. The cod fishing piivileges are adequate already; and no vessel in that business has ever been seized or interfered with. I think it is proper to go still fm tlier and to state frankly what, after a patient investigation of every source of authentic information within my reach, I believe ti be the real difficulty.

The truth is, our fishermen need absolutely and must have, the thousands of miles of shore fishery, which have been renounced, or they must always do an uncertain business. If our mackerel men are prohibited from going within three miles of the shore, and are forcibly kept away, (and nothing but force will do it), then they may as well give up tlieir business first as last. It will be always uncertain, and generally unsuccessful, however, well pursued.

Perhaps, I shall be thought to charge the commissioners of 1818 with overlooking our interests. They did so, in tlie important renunciation which I have quoted; but they are obnoxious to no complaints for doing so. In 1818,^ we took no mackerel on the coasts of the British possessions and there was no reason to anticipate that we should ever have occasion to do so. Mackerel were then found as abundantly on the coast of New England as anywhere in the world, and it was not until years after that this beautiful fish, in a great degree, left our waters. The mackerel fishery on the provincial coasts has principally grown up since 1838, and no vessel was ever licensed for that business in the United States till 1828.

Topic:   WAYS AND MEANS-RECIPROCAL TRADE WITH THE UNITED STATES.
Subtopic:   ATLANTIC FISHERIES.
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So Sir Robert B.

Finlay, in pressing his argument before the arbitration tribunal at The Hague, quoted from Hon. Amos Tuck-I wonder with what success, if we subsequently submit the question as to His Britannic Majesty's rights in the Bay of Fundy to a npw tribunal. I wonder what effect the speeches of the minister on the 2nd December last, and before the Ontario

Bar Association on the 29th December, 1910, would have? Speaking before the Ontario Bar Association at Osgoods Hall, he said:

Take the whole coast line of Nova Scotia, never mind the Bay of Bundy for the present-

The Bay of Fundy was a tender spot with the minister when confronted with the whole array of the Ontario Bar.

-and we remember how it is indented every few miles with harbours and inlets of different dimensions, shapes and sizes, but all alike bays, and many of them across the entrance much more than sis miles in width. Now the United States fishermen wants to get into those bays-probably there is the best fishing there, at any rate he says when I am abreast a wide bay like the Baie des Chaleurs, or if you please, Miramichi bay in New Brunswick, Egmont bay in Prince Edward Island, or Mahone bay on the south coast of Nova Scotia, and I find a sheet of water which measured across from headland to headland, might be anywhere from 10 to 15 or 20 miles, and I am supposing I am in the centre of that 10 miles from the land on either side of me, and perhaps 100 miles from land ahead of me, do you mean to tell me I am in territorial waters? I am in the open sea, and 1 am not within his Britannic Majesty's dominions in America, and so in a case such as I have put, like the Baie des Chaleurs, which is 16 or 17 miles across at the entrance and up which you can sail for 70 miles without getting within three miles of either shore, the fishermen of the United States said, we are here fishing not under any treaty at all, we are here fishing by the common right of nations, because we are in the open sea exactly as much as though we were on the great banks of Newfoundland itself. And Nova Scotia, taking the opposite view and ablv supporting it by its learned attorney general of 70 years ago" Great Britain adopted that view *of Nova Scotia, and maintained at least from 1840, that the true method of measurement was by going from headland to headland right across the mouth of any hay regardless of its width. It was impossible to reconcile these two views. '

I wonder how the following part would sound before a tribunal, which may subsequently be convened to determine our rights in the Bay of Fundy. He goes on to say:

In 1845, Great Britain as a concession, stating it to he a concession, gave up, or to use the language of the diplomatic letter which at that date Lord Aberdeen wrote to tho minister at St. James, of the United States, Great Britain decided to relax her right so far as the Bay of Fundy was concerned, and since then there has been no more difficulty over the Bay of Fundy; hut that was the extent of any relaxation which Great Britain was willing to make or ever did make. So in all the years, from 1840 to the present time, Gieat Britain had consistently maintained the contention that all these hays and inlets in the remainder of British North America, Mr. MADDIN.

that is to say, in what is to-day Canada, are bays and inlets, the right to enter which the fishermen of the United States have for ever renounced. _

These were his observations with regard to the Bay of Fundy before the Bar Society of Ontario. I read his observations of December 2nd., in this House and he further makes the statement to-day that from. 1845 down to the present, no one has asserted on behalf of Great Britain, rights over the Bay of Fundy. I join issue with the minister when he makes an 'assertion of that kind. I would point out that a relaxation is a concession, but a concession is substantially more than a relaxation, the word concession is the broader of the two and covers the lesser term relaxation. The word relaxed, was used in Lord Aberdeen's letter of March 10, and as the minister pointed out on December 2nd, not only was this relaxation made, but it was made conditional, and the minister himself expressed regret that the conditions had not been complied with. Does the minister wish to treat members of this House as if they knew nothing of the law of contracts? One of the elementary principles of contracts is that it requires two persons to make a contract, and that there must be a consensus of mind between the two parties, that they must agree together upon the terms of the contract upon which they are entering ir there is no contract at all. No reasonable man, be he lawyer or layman, can take the 'correspondence of March 10, 1845, in which this relaxation took place, and in which it was expressly stated that the United States were to abandon for ever their claim to the coasts of other bays of Nova Scotia, New Brunswick, and Quebec, and read the reply of Mr. Everett, without arriving at the conclusion that the offer of relaxation at all events, as it was made on the part of Great Britain, for the purpose of reducing the friction then existing, was spurned by the American minister at St. James, and was never acted upon from that day to this. The hon. gentleman says that Britain has never assented her claims in regard to this matter. He pointed out in the House, as he did in Toronto, that that distinguished Nova Scotian, James W. Johnston, had prepared an argument on the headlands and submitted it in 1841 to the law officers of the Crown of the imperial government, in Great Britain, that the law officers, Her Majesty's advisers, approved and endorsed the views expressed in the memorandum set forth by Mr. Johnston, in 1886 the parliament of Canada passed an Act, and when it came to receive the assent of the Governor General, it was held in suspense, until correspondence had been exchanged with the home ..Secretary of State, in the old country, and then acting

on the advice of His Majesty's advisers in England that Statute of 1886, was assented to by the Governor General of Canada and became part of the statute law of this Dominion. Under that statute, assented to after inquiry and advice, the Dominion government undertook to regulate the fisheries oE the whole Bay of Fundy. Objection was raised to it but a few years afterwards, in 1870, Mr. Peter Mitchell, then Minister of Marine and Fisheries, issued instructions to His Majesty's government vessels for the protection of Canadian fisheries as follows:

The limits within which you will, if necessary, exercise the power to exclude United States fishermen, or to detain American fishing vesels or boats, are for the present to be exceptional. Difficulties have arisen in former times with respect to the question, whether the exclusive limits should be measured on lines drawn parallel everywhere to the coast, and describing its sinuosities, or on lines produced from headland to headland across the entrances of bays, creeks or harbours. Her Majesty's government are clearly of opinion that, by the convention of 1818, the United States have renounced the right of fishing, not only within three miles of the colonial shores, but within three miles of a line drawn across the mouth of any British bay or creek. It is however, the wish of Her Majesty's government neither to concede, nor for the present enforce, any rights in this respect which art. in their nature open to any serious ques-t;on. Until further instructed, therefore, you will not interfere with any American fishermen, unless found within three miles of the shore, or within three miles of a line drawn across the mouth of a bay or creek which is less than ten geographical miles in width. In the case of any other bay, as the Bay of Chaleurs, for example, you will not admit any United States fishing vessel or boat, or any American fishermen, inside of a line drawn across at that part of such bay where its width does not exceed ten miles.

On June 6th, 1876, Lord Grenville telegraphed to the Governor General as follows :

Her Majesty's government hopes that the United States fishermen will not be for the present prevented from fishing, except within three miles of land, or in bays which are less than six miles broad at the mouth.

The result was that the Hon. Peter Mitchell modified his instructions on the 27th of June, 1870, making the last paragraph read:

In the case of any other bay, as Bay des Chaleurs, for example, you will not interfere with any United States fishing vessel or boat, o.- any American fishermen, unless they are found within -three miles of the shore.

I submit to the minister that, as the letter written by Lord Aberdeen on the 10th of March, 1845, contains an assertion of Britain's rights in the Bay of Fundy, and a statement that, as a matter of grace and favour, these rights would be relaxed in

favour of the United States, granting American fishermen common fishing in the Bay of Fundy, on a certain condition, contained in a proviso which was never accepted or acted upon, that relaxation can not be construed as conveying any right to the United States. What does he -say with regard to these instructions with reference to the Baie des Chaleurs? On the 27th of June, 1870, the Canadian government acting on instructions from Lord Grenville, issued instructions which in specific terms say:

As to the Bay of Chaleur, for example, you will not interfere with any United States fishing vessel or boat or any American fishermen, unless they are found within three miles of the shore.

Was not that a. broader, a greater relaxation of right than Lord Aberdeen had made in 1845?. There is this difference also that it was an unqualified concession. There were no stipulations, there was nothing that the United States was obliged to do in order to enjoy the fisheries of the Baie des Chaleurs three miles from the shore.

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LIB

Louis-Philippe Brodeur (Minister of the Naval Service; Minister of Marine and Fisheries)

Liberal

Mr. BRODEUR.

Do I understand my hon. friend that this document was communicated to the American authorities? This was a document issued by Lord Granville to the Canadian government and it was purely and simply a question between the imperial government and the Canadian government.

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L-C

James William Maddin

Liberal-Conservative

Mr. MADDIN.

It was a pronouncement by Lord Granville to the authorities of the Dominion of Canada with regard to what he conceded at that time to be American rights in the Baie des Chaleurs. He gave instructions not to interfere with American fishermen.

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CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BORDEN (Halifax).

The instructions were publicly given, were they not? They became a public document of state.

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L-C

James William Maddin

Liberal-Conservative

Mr. MADDIN.

They were public and were subsequently used against the British government in the Halifax award from which I am reading them at the present time. In the matter to which I referred a few moments ago, in 1886 when this government legislated with regard to the whole of the waters of the Bay of Fundy, there was no question at all rasied by the government of the United States, and I wish to say in connection with this matter that the United States did not at any time argue and have not argued their rights to fish in common with British fishermen in the Bay of Fundy. They have not argued that they had the right to fish by virtue of the relaxation contained in Lord Aberdeen's letter of 1845. I want to refer jou, Mr. Speaker, for a moment to Mr. Everett's reply to that communication. I desire to call attention

to the exact words that were used in the Aberdeen-Everett correspondence oi 1845. This correspondence grew out of the claims that were set up with regard to the seizure of the ' Arguis,' in what is sometimes called St. Ann Banks off the coast of Cape Breton, and also in regard to the seizure of the 'Washington' in the Bay of Fundy. It was during the course of the correspondence in *connection with these seizures-seizures which were being vigorously protested against by the United States, and out of which grew so much of the friction of that time-that the letters to which I desire particularly to draw attention were written. Lord Aberdeen wrote a letter on the 10th March, in which, after some preliminary statements, he says:

The undersigned has accordingly much pleasure in announcing to Mr. Everett, the determination to which Her Majesty's government have come to relax in favour of United States fishermen that right which Great Britain has hitherto exercised, of excluding those fishermen from the British portion of the Bay of Fundy, and they are prepared to direct their colonial authorities to allow, henceforward, the United States fishermen to pursue their avocations in any part of the Bay of Fundy, provided they do not approach, except in the cases specified in the treaty of 1818, within three miles of the entrance of any bay on the coast of Nova Scotia or New Brunswick.

There was an offer with a condition attached to it and we all know that in order to get the benefit of that offer it should have been accepted and the stipulations and provisions attached to it should have been complied with. There could be no evasive reply which in years afterwards could be construed as an acceptance. No contract is complete without an offer and an acceptance. Here then we have the offer on the part of Lord Aberdeen to relax certain rights and making certain stipulations with regard thereto. How does Mr. Everett treat this situation? He says that:

While he desires, however, without reserve, to express his sense of the amicable disposition evinced by Her Majesty's government on this occasion in relaxing in favour of the United States the exercise of what, after deliberate reconsideration, fortified by high legal authority, is deemed an unquestioned right of Her Majesty's government, the under-nigned would be unfaithful to his duty did he omit to remark to Lord Aberdeen that no arguments have at any time been adduced to shake the confidence of the government of the United States in their own construction of the treaty. While they have ever been prepared to admit that in the letter of one expression of that instrument there is some reason for claiming a right to exclude United States fishermen from the Bay of Fundy (it being difficult to deny to that arm of the sea the name of ' bay.' which long geographical usace has assigned to it), they have ever Mr. MADDIN.

strenuously maintained that it is only on their own construction of the entire article that its known design in reference to the regulation of the fisheries admits of being carried into effect.

There is no acceptance, Mr. Speaker, of the offer which is submitted by Lord Aberdeen. But now let us see how he spurns this generous offer with contempt. He says:

The undersigned does not make this observation for the sake of detracting from the liberality evinced by Her Majesty's government in relaxing from what they regard as their right, but it would be placing his own government in a false position to accept as mere favour that for which they have so long and strenuously contended as due to them under the convention.

He spurned the offer. He said: We

have been fishing there, you have seized our vessels and now you put a proposition up to us and call it a relaxation of your right. We do not acknowledge that you have such a right because we have been exercising our calling there as a matter of right. On the 25th March, fifteen days later, Mr. Everett wrote to Mr. Calhoun, the United States Secretary of State, referring to the correspondence which had taken place between himself and Lord Aberdeen as follows:

I thought it proper, in replying to Lord Aberdeen's note, to recognize in ample terms the liberal spirit evinced by Her Majesty's government, in relaxing from what they consider [DOT] their right. At the same time I felt myself bound to say that the United States could not accept as a mere favour what they had always claimed as a matter of right, secured by the treaty.

Yet, in 1909, for the first time, since 1845, we find in the correspondence of the British plenipotentiary in these negotiations at Washington that a construction was put upon that old correspondence which is to give it the meaning of a concession by which we are alleged to have abandoned our rights in those large and important waters. The minister has used the term ' concession ' repeatedly in the House, and before the Bar Society at Osgoode Hall. There was a relaxation which was spurned by the American minister and which they never accepted up to the present time. When the question of the fishing rights in the Bay of Fundy was suddenly dragged into the proceedings of the Halifax award in 1877, Mr. John S. D. Thompson (afterwards Sir John Thompson)-than whom no abler constitutional and international lawyer ever sat in this House,-contended before that tribunal that His Britannic Majesty's subjects had exclusive rights of fishing in the Bay of Fundy. The American contention then was not based on the correspondence of 1845 and the alleged re-

laxation, but, on the decree of Mr. Bates, who was the umpire in the case of the seizure of the ' Washington.' In the ' Washington ' case the United States selected a representative and Great Britain selected a representative, and these two agreed upon Mr. Bates as umpire, and the tribunal met in 1856. Mr. Bates was not a lawyer; he was an American citizen, but at that time he was the junior member of an English banking firm residing in London, and having been agreed upon as umpire he rendered the decision in the ' Washington ' case. The question submitted to that tribunal did not in any sense involve territorial rights in the Bay of Fundy; it was merely a question involving money damages for the seizure of the ' Washington ' in the Bay of Fundy, and Mr. Bates found for $3,000 damages, but he also found something he was not asked to find, and which probably neither country would have entrusted him to adjudicate upon, namely, that the vessel was seized on the high seas. As a matter of fact the ' Washington ' was seized on the western side of Grand Manan island near the entrance to Campobello bay in the Bay of Fundy, and almost three miles outside of Grand Manan. The Minister of Justice told us to-night that he thought the British case would have been prejudiced had we set up claims to a great bay like the Bay of Fundy which is nearly 60 miles across. As a matter of fact since the declaration of 1783 by which Americans reserved their rights to fish in certain of His Majesty's North Atlantic waters, no one has ever contended on behalf of Britain that she had any exclusive rights in that part of the Bay of Fundy which stretches 60 miles across. The minister was deceiving the House-whether he was doing it intentionally or not is a matter only known to himself-but when he said the Bay of Fundy was 60 miles across, he was speaking of the width of the bay at a point from near Brier island over to near the state of Maine, and it was never contended by Britain that she could treat the intervening waters there as territorial waters. What Britain did claim, and what the minister conceded would have been awarded to her had it been submitted, was the right to draw a straight line from headland to headland within British territory. Under the Treaty of Ghent the boundary line between the United States and Canada in the Bay of Fundy was defined as running at a point midway between the island of Grand Manan and the coast of the eastern portion of Maine. Under the British contention on this definition, we would draw our headland line from Grand Manan to Brier island, and from Grand Manan across Passamaquoddy bay to the nearest headland on the western part of the province of New Brunswick. This was all that any one ever claimed on behalf of Britain and the minister knows,

or ought to know, that in the argument before the Hague Tribunal maps and plans were submitted which show a line betweeen these points and which show the length of that line to be 24 miles and not 60 miles. I submit that when a straight line is drawn from Brier island on the coast of Nova Scotia over to the island of Grand Manan, and from the island of Grand Manan to the nearest point in the province of New Brunswick that that is the true headland line which has been recognized at least in principle by the Hague Tribunal, and which as the minister admitted would have been drawn by that tribunal in connection with the Bay of Fundy, had the Bay of Fundy not been excepted.

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LIB

Louis-Philippe Brodeur (Minister of the Naval Service; Minister of Marine and Fisheries)

Liberal

Mr. BRODEUR.

Is St. Mary's bay outside or inside the limit which has been mentioned by the hon. gentleman?

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L-C

James William Maddin

Liberal-Conservative

Mr. MADDIN.

Does the minister mean outside of the line drawn from Brier island to Grand Manan?

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LIB

Louis-Philippe Brodeur (Minister of the Naval Service; Minister of Marine and Fisheries)

Liberal

Mr. BRODEUR.

I refer to the points the hon. gentleman has spoken of.

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L-C

James William Maddin

Liberal-Conservative

Mr. MADDIN.

Well, St. Mary's bay is outside of that line; it is almost 100 miles outside. The hon. minister said that we- that is, I presume, those who had charge of Britain's case-were undertaking a very great job in trying to get The Hague Tribunal to recognize our doctrine in regard to bays, and intimated in this House and in the discussion of this matter outside of the House, that some great and new principle of international law had been announced. Why, Sir, the method to be pursued in measuring bays and headlands laid down by this tribunal is as old as Grotius, one of the oldest authorities on international law. The hon. minister asks, wherein is it there is a dereliction of duty on the part of the government in connection with this matter, and, in answer to the hon. member for Digby, who wishes to know what our rights in the Bay of Fundy were, he said they were exactly what they were before the agreement of the 27th of January was signed, no more and no less. No one could answer a question more unsatisfactorily. What does he concede to be our rights in the Bay of Fundy under the treaty of 1818? What effect does he think this correspondence of 1845 had with regard to our rights, in the light of the claims subsequently made by this parliament, which have never been successfully refuted by the people of the United States? It was of the greatest importance to the people of this country that this question should have been determined by this tribunal when it sat last summer. As has been pointed out by the hon. member for Digby, the treaty of' 1908, by which these matters were to be adjusted, is to remain in force only five years. Two

years from next June it will expire. Does the minister hope to get the difficulties with respect to the Bay of Fundy settled before that time? I submit that he was guilty of a dereliction of duty in connection with this matter when he permitted the Bay of Fundy to be excepted at all. The Senate of the United States had no right to put a rider on the agreement excepting it, because article 1 of the treaty of 1908, which had been concurred in by the Senate of the United States, expressly stipulated for the adjudication of just such disputes as have been continually arising with regard to Canadian-British rights in the Bay of Fundy, and it was the duty of the minister to have pointed out to the United States ministers the terms of that treaty, and that, in adding to the agreement the rider excepting from the adjudication of the tribunal a disputed question under the treaty of 1818, they were violating the treaty of 1908, which they themselves had ratified. The question of fishing in the Bay of Fundy is one which is important to the people of the whole Dominion of Canada, but more especially to those people who inhabit the shores along the bay in the provinces of Nova Scotia and New Brunswick. The Bay of Fundy every year produces in the neighbourhood of $1,000,000 worth of fish to Canadian fishermen. When we estimate the number of fishermen from the United States who trawl these waters and fish them from one end of the year to the other, and in violation of the Canadian fishery regulations, we may fairly estimate that the Bay of Fundy, from the headlands claimed by the British authorities, yields up each year $2,000,000 worth of fish, and when the minister stood by and neglected to have the question of the right to fish in that great and valuable fishery go before the tribunal he was guilty of a dereliction of duty. I want to point out to him that, square mile for square mile the Bay of Fundy, within a line drawn from Briar Island to Grand Manan, is richer than the richest belt of soil between the lakes and the Rocky mountains, and he might just as well have ceded up an equal area of the prairie provinces to the United States as to have permitted their people to come in and enjoy in common with us the right to exploit those fisheries, which, as a matter of fairness and equity, belong to the people of His Majesty's dominions. The minister thinks that, perhaps, if he had insisted on including the Bay of Fundy in the question submitted to this tribunal he might have prejudiced the Canadian case. In fact, he expressed his pride that he himself was the one to suggest that the Bay of Fundy should be struck out. I can hardly see how he can reconcile the wish he expressed to-night with the statement he made in this House on the 2nd of De-Mr. MADDIN.

cember, -when he said that had the question of the Bay of Fundy been submitted to the tribunal, no doubt it would have been declared to be British territorial waters. I s'ubmit that, as the Minister of Justice of this country charged with safeguarding the interests of Canada, it was his duty, even if we had only a substantial colour of right, to have submitted that question of right for the consideration and adjudication of that tribunal. How have the United States, in their negotiation with us in the past, dealt with their claims? Have they considered their claims from time to time to be shadowy? Do we not know that, after promising to admit our fish free into the United States, they imposed a duty and then pretended that it was on the tin boxes that contained the fish, and not on the fish? Do we not remember how, on another occasion, they placed a tax on the tonnage of the vessels passing through their canals, and then claimed that it was aimed at the cargoes and not at the vessels? If the minister will take a lesson from a writer on international law, he will find in ' Blackwood's Magazine ' for October, 1893, an article on ' The United States in International Law/ in which it is said:

Further, the United States in consistent pursuance of the older view of international law, have shown a remarkable tendency to assert the very oldest titles and claims that the prehistoric view of law would support by the most shadowy interpretation.

(a) Thus -the right of the United States to the navigation of the Mississippi, as against the claims of Spain, were based on the rights obtained through France by the voyage and discoveries of La Salle, as well as upon ' the sentiment written in deep characters upon the heart of man/ i.e., the law of nature as understood in America.

(b) Thus the right to navigate the St. Lawrence as against the territorial authority of Great Britain, was based upon r natural law and obvious necessity,' not admissible grounds in diplomatic negotiations.

(c) Thus the claims of the United States to the Oregon territory were based on the shadowy claims of Spain, themselves based on papal bulls, and those of doubtful authority in view of previous bulls to Portugal.

(d) Thus the right of America to Texas is also based on the traditional landing of Lasalle at the Bay of Esperitu Santo.

(e) Thus the claims of the American fishermen to use the British fisheries in North America was based on the previous condition of citizenship of the British Empire, from which they had deliberately- cut themselves adrift.

(f) Thus the American claim to jurisdiction on Behring Sea was based on claims which Russia had put forward for quite other purposes than the prosecution of the seal fisheries, which had been repudiated by the United States at the time, ^ but which were resuscitated when the Americans became possessed of the Russian territory.

Thus we find the United States ready to blow hot and cold in matters that involve international rights. And I submit that by all the rights of international law- and if the hour were not so late I would take up some of the authorities from Gro-tius down to the present-the doctrine of the headland rights has been recognized. The tribunal which recently rendered its decision of this matter certainly dealt a very vigorous blow to the party which boasts so exulting'ly of the diplomacy of the hon. minister because, in referring to clause 5 of the argument of the United States regarding question 5, the tribunal finds as follows:

In this latter regard it is further contended by the United States that such exceptions only should be made from the application of the three-mile rule to bays as are sanctioned by conventions and established usage.

That would apply to the Bay of Fundy.

That all exceptions for which the United States of America were responsible are so sanctioned; and that His Majesty's government are unable to provide evidence to show that the bays concerned by the treaty of 1818 could be claimed as exceptions on these grounds either generally, or except possibly in one or two cases specifically.

The award goes on to say:

But the tribunal while recognizing that conventions and established usage might be considered as the basis for claiming as territorial those bays which on this ground might be called historic bays, and that such claim should be held valid in the absence of any principle of international law on the subject, nevertheless is unable to apply this, a con-trario, so as to subject the bays in question to the three-mile rule, as desired by the United States;

(b) Because neither should such relaxations of this claim, as are in evidence, be construed as renunciations of it; nor should omissions to enforce the claim in regard to bays as to which no controversy arose, be so construed. Such a construction by this tribunal would not only be intrinsically inequitable but internationally injurious; in that it would discourage conciliatory diplomatic transactions and encourage the assertion of extreme claims in their fullest extent.

I submit that the relaxation contained in Lord Aberdeen's letter of the 10th . March, 1845, cannot be construed as running perpetually. It has since been renounced by Great Britain and by this^ parliament with the acquiescence of Britain, when the late Sir John Thompson was Minister of Justice. It seems to me that this decree expresses a principle from which it will be very awkward indeed for any future tribunal to exclude the Bay of Fundy from being declared British territorial waters. Our difficulty, however,_ is that there is no possible prospect of having the rights of Nova Scotia and New Brunswick insisted upon by this government. If the waters of the Bay of Fundy are British territorial waters, we should make fishing regulations with regard to them. We can control these fisheries, we can preserve and enrich them, we can also exclude all other people than His Britannic Majesty's subjects from the right to fish within these waters. In view of the regulation of these fisheries, the matter is sufficiently important to warrant the people of Nova Scotia and New Brunswick in insisting on a speedy determination of our rights with regard to this -important bay.

My hon. friend from Digby is not the only person in Nova Scotia anxious to get some information with regard to our rights. In the Morning ' Chronicle ' of January 17, there is an article under a two-column heading in letter^ of three-quarters of an inch long, entitled ' Steam Trawling in the Bay of Fundy.' That article is as follows : ,

(Special to the ' Morning Chronicle.')

Ottawa, Jan. 17.-The Department of Marine has asked the Justice Department for an opinion as to whether under the terms of the award of the Hague Tribunal which dealt with the North Atlantic fisheries case, the Bay of Fundy should be considered as territorial waters from which Canada can exclude fishermen of foreign countries.

In a letter setting forth the facts of the case, Mr. Alexander Johnston, Deputy Minister of Marine and Fisheries, wrote to Mr. Newcombe, Deputy Minister of Justice, on November 4 last, pointing out that the Fisheries Department was anxious to regulate steam trawling in the Bay of Fundy and other coast waters, but unless the government had authority to shut out American _ or other foreign trawlers, it would not be wise to make regulations prohibiting steam trawling in the bay by Canadian fishermen.

Mr. Johnston pointed out that up to 1853 Canada had asserted its right to control the fisheries in the Bay of Fundy and to regard it as a closed sea. In pursuance of this right an American fishing vessel named the ' Washington ' had been seized when fishing in the bay six miles off the coast. By the treaty concluded in 1853 between Great Britain and the United States, the question as to the right of Canada to thus seize the vessel was submitted to the adjudication of an umpire jointly chosen by the American and British governments. This umpire was a Mr. Bates, who was a junior member of a United States banking firm in England. His decision was that the bay could not be considered as territorial waters, and under his award Canada was compelled to pay damages for the seizure of the vessel.

Mr. Johnston urges that this decision should not be considered as final, inasmuch as it was more particularly concerned with a pecuniary claim, and inasmuch as the recent Hague decision seems to lay down the general principle that the' coast line should run from headland to headland. The Bay of Fundy was

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*TOHN S. EWART,

March 2, 1911