FISHING AND TRADING VESSELS.

The treaty gives a right of access to British shores for certain specific purposes connected with fishing. To accomplish these purposes it is necessary that the vessels employed by the citizens of the United States should hover off the British Colonial coasts. In this respect they differ entirely from trading vessels, which under the laws of all nations are not permitted to hover, but are required to go direct to and from established ports of entry. In fact, the right enjoyed by fishing vessels is so different from that enjoyed by trading vessels that a grant of the one could not be interpreted to include the other.

This distinction between fishing vessels and trading vessels has always been insisted on by Great Britain, and its propriety was fully recognised by Mr. Putnam (one of the United States plenipotentiaries who negotiated the unconfirmed treaty of 1888) who said that, in the United States, confusion had been caused concerning the interpretation of the treaty of 1818, by (British Case, App., p. 428) — overlooking the indubitable fact that the practice of nations recognises a broad line between fishing vessels and ordinary merchant vessels, granting to each class privileges not possessed by the other.

The legislation of the United States, as indeed that of all other countries, has always recognised the distinction.

It is impossible further to discuss the contention of the United States until the grounds on which it is based are made known, and His Majesty's Government is forced to content itself on the present occasion with some observations on particular points of fact raised in the Case of the United States. For the argument on the main question it begs to refer the Tribunal to the British Case.

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NEGOTIATIONS OF 1818.

During the negotiations of 1818 in connection with the fisheries, the American negotiators asked for the liberty of entering the bays and harbours on the non-treaty coasts (British Case, App., p. 88) for the purpose of buying bait as well as for the four purposes which were ultimately conceded. To the proposal as to bait, the British representatives took exception, and it was dropped.

In the British counter proposals there were some new clauses (British Case, App., p. 89). One of them affirmed that the liberty of fishing on the treaty coasts should not be construed to extend to any privilege of carrying on trade. It was merely a declaratory provision, which standing alone was entirely surplusage. But it was followed by another clause giving powers of seizure and con

demnation over fishing vessels having on board any goods, other than necessary supplies, whilst engaged in the fishery or in going to or from the fishing grounds (British Case, App., p. 91). Certain objections were taken by the American representatives, and the clauses were withdrawn. But it is to be observed that no objection was made to the substance of the clause declaring that the article of the treaty should not be construed to extend to any privilege of carrying on trade, and that there was no suggestion at any time during the negotiation that trading privileges should be enjoyed by the American fishermen on the treaty shores. Indeed, Mr. Rush and his colleague had been instructed to negotiate for trading privileges, but the negotiations had failed (British Case, p. 128).

It will be remembered that the British statute of 1786 was in force in Newfoundland in 1818. Under it the sale of fishing vessels or their equipment, of nets or of bait, to persons other than British subjects was expressly prohibited.

There can be no doubt that the treaty of 1818 proceeds upon the basis that the inhabitants of the United States were not to use the treaty shores for the purposes of trade.

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NON-TREATY COASTS.

The assertion of the British Case that (British Case, p. 150)

The treaty of 1818 did not confer any commercial privileges

appears to be admitted by the United States Case as to the non-treaty coasts, for it declares that (United States Case, p. 190)—

"the provisions of the treaty would seem to have no bearing on either side of the question.'

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At another place the Case says (United States Case, p. 189):

"It should be noted in passing, however, that the United States did not claim that commercial privileges on the Canadian coasts depended upon the treaty of 1818, the contention of the United States on that point being stated by Secretary of State Bayard in his note of May 10, 1886, to Sir Lionel Sackville-West, the British Minister at Washington at that time. . . . ."

In this note, Mr. Bayard, after referring to the reciprocal arrangements between Great Britain and the United States in 1830, and to certain legislation on similar lines, said that (British Case, App., p. 300)

"These arrangements, so far as the United States are concerned, depend upon municipal statute and upon the discretionary powers of the Executive thereunder."

Upon these separate and voluntary actions of the two Governments, no claim of right can, of course, be founded. There is no treaty

underlying them, and there is no obligation to continue them. This is emphasised in a report of the Committee for Foreign Relations of the United States Senate (19th Januray, 1887) (British Case, App., p. 397) :

"The treaties between the United States and Great Britain on the subject of inter-communication, and the rights of the citizens and subjects of the one in the ports and territories of the other have not included the British dominions of North America (with possibly certain exceptions as to intercourse by land), and such intercourse, strangely enough, still remains the subject of legislation merely in the two countries."

All such arrangements, moreover, relate to trading-vessels only. None of them furnishes the slightest warrant for a claim, by United States fishermen, to the same privileges under the treaty of 1818.

TREATY COASTS.

It would appear from the United States Case that the United States intends to argue that although the treaty did not confer commercial privileges on the non-treaty coasts, yet that it did confer such privileges on the treaty coasts. The quotations from United States authorities on pages 141 to 145 of the British Case would seem to supply sufficient reasons why such a contention cannot prevail.

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The only point which could be urged in favour of such a distinction would be that, on the non-treaty coasts, the treaty gave United States fishermen liberty to enter the bays and harbours for four specified purposes, and "for no other purposes whatever," while on the treaty coasts no such words of restriction were used. The United States Case (p. 194) puts the matter in this way:

"It must also be noted that the renunciatory clause, which was the basis for denying commercial privileges to American fishermen on the coasts covered by it, does not apply to the treaty coasts, and, therefore, on those coasts the American fishermen are not limited by the treaty to the use of the bays and harbors for the four purposes of shelter, repairs, wood, and water, and the 'no other purposes whatever' provision has no application to them there."

But the question is not one of limitation, but of grant. His Majesty's Government submits that the right to enjoy commercial privileges will not be inferred merely because the treaty contains no specific prohibition of them.

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THOMAS F. BAYARD AND MASCOTTE."

The only incidents put forward by the United States as affecting the question of trading on the treaty shores are the cases of the "Thomas F. Bayard" and the "Mascotte." United States Case, pp. 190-4.)

The United States relies on the correspondence relating to the refusal of permission to these vessels to purchase bait upon the treaty

coasts, apparently with a view of establishing an admission, by the British Government, as to the interpretation of the treaty, in its application to these coasts.

Two paragraphs from this correspondence are cited to show that Lord Iddesleigh had determined that United States fishermen had a right to purchase bait in Canadian and Newfoundland harbours; and that the British Ambassador at Washington had so informed the United States Secretary of State. But there is nothing in the facts to warrant either of these suggestions.

The United States Case, after referring to the refusal of the colonial officials to permit the purchase of bait by the "Thomas F. Bayard at Bonne Bay, Newfoundland, and by the "Mascotte" at Port Amherst in the Magdalen Islands, and to the warnings given to the

vessels to depart, gives a quotation from letter (17th September, 66 1886) addressed by the British Minister at Washington to Mr. Bayard as follows (the italics are not in the original letter) (United States Case, p. 193):

"On the arrival of your note in London, Her Majesty's secretary of state for the colonies telegraphed to the officers administering the Governments of Canada and Newfoundland calling attention to the cases, and explaining that under the treaty of 1818 United States fishermen have the right to fish off the coasts of the Magdalen Islands and off certain coasts of Newfoundland, and stating that it was presumed that the customs officials in those places had not been instructed in the same way as on other parts of the coast.

"On the 25th ultimo the Governments of Canada and Newfoundland were further instructed by dispatches from the colonial office to make full reports on the subject of the complaints in question, and it was recommended that special instructions should be issued to the authorities at these places where the inshore fishery has been granted by the convention of 1818 to the United States fishermen, calling their attention to the provisions of that convention, and warning them that no action contrary thereto may be taken in regard to United States fishing vessels.

"I may add that information has been received that the warning notices referred to by you were discontinued in the beginning of August."

To understand this letter it is necessary to bear in mind the surrounding circumstances.

By the treaty of 1871, all the Canadian and Newfoundland coastfisheries were opened to United States fishermen. In 1885 that arrangement came to an end; the conditions of the 1818 treaty revived; and the Americans were restricted to the limits prescribed by it.

A specimen of the warning notices referred to in the despatch of the 17th September, 1886, quoted in the United States Case, is given in that Case at p. 192. It is as follows:

"I am instructed to give you notice that the presence of your vessel in this port is in violation of the articles of the international conven92909-S. Doc. 870, 61-3, vol 7—————5

tion of 1818 between Great Britain and the United States, in relation to fishery rights on the coast of Newfoundland, and of the laws in force in this country for the enforcement of the articles of the convention and that the purchase of bait or ice, or other transaction in connection with fishery operations, within 3 miles of the coasts of this colony, will be in further violation of the terms of said convention and laws."

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These warning notices related, first, to fishery rights, and, secondly, to purchases in connection with fishery operations; and so far as they referred to fishery rights, they were clearly improper in so far as they applied to treaty coasts. It is obvious, therefore, that from the withdrawal of these warning notices no argument can be adduced in favour of the American contention as to the existence of trading rights on the treaty coasts. It cannot be construed as involving any admission as to the right to trade on the treaty coasts.

In this connection the United States Cace (p. 193) further quotes from the correspondence a paragraph taken from a letter written by Lord Iddesleigh to Mr. Phelps, on the 30th November, 1886, as follows (United States Case, p. 193):

"The privileges manifestly secured to United States fishermen by the convention of 1818 in Newfoundland, Labrador, and the Magdalen Islands are not contested by Her Majesty's Government, who, whilst determined to uphold the rights of Her Majesty's North American subjects, as defined in the convention, are no less anxious and resolved to maintain in their full integrity the facilities for prosecuting the fishing industry on certain limited portions of the coast which are expressly granted to citizens of the United States. The communications on the subject of these two schooners, which I have requested Her Majesty's Minister at Washington to address to Mr. Bayard, cannot, I think, have failed to afford to your Government satisfactory assurrances in this respect.

The United States Case (p. 193) then proceeds to say that the communications referred to by Lord Iddesleigh will be found in the extract from Sir Lionel Sackville-West's note of the 17th September, 1886, above quoted. This, however, is the less important of the communications referred to by Lord Iddesleigh. The other was that which is referred to in his letter to the British Ambassador at Washington of the 26th November, 1886. In the despatch of that date Lord Iddesleigh forwarded to the British Ambassador at Washington, for communication to the United States Secretary of State, certain documents relating to the "Mascotte," which will be found in the United States appendix at pp. 879-881. These included a copy of a Canadian Order in Council of the 30th October, 1886, of which the following is an extract (United States Case, App., p. 880) :—

"The Minister of Marine and Fisheries, to whom the correspondence was referred, observes that Mr. Bayard, in his note to the British Minister at Washington, says: