course between the United States and Her Majesty's subjects in Europe,

states

The intercourse between the United States and His Britannic Majesty's possessions in the West Indies, and on the continent of North America, shall not be affected by any of the provisions of this article, but each party shall remain in the complete possession of its rights, with respect to such an intercourse.

Thus the commercial intercourse between the two countries is provided for by the Treaty of 1815, which, as I understand it, under its various extensions, is in force to-day. It refers back to former and preexisting rights, to find which it is necessary to go still further back-to the Treaty of 1794, commonly known as Jay's Treaty. Turning to that we find that the third article deals with the special relations between the United States and the British North American Colonies. It might be supposed-and the argument perhaps might be correct, though I do not say whether this would be the case or not-that the war of 1812 abrogated the provisions of the Treaty of 1794, were it not that the Commercial Convention of 1815 referring to previous existing rights, quite manifestly, I think, treats as still in force the provisions of this article of the Treaty of 1794. I will not read the whole article, but it stipulates "that all goods and merchandise whose importation into His Majesty's said territories in America, shall not be entirely prohibited, may freely and for the purposes of commerce be carried into the same in the manner aforesaid by the citizens of the United States, and that such goods and merchandise shall be subject to no higher or other duties than are payable by His Majesty's subjects, on importing the same into the said territories; and in like manner, that the goods and merchandise whose importation into the United States shall not be wholly prohibited, may freely for the purposes of commerce be carried into the same by His Majesty's subjects, and that such goods and merchandise shall be subject to no higher or other duties than are payable by the citizens of the United States on importing the same in American vessels into the Atlantic ports of the said States; and'-mark this—“that all goods not prohibited from being exported from the said territories, respectively, may, in like manner, be carried out of the same by the two parties, respectively, on paying duty as aforesaid"; that is to say, as I understand it, the inhabitants of each country going for the purposes of commerce to the other country, may export its goods, so long as their exportation is not wholly prohibited, upon the same terms as to export duties as would be imposed on Her Majesty's subjects. Then the article after some other paragraphs closes thus: "As this article is intended to render, in a great degree, the local advantages of each party, common to both, and thereby to promote a disposition favorable to friendship and good neighborhood, it is agreed that the respective governments will mutually promote this amicable intercourse by causing speedy and impartial justice to be done, and necessary protection to be extended to all who may be concerned therein."

Gentlemen, such I understand to be the footing on which commercial intercourse stands between the two countries to-day, if there is any treaty that governs commerce between the British North American Provinces and the United States. And if this is not the case, the relations between the two countries stand upon that comity and commercial freedom which exist between all civilized countries. The effect of these provisions, to employ an illustration, is this: If the Government of Newfoundland chooses to prohibit its own people from exporting fish for bait, in which export, it is testified, they carry on a trade of £40,000 or £50,000 annually with St. Pierre, it can also, by the same law, prohibit United States

citizens from carrying away such articles, but not otherwise. As I understand the effect of this commercial clause, whatever may be exported from the British Provinces by anybody-by their own citizens, by Frenchmen, or by citizens of other nations at peace with them-may also be exported by citizens of the United States on the same terms, as to export duty, that apply to the rest of the world. If, then, Newfoundland sees fit to conclude that the sale of bait-fish-caplin, or herring, or squid-and ice is injurious to its interests, and therefore forbids their export altogether, that prohibition may extend to the citizens of the United States; but the citizens of the United States have there the same privileges with the rest of the world; they cannot be excluded from the right to buy and take bait out of the harbors of Newfoundland, unless the rest of the world is also so excluded. However, this is of remote consequence, and perhaps of no consequence, to the subject under discussion.

The material thing is this: Under the Treaty of Washington we cannot prevent such legislation. The Treaty of Washington confers upon us no right whatever to buy anything in Her Majesty's dominions. The Treaty of Washington is a treaty relating to fishing and to nothing else. I am aware of the ground taken in the reply filed by the British Agent. It is this:

Previons to the date of the Treaty of Washington, American fishermen were, by the 1st Article of the Convention, of 1818, admitted to enter the bays and harbors of His Britannic Majesty's dominions in America for the purpose of shelter and of purchasing wood and of obtaining water and for no other purpose whatever.

By the terms of Article 18 of the Treaty of Washington, United States fishermen were granted" permission to land upon the said coasts and shores and islands, and also upon the Magdalen Islands for the purpose of drying their nets and curing their fish."

The words "for no other purpose whatever" are studiously omitted by the framers of the last-named treaty, and the privilege, in common with the subjects of Her Britannic Majesty, to take fish and to land for fishing purposes, clearly includes the liberty to purchase bait and supplies, transship cargoes, &c., for which Her Majesty's Government contend it has a right to claim compensation.

Well, as the quotation stands, to my mind it would be a non sequitur, but when you turn to the 1st Article of the Convention of 1818, you find that under it the conclusion quoted is a renunciation accompanied by two provisos:

And the United States hereby renounce forever any liberty heretofore enjoyed or claimed by the inhabitants thereof to take, dry, or cure fish on or within three marine miles of any of the coasts, bays, creeks, or harbors of His Britannic Majesty's dominions in America, not included in the above-mentioned limits.

This was a renunciation of the right to fish inshore, and it is followed by this further proviso:

Provided, however, that the American fishermen shall be admitted to enter such bays or harbors for the purpose of shelter and of repairing damages therein, of purchasing wood, and of obtaining water, and for no other purpose whatever.

This coupled the renunciation of the inshore fishery with the proviso, that there may be resort to British waters for shelter and repairs, an i for obtaining wood and water. Then it goes on to say:

But they shall be under such restrictions as may be necessary to prevent their taking, drying, or curing fish therein, or in any other manner whatever abusing the privileges hereby reserved to them.

Whenever American fishermen seek British ports for shelter, or go there to repair damages to their vessels, or for wood and water, they shall be under restrictions to prevent them from taking or curing fish therein. Now it was to remove those restrictions which prevented them from taking, drying, and curing fish, that the language framed in the 18th Article of the Treaty of Washington was adopted, which gives the

citizens of the United States liberty to take fish, and permission to land upon the said coasts and islands, and also on the Magdalen Islands for the purpose of drying nets and curing fish. You will observe that the United States renounced the right to the inshore fisheries in 1818, but these are regained by the provisions of the 18th Article of the Treaty of Washington. The United States retained the right of resorting to British ports for shelter, repairs, and purchasing wood and water, subject to such regulations as would prevent their citizens drying fish on the shore; and the object of this article is to add to the inshore fisheries the right to dry nets and cure fish on the shore, and this superadded right is limited to parts of the coast where it does not interfere with private property, or the similar rights of British fishermen. Now, what argument can be constructed from provisious like these to infer the crea tion of an affirmative commercial privilege or the right to purchase sup plies and transship cargoes, I am at a loss to imagine. It seems to me that if I were required to maintain that under the right conceded to dry nets and cure fish on unoccupied and unowned shores and coasts, taking care not to interfere with British fishermen, couched in language like that, the United States had obtained a right to buy what the policy of the British Government might forbid to be sold, I should not have one word to say for myself. I cannot conceive how a commercial privilege can be founded upon that language, or how you can construct an argument upon that language in support of its existence. But, gentlemen, this is not to be decided by the strict language of the treaty alone. We know very well what the views of Great Britain on such subjects are, and we know what the policy of Her Majesty's Government was just before this treaty was entered into. On the 16th of February, 1871, Earl Kimberley wrote to Lord Lisgar as follows:

The exclusion of American fishermen from resorting to Canadian ports, except for the purpose of shelter, and of repairing damages therein, purchasing wood, and of obtaining water, might be warranted by the letter of the treaty of 1818, and by the terms of the Imperial Act 59, Geo. III., Chap. 38, but Her Majesty's Government feel bound to state that it seems to them an extreme measure inconsistent with the general policy of the empire, and they are disposed to concede this point to the United States Government under such restrictions as may be necessary to prevent smuggling. and to guard against any substantial invasion of the exclusive rights of fishing which may be reserved to British subjects.

A month later, on the 17th of March, 1871, another letter from Eirl Kimberley to Lord Lisgar gives to the colonial authorities this admonition:

I think it right, however, to add that the responsibility of determining what is the true construction of a treaty made by Her Majesty with any foreign power must remain with Her Majesty's Government, and that the degree to which this country would make itself a party to the strict enforcement of treaty rights may depend not only on the liberal construction of the treaty, but on the moderation and reasonableness with which those rights are asserted.

In such a spirit, and with these views of commercial policy, the Treaty of Washington was negotiated; and can oue believe that it was intended to have a valuation by arbitration of the mutual privileges of international commerce? Gentlemen, suppose that the Canadian representative on the Joint High Commissiou, when the 18th Article was under consideration, had proposed to amend it by adding in language something like this and the said Commissioners shall further award such compensation as, in their judgment, the United States ought to pay for its citizens being allowed to buy ice, and herring, squid and caplin, of Canadians and Newfoundlanders, and for the further privilege of being allowed to furnish them with flour, and kerosene oil, and other articles of merchan

dise in exchange for fish and ice, and for the further privilege of being allowed to sell them small codfish; suppose, I say, that an amendment in these or similar words had been suggested to the members of the High Joint Commission; fancy the air of well-bred surprise with which it would have been received by Earl Grey and Professor Bernard and others. Imagine England-free trade England-which forced commercial intercourse upon China with cannon, asking for an arbitration to determine on what price England, that lives by selling, will trade with the inhabitants of other countries.

I venture to express the belief that the ground which has been taken here is not the ground that will be sustained by the English Government, and that my friend, the British Agent, will receive from Her Majesty's ministers the same instructions that I shall certainly receive from the President of the United States, viz, that at the time when the Treaty of Washington was negotiated no one dreamed that such claims as I have been referring to would be made, and that neither government can afford to insist upon or submit to anything of the kind, because it is contrary to the policy of the British Empire, and contrary to the spirit of civilization. If the language were at all equivocal these considerations would be decisive, but with the express limits to your authority laid down they hardly need to be asserted.

The next question is whether the motion that has been made should be decided by you at the present stage in your proceedings. We have brought it before you at the earliest convenient opportunity.

The case of the British Government was not orally opened, and in our pleadings we had interposed a denial of the existence of any such jurisdiction. If the matter had been discussed in an opening we might have replied to it, but as it was we could not. The case proceeded with the introduction of evidence: Now, if the evidence offered in support of these claims could have been objected to we should have interposed the objection that such evidence was inadmissible; but we could not do that, and why? Because the treaty expressly requires the Commission to receive such evidence as either government may choose to lay before it. To avoid the manifold inconvenience likely to result from discussing the admissibility of evidence, it was stipulated and we have allowed-I suppose with the approbation of the Commissioners-every piece of evidence to come in without objection. We conceived that we were under obligation to do so. We could not bring the question up earlier, and we bring it up now, just before our case commences, and say, that we ought to have it now decided; first, as a matter of great convenience, because the course of our evidence will be affected by your decision. There is much evidence which we shall be obliged to introduce, if we are to be called upon to waive the comparative advantages of mutual traffic, that would otherwise be dispensed with, and that we think ought to be dispensed with. Moreover, we maintain that we are entitled to have your decision now on grounds of precedent. A precisely similar question arose before the Geneva Arbitration. The United States made a claim for indirect or consequential damages. That claim appeared in the case of the United States, and its evidence which were filed on the 15th of December. The British case was filed at the same time, and on the 15th of the next April Lord Tenterden addressed this note to the Arbitrators:

GENEVA, April 15, 1872.

The undersigned, agent of Her Britannic Majesty, is instructed by Her Majesty's Government to state to Count Selopis, that, while presenting their Counter-Case, under the special reservation hereinafter mentioned, in reply to the Case which has been presented on the part of the United States, they find it incumbent upon them to inform the arbitrators that a misunderstanding has unfortunately arisen between Great Brit

ain and the United States as to the nature and extent of the claims referred to the tribunal by the 1st Article of the Treaty of Washington.

This misunderstanding relates to the claims for indirect losses put forward by the Government of the United States, under the several heads of—(1.) "The losses in the transfer of the American commercial marine to the British flag." (2.) "The enhanced payments of insurance.” (3.) "The prolongation of the war, and the addition of a large sum to the cost of the war and the suppression of the rebellion." Which claims for indirect losses are not admitted by Her Majesty's Government to be within either the scope or the intention of the reference to arbitration.

Her Majesty's Government have been for sometime past, and still are, in correspondence with the Government of the United States upon this subject; and, as this correspondence has not been brought to a final issue, Her Majesty's Government being desirous (if possible) of proceeding with the reference as to the claims for direct losses, have thought it proper in the mean time to present to the Arbitrators their Counter-Case (which is strictly confined to the claims for direct losses), in the hope that, before the time limited by the 5th Article of the treaty, this unfortunate misunderstanding may be removed.

But Her Majesty's Government desire to intimate, and do hereby expressly and formally intimate and notify to the Arbitrators, that this Counter Case is presented without prejudice to the position assumed by Her Majesty's Government in the correspondence to which reference has been made, and under the express reservation of all Her Majesty's rights, in the event of a difference continuing to exist between the High Contracting Parties as to the scope and intention of the reference to Arbitration.

If circumstances should render it necessary for Her Majesty to cause any further communication to be addressed to the Arbitrators upon this subject, Her Majesty will direct that communication to be made at or before the time limited by the 5th Article of the treaty.

The undersigned, &c.

TENTERDEN.

Thereupon, after some further fruitless negotiations, the arbitrators, of their own motion, proceeded to decide and declare that the indirect claims made by the United States were not within the scope of the arbitration, thus removing all misunderstanding by a decision eliminating immaterial matters from the controversy. The decision was made and put on record exactly in the method which we ask you to pursue here. We say that we are entitled to have such a decision on the ground of precedent as well as of convenience; and we say further that we are entitled to have it on the ground of simple justice. No tribunal has ever been known to refuse to declare what, in its judgment, was the extent of its jurisdiction. To do so, and receive evidence applicable to the subject as to which its jurisdiction is controverted, and then to make a general decision, the result of which renders it impossible ever to ascertain whether the tribunal acted upon the assumption that it had or had not jurisdiction over the controverted part of the case, would be the extremity of injustice.

If an award were to be made under such circumstances, nobody ever would know whether it embraced the matter respecting which jurisdiction was denied or not. In illustration, I may mention the Geneva Arbitration. Suppose that it had gone forward without any declaration by the arbitrators that they excluded the indirect losses, and then suppose that a round sum had been awarded, would not Great Britain have had a right to assume that this round sum included the indirect claims to which it never meant to submit? So will it be here; unless there is placed upon record the ruling of the Commissioners as to this point, it never will be possible for us to know, or for the world to know, upon what ground you have proceeded-whether you believe that we are to pay for commercial intercourse or not. No one will know how this is unless upon our motion you decide one way or the other. For our assistance, then, in conducting the case, for convenience, and for the informa1ion of our respective governments, we ask you to make this decision, and it is entirely obvious that if no decision is made it must necessarily