the fishermen. I say that is possibly a fair construction of the treaty. In that case they do "take fish," and that is all. The contention on the other side, I suppose, will be to narrow that word "take" down to mean the actual taking of fish by the citizens of the United States from the water by means of nets and other appliances. If that be the construction, then it follows as a necessary consequence that in taking bait from our fishermen they infringe the Treaty of 1818. I wish to make myself distinctly understood on that point. By the Convention of 1818 the American fishermen could not enter our harbors at all except for the three purposes of obtaining shelter, to get wood and water, and to make repairs in case of necessity. Entrance for any other purpose was made illegal. Any privileges which they had under that convention remained. Any restrictions that they labored under after that convention still remained, except in so far as they have been removed by the Washington Treaty, and if the construction be true, as contended for by the learned Agent of the United States Government, then the restrictions as to landing for the purposes I have mentioned are not removed. The purchasing of bait and ice and the transshipping of cargoes are matters entirely outside of the treaty and unprovided for. Under the Treaty of 1818, vessels entering for any other purposes than the three provided for in that treaty can be taken. As was put forward in the American Answer, any law can be passed. An inhospitable law, they will say, by which the moment they do any of these acts they will become liable to forfeiture.

I do not presume that the remarks of the Agent of the United States, in which he speaks of instructions possibly coming from his government or from the Government of Great Britain, should be taken into consideration, or that they can properly be used as arguments to be addressed to this tribunal, because, as the learned Agent very properly says, the authority of this tribunal is contained in the treaty. If the treaty gives you authority you have sworn to decide this matter according to the very right of the matter, and I presume you will not be governed by any directions from either government. Nothing of that sort can be made use of as an argument, and you will determine the matter conscientiously, I have no doubt, upon the terms of the treaty itself. Now Her Majesty's Government does not object to your deciding in so many words that these things are not subjects of compensation, if that be the judgment of the court. I have advanced very feebly the views which I think ought to govern your decision upon the point, namely, that these are incidental privileges which may fairly be construed, in view of the way in which this treaty is framed, and as inseparable from the right given to the Americans under the Treaty of Washington. But I confess that I shall not be at all dissatisfied should this tribunal decide otherwise. If it be the desire of the American Government that this tribunal shall keep within the very letter, and disregard what I have argued is the spirit of the treaty, and determine just merely the value of the fisheries themselves, and of landing on the shores to dry nets, very well I have no objection and we will accept such a decision. But Her Majesty's Government wish it to be distinctly understood that that is not the view they have held or wish to be compelled to hold of this treaty. If, however, pressed as you are to determine the question in this way by the Government of the United States, and in view of the declaration you have made to determine it according to the very right of the mat. ter, you can conscientiously arrive at the conclusion for which they ask, we shall not regret it at all.

Mr. DOUTRE. I would desire to add to what has been so well said by

my learned friend, that the interpretation which Her Majesty's Government has put upon the Washington Treaty has received the consecration of the whole time that the Reciprocity Treaty was in operation by the course of dealing between the two governments with reference to that treaty. The Reciprocity Treaty was in exactly the same terms as the Washington Treaty, and under it the Americans have been admitted to purchase bait, transship their cargoes, and do all those things mentioned in the motion. I think that this interpretation cannot be lightly set aside to adopt the construction now sought to be put upon the treaty by our learned friends on the other side. And to show that the several provinces have not been indifferent to these matters, I would refer the Commission to a petition sent to the Queen by the legis lature of Newfoundland on the 23d of April, 1853, which is to be found on page 12 of the official correspondence which has been filed on our side.

TO THE QUEEN'S MOST EXCELLENT MAJESTY.

May it please Your Majesty:

We, Your Majesty's loyal subjects, the Commons of Newfoundland, in general assembly convened, beg leave to approach Your Majesty with sentiments of unswerving loyalty to Your Gracious Majesty's person and throne, to tender to Your Majesty our respectful and sincere acknowledgments for the protection afforded by the Imperial Government to the fisheries of this colony and Labrador during the last year, and to pray that Your Gracious Majesty will be pleased to continue the same during the ensuing season.

May it please Your Majesty:

The illicit traffic in bait carried on between the inhabitants of the western part of this island and the French has proved of serions injury to the fisheries generally, as the supply enables the French bankers to commence their voyage early in spring, and thereby prevent the fish from reaching our coasts. We, therefore, most earnestly beseech Your Majesty graciously to be pleased to cause an efficient war-steamer to be placed in Burin during winter, so that by being early on the coast she may avert the evil of which we so greatly complain.

Passed the House of Assembly April 23, 1853.

JOHN KENT, Speaker.

I think that every other province would have made the same complaint in a different shape, but I quote this to show that the provinces have never been indifferent to the matter of selling bait to the Americans by Canadian subjects.

This is about all that I wish to add to what has been said, except that I do not know if I have well understood Mr. Foster in reference to a class of argument which he has used. I repeat, I am not very certain that I have understood him well, that if the construction put by the American side upon this article were not admitted, the American Government might repudiate the award made by the Commission.

Mr. FOSTER. O, no; I said that if the award included matters not submitted to the tribunal, the principles of law would render it void. I did not say what my government would do under any given circumstances, nor am I authorized to do so.

Mr. DOUTRE. There is no authority to decide as to the legality of the award made by the Commissioners, there is no other right than might. However, if this argument had not been used I have nothing to add to what has been said by my learned friend. If it had been, I should have found it necessary to address some observations which are rendered needless by the fact that I have misunderstood my learned friend.

Mr. WEATHERBE. Owing to our adherence, until quite recently, to the arrangement entered into to argue this morning a preliminary question, and considering the sudden determination of counsel on behalf of Her Majesty's Government to enter upon the main question, and con

sidering also that we are to be followed by counsel of very great ability, I trust the imperfections of what few suggestions I have to offer may be excused. For my own part, I am much in favor of written argument before this tribunal whenever that is practicable. For example, it seems we quite misunderstood the learned agent and counsel for the United States, Mr. Foster. This may have occurred in other respects. Were written arguments to be submitted, and, after exami nation, replied to in writing, all that would be avoided. The other side will probably admit their written argument would have been different from what has fallen from their lips.

Mr. FOSTER. I hope it would be very much better.

Mr. WEATHERBE. And yet an advantage of oral discussion was very forcibly stated by Mr. Dana the other day-namely, the privilege of asking at the moment for explanation for obscure and ambiguous expressions; and hence, just now, in reply to my friend Mr. Doutre in regard to his interpretation-in which I must say I concurred-as to the declaration by the Agent of the United States of what his government would do in case of an adverse decision on the point under discussion, an explanation has followed. The words, as we took them, would certainly form an unjust fiable mode of argument.

Treaties between the United States and Great Britain have been referred to-the old treaties-and I have just examined the passages cited. But I understood the learned counsel to admit that the argument relative to these was too remote or of no consequence in relation to this discussion. (Mr. TRESCOT. That is correct.) So then I may pass over my notes on that subject.

Mr. Foster, representing the United States before this tribunal, says that a formal protest against the claim of Her Majesty's Government for these incidental advantages-the purchase of bait and supplies, transshipment and traffic-for which we are here claiming compensation under the Treaty of Washington, is to be found in the answer of the United States. He calls it a protest. I do find it in the Auswer, but I find something more. I think this highly important. Of course this Answer on behalf of a great nation is carefully prepared to express the views of the United States. We all weigh well-we have never ceased to weigh well these words-and we have within the prescribed time, many weeks ago, prepared and filed our Reply. These are the words to which the Agent and counsel of the United States refer:

Suffice it now to be observed, that the claim of Great Britain to be compensated for allowing the United States fishermen to buy bait and other supplies of British subjects finds no semblance of foundation in the treaty, by which no right of traffic is conceded. The answer does not stop there. It goes further:

The United States are not aware that the former inhospitable statutes have ever been repealed.

Neither does it stop here, but continues:

Their enforcement may be renewed at any moment.

Here are three distinct grounds taken by the United States in their formal answer to the case presented by Great Britain, and the claim for the right of bait, supplies, and transshipment, &c. First, there is no right to the enjoyment of these privileges secured by the treaty. Secondly, there are statutes unrepealed, by which it is rendered illegal to exercise these fishing privileges. Thirdly, such statutes may be enforced.

Therefore, we understand the contention of the United States to be not only that this claim for incidental advantages-the incidents follow

ing necessarily, the right given in express terms by the treaty to take fish-not only do the United States say there is no semblance of author. ity for the tribunal to consider these things in awarding compensation, but that in point of fact these acts on the part of United States fishermen have been and are now illegally exercised on our shores. In dealing with that part of the United States Answer, which I have read, this is the language used in the Reply, printed and filed on behalf of Her Majesty's Government:

The advantages so explicitly set forth in the Case, of freedom to transship cargoes, outfit vessels, obtain ice, procure bait, and engage hands, &c., are not denied in the Answer. Nor is it denied that these privileges have been constantly enjoyed by American fishermen under the operation of the Treaty of Washington. Neither is the contention on the part of Her Majesty's Government that all these advantages are necessary to the successful pursuit of the inshore or ontside fisheries attempted to be controverted. But it is alleged in the third section of the Answer that there are statutes in force, or which may be called into force, to prevent the enjoyment by American fishermen of these indispensable privileges.

Here in the Case prepared and filed and presented before this tribunal on behalf of Her Majesty it is alleged that these incidents are absolutely essential to the successful prosecution of the fishery, and that they are enjoyed under and by virtue of the acceptance of the Treaty of Washington. Here in the third section of the Answer presented before this Commission, to become matter of record and history, it is alleged that there are statutes now in existence or that may be called into force to preclude the enjoyment by the fishermen of the United States of these necessary incidental advantages. Substantially that is the only ground taken in the Answer, and I do not hesitate for a moment to say that, providing it is corroct, it is a reasonable answer. If Great Britain may, after the award of this tribunal shall have been delivered-if the Government of Great Britain or Canada may afterwards call into force those statutes which we contend are at present suspended, and raise the question for the decision of the court of vice-admiralty here in Halifax, or elsewhere, as it has been formerly raised and settled here, and if the decision of such questions must necessarily lead to the confiscation of the vessels attempting to avail themselves of these supposed privileges, then this is certainly a matter of great concern to the United States, and a matter of great responsibility to those in whose hands her great interests are for the time committed. In this view I do not wonder that this answer is so much insisted on. In this view, if these results are imminent there is ground for careful deliberation. If these results are inevitable, this answer respecting the enforcement of statutes is a complete and full answer, and that far the cause is ended and the court is closed. It is admitted, I suppose, that the fishermen of the United States sail from their own shores, enter these waters, and annually, monthly, daily, practically, enjoy these advantages since the Treaty of Washington. They never contended for a right to enjoy them previously. All the witnesses unite in saying that they have been shipping crews, purchasing and cutting and shipping ice, transshipping cargoes of mackerel-that they have been in the full and absolute enjoyment of every incident necessary to the successful prosecution of the fisheries. But it is now put forward and urged on the part of the government and nation of these foreign fishermen that they have enjoyed these privileges without the sanction of the treaty and in violation of the laws of the land, which could be at any moment enforced against them; that there was and is no semblance of authority to enjoy these rights under the Treaty of Washington; that they were and are exercised in the face of existing statutes and at the peril of the United States fishermen, and the risk of

loss of their vessels, property and earnings. If you will look at the treaty-the learned counsel says in effect-you will find its articles do not permit the transshipment of mackerel, or the hiring of crews, or obtaining ice and bait; that we may land and dry fish, but we cannot transship; that we can take fish out of the water and land them on deck, but we must stop there; and the treaty in no manner annuls the disabilities under which we labored, and none of the various things necessary to carry on the business of fishing is permitted; that you have statutes which you have enforced before, and which you can and will enforce again. This, then, is an important inquiry. I quite admit that much. Is was on consideration of the importance of this question as regarded by the United States, as I understand-this is the view of counsel representing Her Majesty's Government-that it was considered quite reasonable a discusssion should be entered upon, and it was decided not to resist the argument raised by the United States, whose agent and counsel claim the advantage to be obtained by reducing the compensation in this manner.

I understand the learned Agent and counsel, Mr. Foster, now to say that if an award should be made including any compensation for these advantages-I presume it is meant as well the enjoyment of them in the past as prospectively-Great Britain could not expect to receive payment for such award—that is, that they would not be paid. There is no kind of argument in this, and for my part I am at a loss to understand why it should be offered.

If Great Britain were obliged to admit that an award contained anything by which it appeared on its face to be ultra vires, the United States could not be called on for payment. But I submit to the learned Agent whether he would or ought to declare in the name of the great nation he represents that if an award were made, including compensation for the privileges already enjoyed, even although under misapprehension, the United States would repudiate that. They would hardly, I humbly submit, in the face of the world, repudiate payment of such a sum as might be awarded for those privileges of the past because the danger of confiscation had passed away. And we are safe in believing that if the United States were assured in any way that no proceedings would ever be taken, but the previleges in question could be secured throughout the continuance of the treaty to the fishermen of the United States, that nation would promptly pay any sum that might be awarded. Moreover, if this tribunal had the power; if authority had been delegated and were to be found in the treaty to set questions of this kind at rest, and in making their award of compensation if the Commissioners could secure these privileges-if not already secure-I think then, also, no objection would be taken to their being considered by the tribunal. But it is because it is contended that the enjoyment of these necessary incidents is insecure; because the power of the tribu nal is limited; because the matter will, it is said, be left in a state of uncertainty hereafter; because questions may arise over which the government may have little control; because the international relations of the future are unforeseen and cannot be anticipated, that the claim to compensation is resisted. This seems to me to be the condition of the question, and this I gather and have observed in the Answer, from the first, is the manner in which the subject has been regarded by the Agent representing the United States. And so regarding it, an anxiety to prevent compensation incommensurate with the privileges understood to be settled and secure beyond all question seems perfectly reasonable.

But I think there are objections to attacking the claim set up here on