ice, bait, and other supplies. If there had been the least intention by either party to extend the rights to new subjects it would certainly have been stated in the treaty. If, when the representatives of Great Britain and the United States had come together, the Joint High Commission had understood that we should not enter British American ports except those we were allowed to enter under the Treaty of 1818 for any purpose except for shelter, and to buy wood and water, and the British nation had proposed to add to these subjects so as to include the right to buy bait and ice and to transship cargoes, why inevitably they would have said so; inevitably the new rights would have been specifically included in the matters on which your honors were to base your calculations. England might have said to the United States (I deny the position, but England might have taken the position) that American fishermen have no right to enter our waters except under the Treaty of 1818, and then not to buy anything but wood and water, and now we are opening to them the great privilege of buying bait, ice, and supplies, and transshipping cargoes, which will add immensely to the value of their fisheries. The argument would have been made, which has been made here, in the form of questions put to expert witnesses: " Is not all that essential to American fisheries?" But, on the contrary, the treaty says nothing about it. We hear of it for the first time when the counsel of the British Government are getting up their case for damages. We immediately protest against it as something not included in the jurisdiction of this court, and our Agent, Mr. Foster, on page 32 of the Answer, distinctly states

That the various incidental and reciprocal advantages of the treaty, such as the privileges of traffic, purchasing bait, and other supplies, are not the subject of compensation, because the Treaty of Washington confers no such rights on the inhabitants of the United States, who now enjoy them merely by sufferance, and who can at any time be deprived of them by the enforcement of existing laws or the re-enactment of former oppressive statutes. Moreover, the treaty does not provide for any possible compensation for such privileges; and they are far more important and valuable to the subjects of Her Majesty than to the inhabitants of the United States.

The passages which the British counsel have referred to as an argument that the Agent of the United States bad admitted that those privileges came by treaty, all refer to something quite different. A passage on page 9 of the Answer of the United States has been quoted:

While practically both fishing and commercial intercourse have been carried on in conformity with the treaty ever since it was signed, May 8, 1871.

That "commercial intercourse" means the free importation on each side of the articles of commerce, the only articles of commerce the treaty refers to, fish and fish oil. On page 14, section 2 of the Answer, it is stated:

The incidental benefits arising from traffic with American fishermen are of vital importance to the inhabitants of the British maritime provinces.

These are benefits which the British people get from us, and they are said to be only incidental, and are only introduced as a set-off, if Great Britain claimed to have the right to receive compensation for the privi lege of trading in bait, &c., with her people.

May it please your honors, it is clear to our minds that the Treaty of Washington does not give us those advantages. That subject has been elaborated by the Agent of the United States and by my learned friend (Mr. Trescot). In the first place it has been said in answer to that contention, or rather it has been suggested, for it was not said with earnestness as if the counsel for the Crown thought it was going to stand as an argument, that those were treaty gifts to the United States, and though

they could not be found in any treaty, yet they were necessarily implied in the Treaty of Washington. Take the Treaties of 1783, 1818, 1854, and 1871, and they are nowhere referred to according to any ordinary interpretation of language. The only argument I can perceive is this: You have enjoyed those rights. They do not belong to you by nature or by usage, and must therefore be treaty gifts; though we cannot find the language, yet they must have been conferred by the Treaty of 1871 and the Treaty of 1854. May it please this learned tribunal, we exercised all those rights and privileges before any treaty was made, except the old treaty which was abolished by the war of 1812. Almost the very last witness we had on the stand told your honors that before the Reciprocity Treaty was made we were buying bait in Newfoundland, and several witnesses from time to time have stated that it is a very ancient practice for us to buy bait and supplies and to trade with the people along the shore, not in merchandise as merchants, but to buy supplies of bait and pay the sellers in money or in trade as might be most convenient. Now, that is one of those natural trades that grow up in all countries; it is older than any treaty, it is older than civilized states or statutes. Fisheries have but one history. As soon as there are places peopled with inhabitants, fishermen go there. The whalefishermen of the United States go to the various islands of the Pacific which are inhabited and get supplies. To be sure the whale fishery does not need bait, but the fishermen get supplies for their own support and to enable them to carry on the fishery, and they continue to do so until those islands come to be inhabited by more civilized people. So it is with the Greenland fisheries. Then come restrictions, more or less, sometimes by treaty and sometimes by local statutes, which the foreign governments feel themselves obliged to respect; if they do not it becomes a matter of diplomatic correspondence, and might be a cause of

war.

The history of this matter is that the custom for fishermen to obtain supplies and bait from countries at various stages of civilization is most ancient, most natural, most necessary, most humane, and one for which no compensation has ever been asked by any civilized nation, because it is supposed to be for mutual benefit. It is for the benefit of the fishermen to get his supplies, but the islanders would not sell them unless they thought it was also beneficial to themselves. So statutes do not create the right, but only regulate it. So do treaties. They regulate and sometimes limit the rights, but they seldom if ever enlarge them. In looking at this subject your honors will find such has been the history of the fisheries on the northeast coast of America. The fishermen began, long before these islands were well settled, even before they had recognized governments upon them, to exercise all the privileges and rights which belong to fishermen in all parts of the world where they are not limited by statutes or treaties. It was a case altogether sui generis. Fishing is an innocent passage along the coast. It is an innocent use; and an innocent use and transit are always allowed. The French claimed and the British claimed the Newfoundland fisheries, and at last a treaty settled their claims. It did not give rights, but adjusted them. And so it was with us. While we were part of Great Britain, we had all the privileges of British subjects; but the British in Newfoundland had very few claims which were not contested, and some were entirely in the hands of the French. When we were severed from the Crown, the question arose whether there was any reason why we should not continue to fish where we had always fished. We did not seck to make any claim in regard to property in the islands; we did not

ask for any privilege not a fishing privilege. The question arose whether we had not still the right to fish as an innocent pursuit, even though within the limit of three miles; and the three-mile limit and what is meant was not then settled. We must, however, discuss this subject as if there had always been an exact law, from the times of Moses down, relating to the three-mile limit and what the powers were. All this has grown up within very recent times, and indeed there are very few persons now who know what is meant by it. It was long contended that the right of all States over the three miles was for fiscal purposes, and purposes of defense only, and as the subject has been very fully argued in a recent case in England, nothing can probably be added to the reasons given on each side. The matter continued in that position. We fished without reference, and thought we had the right to do it. We knew it did no harm. The fishermen are by the law of nations a peculiar class, having special privileges. Their status is different in time of war from that of a merchantman or man-of-war. Having this question of the three-mile limit to deal with, one which was long dis puted between the United States and Great Britain, and one which was always looked upon as disputed, which had had a slow and steady growth for many years, and about which no one can dogmatize, they have endeavored to arrange it as best they could. Your honors will find that in the very first treaty, that of 1783, it is stated:

It is agreed that the people of the United States shall continue to enjoy unmolested the right to take fish of every kind on the Grand Bank and on all the other Banks of Newfoundland; also in the Gulf of Saint Lawrence, and at all other places in the sea where the inhabitants of both countries used at any time heretofore to fish.

That was looked upon as dealing with existing rights, the exact limitations of which must rest solely in agreement. It was not a gift, as the French gave Dunkirk to England, or as Mexico gave California to the United States. It was like an adjustment of disputed territory. The only question settled in the first treaty, that of 1783, was that we should fish as before; nothing was said about the three-mile line. When we come to the Treaty of 1818 we find it stated: "Whereas differences have arisen," &c.

By that treaty it is agreed that on certain parts of the coast we shall have the right to take fish, that on certain parts we shall have the right to dry and cure fish, and that at other parts we shall not have such rights. Then came the Treaty of 1854, which said nothing about any of those rights of which I am speaking, but merely dealt with the question of our right to fish within three miles, where we could exercise it and where not, and our right to cure and dry fish and to dry nets. In Article 18 of the Treaty of 1871 the question is taken up again in the same way.

It is agreed by the High Contracting Parties that in addition to the liberty secured to United States fishermen by the convention between the United States and Great Britain signed at London on the 20th October, 1818, for taking, curing, and drying fish on certain coasts of the British North American colonies therein named, the inhabitants of the United States shall have, in common with the subjects of Her Britannic Majesty, the liberty, for the term of ten years mentioned in Article 33 of this treaty, to take fish of every kind, except shell-fish, on the sea coasts and shores, in the bays, harbors, and creeks of the Provinces of Quebec, Nova Scotia, and New Brunswick, and colony of Prince Edward Island and the several islands thereunto adjacent, without being restricted to any distance from the shore, with permission to land upon the said coasts, shores, and islands, and also upon the Magdalens, for the purpose of drying their nets and curing their fish.

Then it is stated that whereas it is claimed that Great Britain thereby has given the United States more valuable fisheries than they had before, there is something to be paid. Now, if the treaty did not give

us the right to do so, how came we to be buying bait? Why, we have always done it. From the time there was a man there with bait to sell, there was an American to buy it from him. We have never asked for the right to buy bait. You cannot find a diplomatic letter anywhere in which we have complained that we were prohibited from buying bait. After the Treaty of 1854 had expired, it is true, the Canadians, who felt sore about the matter, undertook to say we should not buy any bait; that if we did, we would be punished therefor. They were immediately stopped by Great Britain, who, without saying in terms that the Americans had a right to buy bait by the Treaty of 1817 or irrespective of all treaties, declared it to be against the policy of the nation to prohibit it; and they stopped this petty persecution of American fishermen. I care not what line of reasoning induced the British Government to take that course with their Canadian subjects. I do not care whether they considered that the Treaty of 1818 gave it to us (I do not see how they could), or whether, as is more probable, they, being large-minded men, who had studied the subject, considered it something which, not being prohibited, belonged to us, and they did not intend to prohibit it.

Now, who are the men who buy the fish for bait? They are not the men who fish within the three-mile limitation. We do not buy bait here to catch mackerel. The bait we buy is for the Banks and deep-sea cod fishery. There is no pretense from any evidence that our mackerel fishermen come here to buy bait; it is only the Bank cod-fishermen who do so. I respectfully submit to this learned tribunal that it can have nothing to do with how the fishermen on the Banks see fit to employ themselves. The Treaties of 1818, 1854, and 1871 related solely to fishing within the three miles. The Treaty of 1783 recognizes the right of American fishermen to fish on the Banks, on the high seas, a right which had always belonged to American fishermen, never ceded to them by any treaty, but which they hold by the right of common humanity. These men come into Canadian ports to buy bait. What has this tribunal to do with them?

Have not American fishermen fishing on the high seas the right to run into British ports by comity, by the universal law of nations, if they are not specially excluded on some ground which the United States admits to be proper and right? Have they not the right to come in and buy bait and other necessaries? Great Britain possesses the power to put any regulation on them it pleases, to require them to enter at the custom-house, to be searched to see whether they are merchants in disguise, and to levy duties upon them; but in the absence of a prohibition, there is no right to prevent those fishermen buying bait or supplies.

I next come to the question of shelter, repairs, purchasing ice and other articles, and transshipping cargoes. I do not propose to admit that we have not these rights, or that we are exercising them simply because we are not punished for doing so, or that because the Treaties of 1818 or 1871 have not given them to us, we do not possess them, and that it is within the power of the provinces to exclude us from them altogether. That depends upon considerations which are not necessary for us to take in view. If your honors should decide that you have no right to recognize, among the elements of compensation, those rights of which I speak; then if the colonies should pass a law which should punish every American fisherman from the Grand Banks or inshore fisheries who should buy bait or ice or refit is guilty of an offense, it would then be a question for Her Majesty's governor-general to determine whether that was not an imperial question, and, if so, to refer it to Her Majesty in council to determine. I have no fear that any such statute

would be passed, because the number of persons interested in that traffic with American fishermen is very great, and they are voters; they have even in Newfoundland broken their chains and become a sober and saving people since they came to have cash of their own, from their trading with Americans.

I doubt whether the Canadian Government will be encouraged, however strong may be the wave of politics, to meet the people of the various constituencies and insist on this American traffic being entirely cut off. If they do it, I doubt whether Great Britain would sanction it, and if Great Britain did allow it, then it becomes at once a question between the two governments. Is that a course fair and right, in accordance with the comity of nations, in accordance with practices which are earlier than when the first Disciples threw their nets into the sea of Galilee is not such a course an interference with a right practiced from earliest times, and without good reason for the prohibition? You may put regulations on us so that our fishermen shall not be smugglers in disguise, and so that merchants shall not come in the disguise of fishermen; but to prohibit American fishermen from purchasing bait and supplies, not in case of necessity merely, but as part of the plan of their trade, and transshipping cargoes, would be a violation of the spirit which has governed the commercial relations between the two empires.

I would therefore present a summary of the matter thus: The only matter of dispute between Great Britain and the United States in the Treaty of 1783 related to the inshore fisheries, I mean the right to catch fish more or less near the British coast, and in addition to that to cure and dry fish. The Treaty of 1783 acknowledged the general right.

The Treaty of 1818 gave us certain places, which were named, where we could exercise those fishing rights, and stated certain places where we could not exercise them; but it did not undertake to deal with the commercial side of the fisheries question. The Treaty of 1854 was the same; it gave a general right to fish within these Dominions, and to land and dry them in certain places. The only question of late has been whether Great Britain has the right, without any treaty, to exclude us from three miles of the coast. That was Mr. Adams's famous argument with Earl Bathurst. We said in the Treaty of 1818 that, as a right, we no longer claimed it. That is the meaning of the treaty-that having claimed it as a right inherent in us, either because we did not lose it at the time of the Revolution, or from the nature of fisheries, or on some other ground, we no longer claimed it as a right which cannot be taken away from us but at the point of the bayonet. But while we say we will not go within the three miles to fish without permission, it must not be held that vessels cannot go there for shelter and repairs and for wood and water, but may be put under such regulations as will prevent us from doing anything further. It is entirely a matter for Great Britain to determine what regulations we should be placed under, in those respects, and she has seen fit to make none. The Statute 59, George III., passed to carry out the Treaty of 1818, prohibited fishing or preparing to fish in certain boundaries. A decision has been rendered in one province that buying bait was "preparing" to fish. In another province other a decision was rendered directly the way.

That, however, is a local matter altogether. The decision rendered in New Brunswick was that the prohibition of "preparing to fish" must apply only to those who intended to fish within the prohibited degree; that the buying of bait, whether it was a step in preparing to fish or not, was not an offense unless the fishing itself would be an offense. If an American bought bait here to go off to Greenland or to the Mediterranean to fish, it could not be considered an offense. Great Britain can