been adduced before the Commission which has shown that those rights were exercised by the United States entirely irrespective of treaties. Before the Treaty of 1854, when we had nothing but the Treaty of 1818 to stand upon, which, as a treaty, certainly did not give us any of those rights, we exercised them. We exercised them also irrespective of and never by virtue of the Treaty of 1854. We exercised them in the interval between 1866 and 1871, as we are exercising them now. The court will not be able to find any connection between the treaties and the exercise of those rights. They have never been exercised the more or the less by reason of any treaties. It is not incumbent upon us to show why we are in the exercise of those rights. It is rather a speculative inquiry on the part of the British counsel as to where we got them, or whether we have them at all. Suppose I were to concede that we had no right to buy bait or ice or supplies, or transship cargoes anywhere on these coasts, certainly that ends the argument, because we cannot be called upon to pay for something which we have not got. If the proper construction of the Treaty of 1818 is that fishermen have no right as fishermen and by the general law, irrespective of the consent of the Crown, to buy bait, ice, and supplies, and transship cargoes in British dominions, then I concede that, as regards American fishermen fishing within the three-mile limit, we have not those rights. Why are we, then, in the exercise of them? In that case, by the concession of the Crown. There is, however, no statute against fishermen buying bait, obtaining supplies, bartering or transshipping fish, if they comply with the fiscal regulations of the government regarding all trade and commerce. If a fisherman has violated no statute or rule respecting trade, commerce, and navigation in this realm, there is no statute which can condemn him, because he is a fisherman, for having bought bait and supplies and transshipped cargoes. So long as there is no statute prohibiting it, our fishermen have gone on exercising that privilege, not believing they were excluded from it by the Treaty of 1818, whether they were correct or not. It is in that view only that the facts regarding seizures are of any importance; but yet we may make our answer at once and say, whether we have the right to do those things or not, we do not pretend that it was given to us by the Treaty of 1871. Your honors will not be able to find it included under Article 18 of that treaty. But it is ever satisfactory to be able to account for all the surrounding circumstances of any question. It seems there was a statute passed in 1819, 59 George III, generally against foreign vessels which shall be found fishing, or be found having fished, or be found preparing to fish within the prescribed limits. The statute reaches before and after the act. It is not necessary that fishermen should be taken in the act of fishing. That would be a statute very difficult to interpret and very easy to evade, which required that fishermen should be taken in the act of fishing. So the statute says, if a foreign fisherman is found having fished, or in the act of fishing, or preparing for the act of fishing within the prescribed waters, he is to be treated as an offender. We see no objection to that statute. The preparing to fish is a step in the process of fishing.

But the true construction of that statute is of very little importance. Yet certainly it must be meant that the act prepared for must have been illegal, for it cannot be supposed for one moment that Great Britain intended to say that no foreign vessels, French or American, should come into the provinces and buy bait for the purpose of fishing off the Graud Banks or the coast of Greenland. If this province got a reputation for having some bait which certain kinds of fish off Greenland swallow with

eagerness, and a Danish vessel should come here and buy it in the market, complying with all the regulations of the market and fiscal laws, and then set sail for Greenland, surely that vessel could not be seized and condemned.

I have put the argument of the counsel for the Crown as strong as I could put it; they say you exercise that right now and you did not exercise it before. Our answer is simply that we have always exercised it, and that we have done it irrespective of the Treaty of 1854 or of the Treaty of 1878. We have never been interfered with in exercising it. There is no case of condemnation of a vessel for exercising that right; and if there had been a good many, it would have made no difference to your honors, because the judgments would have been simply the provincial interpretation of the treaty given ex parte, and it is certain that no act of Great Britain has ever sanctioned the position that the United States had not this right, irrespective of treaties. Then, as has been suggested by my colleagues and I follow the suggestion merely-the whole correspondence between the governor-general and the head of the colonial office, and between the United States Government and the British Government, shows that Great Britain never intended that American fishermen should be excluded from the use of those liberties or rights, whatever be our claim to them, or whether we had them as of right or not. These privileges are those which fishermen have always exercised, and it has only been as population has increased and fiscal laws have become important and the inhabitants have become more apprehensive in regard to vessels hovering about the coast, that nations have enacted laws restricting persons in the exercise of those rights. The learned counsel in support of his argument cited Phillimore, I, page 224, Kent's Commentaries, vol. 1, pages 32 to 36; and Wheaton's Int. Law (Dana's ed.), sections 167, 169, and 170.

I have read these passages, Mr. Dana continued, not that they distinctly assert, or, indeed, that they take up the very question I am presenting before this tribunal, but they show the general principles upon which the great writers on international law-the governments themselves and the people-have acted with regard to fishermen and their rights, especially of supplying their wants from time to time in the ports and harbors of all countries. These rights have been recognized as incidental to the nature of man and the nature of the earth he occupies. However boastful we may be of ourselves, we are such feeble creatures that we cannot subsist many hours without food, shelter, and clothing, and fishermen and sailors must get these where they can. Laws respecting pure commerce, that is, the right to go with a cargo to sell and turn it into the great body of the property of the country, rest on other grounds; but the right to exercise the industry by which men live, as fishermen do by fishing, should be extended as far as possible, and originally had no limit. It passed within the category of those imperfect rights, such as innocent trausit and innocent use of waters. These rights have been exercised for the reasons there assigned, which are deeper as well as older than all treaties, conventions, and statutes.

As the treaties stand, fishing is an innocent use of all the waters of the Dominion. Great Britain has never prohibited the exercise of those rights. She may find it expedient to do so, or the policy of the Dominion or perhaps some excited political feeling or hostility against the United States for some wrong, real or supposed, may lead it to do so; but it has never been done, and that is the reason why we have always been in the exercise of those rights. When the provincial government

undertook to exclude us from those privileges, they were taken to account at once, and their action was stopped by the British Government. We are now brought to the last question, and that is, did we renounce those rights, the right to purchase bait, ice, supplies, and to transship, by clauses in the Treaty of 1818? For the purpose of this argument, I am perfectly indifferent which way your honors shall construe these clauses. The Government of the United States does not interpret them as a renunciation of these rights. I do not believe, I cannot believe, that the treaty had any such reference. But it is certain that nothing therein refers to the purchasing of cargoes of frozen herring, which has been often referred to before the Commission. That is a purely mercantile enterprise. A Boston vessel comes to this coast with a manifest, and equipped in every respect as a trader, though a fisherman at all other times, and after satisfying the custom-house authorities, she purchases a cargo of frozen herring, and proceeds with them to the Boston market. That is a commercial enterprise; it is not anything that is renounced by fishermen, as such, in the exercise of his rights to fish. Suppose a merchant at Newfoundland should take a fishing vessel not employed at that time, and load her with frozen herring, and send her to Boston, where, after she had been entered at the custom-house, and satisfied all the fiscal regulations, her cargo would be sold. Would any one pretend that her right to do that was derived from the treaty giving a right to fish within three miles of the American coast, and land and dry their nets? Certainly not. Therefore we may cut off at once all reference to that. If your honors shall say that by the Treaty of 1818 the United States did not renounce those rights, and did not notice them one way or another, that is sufficient for us. If your honors shall decide that so far as fishing within three miles is concerned, the United States renounced the right to purchase anything except wood, then we submit that the right of purchasing anything else has not been granted to us by the Treaty of 1871, and therefore we cannot be called upon to make any compensation.

We are satisfied that the United States are permitted by the British Government to do those acts, whether it be from comity, from regard to the necessities of fishermen, from policy, or from some other reason, I know not, and so long as we are not disturbed we are content. If we are disturbed, the question will then arise, not before this tribunal, but between the two nations, whether we are properly disturbed by Great Britain; and if we should come to the conclusion on both sides, that there being a dispute on that subject which should be properly settled, then it is to be hoped that the governments will find no difficulty in settling it; but this tribunal will discharge its entire duty when it declares that under Article 18 of the Washington Treaty no such rights or privileges are conceded to the United States.

Mr. THOMSON. I do not propose to answer Mr. Dana's argument at present, but I will call the attention of the Commission to the fact that it was an original argument and not a reply. In view of the fact that there are a number of witnesses waiting to be examined, and the short time the Commission has to sit before it takes an adjournment, I do not propose now to offer any observations in reply to the learned counsel, but no doubt before the case is through, previous to that time, I will take occasion to answer the arguments.

Mr. DANA said the announcement of the learned counsel seemed as if he assumed the right to make an indefinite adjournment of the hearing, and at some future day to reply to the arguments.

Mr. THOMSON said he did not desire to interfere with an immediate

decision, and his remarks were made simply that Mr. Dana's argument might not be considered as having been passed on the part of the counel for the Cro wn sub silentio.

Mr. FOSTER asked for an early decision on the motion.

The Commission retired to deliberate, and on their return the President read the following decision :

The Commission having considered the motion submitted by the Agent of the United States at the conference held on the 1st instant, decided

That it is not within the competence of this tribunal to award compensation for commercial intercourse between the two countries, nor for the purchasing bait, ice, supplies, &c., &c., nor for the permission to transship cargoes in British waters.

Sir ALEXANDER T. GALT. Mr. President, as this Commission has been unanimous on this question, I desire, with the permission of my colleagues, but without committing them to the same line of argument which has convinced myself, to state the grounds upon which I feel it my duty to acquiesce in the decision. I listened with very great pleasure to the extremely able arguments made on both sides, and I find that the effect of the motion, and of the argument which has been given upon it, is to limit the power of this tribunal to certain specified points. This definition is undoubtedly important in its consequences. It eliminates from the consideration of the Commission an important part of the case submitted on behalf of Her Majesty's Government; and this is undoubtedly the case so far as this part forms a direct claim for compensation; but, at the same time, it has the further important effect that it defines and limits the rights conceded to the citizens of the United States under the Treaty of Washington. Now, I have not been insensible to the importance of the considerations that have been addressed to us by the counsel for the Crown in reference to the inconvenience that may arise from the decis ion at which this tribunal has arrived. I can foresee that, under certain circumstances, those inconveniences may become exceedingly great, but I cannot resist the position taken by the counsel of the United States in stating that, if such inconveniences arise, they are matters which properly fall within the control and judgment of the two governments, and not within that of this Commission. On the other hand, I cannot fail to see that, while this is admitted, a remote and contingent inconvenience, a very important difficulty, and one of a very serious character, would arise if from any cause this Commission were to exceed the powers which are given to the Commissioners under the Treaty of Washington.

The difficulty would at once arise that any award whatever which it made, be it good or bad, be it favorable to the one party or to the other, would have been vitiated by our having acted ultra vires. I do not find, either, that there would be any ready escape from such a position. The treaty affords no machinery by which this question in regard to the fisheries can be adjudicated upon if this Commission should, from any unfortunate cause, be allowed to lapse; therefore, with regard to the two inconveniences in question, the one which strikes at the root of the whole treaty is that which ought to weigh with me, if I were placed in such a position as to be obliged to weigh such inconveniences; but, as I shall state before I conclude, there are other and stronger considerations present to my mind. I have in common with my colleagues entered into a solemn obligation to decide judicially upon all questions coming before this tribunal, and I feel it incumbent upon me, therefore, to give every possible weight, every due weight, to whatever may be said on either side, and I certainly have hitherto endeavored to do so, and I have done so in this case. I shall endeavor to pursue the same course, acting under

the same considerations, in the future. At the same time, I confess to a great feeling of disappointment that such an important part of the question connected with the settlement of the fisheries dispute should apparently be removed, or partly removed, from the possible consideration and adjudication of this tribunal, and I am bound to say that my conviction of the intention of the parties to the Treaty of Washington is that this was not their purpose at the time.

I have listened with very great attention to the arguments presented on behalf of the United States, but I do not think that they have correctly stated the position of the two parties at the time when the Treaty of Washington was entered into. The history of this case begins, as has been stated by counsel, as far back as 1783, but by common consent the Convention of 1818 is the treaty by which the fishery rights of the two countries have subsisted. Under the Convention of 1818 certain things were forbidden to the United States fishermen, and the United States renounced the right to do anything except what they were permitted to do by the words of that treaty. They renounced forever any liberty of taking, drying, or curing fish, etc., "provided that the American fishermen shall be permitted to enter the said bays or harbors for the purpose of shelter, and of repairing damages therein, of purchasing wood and obtaining water, and for no other purpose whatever." By the imperial Act 59, George the Third, Chapter 38, and by several colonial statutes, restrictions and definitions were imposed or were established with regard to offenses arising from infringements of those privileges conferred upon American citizens, though it has not been shown that the seizures which took place prior to 1854 were for trading or for obtaining supplies, or for any other benefit referred to in the motion, still it is undoubted that arising out of this legislation great irritation arose between the two countries, and this resulted in the adoption of what is known as the Reciprocity Treaty in 1854. That the Reciprocity Treaty was understood to have removed all those restrictions is unquestionably shown to be the case, to my mind, by the action taken by Great Britain and the colonies when the treaty came into force.

Immediately afterward, all statutes which had operated against the American fishermen were suspended, and the greatest possible freedom of intercourse existed during the continuation of that treaty. At the termination of the Reciprocity Treaty, and in support of the view that it was supposed to have given those privileges, we find the whole of these enactments revived, and we also find that subsequently more stringent statutes were passed by the Dominion of Canada in this relation. Now, it is important in the history of this case to consider what effect was produced by those statutes; and we find in a most important public document, that is the annual message of President Grant to Congress, in 1870, that this legislation on the part of the colonies was made the subject of the gravest possible complaint. The President states that: The course pursued by the Canadian authorities toward the fishermen of the United States during the last season has not been marked by a friendly feeling. By the first article of the Convention of 1818, between Great Britain and the United States, it was agreed that the inhabitants of the United States should have forever, in common with British subjects, the right of taking fish in certain waters therein defined. In the waters not included in the limits named in the convention, within three miles of parts of the British coast, it has been the custom for twenty years to give to intruding fishermen of the United States a reasonable warning of their violation of the technical rights of Great Britain. The Imperial Government is understood to have delegated the whole or a share of its jurisdiction or control of these inshore fishery-grounds to the colonial authority, known as the Dominion of Canada, and this semi-independent but irresponsible agent has exercised its delegated powers in an unfriendly way-vessels have been seized without notice or warning, in violation of the custom previously