IX.

FINAL ARGUMENT OF MR. THOMSON ON BEHALF OF HER BRITANNIC

The Conference met.

MAJESTY.

May it please your excellency and your honors:

MONDAY, November 19.

It has now become my duty, after this long and tedious inquiry has been concluded, as far as the evidence is concerned, to present the final argument on behalf of Her Majesty's Government. I could wish, in view of the great importance of the issue, that the matter had been placed in abler hands. I shall not go very much into the historical question which has been involved in this inquiry, because my learned friends who preceded me have gone fully into that; and, although I dissent from some of the views presented by the learned counsel for the United States, and may, incidentally, in the course of my remarks, have occasion to state some particulars of that dissent, I do not think there is anything that calls upon me consider the subject at length.

There was one matter which, if I may use the expression of my learned friend, the Agent of the United States, at one time appeared likely to loom up with very great importance. I refer to the headland question. I feel that I can congratulate this Commission that, for the purpose of their decision upon the subject submitted to them, that question does not assume any importance whatever in this inquiry. But I wish to guard myself distinctly from assenting to the view presented by Mr. Foster, when alluding to that subject. He rather appeared to assume that, for practical purposes, this headland question had been abandoned by Her Majesty's Government, and that the mode of conducting this inquiry, on the part of the counsel for Her Majesty's Government, showed such an abandonment. I beg to set my learned friends on the other side right upon that matter. There has been no abandonment whatever. It only comes to this: that in this particular inquiry the evidence has so shaped itself, on either side, that your excellency and your honors are not called upon to pronounce any opinion on the subject. There can be no doubt that, under the terms of the treaty, your excellency and honors are not empowered to pronounce any authoritative decision, or effect any final settlement of that much-vexed question.

Incidentally, no doubt, it might have fallen within your province to determine whether the contention of the British or of the American Government, in reference to that question, were the correct one; because, had it been shown that large catches had been made by the American fishermen within the bodies of great bays, such as Miramichi and Chaleurs, it would have become at once necessary to come to a decision as to whether we were entitled to be credited with those catches. But, in fact, no such evidence has been given. And that course wa taken somewhat with the view of sparing you the trouble of investigat ing that question, when the treaty did not empower you to effect a final decision of it. The learned counsel, associated with me on behalf of Her Majesty's Government, and myself, shaped our evidence as much as possible with reference to the inshore fisheries. We concluded that if the American Government, who had put this matter prominently forward in their brief, intended to challenge a decision from this Commission, they ought to have given evidence of large catches made by their

vessels in those bays. They have not done so. The evidence on our side has shown that, to a very great extent, the value of the fisheries is inshore; that, undoubtedly, very large catches could be made in the bodies of those bays, and that the fish frequent the body of the bays as well as the portion within three miles from the contour of the coast all around those bays; but we tendered evidence chiefly with relation to the fisheries within three miles of the shore, by no means intending to have it understood-in fact, we expressly disclaimed the intention of having it understood-that there were not in the bodies of those bays valuable fisheries. I can only say, however, that before this Commission there is no evidence of that, and you may dismiss it, therefore, from your minds. When this headland question shall hereafter arise, if it should unfortunately arise, then I beg to say that the position laid down when the Convention of 1818 was made, has since been in no way de parted from. My learned friends on the other side point to the Bay of Fundy. They say, there is a bay which Great Britain contended came within the Convention of 1818, and yet she was obliged, in consequence of the decision given by Mr. Bates, in the case of the Washington in 1854, to recede from that position in reference to that bay. I beg to say that Great Britain did not recede. It was stated on the other side that it was res adjudicata. I say it is not. It is wholly improbable that the Bay of Fundy will ever again become a matter of contest between the two nations; but the fact in regard to that case is, that Great Britain gave the United States the right to do in that bay that which answered their purpose quite as well as if she had abandoned her claim. She relaxed any claim that she had by the Convention of 1818, and that relaxation has never been departed from, and in all human probability never will be departed from for all time to come. But it is relaxation, and nothing else.

My learned friend rather assumed than distinctly stated, that the decision in regard to the Bay of Fundy would have considerable weight in reference to other bays. I deny that. Great Britain expressly guarded herself against any such construction. And, moreover, she guarded herself against another construction placed upon the negotiations between the two governments, viz, that the Gut of Canso was common to the two nations. The British Government, so far as I am informed-I have no special knowledge on the subject, except that afforded by the correspondence and negotiations between the two governments-emphatically deny that doctrine. The Gut of Canso is a mare clausum, belonging to Great Britain-to the Dominion of Canada. It is a strait on either side of which is the territory of the Dominion. There is no foreign shore to that strait. It is not necessary for me to argue, nor shall I argue, what would be the effect on the international question, assuming the Gulf of St. Lawrence to be an open sea, whose waters could be traversed by the keels of other nations, and to which the Gut of Canso was the only entrance. How far the position I assume might be modified, if that were the case, I shall not consider; but such is not in fact the case. There is another entrance north of the island of Cape Breton, and also one by the Straits of Belleisle.

In connection with this subject, permit me to call your attention to the instructions issued by the British Government to the Admiralty, immediately after the Reciprocity Treaty had been abrogated by the United States.

These instructions are dated April 12, 1866, and were issued by Mr.

Cardwell, then Secretary of State for the Colonies, to guide the fleet about to protect the British North American fisheries:

It is, therefore, at present the wish of Her Majesty's Government neither to concede nor, for the present, to enforce, any rights in this respect which are in their nature open to any serious question. Even before the conclusion of the Reciprocity Treaty, Her Majesty's Government had consented to forego the exercise of its strict right to exclude American fishermen from the Bay of Fundy, and they are of opinion that during the present season that right should not be exercised in the body of the Bay of Fundy, and that American fishermen should not be interfered with, either by notice or otherwise, unless they are found within three miles of the shore, or within three miles of a line drawn across the mouth of a bay or creek which is less than ten geographical miles in width, in conformity with the arrangement made with France in 1839.

American vessels found within these limits should be warned that by engaging or preparing to engage in fishing, they will be liable to forfeiture, and should receive the noticeto depart which is contemplated by the laws of Nova Scotia, New Brunswick, and Prince Edward Island, if within the waters of one of these colonies under circumstances of suspicion. But they should not be carried into port except after willful and persevering neglect of the warnings which they may have received, and in case it should become necessary to proceed to forfeiture, cases should, if possible, be selected for that extreme step in which the offense of fishing has been committed within three miles of land.

Her Majesty's Government do not desire that the prohibition to enter British bays should be generally insisted on, except when there is reason to apprehend some substantial invasion of British rights. And in particular, they do not desire American vessels to be prevented from navigating the Gut of Canso (from which Her Majesty's Government are advised they may be lawfully excluded), unless it shall appear that this permission is used to the injury of colonial fishermen, or for other improper objects.

I have it in command to make this communication to your lordships as conveying the decision of Her Majesty's Government on this subject.

I have, &c.,

EDWARD CARDWELL.

I quote these instructions and make these observations in order that hereafter it may not be said that the views expressed by the American counsel in regard to the Bay of Fundy and the Gut of Canso were ac-ceded to by being passed sub silentio by the counsel for Great Britain

With these preliminary observations, I shall return to the main question, and here I may say that some weeks back, when your excellency and honors arrived at the conclusion that this inquiry should be closed by oral instead of written arguments, I foresaw that great diffi culties must occur if counsel were expected to do what counsel ordinarily do whilst closing cases in courts of justice. If the immense mass of testimony, covering many hundreds of pages, together with the voluminous appendices and addenda to the evidence, were to be gone over and the relative value of the testimony on either side to be weighed, it seemed certain that the several speeches closing this case, on either side, must necessarily extend over weeks. I had some curiosity, when my learned friend, Mr. Foster, commenced his address--and a very able one it wasto see in which way he would treat this matter, and whether or not he would attempt to go over all this evidence. He quite reassured me when he said:

A great mass of testimony has been adduced on both sides, and it might seem to be in irreconcilable conflict. But let us not be dismayed at this appearance. There are certain landmarks which cannot be changed, by a careful attention to which I think we may expect to arrive at a tolerably certain conclusion.

I thought he had made an epitome of the evidence, and had attempted to sift it, but I was "dismayed" afterwards, when I discovered that, so far from considering himself bound by the testimony, he conveniently ignored nearly the whole of the British evidence, and that the small portions to which he did refer, he was pleased to treat in a way that did much more credit to his ingenuity as an advocate, than to his spirit of fair dealing with the witnesses. I therefore did not feel at all relieved by his course. Throughout his speech, as I shall show, there have been

a series of assumptions, without the slighest evidence on which to base them. It was a most admirable speech in every respect, but one. It had little or no foundation in the facts proved. It was an admirable and ingenious speech, I admit, and the same may be said of the speeches of his learned colleagues. It was an admirable speech in a bad cause. Fortunately, I feel that I am not here for the purpose of measuring my strength as an advocate against that of Judge Foster. Were it so, I am very much afraid I should go to the wall. But I have just this advantage over him, as I think I shall satisfy you before I have done, that my cause could not be injured even by a bad advocate; and I think I shall show you that his cause has been made the very best of by a won derfully good advocate.

Now, I think that probably the proper course for me to take, is to go through those speeches, and after having done so, to turn your attention somewhat to the evidence. I take the very pleasant and humorous speech of my learned friend Mr. Trescot, which certainly gave me a great deal of amusement, and, I humbly conceive, put me very much in the position of the man who was beaten by his wife, and who, being remon strated with by his friends for permitting it, said that it pleased her and didn't hurt him. The speech of my learned friend pleased him, and didn't hurt us a bit. I will show why. In the course of his argument he referred to a minute of the Privy Council of Canada, made in answer to Earl Kimberly shortly after the Treaty of 1871 was negotiated be tween the two countries. Mr. Trescot laid great stress upon the fact that this was not a treaty between the United States and Canada, but that it was a treaty between the United States and England. No person disputes that proposition. It is not doubted. But I suppose that no person will dispute the fact that, although England is nominally the party to the treaty, the Dominion of Canada is vitally interested in the result of this Commission.

There is just this difference between this treaty and au ordinary treaty between the United States and England, that, by its very terms, it was wholly inoperative as regards the British North American possessions, unless it were sanctioned by the Dominion Parliament and the legisla ture of Prince Edward Island, which at that time was not a part of the Dominion. In this respect it differed from an ordinary treaty, inasmuch as by the very terms of the treaty the Dominion of Canada had a voice in the matter. But I am willing to treat the matter as Mr. Trescot has been pleased to put it, as one between England and the United States alone, as the High Contracting Parties. You will recollect that, in the Answer to the British case, it was put prominently forward that this treaty was not only a boon to the Dominion, but that it was so great a boon that the premier of this Dominion, in his place in Parliament, made a speech to that effect, which is quoted at length in the Answer. Now, it may be right enough to quote the statements of public men in each of the countries. They are representative persons, and may be supposed to speak the language of their constituencies. Therefore I do not complain of their words being quoted. But I was surprised when, in the course of this inquiry, it was argued-I do not know whether it was by Mr. Foster or by one of the learned gentlemen associated with him-that these speeches were calm expressions of opinion by gentlemen not heated in any way by debate. It struck me that that was a curious way in which to characterize a debate in the House of Commons, upon a question vital to the existence of the ministry for the ime being. I thought that was just a case where we had a right to expect that the speeches delivered on either side would probably par

take of a partisan character, and not only so, but that it was inevitable that the government speakers would use the strongest arguments they could in defense of the action of their leader, even though their arguments weakened the case of their country in an international point of view. Had my learned friends been content to put forward these speeches in their Answer, and quote them for the purpose of argument, there would have been nothing to say beyond this, that when Sir John A. Macdonald and others talked about the fisheries they were speaking of what they knew nothing about. They had no practical knowledge whatever. What practical knowledge of the matter had any of us around this table before hearing the evidence? None whatever. And yet, can it be that Sir John A. Macdonald, Dr. Tupper, Mr. Stewart Campbell, or anybody else who made speeches, and whose remarks have been quoted, had a tithe of the information that we now possess? Therefore, I think that we may dismiss the whole of those speeches by saying, without meaning anything discourteous, that they were talking about matters of which they knew nothing, and therefore that their speeches ought to have no weight with this Commission. But Mr. Trescot has relieved me from using even that argument, for he has referred to this minute of council, which I hold in my hand, passed in the very year in which the Washington Treaty was negotiated, and before the legislature of Canada had adopted it. And I wish to call the attention of the Commission to the fact that the whole privy council were present, including Mr. Peter Mitchell, the then minister of marine and fisheries, and especially to the fact that Sir John A. Macdonald was present. The minute is as follows:

PRIVY COUNCIL CHAMBER,

Ottawa, Friday, July 28, 1871.

Present: The Hon. Dr. Tupper, in the chair; the Hon. Sir John A. Macdonald, the Hon. Sir George Et. Cartier, the Hon. Mr. Tilley, the Hon. Mr. Mitchell, the Hon. Mr. Campbell, the Hon. Mr. Chapais, the Hon. Mr. Langevin, the Hon. Mr. Howe, the Hon. Sir Francis Hincks, the Hon. Mr. Dunkin, the Hon. Mr. Aikins. To His Excellency the Right Honorable John Baron LISGAR,

May it please your excellency:

G. C. B., G. C. M. G., P. C.,

Governor-General of Canada, &c., &c., &c.:

The committee of the Privy Council have had under their consideration the Earl of Kimberley's dispatch to your excellency, dated the 17th June ultimo, transmitting copies of the treaty signed at Washington on the 8th May last by the Joint High Commissioners, and which has since been ratified by Her Majesty and by the United States of America; of the instructions to Her Majesty's High Commissioners, and of the protocols of the conference beld by the Commission; and likewise the Earl of Kimberley's dispatch of the 20th of June ultimo, explaining the failure of Her Majesty's Government to obtain the consideration by the United States Commissioners of the claims of Canada for the losses sustained owing to the Fenian raids of 1866 and 1870.

The committee of the Privy Council have not failed to give their anxious consideration to the important subjects discussed in the Earl of Kimberley's dispatches, and they feel assured that they will consult the best interests of the empire by stating frankly, for the information of Her Majesty's Government, the result of their deliberations, which they believe to be in accordance with public opinion in all parts of the Dominion.

The committee of the Privy Council readily admit that Canada is deeply interested in the maintenance of cordial relations between the Republic of the United States and the British Empire, and they would therefore have been prepared without hesitation to recommend the Canadian Parliament to co-operate in procuring an amicable settlement of all differences likely to endanger the good understanding between the two countries. For such an object they would not have hesitated to recommend the concession of some valuable rights, which they have always claimed to enjoy under the Treaty of 1818, and for which as the Earl of Kimberley observes, Her Majesty's Government have always contended, both governments having acted on the interpretation given to the treaty in question by high legal authorities. The general dissatisfaction which the publication of the Treaty of Washington has produced in Canada, and which has been expressed with as much force in the agricultural districts in the west as in the maritime provinces, arises chiefly from two causes: