be assumed that these controverted claims are by you deemed to be a just ground of award. We never can know the contrary, unless you say so; and, if you are to say so, we think that convenience and justice both require that you should say so at such an early day as to enable us to shape the conduct of our case in conformity with your decision.

Mr. THOMSON. I would like to know whether anything more is to be said on the subject by our learned friends opposite.

Mr. FOSTER. We understand that, as is the case in connection with every other motion, the party moving has the right, in this instance, to open and close the argument.

Mr. THOMSON. I make this observation simply because, in the course of the American Agent's remarks, he said that Mr. Trescot had given particular attention to the treaties, and hence I assumed that he was about to be followed by Mr. Trescot. It would be obviously unjust to the counsel acting on behalf of Her Majesty's Government if they should now be called upon to answer the argument that has been made without hearing all that is really to be said on the other side. I understand that the other side have an undoubted right to reply to anything which we may say, but if Mr. Trescot is afterwards to start a new argument, as I rather infer from Mr. Foster's remarks he will do, this might put another phase on the matter.

Mr. TRESCOT. As I understand the position taken by Mr. Foster, it is very plain, and stated with all the fullness and precision necessary. He takes the ground that the commercial relations between Great Britain and the United States stand either on ordinary international comity or upon treaty regulations. If upon the latter, then they rest upon the Treaty of 1794, the third permanent article of which did determine the commercial relations which were to exist between the United States and the British North American Colonies; because in 1815 the Commercial Convention, then adopted and extended in 1815 and 1827, renewed that article, even if it should be contended, as I think it never has been before by the British Government, that the permanent articles of the Treaty of 1794 were abrogated by the war of 1812. The negotiators of the Convention of 1815 took the third article of the Treaty of 1794 as a basis, but not being able to agree as to certain modifications, decided to omit the article and to declare that "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, i. e., the article of the Convention of 1815 in reference to the commercial relations between the United States and the possessions of His Britannic Majesty in Europe, but each party shall remain in the complete possession of its right with respect to such intercourse," those rights being, as we contend, the old rights established by the Treaty of 1815. But the question has not a very important bearing upon our present contention, and has been suggested simply in reply to what we understand is to be one of the positions on the other side, viz, that if we deny that commercial privileges were granted by the Treaty of 1871, and are not, therefore, proper subjects of compensation in this award, then we have no right whatever to these commercial privileges; and I can say in reply to the very proper inquiry of my friend Mr. Thomson, that in any remarks I may make, that is the extent of the position which will be taken, but I do not expect to refer to the point at all.

Mr. THOMSON. In reference to the time at which this motion should be heard, in view of the arguments which the learned Agent of the United States has used, I shall not, on behalf of Her Majesty's Govern

ment, call upon this Commission to say this is an improper time for that purpose. We have no objection that this application on the part of the counsel of the United States Government should be heard at length, and so they may be enabled to understand at all times, on all reasonable occasions, the exact ground upon which we stand. There is nothing unreasonable in the view which has been put forward by them in this respect. They are entitled to know whether the Commission is going to take the matter named in their notice of motion into consideration or not. We therefore have no objection that your excellency and your honors should determine this point at once, and we do not complain of the time at which the motion is made. I shall now come to the substance of the motion. The Agent of the United States bas traveled out of the record, and has referred to light-houses and other matters not contained in this motion. He also alluded to the injuries which were committed on our coasts by the American fishermen, and he says that we have put them all forward in our case as subjects for compensation. I am not here now to consider the question whether we have done so or not; I at present only intend to discuss whether the matters included in this motion are matters coming within the jurisdiction of this court or not. I read the motion. It states:

The counsel and Agent of the United States ask the honorable Commissioners to rule declaring that it is not competent for this Commission to award any compensation for commercial intercourse between the two countries, and that the advantages resulting from the practice of purchasing bait, ice, supplies, &c., and from being allowed to transship cargoes in British waters, do not constitute any foundation for an award of compensation, and shall be wholly excluded from the consideration of this tribunal. The tribunal will see that these are the words inviting discussion; and these I am here to answer, and nothing else. Satisfactory answers could be given to the other matters to which Mr. Foster has called attention, if this were the proper time to give them. As to the lighthouses, for instance, it is quite obvious that these make the value of the fisheries themselves very much greater to the Americans than they would be otherwise; but I say again that I am not going to discuss that question now. If it should arise hereafter, I shall do so. We shall undoubtedly be obliged to discuss it eventually, at the end of the case; but the question now is, whether it falls within the jurisdiction of this tribunal to award to Great Britain any pecuniary compensation for the rights which the Americans have undoubtedly exercised since the Washington Treaty was negotiated, of coming into our waters and instead of taking bait with their own lines and nets, as by the terms of that treaty they have a right to do, purchasing it from our citizens; of buying ice here as well, and of getting supplies and trans-hipping their cargoes. It is said in the Reply of Her Majesty, page 8, I think, that these privileges are clearly incidental; that, looking at the whole scope and meaning of the treaty, it is clear that these are incidental privileges for which the American Government can afford to pay. The words of our reply, read by Mr. Foster, are these:

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 lastnamed 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.

It is clear that these privileges were not enjoyed under the Convention of 1818, and it is equally evident that they are enjoyed under the Treaty of Washington.

Well, that is the argument which was put forward by Her Majesty's Government, but whether that argument commends itself to the judg

ment of this tribunal or not is not for me to say, though to my mind it is a very strong and very forcible one. Referring to the wording of the treaty itself, and to the Convention of 1818, the first section of the latter states:

Whereas differences have arisen respecting the liberty claimed by the United States, for the inhabitants thereof, to take, dry, and cure fish on certain coasts, bays, harbors, and creeks of His Britannic Majesty's dominions in America, it is agreed between the high contracting parties, that the inhabitants of the said United States shall have forever, in common with the subjects of His Britannic Majesty, the liberty to take fish of every kind on that part of the southern coast of Newfoundland which extends from Cape Ray to the Rameau Islands, on the western and northern coast of Newfoundland, from the said Cape Ray to the Quirpon Islands, on the shores of the Magdalen Islands, and also on the coasts, bays, harbors, and creeks from Mount Joly, on the southern coast of Labrador, and to and through the straits of Belle Isle, and thence northwardly indefinitely along the coast, without prejudice. however, to any of the exclusive rights of the Hudson's Bay Company. And that the American fishermen shall also have liberty, forever, to dry and cure fish in any of the unsettled bays, barbors, and creeks of the southern part of the coast of Newfoundland hereabove described, and of the coast of Labrador; but so soon as the same, or any portion thereof, -hall be settled, it shall not be lawful for the said fishermen to dry or cure fish at such portion so settled, without previous agreement for such purpose with the inhabitants, proprietors, or possessors of the ground. 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; 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 purposes whatever. 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.

Now, in reference to the Washington Treaty, you will find this language used in the commencement of the 18th Article:

It is agreed by the High Contracting Parties that, in addition to the liberty secured to the United States fishermen by the Convention between Great Britain and the United States, signed at London on the 20th day of October, 1818, of taking, curing, and drying fish on certain coasts of the British North American Colonies therein defined, the inhabitants of the United States shall have, in common with the subjects of Her Britannic Majesty, the liberty, for the term of years mentioned in Article XXXIII of this treaty, to take fish of every kind, except shell fish, on the sea-coasts and shores, and in the bays, harbors, and creeks of the Provinces of Quebec, Nova Scotia, and New Brunswick, and the Colony of Prince Edward Island, and of the several islands thereunto adjacent, without being restricted to any distance from the shore, with permission to land upon the said coasts, and shores, and islands, and also upon the Magdalen Islands, for the purpose of drying their nets a d curing their fish; provided that in so doing they do not interfere with the rights of private property, or with British fishermen, in the peaceable use of any part of the said coasts in their occupancy for the said purpose. It is understood that the above-mentioned liberty applies solely to the seafishery, and that the salmon and shad fisheries, and all other fisheries in the rivers and mouths of rivers are hereby reserved exclusively for British fishermen.

I call attention to the fact that, in this very Treaty of Washington, the framers have made as the basis of it, not only the Convention of 1818, but the 1st section of it, and in that section is contained the strong and positive declaration that the Americans shall have the right (and only that right) of coming into British waters for the purposes of obtaining shelter, repairing damages, and of securing wood and water, and for no other purpose whatever. I will now read Article 18 of the Washington Treaty, and the argument I wish to found upon it is this: That the High Contracting Parties, or rather the High Commissioners, had before them, when they framed that treaty, the Convention of 1818, the first article of which contains these words:

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.

One would suppose that under ordinary circumstances it would have been sufficient to have stopped with the statement that they should be admitted for the purpose of shelter, &c., and of obtaining water," but the framers of the Convention of 1818 were particular to add, "and for no other purpose whatever."

They not only so restricted the Americans by affirmative words, but also by negative words. The High Contracting Parties having this before them, gave the Americans the liberty of coming upon our shores to fish on equal terms with our fishermen, and to take bait, &c. To my mind, the High Commissioners considered that the framers of the Convention of 1818 deemed it necessary to insert the words, and for no other purpose whatever," to make it absolutely certain that the Americans could only come in for shelter, repairs, wood, and water, and should enjoy no rights as incidental to that privilege, and that they purposely omitted those words in the Treaty of Washington. It may, therefore, be well supposed that if the Americans were to be restric ed to the very letter of the treaty, the same negative words would have been used, and undoubtedly had those words been used in the treaty, there would be an end of the argument. If that had been the intention of the High Commissioners, they would have gone on in this treaty to state in Article 18: It is agreed by the High Co tracting Parties that, in addition to the liberty secured to the United States fishermen by the Convention between Great Britain and the United States, signed at London on the 20 h day of October, 1818, of taking, curing, and drying fish on certain coasts of the British North American Colonies, therein defined, the inhabitants of the United States shall have, in common with the subjects of Her Britannic Majesty, the liberty, for the term of years mentioned in Article XXXIII of this treaty, to take fish of every kind, except shell-fish, on the sea coasts and shores, and in the bays, harbors, and creeks of the Provinces of Quebec, Nova Scotia, and New Brunswick, and the Colony of Prince Edward Island, and of the several islands thereunto adjacent, without being restricted to any distance from the shore, with 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, and for no other purpose whatever.

But these words were not used.

Now these are the words which the learned Agent of the United States, and the learned counsel who are associated with him, seek, in my judgment, to interpolate into this treaty. The framers of the Convention of 1818 were very cautious as to its wording; the framers of the Treaty of Washington had that convention before them, and it must, therefore, I think, be fairly assumed that if it had been the intention of either of the High Contracting Parties, in this instance, that the Americans should simply have the bare rights named in the treaty and nothing else, they would have followed the example set before them by the Convention of 1818 and used these strong negative words, "and for no other pur, ose whatever." I say that this argument is a fair and just one; of course its weight is to be determined by this tribunal. I am by no means putting it forward as a conclusive argument, but still the fact that they did not do so is of great weight in my mind, though to what extent its weight will effect the decision of this tribunal it is not for me to say, but it does appear to me to be a very strong argument indeed. Had it been intended to restrict the United States fishermen, and, to use the language of Mr. Foster, confine them merely to what was mentioned in the bond, the High Commissioners would have added, “and for no other purpose whatever "; and therefore their leaving that language out is open to the construction that the Americans were entitled to all the incidental advantages which that treaty would necessarily be understood to confer.

Is it not a rather extraordinary argument on the part of the United

States that this privilege of theirs related only to their right of com ing in and fishing on equal terms with our citizens, and to landing and to drying their nets and curing their fish, and that the moment they had dried their nets and cured their fish they were forthwith to take to their boats and go back to their vessels, and that by landing for any other purpose whatever they are clearly liable for infraction of the provisions of this treaty? It is certainly a curious view which Mr. Foster presents with regard to their mode of bartering along the coast when he intimates that they land merely to exchange a galion or two of kerosene oil or a barrel of flour for fish, and in effect declares-for this is the result of his argument that for so doing the Americans are liable to punishment.

Mr. FOSTER. I said that they could be excluded by statute.

Mr. THOMSON. I will show you before I am through that these American fishermen can by no possibility whatever come into our waters without incurring the risk of forfeiture, if Mr. Foster's reading of this treaty be accepted as correct. This would be the result of his argu. ment; if you confine them to the very terms of the bond, to use the language of Mr. Foster, then it is clear that if they land for the purpose of giving a barrel of flour in exchange for fish, or of purchasing fish, at that moment their vessels are liable to forfeiture. This is a strange construction to put upon the treaty, and these are the strange results which will necessarily follow if this tribunal adopt the view presented by the American Agent.

But there is another matter to be considered, and it is this: In 1854 the Reciprocity Treaty was passed, and under that treaty the Americans came in to fish on our coasts generally. They exercised the same rights as they do now, and no person then ever complained of them for buying bait under the terms of that treaty, though it did not in express terms authorize their purchase of bait or their getting supplies of any kind on our shores; still they did so. By a kind of common consensus of opinion, it was understood that they had a right to do so, and no person complained of it. And in view of the course which then was pursued, this treaty was framed. Mr. Foster has put this case: Suppose that when the Joint High Commissiouers were sitting, the British representative had proposed that the value of the rights of transshipment, and of buying bait, and of having commercial intercourse with our people should be taken into consideration by this Tribunal, then, had this been the case, it would have been met by a well-bred shrug from the Earl of Ripon, and Professor Bernard. This may possibly be so; but I can say, I think it would have been very strange indeed if our Commissioners had said to the American Commissioners: Under the treaty which we propose you shall have the right to fish in our waters on equal terms with our fishermen, and have the right to land and cure your fish, and the right also to dry your nets on the land, but the moment that you take one step farther, the moment that you buy a pound of ice, and the moment that you presume to buy a single fish for the purpose of bait in our waters, and the moment you attempt to exercise any commercial privilege whatever, and above all, the moment you undertake to transship one single cargo, that moment your vessel will be forfeited, and the cargo as well. I think that if this had been stated, there would have been something more perhaps than a well-bred shrug from the American Commissioners. I think, therefore, it may fairly be contended, in view of the wording of the two treaties, that these are privileges, which it was intended that this Commission should take into consideration when they came to adjudicate respecting the value of our fisheries; and