silentio. If the matter was being argued before a tribunal which had then and there to decide on it, and the court were composed of lawyers, I would not ask to be heard, and would not insult the court by argu ment against so untenable a proposition. The observations I am now making are for the purpose of refuting opinions, not in the minds of your excellency or your honors, but in the minds of the public who have not the same intelligence or means of information as your honors. The Reciprocity act recites:

Her Majesty the Queen of Great Britain, being specially desirous, with the Government of the United States, to avoid further misunderstanding between their respective subjects and citizens, in regard to the extent of the right of fishing on the coasts of British North America, secured to each by Article 1 of a convention between the United States and Great Britain, signed at London on the 20th day of October, 1818, and being also desirous to regulate the commerce and navigation between their respective territories and people, and more especially between Her Majesty's possessions in North America and the United States, in such manner as to render the same reciprocally beneficial and satisfactory, have respectively, &c.

Your honors will see that the act commences by stating that both governments are desirous of avoiding further misunderstandings between their respective subjects and citizens, with respect to the extent of the right of fishing given by that article; and after reciting the Convention of 1818 and the particular article in question, goes on to say that it was important that the right under the convention should be settled. So far from showing any intention to repeal the Convention of 1818, the exact opposite was the fact. That is the preamble. Here is the enacting part:

It is agreed by the High Contracting Parties that, in addition to the liberty, &c.

Does it say in this treaty that it swept away the Treaty of 1818 and enacted a new treaty in lieu thereof? So far from that being the case, it says: * In addition to the liberty secured to the United States fishermen by the abovementioned Convention of October 20, 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, &c.

And yet it is seriously urged by one of the learned counsel on behalf of the United States that the Treaty of 1854 abrogated the Convention of 1818. I think I have satisfactorily refuted Mr. Trescot's argument on this point, although that argument was not material to any question arising under the Washington Treaty. I now turn your attention to Twiss on "The Law of Nations." I am reading from the edition of 1859. At page 376 Sir Travers Twiss says:

Treaties properly so called, the engagements of which imply a state of amity between the contracting parties, cease to operate if war supervenes, unless there are express stipulations to the contrary. It is usual, on the signature of a treaty of peace, for nations to renew expressly their previous treaties if they intend that any of them should become once more operative. Great Britain, in practice, admits of no exception to the rule that all treaties, as such, are put an end to by a subsequent war between the contracting parties. It was accordingly the practice of the European powers, before the French revolution of 1789, on the conclusion of every war which supervened upon the Treaty of Utrecht, to renew and confirm that treaty under which the distribution of territory among the principal European states had been settled with a view of securing an European equilibrium.

This has a double bearing. Part of the argument which has been used by Mr. Trescot is that we are remitted to the rights acquired by the Treaty of 1783. He conveniently passes over, for the purpose of his argument, the fact that a war occurred between the United States and Great Britain in 1812, which was followed by a treaty of peace signed in December 24, 1814, the Treaty of Ghent. There is no doubt, says Mr. Trescot, that in consequence of the repeal of the Convention

of 1818 by the Reciprocity Treaty of 1854, the two nations are remitted back to the right each possessed under the Treaty of Paris of 1783; and that the Treaty of Ghent has nothing to do with this matter. I answer to that argument, that such is not the law of nations. By the law of nations, when war was declared in 1812 by the United States against Great Britain, every right she possessed under the Treaty of 1783 was abrogated, and, except so far as it was agreed by the parties that the status quo ante bellum should exist, it ceased to exist. The status, which is commonly called by writers uti possidetis, the position in which the treaty found them, alone existed after the Treaty of 1814 was concluded, I have cited the express authority of Sir Travers Twiss upon the subject. But we do not stop with British law. I will take American law on the subject, and we will see where my learned friends find themselves placed by American writers. I now cite from "Introduction to the Study of International Law, designed as an aid in teaching, and in historical studies, by Theodore D. Woolsey, president of Yale College." At page 83, President Woolsey uses this language:

At and after the Treaty of Ghent, which contained no provisions respecting the fisheries, it was contended by American negotiators, but without good reason, that the article of peace of 1783, relating to the fisheries, was in its nature perpetual, and thus not annulled by the war of 1812. By a convention of 1818 the privilege was again, and in perpetuity, opened to citizens of the United States. They might now fish as well as cure and dry fish, on the greater part of the coast of Newfoundland and Labrador, and on the Magdalen Islands, so long as the same should continue unsettled; while the United States on their part renounced forever any liberty "to take 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 within the above-mentioned limits.

It is there positively declared by one of their own writers on international law in so many words; and he not only lays down the law generally, but takes up the specific case with which we are now dealing, that the American contention is entirely incorrect. He says:

At and after the Treaty of Ghent, which contained no provisions respecting the fisheries, it was contended by American negotiators, but without good reason, that the article of the peace of 1783, relating to the fisheries, was in its nature perpetual, and thus not annulled by the war of 1812.

I think that statement is pretty conclusive. Now, here is the general law which President Woolsey lays down. At page 259 he says:

The effect of a treaty on all grounds of complaint for which a war was undertaken is to abandon them. Or, in other words, all peace implies amnesty or oblivion of past subjects of dispute, whether the same is expressly mentioned in the terms of the treaty or not. They cannot, in good faith, be revived again, although repetition of the same acts may be a righteous ground of a new war. An abstract or general right, however, if passed over in a treaty, is not thereby waived.

If nothing is said in the treaty to alter the state in which the war actually leaves the parties, the rule of uti possidetis is tacitly accepted. Thus, if a part of the national territory has passed into the hands of an enemy during the war, and lies under his control at the peace or cessation of hostilities, it remains his, unless expressly ceded.

That is quite clear. If, at the end of this war, Washington had been in the possession of the British, and if nothing had been said about it in the treaty, it would have become British territory; but with the exception of some unimportant islands in the Bay of Fundy, no territory fell into the hands of the British; and those islands, I believe, were subsequently given up. If, however, the cities of Boston or New York had at that time been actually in possession of the British, unless there had been a clause introduced into the treaty by which the territory was to return to the status quo ante bellum, it would have been governed by the uti possidetis rule, and would have remained British territory. I also refer your honors to 3 Phillimore, pp. 457, 458, and 459, to the same

effect. Now, I am not aware there is anything else in Mr. Trescot's speech which I need specially take up, because some of the other points occur in the arguments of Mr. Dana and Mr. Foster.

Mr. TRESCOT. Perhaps you will allow me to say that you are reply. ing to an opinion and not to an argument.

Mr. THOMSON. Where an opinion is put forward by counsel, he must either be counsel of such eminence that his opinion did not require to be supported by authorities, or else authorities should be advanced at the time. I admit that Mr. Trescot possesses great ability, but I have undertaken to meet him by British and American authorities, and, as I have shown, he is completely refuted by both. I think it was Mr. Trescot's duty, when he put forward such an extraordinary doctrine, to have stated his authorities. If he did not choose to do so, I cannot help it; but if he now wishes to retract it as not being anything else than an opinion, well, of course, it makes the matter different.

Mr. TRESCOT. No; but I did not argue it.

Mг. THOMSON. It is put forward not as an opinion, but as a proposition on behalf of the United States; there is no opinion about it; and when the United States speaks through the mouth of counsel, I am bound to treat the matter seriously. If this were a common case between man and man, I would not treat it seriously; but when such a proposition is put forward on the part of a great nation through counsel, it cannot be treated lightly, but is entitled to be treated with respect; and if there is nothing in it, I am bound to show that such is the case. I pass from Mr. Trescot to Mr. Dana. I propose to take this course for this reason while I admit the great ability of Mr. Trescot and Mr. Dana, still I think your honors will agree with me that whatever the case of the United Staates has in it, is to be found in the speech of Mr. Foster. No doubt it is also to be found in the other speeches, but I am taking Mr. Trescot's speech and Mr. Dana's speech out of their order, because I only want to touch on those subjects contained in them which Mr. Foster did not put forward. Anything submitted by Mr. Foster, although it is put forward by Mr. Dana and Mr. Trescot, I will treat as it appears in Mr. Foster's speech, in order to avoid going over the ground twice. Besides, Mr. Foster, as Agent, put forward his case with great ability, and as he on this occasion is officially the representative of the United States, I shall treat his argument as the most serious one of the three.

Mr. Dana stated that all these fisheries belonged to the United States as a right (it is very curious language), because, said he, they were won. He gave a very good description, only a little fanciful, of the whole of the contests for the last century in respect to the fisheries. It was a very pretty essay, and I had much pleasure in listening to it. It was delivered, as one would suppose anything emanating from him would be delivered, very well indeed-the English was admirable, and the style not to be found fault with. But there was very considerable play of imagination, and in this respect the learned counsel on the other side have a great advantage over me, for I am obliged to stick to hard facts. They have followed the practice of the free-swimming fish, and taken a little trip through history in a most graceful but free-and-easy manner. Mr. Dana sets out by stating that the fisheries belonged to the United States, and particularly to the State of Massachusetts, because, says he, "they were won by the bow and spear' of Massachusetts men." I never had the pleasure of visiting any of the museums of Boston or other cities of New England where those bows and spears are, presumably, hung up; but if those bows of that olden time were anything like

so long as the bow which American orators, statesmen, and lawyers sometimes nowadays draw in defense of real or imaginary American rights, then I must confess that they must have been most formidable weapons. It is a very extraordinary view, certainly, to present, that because those people fought in some former time with some persons on the coast-Mr. Dana does not say whether they were French, or barbarians, or Indians-they at that time being British subjects, they have the right to our fisheries.

But Mr. Foster went a step further. He stated-I suppose it was this which set off his colleagues-that we are indebted to the people of Massachusetts for now being in possession of Nova Scotia, and that it was entirely owing to their efforts that the British flag waves to-day on the Citadel, instead of that of France. Well, it was rather a bold assertion to make, certainly. I believe some of these Massachusetts men were fighting characters in those days. They fought with the people of Eng. land, and came out because they could not live in peace and quietude under British rule; they came out and found liberty of conscience for themselves, and terrified other people by burning witches, and stripping Quakers, showing that after all the old British intolerance was pretty well uppermost. But they were fighting people always, and they came over, and no doubt fought with the French to some extent; and for the first time I knew they went down to Le Pre, and committed the abominable outrage of turning out all the Acadians; I suppose they were com manded by General Winslow. Mr. Dana should have told Mr. Longfellow the story before he wrote Evangeline, because probably the British might not have suffered so much in public opinion if it had been generally known that they were Massachusetts people who committed the outrage. I am glad to this extent that the people of Nova Scotia are relieved from the odium. A friend placed in my hands, after the statement had been made, a well-known history of England containing a statement which shows the spirit in which the descent was made by the Massachusetts people upon the coast and upon the French. I find that about that time, after they had come bere and fought,and-if I may accept Mr. Foster's view of history as true-delivered us out of the hands of the French, they sent a claim to England for their services. That claim was laid before the British Parliament, which, at the instance of George II, voted them the large sum in those days of £115,000 for their services. So besides being fighting men they were cute enough to get paid for their trouble. Now by the rule qui facit per alium facit per se it was Great Britain herself that was fighting, and these were her hired troops. If the people of Massachusetts are going to set up a claim to the Prov ince of Nova Scotia and all the fisheries on the score of their fighting, the money so paid to them should be given back, and £115,000 with 125 years' interest will be a sum which we will condescend to receive for our fisheries and go and live somewhere else, as we must do when our fisheries are gone.

That is really the history of that transaction in which the counsel of the United States so vaunt themselves. I do not say that the Massachusetts men did not fight well; no doubt they did. Mr. Foster says they were people who knew their rights, and knowing, dared maintain them. The people of this Dominion also knew their rights, and will maintain them, too. When I know that the present learned and able chief justice of Nova Scotia is sitting in this chamber, within sound of my voice, as I now speak; when I see the portraits of his emi nent predecessors, and of Sir Fenwick Williams of Kars, and Sir John Inglis of Lucknow (both sons of Nova Scotia), looking down upon me

from the walls, I know that our rights have been and are thoroughly understood, and can, if necessary, be bravely upheld and defended in the future as they have been in the past. But I presume the day will never again come when Great Britain will be forced to measure strength with the United States. It is perfectly idle to make use of such language in an inquiry such as this; and in making these remarks I do not wish to be understood as saying anything that can be considered at all offensive to my friends of the United States; I make them simply in answer to observations made, as I submit, most unnecessarily by them.

Mr. Dana's other propositions I will pass over as rapidly as I can, consistently. He said we had no territorial waters-that no nation has. He stakes his reputation on that point.

Mr. DANA. No; you misunderstood me.

Mr. THOMSON. On page 67, Mr. Dana says:

Now, these fishermen should not be excluded except from necessity, some kind of necessity, and I am willing to put at stake whatever little reputation I may have as a person acquainted with the jurisprudence of nations (and the less reputation, the more important to me), to maintain this proposition, that the deep-sea fisherman, pursuing the free-swimming fish of the ocean with his net, or his leaded line, not touching shores or troubling the bottom of the sea, is no trespasser, though he approach within three miles of a coast, by any established, recognized law of all nations.

Now, I say that the meaning of that proposition is this, that there are no such things as territorial waters. I say it means that and nothing else. That is a distinct affirmation, that by international law any fisherman can approach within not merely three miles of the coast, but within any distance from the coast, if he keeps his leaded line from touching the bottom, and the keel of his vessel from touching the land, and that no international law excludes him. Upon that extraordinary proposi tion I take direct and unqualified issue.

Mr. DANA. What was the proposition to which you refer?

Mr. THOMSON. The proposition was, that there are no such things as territorial waters.

Mr. DANA. I made no such proposition. The question was this: Was there among territorial rights the right to exclude fishermen from fishing?

Mr. THOMSON. I did say this, that Mr. Dana had put forward the proposition that no nation possessed territorial waters. But no doubt that was too broad, because there may be territorial waters so inclosed by land that I presume no question could arise in regard to them; therefore, I stated his proposition too broadly. But Mr. Dana does not confine his statement to the one that no nation has absolute territorial rights over waters. He says that any foreign fisherman can come within any distance of the shores, and if he does not allow his leaded line or the keel of his vessel to touch the bottom, he has an undoubted right to fish.

Mr. DANA. There is no established recognized law of all nations against it.

Mг. THOMSON. Mr. Dana says, "by any established, recognized law of all nations." I do not wish to have any fencing about words; I use words in their ordinary meaning. I presume Mr. Dana means civilized nations. I do not suppose he will contend that, if the civilized nations of Europe and America had recognized a doctrine totally different from that enunciated by him, but the King of Ashantee, or Siam, or some other potentate away off in the interior of the vast continents of Asia and Africa had not acceded to that doctrine, it was not, therefore, the law of nations. I presume he refers to the civilized nations. I will now show the Commission that the proposition submitted by Mr. Dana has