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Are the inhabitants of the United States whose vessels resort to the treaty coasts for the purpose of exercising the liberties referred to in article 1 of the treaty of 1818 entitled to have for those vessels, when duly authorized by the United States in that behalf, the commercial privileges on the treaty coasts accorded by agreement or otherwise to United States trading vessels generally?
The treaty confers no rights upon American vessels. It concedes to inhabitants of the United States the right to fish in certain British waters; and the question is whether the vessels used by such American fishermen are entitled, as of right, to such commercial privileges on the treaty coasts as are from time to time accorded to trading vessels. If there is no such right, then it is within the power of Great Britain to open or close her ports to fishing vessels coming there for commercial purposes, at her pleasure.
Great Britain contends that American fishermen cannot claim, as of right, to exercise any liberties in British territorial waters unless those liberties were granted by the treaty of 1818; that no commercial privileges were so granted; and that the exercise of commercial privileges by American fishing vessels would be contrary to the intention of that treaty.
UNITED STATES CONTENTION.
The United States contends that American fishing vessels resorting to British territorial waters under the terms of the treaty are entitled, as of right, to trade on the British shores, and to have the same commercial privileges as trading vessels, subject to their having the licence to touch and trade required by the law of the United States.
THE TREATY COASTS.
In terms, the question stated for the opinion of the Tribunal relates only to the treaty coasts. But the discussions which have taken place
with regard to the rights of American fishermen on the non128 treaty coasts are important, and it may be of advantage to refer briefly to some of their leading features.
The facilities, which have been the subject of dispute hitherto, have related to such traffic as the purchase of bait, ice, seines, and other articles and supplies, the hiring of crews, the landing of fish, and the transfer of them to ships or railways for transportation to the United States or elsewhere-facilities which themselves amount to the establishment of a base of operations in British ports for the American fishing industry.
But the contention now put forward goes even further than this. It is a claim to all the commercial privileges accorded to vessels engaged solely in trade; in other words, it is a claim that vessels plying in British waters for the purpose of fishing under the treaty have the right to carry on trade as well.
HISTORY OF THE QUESTION.
1699. From the earliest times the possession of the coasts of Newfoundland, for the purpose of procuring bait, has always been regarded as of very special value. In 1699 a British statute (10 and 11 Wm. III, c. 25) provided (App., p. 525) :—
that no alien or stranger whatsoever (not residing within the kingdom of England, dominion of Wales, or town of Berwick upon Tweed) shall at any time hereafter take any bait, or use any sort of trade or fishing whatsoever in Newfoundland, or in any of the said islands or places above mentioned.
The foregoing statute was in force at the date of the American revolution, and the ensuing treaty of 1783.
1786. After the peace the British statute (26 Geo. III, c. 26) provided (App., p. 559) :—
That it shall not be lawful for any person or persons residing in, or carrying on fishery in the said island of Newfoundland, or on the banks thereof, there to sell, barter, or exchange any ship, vessel, or boat, of what kind or description soever, or any tackle, apparel, or furniture, used, or which may be used, by any ship, vessel, or boat; or any seines, nets, or other implements or utensils, used, or which may be used, in catching or curing fish, or any kind of bait whatsoever, used, or which may be used, in the catching of fish; or any kind of fish, oil, blubber, seal skins, peltry, fuel, wood, or timber, to or with any person or persons whatsoever, other than the subjects of His Majesty, his heirs and successors.
This statute (as well as that of 1699) was in force at the date of the 1818 treaty.
1818. During the negotiations which preceded the treaty of this year, the United States Commissioners proposed that American fishermen should have liberty to enter the bays on the non-treaty coasts
for the purpose of purchasing bait. This was rejected by the British Commissioners, and the right of access to those coasts was limited to the four purposes specified in the treaty.
The British Commissioners, on their part, proposed clauses for the prevention of smuggling, but these were objected to by the Americans on the ground that they would expose fishermen to endless vexation, and were not pressed. At the time of these negotiations no American vessel had liberty to trade with the British colonies.
1819. The Statute 59 Geo. III, cap. 38, was passed to give effect to the convention.
INSTRUCTIONS OF LORD BATHURST.
On the 21st June, Lord Bathurst addressed a despatch to Sir C. Hamilton (Governor of Newfoundland) in which he explained the effect of the treaty, and particularly instructed the Governor to see that no attempts were made to carry on trade under the pretence of exercising the rights conferred by it. He said (App., p. 99) :—
You will, in the first place, observe that the privilege granted to the citizens of the United States is one purely of fishery and of drying and curing fish within the limits severally specified in the convention. It is the pleasure of His Royal Highness that this privilege, as limited by the convention, should be fully and freely enjoyed by them without any hindrance or interference; but you will, at the same time, remark that all attempts to carry on trade, or to introduce articles for sale or barter into His Majesty's possessions under the pretence of exercising the rights conferred by the convention, is in every respect at variance with its stipulations.
ARRANGEMENTS OF 1830.
1830.-Reciprocal trading facilities were arranged. They were given effect to by an Order-in-Council of His Majesty and a proclamation of the President of the United States, but there was no treaty or agreement, and neither party acquired as against the other any right to a continuation of the facilities given. The Order-in-Council contained the following provision (App., p. 570):
And His Majesty doth further, by the advice aforesaid and in pursuance of the powers aforesaid, declare that the ships of and belonging to the said United States of America may import from the United States, aforesaid, into the British possessions abroad, goods, the produce of those States; and may export goods from the British possessions abroad to be carried to any foreign country whatever.
Under this arrangement American trading vessels for the first time obtained access to Canadian ports. The terms of the Order-in-Council show that it applied only to vessels engaged in trade, and that it did not affect the position under the Fisheries Convention.
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1839.-Lieutenant-Commanding Paine of the United States Navy was sent to the British fishing grounds to observe British enforcement of the limitations of the treaty. Upon returning, he reported that the British authorities claimed (App., p. 121)
to draw a line from headland to headland, the Americans not to approach within 3 miles of the line;
and added that if the American contentions were upheld, it would be difficult for the British to prevent American fishermen (App., p. 122) procuring articles of convenience, and particularly bait, from which they are precluded by the convention.
RECIPROCITY TREATY, 1854.
1855-1866.-During this period the reciprocity treaty of 1854 was in operation. Under that treaty, the fisheries on the British North American coasts and on the United States coasts north of the 36th parallel of north latitude were open to the fishermen of both countries, and the scheduled articles, which included fish of all kinds, were admitted into each country free of duty. During this period no restriction was placed on the purchase by fishermen of bait or other articles for the purpose of their fishing operations.
1866-1870.-The treaty of 1854 came to an end in 1866, but the fact that the United States fishermen had enjoyed the privilege of fishing on the non-treaty coasts for the preceding eleven years made its withdrawal a matter of some difficulty, and not the less because negotiations were on foot for renewal of the treaty. The British North American provinces therefore sanctioned the continuation of this privilege under a system of licenses, for which the fishermen were required to pay a small tonnage fee-fifty cents in 1866; a dollar in 1867; and two dollars in each of the two succeeding years. The same absence of restriction with regard to the purchase of bait and other articles which had prevailed during the continuation of the reciprocity treaty was continued to the holders of such licenses.
1870-1871.-Many of the United States fishermen having neglected to take out licenses, the system was ended, and the exclusion from all but the treaty rights recommended. The restrictions on the purchase of bait and other traffic revived. Seizures were made; and shortly prior to the making of a new treaty (1871) two decisions were given which are of some historical importance. In one of them, the "J. H. Nickerson," Sir William Young, Judge in Vice-Admiralty
in Nova Scotia, held that purchasing bait in British waters was a breach of the existing statutes; and in the other, the "White Fawn," Judge Hazen, of New Brunswick, held that it was not. The statutes then in force were the British statute 59 Geo. III, cap. 38 (1819) (App., p. 565), and the Canadian statutes 31 Vict., cap. 61 (1868) (App., p. 628), and 33 Vict., cap. 15 (1870) (App., p. 630), which provided penalties against foreign vessels
found fishing, or preparing to fish, or to have been fishing
in British waters. One judge thought that purchasing bait was "preparing to fish," and the other judge thought it was not.
LORD KIMBERLEY, 1871.
1871.-In this year, in the course of prolonged negotiations for a renewal of reciprocal trade arrangements between Canada and the United States, as well as for the settlement of the Alabama claims, a despatch was written by Lord Kimberley (Colonial Secretary) to the Governor-General of Canada to which it seems right to refer. In the course of that despatch his Lordship dealt with the right to exclude American fishermen to a distance of 3 miles from the coasts and the question of the extent of bays and creeks, and then proceeded as follows (App., p. 246):
The exclusion of American fishermen from resorting to Canadian ports, "except for the purpose of shelter and of repairing damages therein, of purchasing wood, and of obtaining water," might be warranted by the letter of the treaty of 1818, and by the terms of the Imperial Act 59 George III, cap. 38, but Her Majesty's Government feel bound to state that it seems to them an extreme measure, inconsistent with the general policy of the Empire, and they are disposed to concede this point to the United States' Government, under such restrictions as may be necessary to prevent smuggling, and to guard against any substantial invasion of the exclusive rights of fishing which may be reserved to British subjects.
It is obvious that the passage has no bearing on the question now under discussion. It deals not with the alleged rights of trading claimed for fishing-vessels on the treaty coasts, but with the proviso for entry by American fishermen for the purpose of shelter, of repairing damages and of obtaining wood and water, into the bays and harbours, with regard to which the United States renounced all liberties theretofore claimed in respect of the taking, drying or curing of fish by American fishermen. Lord Kimberley merely states that Her Majesty's Government are disposed to relax the enforcement of the terms of the proviso under such restrictions as are necessary to prevent smuggling and to obviate any invasion of the exclusive rights of British subjects to fish in these waters. No arrangement to this effect was ever arrived at, and so far from