confer upon United States fishermen' privileges of trading or of shipping men' in Canadian ports." And, finally, a committee of the Canadian Privy Council declared, in effect, on November 24, 1886, that an American vessel, manned, equipped, and prepared for taking fish, has not the liberty of commercial intercourse in Canadian ports, such as are applicable to other regularly registered foreign merchant vessels.

Such an interpretation of the present legal effect of the first article of the treaty of 1818, is, in the opinion of your Committee, so preposterous, in view of concerted laws of comity and good neighbourhood enacted by the two countries, that, had it not been formally put forth by the Dominion of Canada, would not deserve serious consideration by intelligent persons. If all the stipulations of 1818 restraining American fishermen are now in full force (which may well be doubted), your Committee concedes that American fishermen have no more liberty to take fish or to dry or cure fish in what has been described as portion B, than a British fisherman has to take fish in the inner harbour of New York, and to dry or cure fish in the City Hall Park of that city. But the liberty of an American fisherman to take, dry, and cure fish in portion A, in common with British subjects, is as complete and absolute as is the right of citizens of New York to fish in the waters of the Hudson River. The treaty of 1818 furnishes no more excuse for the exclusion of a deep-sea fisherman from the port of Halifax, or any other open port of the Dominion of Canada, than for the exclusion by the secretary of the Treasury of a deep-sea fisherman from entering the port of New York according to the forms of law, and for the ordinary purposes of trade and commerce. The exclusion, if made, must be justified, if at all, for other reasons than any yet given by Canada.

382 Keeping in mind the words of the third article of the treaty

of peace in 1783, which not only acknowledged the right of the united American colonies to fish in the open sea as freely as to navigate the open sea, but also acknowledged and stipulated for the liberty to "take fish of every kind" on coasts, bays, and creeks of all of His Britannic Majesty's dominions in America, it will be discerned that this contention of the Privy Council of Canada makes of the renunciation by the United States, in 1818, of the liberty theretofore enjoyed or claimed by American fishermen within three miles of certain carefully defined coasts, bays, creeks, or harbours, not merely a renunciation of specific local liberty, but a forsaking, a relinquishment a surrender, an abandonment by the United States of other rights held up to 1818.

CERTAIN CANADIAN COASTS ARE SUBSERVIENT TO AMERICAN FISHERMEN.

The treaty of 1783 diminished and impaired, and was intended to diminish and impair, British sovereignty over the remaining British colonies of North America. The United States had conquered full and complete dominion over the right of fishing in the jurisdictional waters of each of the thirteen United States, but the British colonies did not emerge from the negotiations of the treaty of peace with similar dominion over the fisheries on the shores and coasts of the thirteen recognised States. British fishermen cannot fish on the coasts of Massachusetts, but American fishermen can fish on certain shores and

coasts of the Dominion of Canada and of Newfoundland. Apart from fishing and the incidents of fishing, it is conceded that the British Government has exclusive control, as against the United States, of the customary and usual rights of navigation in the jurisdictional waters of the British colonies. What we claim for ourselves, under the rules of public law, and apart from treaties, we concede to others. Rights of navigation are ordinarily separate from rights of fishing. The Commonwealth of Massachusetts may control the right and liberty of fishing on her coast, as against any Power other than the Government of Washington, but the right of navigation of the jurisdictional waters of Massachusetts is always subject to the control of the United States. The use of waters in respect of navigation is easily distinguishable from the fruit of waters in respect to fishing or fish. The United States have, so far as the British North American colonies, and all the world, are concerned, the right of navigating and fishing on the high seas, and in addition the right of fishing in certain British territorial and jurisdictional waters. That right of fishing, either inshore or offshore, should carry with it the natural and necessary navigating incidents of the right.

It may be conceded that, apart from the right of American fishermen to take fish of all kinds within certain clearly defined British waters, American deep-sea fishermen have no greater rights, by treaty or public law, in British ports, than British fishermen have in American ports, so far as concerns revenue police, maritime tolls or taxes, pilotage, lighthouses, quarantine, and all matters of ceremonial. But the contention of the Privy Council of Canada is that if a vessel bearing the registry, or enrolment, or licence of the Treasury department (which alone makes her an American vessel) be licensed. equipped and under contract with her seamen as an American fisherman on the open sea, she thereby comes under the ban of the treaty of 1818, and is thereby abandoned by the nation whose flag is at her mast-head, and is, by the treaty, excluded from an entrance into a Canadian or Newfoundland port, excepting for one of the objects enumerated in that treaty. Canadian ports are closed to her as to an outcast. An American or a Canadian fishing vessel on the high seas. and lawfully wearing the flag of its country, should be, if permitted by its own Government to touch and trade, entitled to the same rights of navigation and the same treatment in a foreign port as any trading

CANADIAN INHUMANITY.

If the Privy Council and the Governor General of the Canadian Dominion excluded all American vessels from all rights of touching or trading in Canadian ports, excepting to obtain shelter, repairs, wood or water, the contention would be logical and more tolerable; but to every American vessel other than a fishing vessel, be the fisherman big or little-a schooner, a sloop, a ship, or a steamer of large tonnage Canadian ports seem to be wide open. If, however, she be an American fishing vessel on the high seas, she cannot go into a Canadian bay even to bury those of her dead who, in life, may have been British subjects with a domicile in Canada and a residence on the land near the bay, and may have expressed a wish not to be committed to the sea, but to be lain at rest by their kindred on the spot which gave them birth.

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The treaty of 1818 gave rights of fishing independent of general commercial rights, although it may be said that, as to shelter, repairs, wood and water, the treaty did give to fishermen certain commercial rights, or rather a few rights of humanity. The treaty did not restrain the granting or the exercising of commercial rights. The right, if it be a right, of an American to buy anything in Canada does not come of the inshore fishing treaty of 1818. Your committee are not aware of any Canadian or Newfoundland law which, having been approved by the British Crown, forbids a British subject to there sell ice, or bait, or anything else, to an American, or to trade with him. If there be such a law, then non-intercourse has to that extent been proclaimed against our countrymen.

CANADIAN VIOLATIONS OF TREATIES.

The contention of your committee is that the treaty of 1818 covers differences and disputes about the liberty of American fisher383 men to take, dry and cure fish on certain British North American coasts, bays, harbours and creeks. The Privy Council of Canada, at the bottom of page 32 (Ex. Doc. No. 19, Forty-ninth Congress, second session), concedes the correctness of this contention. They say:

"The sole purpose of the convention of 1818 was to establish and define the rights of citizens of the two countries in relation to the fisheries on the British North American coast."

The treaty is limited to coast fishing, drying or curing. On certain defined portions of the coast "American fishermen " may fish, but elsewhere on the coast they may not fish, and yet those coast "American fishermen may, nevertheless, and for certain purposes, enter the bays and harbours in which they cannot fish, under restrictionsto prevent them from doing what? "Taking, drying or curing fish therein?"

Your committee contend that the term "American fishermen used in the treaty of 1818, means the "American fishermen" of and under that treaty. The rule noscitur a sociis, as understood and applied by judges and lawyers in England and America, limits and defines the term. They have a treaty right to enter "such bays and harbours" and to remain there, subject, and subject only, to such restrictions" as may be necessary to prevent their taking, drying or curing fish therein." The restrictions can only apply to the prevention of such fishing in those bays or harbours. Whatever concerns or is preparation for fishing elsewhere is not thereby to be prevented. It is true that, by the treaty of 1818, we have stipulated that our fishermen "shall be under such restrictions as may be necessary to prevent their taking, drying or curing fish therein," but the treaty says nothing of "preparing to fish" somewhere else. A fair presentation of the opinions of the Vice-Admiralty Court of Canada, in regard to the meaning of the Canadian phrase "preparing to fish "which is a stranger to the treaty of 1818-can be seen in Dr. Wharton's "International Law Digest," vol. iii, § 304.

If it be said that our view of the treaty is strict, severe, and rigid as against Canadian statutes and officials, your committee answer that when Canada proposes and endeavours to use a treaty to arrest and fine American fishermen, seize and confiscate American vessels for the benefit of Canadian seizors, the Government of the United States

is entitled to stand on such an interpretation. But even if the treaty of 1818 covers (which it does not) every American fisherman entering a Canadian harbour, on whatever sea or ocean he may cast a line or draw a seine, the Canadian statutes do not preserve and enforce the treaty. They destroy it, so far as the privileges are concerned that are given to American fishermen by the treaty.

First of all in order of time and authority is the Imperial legislation at London in 1819 to enforce the treaty of the previous year. After forbidding everyone, excepting British subjects and American citizens (who could do so within defined limits), to fish, dry, or cure fish anywhere within three miles of British coasts in America, that law of 1819 punishes by forfeiture any offending vessel, and all the articles on board. Then comes this:

That if any person or persons, upon requisition made, by the governor of Newfoundland, or the person exercising the office of governor, or by any governor or person exercising the office of governor, in any other parts of His Majesty's dominions in America, as aforesaid, or by any officer or officers acting under such governor or person exercising the office of governor, in the execution of any orders or instructions from His Majesty in Council, shall refuse to depart from such bays or harbours; or if any person or persons shall refuse or neglect to conform to any regulations or directions which shall be made or given for the execution of any of the purposes of this Act, every such person so refusing or otherwise offending against this Act shall forfeit the sum of £200, to be recovered, &c.

It will be seen that not forfeiture, but a fine to be recovered by a suit, is inflicted for refusing or neglecting to depart on notice. The statutes of Canada are not, as the Canadian Privy Council asserted (p. 32), "expressed in almost the same language" as the foregoing Imperial statute.

The Prince Edward Island's enactment of 1844 gives the key-note of Canadian enactments. It declares:

Whereas by the convention (made between His late Majesty King George the Third and the United States of America, signed at London on the twentieth day of October, in the year of our Lord one thousand eight hundred and eighteen), and the statute (made and passed in the Parliament of Great Britain in the fifty-ninth year of the reign of his late Majesty King George the Third,) all foreign ships, vessels or boats, or any ship, vessel or boat, other than such as shall be navigated according to the laws of the United Kingdom of Great Britain and Ireland. found fishing, or to have been fishing, or preparing to fish, within certain distances of any coast, bays, creeks or harbours whatever, in any part of His Majesty's dominions in America not included within the limits specified in the first article of the said convention, are liable to seizure; and whereas the United States did, by the said convention, renounce for ever any liberty enjoyed or claimed by the inhabitants thereof to take, dry or cure fish on or within the above mentioned limits: Provided however, that the American fishermen be admitted to enter such bays or harbours for the purpose of shelter and of repairing damages therein, of purchasing wood, and of obtaining water, and for no other purposes whatever, but under such restrictions as might be necessary to prevent their taking, drying or curing fish therein, or in any other manner whatever abusing the privileges thereby reserved to them; and whereas no rules or regulations have been made for such purpose, and the interests of the inhabitants of this island are materially impaired; and whereas the said Act does not designate the persons who are to make such seizure as aforesaid, and it frequently happens that persons found within the distances of the coasts aforesaid, infringing the articles of the convention aforesaid, and the enactments of the statute aforesaid, on being taken possession of, profess to have come within said limits for the pur384 pose of shelter and repairing damages therein, or to purchase wood and obtain water, by which the law is evaded, and the vessels and cargoes escape confiscation, although the cargoes may be evidently intended to be smuggled into this island, and the fishery carried on contrary to the said convention and statute.

The Canadian enactment of 1868 came next, the second and third sections of which say:

2. Any commissioned officer of Her Majesty's navy serving on board of any vessel of Her Majesty's navy cruising and being in the waters of Canada for purpose of affording protection to Her Majesty's subjects engaged in the fisheries, or any commissioned officer of Her Majesty's navy, fishery officer, or stipendiary magistrate on board of any vessel belonging to or in the service of the Government of Canada and employed in the service of protecting the fisheries, or any officer of the customs of Canada, sheriff, magistrate, or other person duly commissioned for that purpose, may go on board of any ship. vessel or boat within any harbour in Canada, or hovering (in British waters) within three marine miles of any of the coasts, bays, creeks, or harbours in Canada. and stay on board so long as she may remain within such place or distance.

3. If such ship, vessel, or boat be bound elsewhere, and shall continue within such harbour or so hovering for twenty-four hours after the master shall have been required to depart, any one of such officers or persons as are above mentioned may bring such ship, vessel, or boat into port and search her cargo, and may also examine the master upon oath touching the cargo and voyage; and if the master or person in command shall not truly answer the questions put to him in such examination, he shall forfeit $400; and if such ship vessel or boat be foreign, or not navigated according to the laws of the United Kingdom or of Canada, and have been found fishing, or preparing to fish, or to have been fishing (in British waters) within three marine miles of any of the coasts, bays, creeks or harbours of Canada, not included within the above-mentioned limits, without a licence, or after the expiration of the period named in the last licence granted to such ship, vessel or boat under the first section of this Act, such ship, vessel or boat, and the tackle, rigging, apparel, furniture, stores, and cargo thereof shall be forfeited.

The treaty stipulates that the fishermen shall be under "necessary restrictions" to prevent the doing of the things forbidden by the treaty, but what may be "necessary" to prevent the prohibited fishing is a political and diplomatic question for the two signatory Governments to decide. The treaty permits American fishermen to enter and remain for

1. "Shelter," which includes a refuge from fogs, winds, storms. and whatever may imperil fishing.

2. "Repairing damages," which includes every damage to fishing boat or fishing gear.

3. "Purchasing wood."

4. "Obtaining water."

Conceding that Canada can place an officer on every arriving fisherman as soon as found, the treaty does not even then authorise a twenty-four hour limit with the result of forfeiture. Nor does the treaty authorise forfeiture for "preparing to fish."

The Customs circular issued at Ottawa on 7th May, 1886, and called a "Warning," recited the first article of the treaty of 1818, together with the two sections of the law of 1868 just quoted, and adds:

Having reference to the above, you are requested to furnish any foreign vessels, boats, or fishermen found within three marine miles of the shore, within your district, with a printed copy of the warning enclosed herewith.

If any fishing vessel or boat of the United States is found fishing, or to have been fishing, or preparing to fish, or hovering within the three-mile limit, does not depart within twenty-four hours after receiving such warning, you will please place an officer on board of such vessel, and at once telegraph the facts to the Fisheries Department at Ottawa, and await instructions.

J. JOHNSON, Commissioner of Customs.

To the Collector of Customs at