124 3. The United States renounces any liberty theretofore enjoyed or claimed to take, dry, or cure fish on or within three marine miles of any of the coasts, bays, creeks, or harbours of His Britannic Majesty's dominions in America not included within the above-mentioned limits. DISTINCTION BETWEEN THE PHRASES. The word "coast" is used throughout the treaty as something distinct from bays, harbours, and creeks; and it is submitted that— (a.) The word "coast " alone is used in the first part, because coast alone was meant. (b.) The word "coasts" was followed by "bays, harbours, and creeks" in the third part, because the intention was to include those indentations. (c.) And when the indentations alone are intended (as in the second part of the provision), the word "coast " is omitted altogether. Possibly, if the word "coast" had been used alone, without any such context as is to be found in this treaty, it might have been held to include the indentations of the coast. But the language under examination makes a clear distinction between "coasts," on the one hands, and "bays, harbours, and creeks," on the other, as the treaty of 1783 had already done, and as the treaties of 1854 and 1871 subsequently did. NEGOTIATIONS, 1814-18. Between the peace treaty of 1814 and the treaty of 1818, Great Britain was contending that the liberty of fishing granted by the treaty of 1783 had been terminated by the war of 1812, and the United States was contending that the war had not determined it. During the negotiations for a settlement, Lord Bathurst (the Secretary of State for Foreign Affairs for Great Britain), in writing (30th October, 1815) to Mr. Adams (the Minister of the United States in London), stated that His Majesty's Government felt (App., p. 69.) — every disposition to afford to the citizens of those States all the liberties and privileges connected with the fisheries which can consist with the just rights and interests of Great Britain, and secure His Majesty's subjects from those undue molestations in their fisheries which they have formerly experienced from citizens of the United States. It was not of fair competition that His Majesty's Government had reason to complain, but of the preoccupation of British harbours and creeks in North America by the fishing vessels of the United States and the forcible exclusion of British vessels from places where the fishery might be most advantageously conducted. 125 INSTRUCTIONS, 1815. In the same year in the instructions with regard to fishing by the United States (which were communicated to the United States Government) special stress was laid upon the exclusion of its fishermen from bays, harbours, rivers, creeks, and inlets of all His Majesty's possessions. It is obvious that, in those places, the fisheries were of special and peculiar value, and the treaty of 1818, it is contended, gave effect to this consideration. (App., p. 63.) It is true that liberty was granted to take fish in the "bays, harbours, and creeks," as well as on the "coasts" of Labrador, but this concession emphasises the limitation of the liberty granted in respect of the rest of the treaty coast, and may have been due both to the necessity of making some concession (if an agreement was to be reached), and to the fact that it was less important to restrict the rights conferred in connection with Labrador than to limit the liberty granted in respect of the territorial waters of the more populous island of Newfoundland. FRENCH CLAIMS. Moreover, the existence of the French claim to a large portion of the coast, with regard to which these liberties were conceded, may have supplied an additional reason for not extending the grant to bays, harbours, and creeks, in which, for the reasons above indicated, there would be a greater probability of collision with the French fishermen. OTHER TREATIES. The treaties under discussion are by no means singular in their use of the word "coasts." In the treaty of 1854 (known as the Reciprocity Treaty) between Great Britain and the United States, for example, the word means, as in the 1818 treaty, something different from the indentations of the shore. By that treaty liberty was given to United States fishermen to take fish (App., p. 36.)— on the sea-coasts and shores, and in the bays, harbours, and creeks of Canada, New Brunswick, Nova Scotia, Prince Edward Island, and of the several islands thereunto adjacent. And liberty was given to British subjects to take fish— on the eastern sea-coasts and shores of the United States north of the 36th parallel of north latitude, and on the shores of the several islands thereunto adjacent, and in the bays, harbours, and creeks of the said sea-coasts and shores of the United States and of the said islands. 126 p. 39). By the treaty of 1871 (articles 18 and 19) provision was made for reciprocal rights of fishing in similar terms. (App., THE SHORES OF THE MAGDALEN ISLANDS. The word "shores" in article one of the treaty is used to express the same idea as "coasts" in other parts of the article. Messrs. Gal latin and Rush, the United States negotiators of the treaty, so understood, for in their report to their Secretary of State (the 20th October, 1818) they said (App., p. 37):— 1. Fisheries. We succeeded in securing, besides the rights of taking and curing fish, within the limits designated by our instructions as a sine quâ non, the liberty of fishing on the coasts of the Magdalen Islands, and of the western coast of Newfoundland, and the privilege of entering for shelter, wood, and water, in all the British harbours of North America. The above argument with regard to the "coast" of Newfoundland, therefore, applies to the "shores" of the Magdalen Islands. CONCLUSION. His Majesty's Government therefore submits that the liberty to fish on the southern, western, and northern coasts of Newfoundland, and on the shores of the Magdalen Islands, does not include the liberty to fish in the bays, harbours, and creeks on such coasts or shores. 127 QUESTION SEVEN. COMMERCIAL PRIVILEGES. 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 QUESTION. 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. BRITISH CONTENTION. 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 128 with regard to the rights of American fishermen on the nontreaty 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. 129 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 |