Lord Kimberley's view I had had no explanation from him on that point, and of course I entirely concurred with his opinion that the British Government were the interpreters of the British view of Imperial treaties.

On the same day (29th May, 1886) Mr. Bayard wrote to protest against the Canadian statute of 1886. He described Canada's action as" arbitrary, unlawful, unwarranted, and unfriendly," and as " flagrantly violative of the reciprocal commercial privileges to which citizens of the United States are lawfully entitled under statutes of Great Britain, and the well-defined and publicly proclaimed authority of both countries, besides being in respect of the existing conventions between the two countries, an assumption of jurisdiction entirely unwarranted and which is wholly denied by the United States." (App., p. 311.)

On the 2nd June (1886) Mr. Phelps, in a letter to Lord Rosebery, discussed the treaty of 1818 at length. He said (App., p. 312):Recurring, then, to the only real question in the case, whether the vessel is to be forfeited for purchasing bait of an inhabitant of Nova Scotia to be used in lawful fishing, it may be readily admitted that, if the language of the treaty of 1818 is to be interpreted literally, rather than according to its spirit and plain intent, a vessel engaged in fishing would be prohibited from entering a Canadian port" for any purpose whatever," except to obtain wood or water, to repair damages, or to seek shelter. Whether it would be liable to the extreme penalty of confiscation for a breach of this prohibition, in a trifling and harmless instance, might be quite another question.

Such a literal construction is best refuted by considering its preposterous consequences. If a vessel enters a port to post a letter, or send a telegram, or buy a newspaper, to obtain a physician in case of illness, or a surgeon in case of accident, to land or bring off a passenger, or even to lend assistance to the inhabitants in fire, flood, or pestilence, it would, upon this construction, be held to violate the

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treaty stipulations maintained between two enlightened, maritime, and most friendly nations, whose ports are freely open to each other in all other places and under all other circumstances. If a vessel is not engaged in fishing, she may enter all ports. But if employed in fishing, not denied to be lawful, she is excluded, though on the most innocent errand. She may buy water, but not food or medicine; wood, but not coal. She may repair rigging, but not purchase a new rope, though the inhabitants are desirous to sell it. If she even entered the port (having no other business) to report herself to the custom-house, as the vessel in question is now seized for not doing, she would be equally within the interdiction of the treaty. If it be said these are extreme instances of violation of the treaty, not likely to be insisted on, I reply that no one of them is more extreme than the one relied upon in this case.

It will be observed that this argument did not take into consideration the fact that in 1818 United States vessels had not the right to enter British ports or territory.

CANADIAN DOCUMENTS.

Mr. Bayard's letter of the 10th May (ante) was dealt with in a report of the Canadian Minister of Justice (May 1886) and by a Canadian Order-in-Council (14th June, 1886). (App., p. 305.) Mr. Phelps' letter of the 2nd June (ante) (App., p. 319) was the subject of a further report by the Canadian Minister of Justice (22nd July). (App., p. 330.) The attention of the Tribunal is invited to these documents.

The correspondence was continued during the remainder of 1886 and during 1887, but the main contentions are sufficiently stated in the letters and documents to which reference has been made.

MR. MANNING'S REPORT, 1887.

In the report by Mr. Daniel Manning, United States Secretary of the Treasury, to the Speaker of the House of Representatives (10th January, 1887) is the following (App., p. 373) :—

American fishing-vessels duly authenticated by this department, and having a permit "to touch and trade," should be permitted to visit Canadian ports and buy supplies, and enjoy ordinary commercial privileges, unless such a right is withheld in our ports from Canadian vessels. That right is denied by the Privy Council and the Governor-General of the Canadian Dominion upon the ground that it would be in effect a pro tanto abrogation of the treaty of 1818. That contention is an error, in the opinion of this department, because the treaty of 1818 has no application to the subject-matter.

UNITED STATES HOUSE OF REPRESENTATIVES, 1887.

To the same effect was the report of a committee of the House of Representatives (18th January, 1887):

142 It is to be assumed that when this treaty of 1818 was signed, the British statutes of Charles II, in restraint of navigation, the rudiments of which are to be seen in 1650, and were aimed at Dutch trade with British sugar colonies, were, on the English side. rigorously enforced, so that no merchandise could be lawfully imported into Canadian ports excepting in English bottoms. The treaty of 1818 was concluded on the 20th October of that year, but ratifications were not exchanged till the 30th January, 1819. Cer tainly on our side there was then in force legislative restriction_on navigation almost as severe as was the English enactment after the restoration of Charles II. America had not then emerged from the era of the embargo, Berlin and Milan decrees, and the influences of the war of 1812. On 18th April, 1818, the President approved a law closing our ports after the 30th September, 1818, against British vessels coming from a colony which, by the ordinary laws, is closed against American vessels. Touching at a port open to American vessels could not modify the restriction. Vessels and cargoes entering,

or attempting to enter, in violation of the law were forfeitable. And any English vessel that could lawfully enter our ports was compelled to give a bond, if laden outward with American products, not to land them in a British colony or territory from which American vessels were excluded. The presumption is, that quite independently of fishing rights and liberties, no American vessel was for long before, and after, 1818 permitted by English law to touch and trade in Canadian ports. (App., p. 378.)

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, light-houses, quarantine, and all matters of ceremonial. (App., p. 382.)

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. (App., p. 382.)

UNITED STATES SENATE, 1887.

In a report dated the 19th January, 1887, the committee for foreign relations of the Senate, after referring to the article of the treaty of 1783, said (App., p. 387) :—

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This article, it will be observed, recognised an existing right and practice in respect of American fishermen exercising their calling not only at sea on the banks of Newfoundland, but in all places in the sea within what would be strictly British waters. And it will be observed also that this treaty said nothing on the subject of commercial intercourse between the people of the United States and those of the British provinces. (App., p. 397.)

The treaties between the United States and Great Britain on the subject of intercommunication, and the rights of the citizens and subjects of the one in the ports and territories of the other have not included the British dominions of North America (with possibly certain exceptions as to intercourse by land), and such intercourse, strangely enough, still remains the subject of legislation merely in the two countries.

In the debate in the United States Senate of 24th January 1887 Senator Evarts said that

the settled opinion of the Government now is that the treaty of 1818 is nothing but a fishing treaty and not a commercial treaty at all. It is regulative of the fishing interest as there described as the subject

matter, and the basis of all the provisions that have entered into that treaty. It is not a restriction of commerce at all; it is an enlargement of mere fishing rights under the very limited allowance of shelter and repairs and procuring wood."

UNITED STATES SENATE, 1888.

A second report was issued by the Senate Committee on the 7th May, 1888. A large part of it was devoted to proving (App., p. 435)

1. That at the date of the treaty (1818) no American vessels of any kind (with certain unimportant exceptions) had any right of admission for any purposes into British waters or ports.

2. That the renunciation in the treaty, therefore, applied to fishingvessels the only vessels that could have had any pretence of a claim of entry.

3. That the treaty "had no relation, one way or the other, to the exercise of what may be called commercial rights."

4. That "the right of the British to exclude " all American vessels "from her ports in British North America, as the matter stood until 1830, is fully conceded."

Some extracts from the report may be useful (App., p. 436) :— The commercial treaty concluded on the 3rd July, 1815, between the two countries provided for reciprocal liberty of commerce between all the territories of Great Britain in Europe and the territories of the United States, but left without any new treaty, stipulation or obligation, commercial intercourse between British dominions in North America and the United States remaining under the exclusive control of each.

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It will be observed that the ancient right continued in all its force in every bay, harbour, and creek of a described territory, and that the renunciation of the right to fish on other coasts, bays, harbours, and creeks is in the same language, and is perfectly correlative to the first, and that the line of British Municipal Domínion was recognised and stated to be a line 3 marine miles from these British coasts, bays, creeks, and harbours, and that this renunciation was, both in substance and form, a renunciation only of a right to fish and to exercise the incidents of the fishing, as drying, &c., and that the proviso to that renunciation admitted the American fishermen to enter such waters, bays, and harbours for the specific purposes necessary to them in their character as fishermen only, and not having the slightest reference, either expressly or by implication, to any fishing or other vessel of the United States, and sailing under their flag, entering any port of His Majesty's Dominions anywhere for any commercial or trading purpose. (App., p. 436.)

It is to be kept clearly in view that at the time of the conclusion of this treaty of 1818, and for twelve years afterward, no American vessel had any right to enter any port of British North America with the few exceptions named in the mutual arrangements of 1820 and 1823 hereinafter stated. The treaty of 1815, and the British laws and policy, reserved the whole trade and intercourse with the ports of these colonies to her own vessels, and reciprocally there was no law or treaty of the United States which authorised the entry into ports (with the exceptions stated) of the United States of British vessels from British North American ports.

Thus it was that the treaty of 1818 omitted to make any mention of the ports in the British provinces in connection with the arrival or departure of American vessels, either fishing or other, and so it was a clear and necessary construction of the treaty of 1818 that the arrangements, conditions, and renunciations therein provided had no relation, one way or the other, to the exercise of what may be called commercial rights by the American fishing or other vessels in the waters or ports of British North America, for the status of things was such that it could not be done in the case of any American vessel without regard to her character as a vessel engaged in fishing upon the high seas or in the British territorial waters, wherein, as was provided, she might continue to fish, or to her commercial character. (App., p. 437.)

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The right (except in the cases before stated) of the British to exclude such vessels and all others of the United States from her ports in British North America, as the matter stood until 1830, is fully conceded; and it is also conceded that during that time the only right of any vessel of the United States to enter the waters of British North America depended upon the treaty of 1818 alone, and, in order to obtain the benefit of that treaty for such purposes, the American vessel must have been a fishing-vessel, and must have resorted to those particular waters for some one of the purposes mentioned in the treaty and no others.

In 1818, then, no American fishing-vessel or any other American vessel could enter a port on any of the coasts of British North America, even where the full right of fishing inshore existed. And the treaty of 1818, formed on that basis, was not intended to, and it did not in any way touch the question of any trade or commercial right whatever, and of course made no distinction in these respects between fishing and other American vessels. (App., p. 444.)

A minority of the Senate Committee presented a separate report which deserves consideration. They, too, agreed that, upon the treaty of 1818, no right to commercial privileges could be based, and said:Can we ever hope to engraft on the treaty of 1818 any new agreement for commercial privileges to our fishermen, without giving an equivalent in some liberty or privilege that Great Britain will claim for her fishermen? This question is answered by the fact that we renounced in 1818 the best part of the fisheries that were of the fruits of the war for independence in order to make the residue a permanent right; and in 1854 and 1871 we agreed to pay heavily for a temporary suspension of the restrictions and limitations of the