to permit that trade, subject to such restrictions and conditions as it may think proper to prescribe. The question before this Tribunal is one not of policy but of law, and Great Britain cannot assent to the proposition that she is compelled to grant commercial facilities as a matter of law. COMITY. 148 6. It has been urged in the course of the discussions which have taken place on this question that commercial facilities ought to be granted on the ground of "comity," or, as it has been otherwise put, of "good neighbourhood." Such considerations cannot be appealed to in support of a claim of right such as is now advanced before this Tribunal. But it may be observed that such general considerations cannot apply in the case of vessels coming into British waters to fish on terms and subject to conditions specifically defined by agreement, and that the concession to American fishermen of the same commercial facilities as are accorded to trading-vessels would have the effect of altering the whole character of the liberties granted by the treaty of 1818, and of removing limitations expressly imposed by the treaty. DISTINCTION BETWEEN FISHING AND TRADING VESSELS. 7. If the liberty to trade be not claimed as incidental to the liberty to fish given by the treaty (and it has been pointed out that the United States have expressly disclaimed this view), then it must be claimed on some ground common to all trading vessels, and can no longer be limited to trading for the purpose of fishing operations; it is a claim to carry on trade of every kind that is permitted in the case of other vessels. The point is of importance, because the distinction between vessels engaged in trade and vessels engaged in fishing, is one that it is necessary to maintain for revenue, if for no other purposes. Trading vessels proceed on definite voyages; they clear for particular ports, their movements are known, and can be watched. Fishing vessels do not comply with any of these conditions. They proceed on no definite voyages, they clear for no particular ports-on the contrary, they enter one harbour after another according to the needs of the moment, their movements are not known and cannot be watched. It would be impossible to take effective measures for the prevention of smuggling if the same foreign vessels were allowed to trade as well as to fish in British waters. This observation is forcibly illustrated by the claim which is put forward on behalf of the United States that fishing-vessels are exempt from any duty to report at custom-houses. OPINION OF MR. POMEROY. 8. Mr. Pomeroy, an American jurist of repute, deals with this aspect of the case in a passage which deserves consideration. 149 He first discusses the negotiations of 1818, and gives his opinion that Great Britain is not estopped from opposing the present claim by anything that occurred preliminary to the treaty. He continues as follows: We must fall back, then, upon the accepted doctrines of international law. Every nation has the undoubted right to prescribe such regulations of commerce carried on in its waters, and with its citizens, as it deems expedient, even to the extent of excluding entirely some or all foreign vessels and merchandise. Such measures may be harsh, and under some circumstances a violation of inter-state comity, but they are not illegal. At all events, it does not become a Government to complain which now maintains a tariff prohibitory as to many articles, and which at one time passed a general embargo and nonintercourse Act. There seem to be special reasons why the Dominion authorities may inhibit general commerce by Americans engaged in fishing. Their vessels clear for no particular port; they are accustomed to enter one bay or harbour after another as their needs demand; they might thus carry on a coasting trade; they would certainly have every opportunity for successful smuggling. Indeed, this whole subject legitimately belongs to the local customs and revenue system, and not to the fisheries. We are thus forced to the conclusion that American fishermen have no right to enter the bays and harbours in question and sell goods or purchase supplies other than wood and water." In a foot-note the author adds: The remarks in the text are based solely upon the fishery article of the treaty of 1818, without reference to any existing commercial conventions between the United States and Great Britain. It is possible that some provisions in the latter might require a modification of our conclusions. MUNICIPAL LAW. 9. Reference has been made in the course of the discussions on this point to the statutes of Great Britain and of the colonies. But it is not material to discuss these enactments. Even if fishing vessels were entitled to trade under the provisions of the law as it stands, and that is a matter for the courts of the country to determine, there would be nothing, apart from treaty or agreement, to prevent the withdrawal of that right by subsequent legislation. The question before this Tribunal is one of international and not of municipal law. CONCLUSIONS. His Majesty's Government submit that Question No. 7 must be answered in the negative, because 1. The treaty of 1818 did not confer any commercial privileges. 2. Apart from the treaty, American fishing-vessels are not, as a matter of right, entitled to the same commercial privileges as tradingvessels. "Am. Law Rev.," vol. 5, pp. 414-5. NORTH ATLANTIC COAST FISHERIES APPENDIX TO THE CASE PRESENTED ON THE PART OF THE GOVERNMENT OF HIS BRITANNIC MAJESTY TO THE TRIBUNAL CONSTITUTED UNDER AN AGREEMENT SIGNED AT WASHINGTON ON THE 27TH DAY OF JANUARY, THE UNITED STATES OF AMERICA (IN THREE PARTS) PART 1 I |