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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.
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 Dominion 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.)
"Congressional Record, vol. xviii, p. 941.
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.)
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, 145 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
treaty of 1818. We have made four fisheries treaties with Great Britain, in 1783, 1818, 1854, and 1871, and in none of them has any commercial privilege been secured to our fishermen. No serious effort has been made to secure such privileges prior to the negotiation now before the Senate. (App., p. 467.)
UNITED STATES CONTENTIONS.
The contentions of the United States are set out at length in these discussions, but His Majesty's Government find some difficulty in appreciating the exact ground on which the right to commercial facilities for American fishing-vessels is to be supported before this Tribunal. The treaty gives no right to those facilities. His Majesty's Government contend that the treaty was framed on the assumption that no such right existed, and that to grant such facilities would be to alter the character of the liberties granted by it; but, be that as it may, it is certain that the treaty itself confers no commercial rights. Yet, apart from the treaty, there is no agreement between the two Governments under which this right can be claimed. The Order-in-Council of 1830 manifestly applies to trading-vessels only, and no suggestion was ever made that it applied to fishing-vessels until the controversy of 1886. The position taken by the United States Government before the Halifax Commission is proof, if proof be needed, that no agreement as to fishing-vessels existed at that time. And the fact that American fishermen have paid licence fees for the last twenty years in order to obtain certain limited trade privileges is consistent only with the same conclusion. His Majesty's Government content themselves, therefore, on the present occasion with stating the argument in support of their own view, reserving to themselves the liberty to deal with the contention of the United States when that contention has been more exactly stated in the Case presented to the Tribunal.
ARGUMENT OF GREAT BRITAIN.
TREATY OF 1818.
1. The treaty of 1818 does not confer any liberty to trade. On the contrary, it specifies certain limited purposes for which the use of the British shores is permitted, and the clear intention is that American fishermen should have no other liberties on those shores. At the date of the treaty no American vessel had a right to enter any port in British North America for commercial purposes. Those ports were absolutely closed to American traders, just as the ports of the United States were closed to British traders. The treaty made an exception to this general prohibition, and permitted vessels of a particular kind, to wit, fishing-vessels, to have access to the British
shores for certain limited purposes, but it did not do away with the general prohibition against entry for other purposes; it did not confer on fishing-vessels those commercial privileges which were denied at that time, and for years afterwards, to vessels of all other kinds.
COMMERCIAL FACILITIES WOULD ALTER CHARACTER OF TREATY LIBERTIES.
2. A liberty to exercise commercial privileges is not in accordance with the tenour of the treaty. It would enable American fishermen to establish the head-quarters of their industry on British soil. Liberty for fishermen of another country to participate in shore fisheries is one thing: liberty to make those shores the bases of their fishing business is a distinct and much more extensive concession. No such grant as this was contemplated in 1818. The right to use the shores was given for specified purposes only, and subject to special limitations. The claim to trading privileges is a claim to have the use of the shores for purposes other than those specified, and subject to no limitations.
NO RIGHT APART FROM TREATY.
3. Apart from the treaty of 1818, there is no treaty or agreement under which American fishermen can claim to exercise any rights in British territorial waters. There has been a succession of temporary arrangements relating to fisheries extending over a long course of years, and liberty to trade for purposes connected with fishing operations has been generally conceded during the continuance of these arrangements. But these concessions were merely voluntary and terminable at will, and there can not be any obligation on Great Britain to give to fishing-vessels the same commercial privileges as are accorded as a matter of comity to trading-vessels.
U. 8. CONTENTION IN HALIFAX ARBITRATION.
4. The Government of the United States have themselves urged before the Halifax Commission that the privileges of traffic, purchasing bait and other supplies have been enjoyed by the inhabitants of the United States on sufferance, and that they could at any time be deprived of them by British legislation, and this contention was accepted and acted on by the Commissioners. They further asserted that a liberty to fish does not carry with it any right to buy bait, ice, or supplies, or to transship cargoes. (App., p. 254.)
COMMERCIAL PRIVILEGES CANNOT BE CLAIMED AS OF RIGHT UNDER INTERNATIONAL LAW.
5. There is no principle of the law of nations under which commercial privileges can be claimed as of right. It is within the power of a State to close its ports to foreign trade, or to any particular class of foreign trade, as it may please; it is equally within its power
92909-S. Doc. 870, 61-3, vol 4- -10
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.
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.