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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.
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.
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
TRIBUNAL CONSTITUTED UNDER AN AGREEMENT SIGNED AT WASHINGTON ON THE 27TH DAY OF JANUARY,
1909, BETWEEN HIS BRITANNIC MAJESTY AND
THE UNITED STATES OF AMERICA
(IN THREE PARTS)
TABLE OF CONTENTS.*
(Parts I and II are in this Volume; Part III in Volume 5.)
PART I.-TREATIES, &C.
13 1806. 14 1814. 15 1814.
December 31... May 30.. December 24. 1815. July 3... 1818. October 20.. 1839. August 2.... 1843. June 23..... 20 1846. June 15.. 21 1848.
February 2.. February 8.. December 30.. 24 1854. June 5..
1871. May 8........
1882. May 6........
1888. February 15..... 1891..
1909. January 27................
1686. November 6-16..
1902. November 8. 1904. April 8...
Agreement for the present reference.
Letter: Mr. P. C. Knox to Mr. James Bryce....
Treaty: Great Britain and France. (Extract).
Treaty: Great Britain and France. (The Treaty of Utrecht. Ex
Treaty: Great Britain, France and Spain. (Extract)..
Declarations of British and French Kings accompanying the treaty
Treaty: Great Britain and United States....
Treaty: Great Britain and United States. (Jay's Treaty)...
Treaty: Great Britain and United States. (Unconfirmed. Extract).
Treaty: Great Britain and United States. (Ghent)..
Convention: Great Britain and France. (Extract).
Treaty: Great Britain and United States. (Oregon Boundary).
Treaty: Great Britain and United States. (The Reciprocity Treaty).
Convention: Great Britain, Germany, Belgium, Denmark, France
Convention: Great Britain and United States. (Unratified).
The page references in this Table of Contents are to the pages of the original publication, which are shown inset in this publication.