in relation to commercial privileges, inasmuch as the only question involving commercial privileges in this case concerns the enjoyment of such privileges on the coasts other than those mentioned in this clause.

With reference, however, to the enjoyment of commercial privileges by American fishermen on the coasts not covered by the renunciatory clause of the treaty, which is the subject of Question 7 submitted for decision in this Arbitration, it is important, while these negotiations are under consideration, that attention be directed to one feature of them in connection with this question.

It will be remembered that the British counter proposal, after describing the coasts on which the liberty of fishing was to be enjoyed by the American fishermen, contained the following provisions:

It is further well understood that the liberty of taking, drying, and curing fish, granted in the preceding part of this article, shall not be construed to extend to any privilege of carrying on trade with any of His Britannic Majesty's subjects residing within the limits hereinbefore assigned for the use of the fishermen of the United States, for any of the purposes aforesaid.

And in order the more effectually to guard against smuggling, it shall not be lawful for the vessels of the United States, engaged in the said fishery, to have on board any goods, wares, or merchandise whatever, except such as may be necessary for the prosecution of the fishery, or the support of the fishermen whilst engaged therein or in the prosecution of their voyages to and from the said fishing grounds. And any vessel of the United States which shall contravene this regulation may be seized, condemned, and confiscated, together with her cargo."

To these provisions the American Plenipotentiaries objected, as has already been shown, stating that—

Whatever extent of fishing-ground may be secured to American fishermen, the American plenipotentiaries are not prepared to accept it on a tenure or on conditions different from those on which the whole has heretofore been held. Their instructions did not anticipate that any new terms or restrictions would be annexed, as none were suggested in the proposals made by Mr. Bagot to the American Government. The clauses forbidding the spreading of nets, and making vessels liable to confiscation in case any articles not wanted for carrying on the fishery should be found on board, are of that description, and would expose the fishermen to endless vexations."

The draft, as finally accepted, was proposed by the British Plenipotentiaries after the receipt of these objections, and it will be observed that the objectionable provisions were omitted from it. Supra, p. 59.

a Supra, p. 58.

Inasmuch, therefore, as the coasts to which the objectionable provisions related in the first British proposal were, with some additions, the coasts designated in the final draft as those upon which the American fishermen should have liberty to take fish, it is evident that with respect to these coasts, at least, it cannot be claimed on the part of Great Britain that it was

understood that the liberty of taking, drying, and curing fish, granted in the preceding part of this article, shall not be construed to extend to any privilege of carrying on trade with any of His Britannic Majesty's subjects residing within the limits hereinbefore assigned for the use of the fishermen of the United States, for any of the purposes aforesaid.

MAPS.

The attention of the Tribunal is here directed to Maps No. I and No. II, which form part of this Case, and on which the coasts covered by the renunciatory clause of the treaty are colored light brown, and the coasts referred to as "treaty coasts" in the Special Agreement of January 27, 1909 are colored green and red; those colored green being the coasts on which the American fishermen have the liberty both of taking fish and of drying and curing them, and those colored red being the coasts on which they have the liberty of taking fish but not of drying or curing them.

PART II.

THE INTERPRETATION OF ARTICLE I OF THE TREATY OF 1818.

The terms of Article I of the treaty of October 20, 1818, having been examined in the light of the circumstances leading up to and surrounding the negotiation of that treaty, there still remains to be considered the subsequent actions of the two Governments having a bearing upon the interpretation of its provisions in accordance with their true intent and meaning.

BRITISH ACTS OF PARLIAMENT AND ORDERS IN COUNCIL.

Act of June 14, 1819.

On June 14, 1819, within five months after the exchange of ratifications of the treaty of 1818, an act of parliament was passed (59 Geo. III Cap. 38) entitled "An act to enable His Majesty to make regulations with respect to the taking and curing of fish on certain parts of the coasts of Newfoundland, Labrador and His Majesty's other possessions in North America, according to a convention made between His Majesty and the United States of America."a In this act, after the recital of so much of the fisheries article of the treaty of 1818 as relates to the taking and drying and curing of fish, followed by the further recital "And Whereas it is expedient that His Majesty should be enabled to carry into execution so much of the said convention as is above recited and to make regulations for that purpose," it is provided, in the first section of the act, that it shall be lawful for His Majesty by orders in council to be made from time to time for that purpose "to make such regua Appendix, p. 112.

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lations and to give such directions, orders and instructions to the Governor of Newfoundland, or to any officer or officers on that station, or to any other person or persons whomsoever, as shall or may be from time to time deemed proper and necessary for the carrying into effect the purpose of the said convention, with relation to the taking, drying and curing of fish by the inhabitants of the United States of America, in common with British subjects, within the limits set forth in the said article of the said convention and heretofore recited." Section II of the act provides that

it shall not be lawful for any Person or Persons, not being a natural born Subject of His Majesty, in any Foreign Ship, Vessel or Boat, nor for any Person in any Ship, Vessel or Boat, other than such as shall be navigated according to the Laws of the United Kingdom of Great Britain and Ireland, to fish for, or to take, dry or cure any Fish of any Kind whatever within Three Marine Miles of any Coasts, Bays, Čreeks or Harbours whatever, in any Part of His Majesty's Dominions in America, not included within the Limits specified and described in the first Article of the said Convention, and herein before recited; and that if any such Foreign Ship, Vessel or Boat, or any Persons on board thereof, shall be found fishing or to have been fishing, or preparing to fish within such Distance of such Coasts, Bays, Creeks or Harbours, within such Parts of His Majesty's Dominions in America out of the said Limits as aforesaid, all such Ships, Vessels and Boats, together with their Cargoes, and all Guns, Ammunition, Tackle, Apparel, Furniture and Stores, shall be forfeited, and shall and may be seized, taken, sued for, prosecuted, recovered and condemned by such and the like Ways, Means and Methods, and in the same Courts, as Ships, Vessels or Boats may be forfeited, seized, prosecuted and condemned for any Offence against any Laws relating to the Revenue of Customs, or the Laws of Trade and Navigation, under any Act or Acts of the Parliament of Great Britain, or of the United Kingdom of Great Britain and Ireland; provided that nothing in this Act contained shall apply, or be construed to apply to the Ships or Subjects of any Prince, Power or State in Amity with His Majesty, who are entitled by Treaty with His Majesty to any Privilege of taking, drying or curing Fish on the Coasts, Bays, Creeks or Harbours, or within the Limits in this Act described."

This section will be considered in connection with the seizures made under it which are elsewhere reviewed.

Section III of the act provides

That it shall and may be lawful for any Fisherman of the said United States to enter into any such Bays or Harbours of His Britannic Majesty's Dominions in America as are last mentioned, for the purpose of Shelter and repairing Damages therein, and of purchasing Wood and of obtaining Water, and for no other purpose whatever;

subject nevertheless to such restrictions as may be necessary to prevent such Fishermen of the said United States from taking, drying or curing Fish in the said Bays or Harbours, or in any other manner whatever abusing the said Privileges by the said Treaty and this Act reserved to them, and as shall for that purpose be imposed by any Order or Orders to be from time to time made by His Majesty in Council under the Authority of this Act, and by any Regulations which shall be issued by the Governor or Person exercising the Office of Governor in any such Parts of His Majesty's Dominions in America, under or in pursuance of any such Order in Council as aforesaid."

With respect to the regulations above referred to it should be noted in passing that, so far as the United States has been informed, no order in council was ever adopted under this section of the act and that no attempt was made to impose restrictions upon American fishermen resorting to the bays and harbors on the coasts where the liberty of fishing was renounced, for the four purposes mentioned in the treaty, until the year 1836, when the adoption of so-called regulations became the subject of provincial legislation, as is elsewhere shown in reviewing that branch of the question.

Regulations by Orders in Council.

It will be observed that the regulations which are to be imposed by orders in council under the authority of this act refer to two distinct branches of the treaty Article: those under the first section of the act, relating only to the coasts on which the liberty of fishing is secured to American fishermen by the treaty, and those under the third section of the act, relating only to the coasts on which the liberty of fishing is renounced by the United States.

In the latter case the regulations to be imposed were obviously intended to apply to American fishermen, for the treaty itself expressly provides for the imposition of restrictions upon them.

In the former case, however, no express authority is found in the treaty for imposing restrictions or regulations upon American fishermen. On the contrary, the express purpose of the portion of the treaty referred to in this section of the act was, not to regulate the American fishermen, but to admit them to the enjoyment of a fishing liberty in common with British subjects their right to which had been disputed by Great Britain since the War of 1812. The regulations which are authorized by the terms of the act are such only "as shall or may be from time to time deemed proper and necessary for

a Appendix, p. 113.