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PRIVATE. 
 
 THE 
 
 FIStjEI^Y QUESTIOjNi. 
 
 1. The Fiiihcry question, in its present phase, relates principally 
 to the rl^rhtn and liljcrties of United States fishermen under 
 Article 1 of the Treaty of 1818. This article, after granting to 
 United Htatcf tiHhernien liberty to take fish on the southern coast 
 of Newfoundland from Cape ilay to the Quirpon Islands, on the 
 shores of the Maji^dalon Islands, and on the coasts, bays, harbors 
 and creekn from Mount Joiy on the south coast of Labraiior to 
 and throii;;h the Straics of Bollc Isle and thence northwardly for 
 un indefinite distance, without prejudice to the rights of the Hud- 
 son's Bay Company, and extending to them also liberty to dry 
 and cure iish on the unsettled portions of Labrador and of the 
 south coast of Newfoundland, proceeds to say : 
 
 " And the United Suuta hereby renounoe forever any liberty heretofore 
 enjoyed or cUinied by the inliabitant* thereof to take, dry or cure fish, on 
 nr within three marine niilot of nny uf the coaiti, bayi, oreeka or harbon of 
 Ilia IJritannic Majraty'a dominion* in Amerioa, not included within the 
 above nienlioneil liiuita ; provided, however, that the Ainericao fiaharmen 
 ■hall be ndinitted tu enter aiich baya or harbors, for the purpose of shelter 
 and of repairing; damages ihurein, of purohaaing wood, and of obtaining 
 water and fur no <ither purpose whatever. But they shall be under suoh 
 reattiotious as may be neoeaaary to prevent their taking, drying or curing 
 tiali therein, or in any uiauuer whatever abiiaing the privilogea herttby te- 
 served to them.'' 
 
 The contention of the Dominion authorities is that th*; words 
 limiting the visits of American fishermen to the shore to the four 
 purposes specified, namely, " for the purpose of shelter and of 
 i-opairing damages therein, of purchasing wood, and of obtaining 
 water, and for no other purpose whatever," are to be read and 
 construed in their literal sense, without reference to the condition 
 of things which existed in 1818, or to the changes which have 
 since taken plat^e in consequence of reciprocal legislation and 
 otherwise in th« maritimn and commercial relations of the con- 
 tracting parties. Acconling to this construction, unless they 
 have taken out licenses under the existing moiliia vivetuli for 
 which they have to pay at th«j rate of $l..50 jx*r ton. United 
 Status fishing vessels are not allowed to land for the purpose of 
 traii.shipping their cargoes, cither to vessels bound to the TTnitoil 
 States or to local Canadian railways ; or for the purpose of ))ur- 
 chasiiig bait from the Canadian iu'ihore fishermen, or for the pur- 
 piwo of hiring Canadian fishermen to ship with them, or for the 
 purpose of buying ice, provisions, barrels or sea-stores, which 
 they may rer|i)irc to enable them to complete the season's work. 
 In short, except for the servici's or conveniences named in Article 
 I, tliey are al>solutely exuhided from ('Canadian ports. 
 
 It appears from the records that this harsh interproti.tion did 
 .not take h'liapo and form until |8.>S or theroalmuts. Between 
 IftlS and 18.V2 a large number of American fishing vessels, fifty- 
 ono in all, were mirM I under various pretexts -hy British and 
 colonial ships-of-war, under the authority of the Im|ierial Act of 
 1819 (50 George 3, cap. 88), giving effect to the provisions of the 
 Treaty ^ 1818, of t)ie Nova Sootia Act of 1830 (0 William 4, 
 
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 ■ tlkiK)>4^»- ■ 4iAiiidi£<^» 
 
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 iHH 
 
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 cap. 8), relating to the fi»hcrieH and for (ho prevention of illicit 
 trade, and of the Prince Edward Island Act of 1843 (G Victoria, 
 cap. 1 4), relating to the fii<heries and for the prevention of illiuit 
 traile. These seisures were made chiefly, as was alleged, (a) for fish- 
 ing within the limits resor ' to British fishermen hy the Treaty 
 of 1818, (/») for preparing to fish within those limits, and (c) for 
 hovering in bays and harbors without being in need«if shelter, re- 
 pairs, wood or water. The c<^lonial statutes just named, for the 
 prevention of illicit trade, dealt, so far a.s they atfected trading 
 privileges at all, with violations of the colonial customs laws in- 
 volved in the exchange or barter by United States fisherman ot 
 American goods for colonial-caught fish. So far as can be ascer- 
 tained from a careful examination of the |>ublic documents, the 
 only seizures made between 1818 and 1852 for the alleged ofi^nco 
 of purchasing gowls or bait from the colonial fishermen or coast 
 population were those of the American ves.sels Papineau and 
 Mary in 1840. No seizures appear to have been made during that 
 period lor the alleged offence of transhipping cargoes or hiring 
 cro w.s. This statement of fact is borne out by a report made by the 
 Dominion Minister of Marino and Fisheries in 1870 (Dominion 
 Sessional Paper No 12, 187)), in iinswer to a rcijuest by Lord Kim- 
 berlcy for information " as to what was tho actual ])ractice which 
 prevailed previous to the Reciprocity Treaty (18j4-()0) between 
 Great Britain and the United States in rei:rard to the exclusion 
 of American fishermen from trading or eflfeoting commercial oper- 
 ations in the ports of the difierent provinces of British North 
 America." The Minister (Hon. Peter Mitchell) mentions a num- 
 ber of seizures, but the only seizures coming within che category 
 under discussion which ho cites are these of the Papineau and 
 Mary, which " were seized and sold for purchasing Imit ashore." 
 During the period in (piestion, the custom.s cotiectois in Nova 
 Scotifl were in the habit of issuing permits of thoir own accord 
 and without charge to United States fishing vos.sols desirous of 
 purchasing goo<]s or transhipping cargoes ashore : from which it 
 is evident that such operations were not then held to con.stitutu 
 an invasion of British rights under tho treaty. On August 2Sth, 
 18 j2, however, the Provincial Secretary of Nova Scotia (Mr. 
 Joseph Howe), apparently on his individual authority, i.ssued tho 
 following order prohibiting American fishing ve.s.selw from enjoy- 
 ing any commercial privileges in the ports of that colony : 
 
 " No Ameriokn liihing veHeli are entitled to conimerciitl privilejje* in pro- 
 Tinciitl port*, hut ftfe lubjoct to forfuiture if fount! engaged in tritllic. Thu 
 Colonial oolleotora liave no authority to permit freight to be Umlwl fniin 
 nioh vauola, whio'i, .inder the oonrontion, cau ouly sulci mii (xirli for thu 
 piirpoaea specified therein, and for no other." 
 
 On September 25th, 1852, tho law otficors of the Crown in 
 England furnished an opinion, at tho instance of thu British Ad- 
 miralty, regarding the powers of naval officers to suiz' or interl'ere 
 with United States fishing vessels re.sorting to ports or harl>ord 
 for purposes other than those defined in the Treaty of lil«. Tho 
 law ofiicers held that British naval officers wee warranted in 
 seizing American vessels for fishing within the prcscriboil 
 limit ; and that, indep>nulently of tho exprr>w provisions of the 
 statutes then existing, vessels rosortin^j to [vjrts or hurbors for 
 other than the purposes sjK'cified hv- the treaty, might be warned 
 and comi>elled to depart by v/l'.atever foree was reasonably neces- 
 sary (Dominion Se.ssional Paper No. 12, 1871). It will l>e observeil 
 that tho opinion of the law officers amounted Uy little more than 
 this — that American fishing voasels had no absolute legul right 
 under the ti-eaty to trade in tho harlwi's, or tranship their cargoes 
 The (j'.ivernment of tho United States has never urgcil that they 
 V-Hvo suoh a ri^fht uniler a strict construction of the letter of tho 
 
treaty. No seizures snom to have been made for pnrchMing )>ait, 
 hiring crews, or transhipping cargoes between 1852 and 1834. 
 
 From 1834 until IHGG, wlien the Reciprocity Truaty waM in 
 operation, nothing nf course was heard of the qiii"«tion. Be- 
 tween 1832 and 1870, the following Canadian statutes relating 
 to the fisheries were passed : 
 
 1li.'i;i— An Act (to Viotori*, oap. 00) relating to tha eoiat fliheriM. mi<1 (or 
 till) |ir<iv«iilinn iif illicit trade, (liy tha Hrnrinoe of New Itruntwick.) 
 
 IHU2— An Act (35 Victoria, cap. 04) relating to the coait and deep aoa Hah. 
 trie*. {Ttf the Province uf Nora Sootia ) 
 
 1800— An Act (30 Victorin, cap. X>) to amend tha above. 
 
 IH()H— An Act (31 Victoria, cap. 01) reipecting tiihing by foreign vaiaaU. 
 (By the Dominion Parliament.) 
 
 1870— An Act (33 Victoria, cap. 16) to amend the above. 
 
 On the abrogation of the Reciprocity Treaty in 18GG, the Cana 
 dian provinces having been confederated, the Dominion Qoverii- 
 nient oHtablishod a license system for American fishing ve^iRels, 
 and, on the creation of the cruiser service in 1870, began, under 
 the statutes enumerated, to treat landing for the pur|)ose of hiring 
 creM's, purchasing bait, or transhipping as a grave oflence, and 
 cmtinued t>j do HO until the Washington Troaty of 1871 came 
 into operation. The policy of the Dominion authorities in this 
 respuct wa.s agreeable, no doubt, to the fishing- vessel owners of 
 the Maritime Provinces, who have always striven to incommode 
 and harass their American competitors. But there are reasons 
 for believing that it did not meet with the approval of tiie work- 
 ing fishermen, or of the coast population in general. Evidence on 
 this point is furnished by the reports of the otficers of British 
 war ves.sols, which were assigned to the duty of assisting the 
 Dominion cruisers in patrolling the fishery grounds; for example : — 
 
 In a i;eport dated Nov. 22nd, I87U (Dominion S«uii>nal Paper, No. 6, 1871), 
 Vice- Admiral Fanahawe, of the Hoyul Alfred, iay»: "The itrong intereat 
 that-buth the reaident Uriti<h traders and the United States dshermen have 
 iu maintaining the trade would, in my opinion, render its suppression ex- 
 trenM'ly ditticult, even were it thought judicious to continue the attempt ; 
 whilst the combination between these two to evade British law, and the sym- 
 pathies arising therefrom must be very undesirable." (tie ) 
 
 In a report dated Nov. t8th, 1870, Lieut. Cochrane, of Her Majesty's 
 gunboat Biitomari, siys : " The inhabitants on the Nova Scotia coast from 
 St. Mary's Bay to Cape Sable, I believe, prefer the Americans coming in, as 
 they are in the habit of selling them stores, bait, and ioe ; and give them 
 every information a* t'> my movements. " . . . "Wherever I went 1 
 found the people most anxious to know whether the Americans were still 
 going to be alloncl to come and purchise the frosen herrings ; if they were 
 not they had no other iiinrket for them, and the duty waa so heavy they 
 could not atford to take them into American ports themselves." 
 
 In a report dated November 7th, 1870, Commaniler Knowlea, nf Her 
 Majesty's ship Lapu>ivg, writing nf the state of things along the Strait of 
 Oanso, says: "The collectors of customs fi id it impossible to enforce their 
 authority, having no force to assist them. The sympathies of the inhabitants 
 are entirely with the Americans, as the (American) scho<inera are principally 
 m,'Lnned by men who are natives of the Strait of Canso. The Bt<irekeepers 
 anil traders secure large proKts from their intercourse with the crews." 
 
 li a report dated November 18th, 1870, Commander Poland, of Her 
 Majesty's ship Plnver, which had been derailed to watch the fisheries of 
 Prirce Edward Island, says : " Every facility is given in the ports of the 
 island to foreigners for obtaining and replenishing their stock of stores and 
 neceiisaries for fishi"g." 
 
 Here is evidence from another source. In 1868 Mr. Stewart 
 Campbell, mcnil)er of the Dominion Parliament for the County of 
 Ouy!ilx)rough, N. S., complained to the Dominion Oovomment of 
 the |,;rcat loss which his constituents had sustained by the exclu- 
 sion of United States fishermen from the liberty of landing for 
 trading and transhipping purposes. — (Dominion Sessional Paper 
 No. .12, 1809):— 
 
*' Mr. Stewart CampVaU, after comtnnnioalinn thii day with the Hon. the 
 Minuter nC Marine and Kiaheriei, be^a lu aubmit the folluwinK remarba : — 
 DurinK tho ountiiitiaiioe uf the Iteoipruoity treaty, aiiJ eveu during the 
 aeaaon of 1S07, a very large and lucrative trade and biiaineu, extondiug a 
 diatanoe of 35 niilea interiorly from the Strait of Cana >, had existed betwoon 
 the merchants and inhabitants of theCounty of Oiiysb<irough,and the Ameri- 
 can Bahermen pasaing thraiigh the Strait. This trade and business oonsisted 
 in the sale to the Americana of very many thousands of barrels manuft jtured 
 by the people of that county ; in the aale of salt, bait and necessary Kshing 
 and other supplies, in the storage uf the cargoes and materials of such vessels, 
 and iu the rslltting of the aame. This trade and business has rendered the 
 weatern side of the Strait of Canso (embracing three uonveniont harbors and 
 forming a portion of the County of tiiiysborough), the constant resort of 
 American Bshing vessels, and a very prosperous and progreuive section of 
 the province. During the present season the Department of Customs, 
 through its othoers, by a strict construction of the Treaty between Great 
 Britain and the United Slates, have put a stop to all commercial intercourse 
 between Ihe American tisheruien and the constituents of Mr. Campbell, in 
 ounse(|nonce of the refusal by the former to pay the tonnage dues now exacted 
 from thtsm. The etfijct of this prohibition has been to transfer to Prince 
 Kdward Island the whole of the advantageous trade heretofore subsisting, 
 and as a natural conseijuencu a very serious depression at this moment exists 
 
 in (iiiysboruugh Mr. (.'ampbell regrets to be obliged to 
 
 say that he anticlpatea considerable commercial emharraument in the com- 
 munity whose interests he represents, as the c )nie()uenoe of the diversion of 
 the trade in (|uestion."~) 
 
 2 — On the expiry in 1885 of the fishery claiiseH of tho Wash- 
 ington Treaty of 1871, tho Dominion Government entered upon 
 what its supportei'H in the i>re.s8 termed " a vij^orous licen8e-and- 
 cruiner policy," and since tiien American veHHel.i ]iavo been seized 
 for alleged violation of the Treaty of 1S18 in purchasing goods 
 and transhipping cargoes at Canadian ports. Such seizures are 
 made under the authority of the Dominion Customs Act (1883), 
 and of Chapter 94 Revised Statutes of Canada (188C), entitled an 
 Act Respecting Fishing by Foreign Vessels. Sections 2.'), 28 and 
 29 of ^e Customs Act (46 Victoria, cap. 12) provide ns follows : 
 
 " 26 — Tho master of every vessel cominx from any port or place out of 
 Canada, or coastwise, and entering any port in Canada, whether laden or in 
 ballast, shall go without delay, when such vessel is anchored or moored, to 
 the Custom House for the port or place of entry where he arrives, and therj 
 make a report in writing to the collector or other proper ulticer, of the 
 arrival and voyage uf such vessel, stating her name, country and tonnage, 
 the port of registry, the name of the master, the country of the owners, the 
 number and the names uf the pasiengert, if any, the number of tho crew, 
 and whether the vessel is laden or in ballast, and if laden, tho marks and 
 numbers of every package and parcel uf goods on board, and where the same 
 was laden, and the particulars of any goods stowed loose, and where and to 
 whom cunsiKned, and where any and what goods, if nny, have been laden or 
 unladen, or bulk has been broken, during the voyage ; what part of the 
 cargo, !tnd I he number and names of the passengers which are intended tr> 
 be landed at that port, and what and whom at any other {xirt in Canada, and 
 what part of the cargo, if any, is intended to )» exported in the same vessel, 
 and what surplus stores remain un board, as far as any of such particulars 
 are or can be known to him. 
 
 " 28 — The master shall at the time of making his report, if refpiired by 
 the othcer of Customs, produce to him the bills of tailing of the oar^'u, or triiti 
 copies thereof, and shall make and subscribe an alH lavit referring to his re- 
 port, and declaring that all the statements made in the report are true, and 
 shall further answer all such i|uesti()iis concerning the vessel and cargo, and 
 the crew and the voyage, as are demanded of him by such cifhcer, and shall, 
 if required, make the substance of any such answer part of his report. 
 
 "2!) — If any goods are unladen from any vessel before such report is 
 made, or if the master failn to make such re|)ort, or makes an untrue r»|)ort. 
 or doei not truly answer the i)uestions demanded uf him, as provideil in the 
 next preceding section, he shall incur a penalty of four hundred dollars, and 
 the vessel may be detained until such penalty is paid." 
 
 Tho third and fourth sections of Chapter 94 Revised Statutes 
 of Canada, authorise tho seizure and forfoiture of unlicensed ves- 
 sels found fishing or preparing to fish, or which are suspected of 
 
havin;; lionn onjj^aged in Huhing within throo marine miles of the 
 coAHt, und also of unlicenHeii vahshU which have " entered such 
 wiiteri for any purpoHo not |>erinittu.l \>y troaty or convention," 
 that ix, for any piir[)o»io whicli, uccitnlinjr to the eontentioii of llio 
 Dominion aiithoritici, \h not |)uriiiitt(Ml by thu Treaty of 1818. 
 Tho "tatikle, ringing, apparul, furiHtur.i, HtoreH undcai'),'o" of the 
 voasuli HO tutizcd are forfuitHd, together with the veiHei.s tliiiinneivi'M. 
 Any jiurton who otfurs ruHixlanco to iiei/.iire, or aids and al>otH in 
 oflurinir rusistance, in " liable to a lino of SHOO and to imprison- 
 mont lor two youm." In caMs where the lej^ality of a neizure ia 
 disputed, "thu burden of provinjf the illegality nhall lie upon the 
 owner or claimant." If judjjment bo given in favor of the owner, 
 he is not entitled to coHtx if it be helil by the C/Ourt that there was 
 " probable cauHt) for HnizDre." Vussels and cargoes condemned m 
 forfeited under this Act are .sold by publii: auction, and when *' all 
 necessary costs and expense:* of custody and sale " have been paid 
 out of the sum realized, the Clovernor-in-CJouncil (t. e., the 
 Dominion Uovernment) " may apportion three-fourths, or Ibss, of 
 the net remainder among tho otficors and crew of any of Her 
 Majesty's ships or ('anadian Oovornmont ves.sels, from on board of 
 which the Ncizurit was made." In other words, the Government 
 puts a premium on the seizure of American vessels. Finally, it is 
 provided by Section 13, that "no writ shall bo sued out agaimt 
 any ottieer or other perstm authorized to seize uniler this Act for 
 anything done under this Act until one month after notice in 
 writing has been delivere<l to him, oi left at his usual place of 
 al>ode by the person intending to sue out such writ, his attorney 
 or agent." This virtually leaves tho owner of the vessel without 
 redress against the British or Canadian otficer wKo has eti'ected 
 the seizure, since in the majority of cases it is impossible for the 
 owner to serve notice upon the ottieer in person or to ascertain or 
 reach " his usual place of abode," which may be in a part of the 
 Dominion far remote from the place of seizure, or even in the 
 British Islands. Besides seizing American vassels for trading 
 and tranship|>ing, the Dominion Uovernment has punished 
 Canadian vessels for supplying provisions to American ves-sels at 
 sea outside the three-mile limit. The schooner Scyllii of Lunen- 
 burg, N.S., was fined in 1M87 for having transferred food to an 
 American fishing vessel in distress when both were fourteen milci 
 from shore, (Olficial Debates, Dominion Senate, 1S87, pp. 17-22.) 
 In January, 1889, Mr, William Ro.ss, Collector of Customs at Hali* 
 fax, N.S., was dismissed from the service of tha Dominion for 
 having permitted an American fishing vo.ssel, thejVf. A. Bulson,ot 
 Gloucester, whicli had entered that port to ertoct repairs, to tran- 
 ship a quantity of halibut to a steamer bound for Boston. 
 
 There is good ground for saying that, as befoi-e, such measures 
 do not meet with the approval of tho working fi.shcrmen of the 
 Maritime Provinces, or of the farmers and storekeepers along the 
 coasts. On the contrary, those classes of the Canadian popula- 
 tion .systematically violate them, or connive at their violation. 
 Bait, vegetables, fresh;pork, salt, barrels, and other articles, are 
 conveyed, in the day-time as well as at night, to American fishing 
 vessels lying ouLsido the three-mile limit ; and undoubtedly, by 
 prcarrangemont with the shore inliabitants, American vessels fre- 
 quently send boats into the smaller harbors and coves for tho 
 purjKJse of obtaining supplies. The inhabitants find the traffic 
 profitable, and aid the American veasels to escape detection by the 
 cruisers and customs collectors. The American skippers pay Glou- 
 cester prices in American currency for their purchases, whereas in 
 dealing in their local markets the shore fishermen and farmers 
 are usually obliged to accept high-priced goods in barter for their 
 wares. Tho Canadian fishing-vessel ownera are, it is believed, the 
 only persons in the provinces who object to the pro.secution of this 
 
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 Jr\l' 
 
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commerce. Thoy complain thatitfanilitatcs the operations of United 
 States fishermen, who, by replenishing their stores in the manner de- 
 scriWd, are relieved from the necess'ty of returning to the United 
 States for a fresh supply ; and that the immediate effect is to aug- 
 ment local prices and increase the cost of Canadian fish cargoes to 
 that extent. It is notoriois that, notwithstanding the large sums 
 spent by the Dominion Government in the form of fishing tonnage 
 bounties and of appropriations for railways ami other public 
 works of a political character, a large proportion of the shore in- 
 habitants of Eastern Nova Scotia and Cape Breton are in a more ' 
 or less destitute condition the year round. Owing to the decline in 
 the yiehl of the inshore fi-theries, the Nova Scotia Government 
 has found it nouessary to establish a system of out-door poor re- 
 lief. A policy which debars this unfortunate population from 
 sellin'^ bait and other commodities to American fishermen, engaged 
 in the common fishery of the deep sea, is sin-ely neither humane 
 nor just. 
 
 3. This view impressed itself upon the G.jvernment of Great 
 Britain as long ago as 1870. In that year, a.s has been shown in 
 a preceding paragraph, complaint was made to the Dominion 
 aiithorities that, by their denial of tra'Ungand transhipping privi- 
 leges to American fishermen, they had injured the business of the 
 Can.so region, and that Prince Edward Island, then a separate 
 Crown colony, had opened her ports to American fishermen 
 (although the Canadian interpretation of the treaty of ISIH 
 had been ostensibly accepted by her), ami was enjoying the 
 pmfitable commerce of which l<]astern Nova Scotia had been de- 
 prived. The Dominion authorities called the attention of the 
 British Government to the course adopted by Prince Edward 
 Island, and the Secretarj' of State for the Colonies requested an 
 explanation from Sir Robert Hodgson, the Administrator of the 
 Island. (The correspondence relating to this interesting controv- 
 ersy is published at length in the Jnurii'd of the Leijiilaiive Coun- 
 cil of Prince Eilward Island, 1.S71.) Sir Robert forthwith 
 (Aug. 3rd, 1H70) referred the matter to his Cabinet advisors, who 
 procureil a legal opinion from the Attorney-General ami Solicitor- 
 General of the Island, and also from Mr. (afterwards Chief Justice) 
 Palmer, one of the most distinguished of colonial lawyers. Mr. 
 Palmer, iit his written opinion, stateil " that the termination of 
 the Reciprocity Treaty of 1.S5+ having levived the convention 
 of the '2()th of October, 1818," the tpiestion of the legality of the 
 acts of the Province complained of depended upon the construc- 
 tion placed upon the provision in that treaty that American lisli- 
 ermen were to be allowed access to (Janadian |K)rts, '" for the pur- 
 |to»n of shelter and of repairing damages therein, of purchasing 
 Wood, and of obtaining water, and for no other [)uriH>.-<e what- 
 ever." He proceeded to say : 
 
 " In conitriiini; treaties or cimventimiB of thin charnctor, I know of no <lif. 
 foreni rule of cunatruction than thai which in applioii to all soltinui oonipieta 
 of a aimilar ulaaa, by which dilfdrent partiot have agreod lothd asiurtod ri);hU 
 o( each oiher, ami to liiitit or binil their own. ' Truaiiua,' saya Orotiui, ' are 
 to receive a fair and liberal Interpretation, acct>nling to the intention of the 
 contract in); partiea, and to he kept with the moit acnipiilona uood faith.' 
 American tiahinafveaaels buinit allowed to enter Britiah hiirbiira for the pur- 
 )>oae of ahelter and of repairing Jainagea, of pnrohaaio;; wood and of obtain- 
 in); water, and ' for no other pnrpiae whatever,' theae words iiinst have a 
 reasonable oonatruotinn. 1 cancelve they ninit Im construed to mean pur- 
 poses which am really injnrioiia or prejudicial to the trade of the colony, or 
 to the inlorestii of its inhabitants. If they were to )>« conatrnxl literally, an 
 American lishinK vessel oonld not ventnre to bring in and land for the in- 
 habitants of the colony a load of provisions, if they were in a state of famine, 
 or a load of timber if the principal towns were burnt down and the inhabit- 
 ants had no shelter ; or to bring in and land a nnmber of passengers which 
 it might have rescued from a sinking ship. In case an Amurioan fuhing- 
 vessol ahonld enter one of our ports fur the purpose of transhipping a cargo 
 of fish to purta in the Uoited States, such act, not being provided for by tha 
 
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trehty, cniild not be oxerciud u a leital rixht. But aiippnaing uwS an entry 
 to be made tiy an American vesiel for the purpose of landing and tranship- 
 ping a cargo of Kah, caught and cured Imidjule ontaide the three mile limit, 
 I am of opinion that anch an sot would not render the veaael liable to aei;'.uro 
 and oonfiacation." 
 
 On Soptenihor -inil, the Cabinet of Prince Edward Island drew 
 up a niinute-of-Couneil on the Buliject, which was forwarded by 
 Sir Robert Hodgson to the Secretary of State for the Colonies. 
 Tlie minute set forth that the inhabitan'^ of Prince Edward 
 Island had not l>een the only persons enijajfod in the practice of 
 allowin<{ American fishermen to purchase bait, etc., and tranship 
 cargoes in colonial ports : 
 
 " The Council remind your Honor, for the information of the Secretary 
 of Statu, that the praotico referred to had, until a recent [wriod, been per- 
 mitted in the Strait of Canao ; that the New lirunawick Railway ha« trans- 
 ported large ({unntitiea of fiah of foreign take ; and that Her Majesty's 
 represuntativea could not fail to be cogniaant of the practice of trsnahipping 
 cargoes and supplying foreign vessels. Moreover, no attempt at concealment 
 thereof was made, in the summer of ISfl'.l, during the visit of two Vice-Ad- 
 mirals and several commanders of {lier Miijesty's ships to Charlottetown 
 harbor ; consecjuently it is not surprising that merchants and traders in this 
 colony should regard the practice referred to without suspicion of its illeg- 
 ality." 
 
 The Council had stopped the practice, however, on the receipt 
 of an opinion (dated August 5,) from the law officers of the Island 
 to the eH'ect that United States fishing vessels had no " legal 
 right " to enter any of the harboi-s of the Island for the purpose 
 of entering at the customs and landing and transhipping cargoes. 
 The luinute-of-Council proceeded as follows : 
 
 " Having thus acquitted themselves of their duty and caused the law to be 
 carried into effect, though at a sacrilioe to their fellow colonists which will be 
 little understood or appreciated elsewhere, the Council feel bound to protest 
 against the policy now ruadopted. That policy may have been well suited to 
 the circumstances of the colonies fifty-two years ago, but the Council ventures 
 to think it inapplicable at the present day when free trade princi|iles, which a 
 Itritish statesman has declared to be the principles of common sense, form 
 the basis of the Hritish commercial code, i Fairly stated, the old policy re- 
 vived demands from the people of I'rinoe Edward Island, the exclusion from 
 their harbors of their be.it customers— customers who have employed the 
 colonial marine in importing salt for their use, anil colonial mechanics in 
 iiiannfacturing barrels ; customers who have purchased their clothing, their 
 provisions and their sea stores iu the Island markets. These men are to be 
 expelle<l uniil the forty million citi/.ens of the United States succumb to the 
 preasuni |)ut upon them by four million colonists, and consent to concede 
 reciprocity iu exchange for free access to the tishing grounds and harbors of 
 the colonies. 
 
 " If little cm be said in favor of the revived policy of 1818 in an econom- 
 ical point I'f view, still less oan ho said in its favor politically. It is easen- 
 tially u policy of exclusion, enforced by the armed ships of Her Majesty's 
 ftvet, and, therefore, tends seriously to estrange a friendly but proud and 
 sensitive natiim whose citizens freely admit the right of Ureat Britain to pre- 
 vent them from tishing wit'iin thu three mile limit, but who assert that their 
 cargoes <if lish, taken without that limit, are not contraband, and that to re- 
 fuse the right of entry to Hiich at colonial custom houses is unfriendly, and, 
 they atlirm, illegal. And this view of the case has been taken by an eminent 
 Queen's Counsel of the i'rince Kdward Island bar, Hon. Edward I'oliner, who 
 agrees with the Attorney ami Soliuitor-Cleiieral (of the laland) iu their view, 
 supposing the cargcves of tish for which entry is sought to have been taken 
 within the three mile limit, but asserts that for cargoes Uken beyond that 
 limit thu right of entry cannot be refused. 
 
 " The Ccmncil would also urge upon the notice of the Secretary of State th i 
 impolicy of pressing an odious system u|M>n an unwilling people. They 
 assure Lord Kimberley that their fellow colonist* are enthusiaatieally 
 loyal in their attachment to Her Majesty's |)erson and family, and are 
 notorious for their adherence to Itritish institutions. Their trade conneotioni 
 with I'nited States citir.ans have not undermined their loyalty, nor persuaded 
 them that better political institutions than their own exist elsewhere. Unt 
 the Conncil submit that the |iolicy of exclusion will lack one of the chief ole- 
 
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menu of auocfn if it doei not obtain the moral inpport of the people for 
 whnan aiippoaed benefit it ia iindertalten. ... In concliiaion, the Ooim- 
 cil duaire to preaa upon your Ilunor'a notice, fur the guidance of tlie Secre- 
 tary of State, the importance of cultivntini; friendly relationa with the 
 neighboring Republic, and the danger of peraovering in the preaent ayatem, 
 which ii certain to produce iliacontent amongat the ooloniata, and bad feel- 
 ing, if nothing worae, in the United Statea. A renewal of the Reciprocity 
 Treaty would be a moat welcome bo<jn to the people of thia colony, and, fail- 
 ing that, a reduction of the United Statea tariff upon the produce and manu . 
 facturea of the ciloniea. But the Council do not believe that the United 
 Ktatea can )>e c eiced into compliance by the preaaure now applied, and they 
 apprehend that all auch attempta, discrediting aa they do the principles of 
 free trade, will only increase the difficulty of gaining the desired conceiaion 
 by negotiation." 
 
 In reply to this iiiemoranduni, Lord Kimlierley, in a communi- 
 cation dated October 20, 1870, instructed Mr. William Robinson, 
 who in the meanwhile had a.ssumed the lieiitonnnt-governorship 
 of Prince Kdward Itiland, that he was to relax the restrictions 
 placed upon American fishermen in reganl to trading and tiiins- 
 shipping until otherwise ordereil. His lordship's letter is not 
 printeil in the correspondence. IJut it appears from a note writ- 
 ten to him by Mr. Robinson (Dominion Sessional Paper No. 12, 
 1S71), tlmt his lordship was of opinion "that the transhipment 
 of fish antl the obtaining of supplies by the United States fi.shing 
 vessels in the ports of the colony cannot i)e legarded as a sub- 
 stantiid invasion of British right-s." Mr. Robinson, in the note 
 referred to, assurod Lord Kiniberley that the colonists wore "not 
 a little gratified*' at the result of their appeal, for trade had 
 " sutt'ered severely " in conseciuence of the temporary exclusion of 
 American fishermen. Shortly afterwards, the correspondence be- 
 tween him iind the Island Government having been forwarded in 
 the interval to the Canadian Government, which had entered the 
 complaint against the Island, Lord Kiniberley sent a despatch, 
 dated February 10, 1871, to the aiithoritie,s of Canada, in which, 
 after referring to the approaching negotiations at Washington, he 
 informed them that : 
 
 " The exclusion of American liahermen from reaorting to Canadian porU, 
 ' except for the purpoae of ahelter and of repairing damages therein, of pur- 
 ohaaing wood and of obtaining water,' might be warranted by the letter of 
 he Treaty of 1818, and by the terms of the Imperial Act o9 (Jeorge III., 
 up. .18 ; b\il Her Mnjeaty's Government feel bound to atato that it a'lema to 
 them an extreme measure, incimaiatent with the general policy of the Empire; 
 Iind they are di8[>osed to concede thia point to the United Statea (iovurnment, 
 under auch restrictions as may be necuasary to prevent auiugglinir, and to 
 guard againat any siibetantiul invasion of the exclusive righta of Kahiiig which 
 may bo reaerved to Britiah anbjecfa." 
 
 Notwithstanding this concession on the part of Her Majesty's 
 Government to the demands of its own subjects, no less than to 
 the rei|uireiiu r i,s of international comity, the Dominion (lovein- 
 niont, immediately on the expiry in 1S85 of the fishery cliuises of 
 the Wa.shington Treaty of 1S71, reverted, as has been .said, to the 
 policy of prohiliiting American fishermen from transhipping car- 
 goes in Canadian ports, and of preventing them from trading with 
 the coa.st population, in whose behalf the Prince Edwunl Island 
 Government had entered so elo<|uent a protest. 
 
 4. The real purpose which that Government has in view in 
 resorting to these unfriendly measures is known to Her Majesty's 
 Government as well as to that of the United States. In a do- 
 s|)atch (June 17, 1871,) written in answer to the complaints of the 
 Dominion Government rospe ting the Washington Treaty, Lord 
 Kiniberley pointed out to Lord Lisgar, then Governor-General of 
 l^anada, that Canada " couhl not reasonably expect that this 
 country (Great Hritain) should, for an indefinite period, iticur the 
 constant risk of serious misunderstanding with the United S^atcxi 
 
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impcrilUng, ppiliaps, the peace of the wliolc Empire, in onler to 
 force tlie Aiin'i'icaii ( Ji)veniinent to clmni,'e its coumiorciul policy." , 
 In reply the Dominion IJoverninenl, in a niipute-oflJouncil dated 
 July 2.S, 1S71 (Dominion Sessional Paper No. 18, 1«72), alleged 
 that the Reciprocity Treaty of 1S54, " was uLtainod chiefly by the 
 vigorous protection of the tlsheries which preceded it, and that 
 but for the conciliatory policy on the subject of tlie fisheries 
 which Her Majesty's Government induced Canada to adopt after 
 the abrogation of the Treaty of 18.54 by the United States, it is 
 not iniprobnble that there would have been no <liH]culty in ob- 
 taining its lencwal ; " thus tacitlj' admitting that their ill-treat- 
 nient of American tishcrmen had been designed to compel the 
 Government of the United States to alter its caritt' laws in the 
 interest of (knada. The history of the Fishery ipiestii n from the 
 beginning bears out that avowal. Prior to 1834, the Province of 
 Nova Scotia, in particular, adopted the harshest inteq)retations of 
 the Treat} of 1818, apparently from no other motive than that of 
 coercing the United States Congress. Besides attempting to pre- 
 vent American fisherni(;n from enjoying the liberty to navigate 
 the Strait of Cau.so, and to exclude them from the Bay of Fundy, 
 and to induce Great Britain to enforce a narrow rule with refer- 
 ence to minor ba^'s, the Nova Scotia Legislature went so far 
 (Questions Aildressed by llesolution to the Law Officers in Eng- 
 land, June 8, 1841), as to seek to confine the right of American 
 vessels to enter the ports of that province for the purpose of 
 purchasing wood and of obtaining water, to such American ves.sels 
 as had exhausted their supply of such articles ; whilst American 
 ves>els which had " provided neither of the.se articles at the com- 
 mencement of their voyages, in their own country " were not to 
 to be allowed to procure them. The Government of Great 
 Britain refused its sanction to that barbarous proposition. And 
 ^immediately after the abrogation of the Reciprocity Treaty 
 ill 18()(i the Legislature of the same province protested against 
 the issuing of licenses to American fishermen, on the ground 
 that it was unjust to ('anadian fishermen to allow Americans 
 " upoti nearly etpial terms to fish in our waters, side by side 
 with the former, while the American market is virtually 
 closed by a high tariff to their |)rodiicts." (Dominion Mem-_ 
 oianduni on the Position of the Fishery Question, July 4, 1870.) J 
 
 Perhaps the strongest proof supplied by the Dominion Govern- 
 ment that in applying a stringent interpretation of the treaty to 
 American fishermen it is actuated by a desire to annoy and coerce 
 the United Slates Government, is to be found in the fact that it con- 
 cciles to the fishermen of France in North Atlantic waters all the 
 privileges which it denies t<i the fishermen of the Uniteil States. 
 P>y an arrangement made under the commercial treaty entered into 
 by Great Britain and Fiance in 18G0, Canadian [jroducts received 
 " favonnl nation " tioatmeut ii\ Fiance for some years ; but since 
 1.S73 they have been subjected to the ordinary French tariff. 
 France gives no eipiivalont of any kind at the present time to 
 Ciiiiiida for the privileges grunted to her fi.shermen. Nor can 
 French fishermen claim these privileges under the provisions of the 
 treaties of Utrecht, Paris or Versailles, relating to the [lossessions 
 of Great Britain and Franco in North America, or of any .snbse- 
 cpient convention. Nevertheless they have been allowed for many 
 years to purcha.se bait and sea-stores on the Canadian coasts and 
 islands, and to land cargoes of fish at Canailian ports. These 
 cargoes are sold or consigned on commission, in bond, to the Nova 
 Scitia fish mcrchants.and exported by them to the United State*, 
 Kiiroiic and the West Indies. The working fishermen of Nova 
 Scotia, to the number of five thousnn \ recently petitioned the 
 Dominion Government against the carrying on of this trade, on 
 the ground that the French fishermen receive bounties for the 
 
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 fish wl)ich thoj- land nt Canadmr ports in potnpntition with < 'an- 
 ailian-caiitrlit lish, and also because the Frenelj Hsh are not always 
 wandioMsed in strict acconlanco witli the provisions of the Do- 
 liiiiiiun (.'iistoms law (Section H3), " l)ut have hcon handled, dried 
 and packed in the same manner as our own fish, the only n'(|uiro- 
 nient l>eing that a suHicient (jimntity should he entered outwards 
 to satisfy the Customs othi-ials that all have l>een exportei!" 
 (Official Debates, Dominion House of ('animons, 1H8H, pp. 10S4i- 
 94). It was further stated in the debate referred to that Freneh- 
 caught fish are sometimes shipped to Europe in < 'anailian bot- 
 toms and palmed off as ('anadian-caurrht fish in order to enable 
 the French fishermen tt) evade payment of the sjH'cial tarifl 
 levied by the Government of Italy upon the bounty-t'e<l fish of 
 France. For dry tish, caufjht by the tishormen who niake the 
 Miipielon Islands their liase of operations, and sold or delivered 
 in Canada, the Freneh bounty is twenty francs per metrical (piin- 
 tal of 220.1 pounds, or, as it is reckoned, SI. SI) (C.tnadian cur- 
 rency) for each Enjjlisli quintal of 112 pounds. The petitioners 
 i.]iuinded the }>ominion Uoverument that "(Janndian lishertuen 
 are jjraTitod no favors' 'oy the French authorities at the Mi(iucl')n 
 Islands, which is tiue. From an otliciai pulilication (Annuaire 
 dos lies Saint-Pi(:rr(! et Miquelon, pour Tann^'-e IH'M — Imjirimerie 
 du (jovernment, Saint-Pierrej, it appears that tiie importation of 
 foreign Hsh at those islanils is prohibited. The duty levied on 
 foreign rodtish at the j)orts of France itself amounts to fort}'- 
 eight Iranes per hundred kilogrammes, or over four cents per 
 jiound. Hence, according to the theory which it invokes when 
 dealing with American fishermen, it might fairly bo argued, as the 
 |ietitioni'rs apparently sought to argue, that the Douiiniou (iov- 
 ornment is not consistent in granting eouiuiercial privileges to the 
 French (isherinen, .seeiuij that, even to a L'reater extent than the 
 United States, France regulates her tariff' t^) suit herself without 
 reference to the interests of Canada. The Nova S(.-otia merchants 
 make a profit, however, out of the Freneli fish transhipped in 
 C.inadian ports, whereas there would lie no profit for them in the 
 transhipment of American-caught fish, inasmuch as s ich fish 
 woulil be .sbip]>ed in bond ciirect to the markets of ihi,' Uf\ited 
 States without their .services as middlemen Ik'i ig recpiired. This 
 circumstanc"' accounts in part fur their reiidiness to grant to 
 French fishermen the privileges that are refused to those of the 
 Uniti'd States. The discrimination practised against Americans is 
 attributable also to the l)elief of the merchants, whii^h, as has betm 
 seen, the 0;>v(,'rnment of the Dominion shares, that the United 
 States t'ongre.ss cm: be driven, for the sake of obtaining better 
 treatment for the American citizens engageil in the fishery, to re- 
 construct its tariff |)olicy for the benefit of the C.iiuulian fishei- 
 man and of the C.iiiadian pnMiucer at lar:;e. The Dominion (Jctv- 
 ernment cannot plead that it has no oiKcial knowledge of tho 
 preference accorded to French fishermen. Aside from the ilebat(!S 
 on the subject which have taken place in tho Dominion Parlia- 
 ment in recent years, express ]>rovision is made fi)r the traltic, 
 which is a large one, by ivgulations i.ssued from the Department 
 of Customs at Ottawa. 
 
 Hon. W. Laurier, tho leader of the Lilwral party in the Do- 
 minion, doubtless had the.so things in n\ind when he declared 
 (s|ioech at St. Thomas, Ont, August 28, l.S'h) that it was time for 
 Cnnaila to " reverse her jwlicy " towards the United States. 
 
 " If," said Mr. Lturier, «|)«akiii({ of tho Kinhory <|ue«tion, " the CiiiiKdian 
 Onvernment had followed a more friendly co'irse, there would not have bemi 
 an unfriendly feeling today. Tim United Slates would never have contested 
 thoae rights if the rights had been asserted in a friendly manniir. It wai 
 not BO. The rights had been aaaerted in u harsh wanner ; t.hey ha>t buea 
 asserted in an otl'ensive manner." 
 
,. '■ . 11 
 
 Mr. Lniiricr added Unit, alike in its finfial and fi.diory logislation, 
 Canada had for twenty-fivo years jmrsued towardH the United 
 Stall's a policy " which has not been altogether hostile, but which 
 has never lieon altogether friendly," and that hucIi a policy liad 
 boon delilierately adopted with a view of obtaining reciprocity 
 from the United States. 
 
 " We were told, " ha uid, "by Sir CharlM Tupper, th»t the OoTemment 
 would find a way to oompiil the Yanken* to grant reciprocity. What did Sir 
 Charlci Tiipper say in NovaSuotia and New llrunawick, and In the lloute of 
 ('ommnnil He aaid that we wonld oomptd the United HUtoa to give ui 
 reciprocity. Canada ia the land of my birth, of my love ; Canada iathe land 
 of my heart, and it ii onoiigh for me ; but it ii not ei|iial to the United Slalei 
 In extent ; it haa nut oven live million people, and the .Americana have a popu- 
 lation of aixty niilliona ; and to Hny, ai woa aaid by the Cunaervalive leader* 
 at the time, that w« cmild compel that (jroat nation to oomo down to their 
 kneoa and to force thum to |;ive ui what they have not been willing to give 
 ua ao far, waa aimply the i^rentoat piece of braKi^aduoio that haa been enacted 
 in my lifetime. Again, we had diapute* with them on the treaty of 1818, with 
 regard to the tiaheriea. Inatcad of adopting a friendly attitude the Qovern- 
 ment did everything to annoy them. * • * Again I lay it i« 
 
 high time we reverae our policy towarda the United Statea." 
 
 It is scarcely neco8.sary to observe that the interpretation of the 
 Treaty of 1818 is a matter appertaining solely to Her Majesty's 
 (ioverninent and to the Government of the United States ; and 
 that in determining what construction should bo put upon that 
 instrument, having regard to its letter and spirit, to the circum- 
 stances existing at the time it was framed, and to the generous 
 character of the commercial and other arrangements since mutu- 
 ally entered into by the contracting parties, the present ti.scal and 
 economic necessities of the Dominicm of Canada can have no 
 relevancy or bearing whatsoever upon the conclusion to be 
 reached. 
 
 5. Coming to the treaty itself, I venture to think that in order 
 to arrive at a just interpretation we cannot do better than [)ro- 
 ceed upon the principles laid down as far back aa 1799 by Chief 
 Justice Eyre of the Exchequer Court of England in the somewhat 
 famous case of Maryatt v. Wilson (Bosanquet & Puller's Reports, 
 Vol 1, pp. 430-439), where the controversy turned upon the mean- 
 ing and intent of Article 13 of the treaty ot commerce entered 
 into between Great Britain and the United States in 1794, and 
 ratified the following year. One of the parties in the suit sought, 
 by placing a narrow construction upon the words of that article, 
 to restrict the liberty of trading with certain British possessions 
 which had been conferred upon the United States ; in fact, to 
 confine the exports of the United States to those pos-sessions 
 to commodities of American growth, produce, or manufacture. 
 His lordship took strong ground against this attempt to read 
 into the treaty a now meaning calculated to prejudice the 
 interests of one of the contracting parties. To " cramp " the trade 
 of the United States by a " narrow, rigorous, forced construction 
 of the words of the treaty " would, ho said, be " chicanery un- 
 worthy of the British Government, and contrary to the character 
 of its negotiations, which have been at all times distinguished for 
 their good faith." And his lordship added : " We are to construe 
 this treaty as we would construe any other instrument, public or 
 ))rivate. We are to collect from the nature of the subject, from 
 the words and from the context, the true intent and moaning of 
 the contracting parties, whether they are A. and B., or happen to 
 1)0 two independent States." 
 
 Ap))lying this principle to the Treaty of 1818, it is extremely 
 doubtful if, when taken in their strict literal sense as they 
 stand, the words, 
 
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 " Th»t AnMirioMi tiahcrman ihikll ht pcrmiltod in enter (llritiih AnMriean) 
 hmy» or hMrh<>r« fi>r tha )>iir|><>a« of ahaltar and of n|>airinK dKmagua therainv 
 of piirchaaiDg wood Mid of oblainiug wkt»r, kiid (ur uo other purpiae wbat- 
 arar," 
 
 can l)i> luitili! to I>enr tho gloss put upon thorn hy the Dominion 
 (iovurniiiont. I'ho tn^nty was niwuntially u tiMhory trtiaty ; it liad 
 nothing to tlo with tradu or commarce. Tho Unit«<l Staten wns 
 ronniiricing thtt right or I'iaiui to ungagu in thn inshunt tiihery of tho 
 Kritish Ainuriran colonies within a !i|>acL> of throo nmrine inilen 
 from the land, in eonHiduration of oWtaiiking from (ireat Itritain 
 an ncknowloilgniuiit uf curtain ^'uneral and HpeciKc rightx in tho 
 coast tiMhorioN at largo. But tho trouty gavo to tho fiHhing vossoIh 
 of tho (Tnitf<l SlatoM lilxTty to enter British American Imys and 
 harliors for tho four purposes naniod, and for no other purpose 
 whatever, Huhject, however, to the following fiii-thcr limitation 
 whii'h follows inimodiately after tho grant: 
 
 " Kilt they ahall bi> under aiioh re^trictimiR u may bo neoeaaitry to pi' vont 
 thnir mkiii);, ilryiiii{, or oiirin;{ fUh iheruin, or in any utluir iiiaiuier whatever 
 abiiaiiiK the priviluKea hereby reaorved to thuin. " 
 
 llonding the grant and the limitations togolher, it is obvious 
 that tho latter constitute merely a restrictive provision for tho 
 protection of tho British inshore fishory, ami are not, as tho l>o- 
 niinion Government assumes, a prohihition against trade, a 
 Hulijoct indeed with which tho treaty d<x)s not profess to deal. 
 This view is supjiortod by the historical facts of tho case, Down 
 to IHIH, and for several years afterwards, no American vos-sels of 
 any kin<l had a right to enter British American ix>rts for trading 
 or for any other pur()OHe, nor wore British American vessels on- 
 titled by law to enter United States {>orts. This reciprocal non- 
 intercourse, which had resulted from the legislation adopted by 
 the British Parliament in tho seventeenth century, was tempered 
 iiy the rights which might be demanrlod under tho law of nations 
 by ves.sels in need of services of humanity. An American fish- 
 ing vessel was not only debarred, together with American trading 
 vessels, from trading in British American ports, hut from refitting, 
 from putting her crew ashore to enable them to return home by 
 land, and from entering such ports at all under any pretext. 
 Hence, as Article I. implies, in permitting Americun fishing ves.sels 
 to enter these j>orts for the four purposas specifio<l, tho treaty wa.s 
 in fact conferring upon them privileges not allowed to otlurr 
 American vessels, or to tho ve.s.sels of any other country. In 
 order to show that the construction which the Dominion fJovern- 
 ment has adopted was the construction placed upon the treaty by 
 its framers, it would be necessary to prove that trading rights or 
 privilegea ha<l actually hoen enjoyed by the fishing vessels of tho 
 United Stiites down to ISlS, wVich is out of tho question. Tho 
 Canadian interpretation can be accepted only by a.ssuming that 
 the framors made use of words which, under tho circumsl uncos 
 then existing, they must have known to be uncallud for anil liable 
 to be misunderstood. It is apparent also that this con.'^tiuction 
 contravenes tho avowed intent of tho framers by putting tho ban 
 upon a class of vessels which they singled out for tho enjoyment 
 of privileges ; and therefore cannot lie a true construction. More- 
 over it is a construction prejudicial to the interests of the colonies 
 themselves, for, as has been shown, tho trade of American fishing 
 vessels is greatly prized by the coast population and its inhibition 
 ha? always evoked complaint. 
 
 In order to uphold their interpretation the Canadian authori- ' 
 ties iiave been obliged to resort to much curious argumentation. 
 Canadian judges, for instance, have gravely hold that tho purchas- 
 ing of liait by American tishcrmen in a I'unadian poi t constitutos 
 
■■■'■■,•,/■■■*'-"'■ 
 
 ■■-I '.f . ; •->■ t 
 
 
the net of preparing to fish within the threo-mile limit ; so that 
 besides being prohibited as ii commercial privilege by the words 
 " for no other purpose whatever," it is an invasion of the exclu- 
 sive right of Canadian fishermen to tiie inshore fishery. This 
 remarkable doctrine was promulgated by Sir William Young, 
 Chief Justice of Nova Scotia, in the Nickerson case. In the 
 While /^(ijcncase Judge Hazen held, and very properly, that even 
 "if such purchase established a preparing to fish," which he was not 
 pre[)ared to admit, " before a forfeituie can be incurre<l, it must 
 be shown that the preparations were for an illegal fishing in Brit- 
 ish waters." Stress has been laid by Canadians upon the right of 
 nations to jud^^e for themselves in respect to the extent of their 
 commercial dealings with other countries ; aa if the Dominion 
 could by its legislation override tlie commercial arrangements 
 enttsred into by Great Britain and the United States subsequent 
 to the Treaty of 1818. Leaving these arrangements out of sight 
 tor the moment, it is questionable whcMier a modern State is at 
 lilterty to treat the vessels of a foreign country as the Dominion 
 treats the fishing vessels of the United States. Assuredly the 
 u.sagcs of international comity do not permit it, whilst British 
 practice is iigainst it, as may be seen by reference to the events 
 preceding the Treaty of Nanking and subsequent conventions 
 with China, in which the right of one nation to carry on trade, 
 even in a poisonous drug, with another nation was asserted by 
 force of arms. 
 
 The interpretation which ought to be placed upon the treaty 
 at the present time is to be determined not by Canada and the 
 United States, but by Oreat Britain and the United States, and 
 by them alone. It is nece8.sary, therefore, to attach due weight to 
 the broader intercourse which has grown up between them since 
 1818, notably to the arrangement of 1830, whereby trade was for 
 the first time made lawful between the United States and the 
 British American colonic.*, on the understanding that all " restric- 
 tions on commerce and discriminations on ti nnage " were to be re ■ 
 moved. Whatever may be the ease now, Great Britain was fully 
 qualiliitd to accept that agreement in behalf of her Canadian colo- 
 nies, without theirassent being recjuired ; for at that time the regula- 
 tion of trade between those provinces and foreign countries was 
 a matter of imperial jurisdiction exclusively. The Government 
 of the I'liiti'd States p?oiuptly acted up >n it, and from that day 
 to this Canadian fishing as well as trailing vessels entering United 
 States ports have been acforded all the privileges now demanded 
 for American fishing vessels which may resort to Canadian ports. 
 It is likewise iinportiint to consider the changes which time and 
 human invention have wrought in the t'sheries and in the man- 
 ner of prosecuting them. Thus, owing to the introduction 
 of ])rocos8es of artificial freezing, to the employment of vessels 
 of a larger sizi; an<l to other new methods, the liberty ac- 
 coriied to American fishermen of landing on certjiin British 
 coast^s for the purpose of drj'ing and curing fish has ceased 
 to bo of value, and i» no longer taken advantage of. Again, 
 the use of bait for inshore fishing has been superseded by 
 the employment of the |)urse seine, which has displaced the old 
 book and line; so that the Canadian authorities have now no 
 shadow of ground for assuming that the purchase of bait in a 
 Canadian port is j>ftm(l fac'w eviilence that the purehaser intends 
 to lisli witbiii tlio three mile limit (.\)ntrari*ise, it is the best 
 guarantee he could give of his intention to confine his operations 
 to the deep 8ea fishery, which is open to all. Nor can it be urged 
 any longer that American fishermen desire the liberty of tran- 
 shipping their cargoes in ('anadian ports as n pretext and means 
 of enabling them to poach upon the inshore fisheries. The 
 decftv of the inshore fisheries is a matter wliich the Pomin- 
 
\ 
 
14 
 
 ion officials ilo not attompt to conceal. Thoir returns Jo not 
 clearly 'listingiiish tlio value of the catch efTecteil by the boats 
 engageil in the shurr fishery from that of the catch of the ilecked 
 vessels which pursue the deop-soa fishery. It is obvious, however, 
 fro'ii a <,'oneral comparison of the figures showing the value of the 
 catch of mackerel, lobsters, herring, etc., that the inshore fishery 
 is not nearly .so profitable as it was five years ago. In his report 
 for 1S8S, Lieut. A. R. Gordon, U.N., chief officer of the Dominion 
 Fi.sfierios Protection Service, says the condition of the inshore fish- 
 eries is still " fairly good," but " tlie fact that our fishermen have 
 yearly to go further to .sea to make their catch, points to a retro- 
 gression." The '\ final destruction " of the inshore fisheries may, 
 he tliink>', Ix^ averted by the enforcement of stringent protective 
 regulations. In his rejiort forlSSO, the .same officer speaks of the 
 mackerel and lobster fisheries as having "greatly declined," (p. 10), 
 and eniphasizt's the necessity for adopting more stringent regida- 
 tions. According to the published figures of the Marino ami 
 Fisheries J Kipartnient at Ottawa, the gross yield of the inshore 
 and deep-sea fisheries of Nova Scotia, Now Brunswick and Prince 
 Edward Island, in 1.SS5, was valued at 81:1,000,000. This included 
 the fish sold for domestic as well as those sold for foreign con- 
 sumption. In l.S8!», the value of the gross yield was only 
 81O,.'J()O,(>0(t. In Nova Scofia alone the yield has fiilien froui 
 88,300,000 to *(;,.'{00,00;). Thirty -five thousand men and boys are 
 engaged in the Canadian inshore fisheries, and of late it hius been 
 dilficiilt for them to eke out a living even with the aid of (iov • 
 erinneht doles and bounties. Lieut. Gordon (Report for 18S9, 
 p. 15), gives a graphic account of the stress of competition 
 amongst them : 
 
 AfUir i|iii>tiiig sUtUtics to allow that no tosa than 1,1.50 miles of drift nets 
 are einpluyod in the inihore iHlierie) of the three Province.^ named, Ijiuiit. 
 Oordon aaya : " We are nsini; neta enoiit;h to wall the tUh oM'the coast. . . 
 The plaint of many fishermen la that it takea u groat deal more twine (i.e. net) 
 to take the fish now than formerly. I have aeen St. I'eter's Bvy, 0. II., 
 Ilabitant'a lUy and the North liay of IViiico Udward Island, olT St. I'etur'a, 
 ao full of nola that it wasalmoat iiirpoasiblo to work a steamer through them." 
 
 Under these circumstances it is idle to pretend that, if al- 
 lowed to enter Canadian povU-i for commercial purposes, Am- 
 erican fishermen would run the risk of fine and forfeiture for 
 the sake of fishing within the three-mile limit. As a mattei 
 of fact, the denial of commercial privileges has now t)ecome anil 
 is exercised wholly as a means of prejudicing the interests of the 
 United States tishermen engaged in the deep-sea fishery. In 
 other words, the Treaty of 1H18, which was designed as an in- 
 strumentality for protecting the exclusive right of Hritish tisher- 
 men in the inshore lishcry of the liritish coasts, has been trans- 
 formed into an instrumentality for imjioding American lishermen 
 in the prosecution of a legitimate industry elsewhere. It is satis- 
 factory to know that thi.-i slatii of things is condemned by 
 ( 'anadian jurists. In a recent speech in the Dominion House of 
 Commons (Official Deliates, 188!», p. :J:M-A), ILin. David Mills, 
 Professor of U'ln.stitutional and Intcrnatiunal Law at the Uni- 
 versity of Toronto, rcviewiil (he whole subject of the (Canadian 
 interpretation in these wonla . 
 
 " When wii look *t the proviniona of the Treaty of 1818, wo rind that all 
 the reati'ictiona iiii|>oae<l npon the tiahing veaiela of the Ijiiited Statea wore 
 impoaed for the purpose of preventing those vesaola fpun improperly tisliing 
 ill Oaiiadian waters. Thi>ae restrictions were incidental to the protoctiun of 
 onr Hoveruignty over imr own waters ; and if it could oe shown that these 
 restrictions were iinneottssary to that pniteotion, then it was an iinpro|>er oon- 
 strnction of the Treaty of 1HI8 to ao interpret it aa to prevent American 
 llahing vessela receivin'.; the food and auppliea which every civilized country 
 Mv irda to thn vessels of another ooiintry in distress. There is, no doubt, a 
 
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 ' ^(i / i-tiiH . 
 
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 15 
 
 «rido diitinotion iMtwaen inveraiKti rights md police regiflabioni. It ii abiiur4 
 id dij^ify or to underUke to raite to the poaiticu of auvereigu rights, rsgula- 
 *inn» which are mere regulations of police. Those restrictions upon Amerioaa 
 Wishing vessels, those provisions againat their entering Caoadiau waters, ex- 
 cept for certain specifo purposes, are not a declaration of sovereign rights, 
 it would be absurd to dignify them by such a name. They are declarations 
 of our right to make extreiuo police regulations /or the purpose of giving to 
 the tisheries of Canada the adequate proteotion they may require. In the 
 •nterpretation ef every document you have to recognise the changes that 
 society undergoes, the progress that a community makes. When the 
 Treaty of 181 H was made there were no railwaya, no telegraph lines. There 
 ia not a word in the treaty authorising an American tisherman to land 
 -for the purpose of senMug a teleg'am, and you have the right, under 
 A strict construction of tke treaty, to say that no American ship master 
 «hall land to send a telegram or make a report. You have as much right to 
 da that as to prevent them from transhipping their fish. Tetdoes any hou. 
 gentleman maintain that it would be a fair construction of the Treaty of 
 IHllS to say that it does not give to American tishermen the right to send 
 a telegram, and therefore tliey have no right t« exorcise any such privilege 
 Dpon Canadian territory < 
 
 " There are many rules to be considered in the interpretation of a treaty. 
 I do not say that hou. gentlemen opposit*) (the members of the Dominion 
 'Qovurnraont) have put an improper legal construction on it so far as the 
 mere bare interpretation of the words of the Treaty of 1818 is concerned ; 
 *)ut we must read the treaty, not wholly by the light of the events of 1818, 
 but by the surrounding circumstances as they at this moment exist. The 
 world has changed ; society has progressed ; there have been many invan- 
 4ioua and many discoveries which have necessitated a change in the relations 
 among independent States ; and the Treaty of 1818 cannot be construed in 
 -every respect now as it was construed at the time it was entered into. Many 
 «f the provisions that the hen. gentleman (Sir John Macdonald) has asted 
 .upon are justified solely as police regulations. They are not provisions of 
 the treaty, but they are provisions which the construction of the treaty 
 wight authorize, if it can be shown that they are necessary for the protec- 
 tion of those rights that were secured by the treaty. Under the convention 
 of 1818 the United States abandoned their jjretensions to fish in certain 
 Sritish North American waters, but they retained the right to enter these 
 porta for certain purposes specified, and agreed that they would not enter 
 them for any other purpose whatever. The reasons for that provision, when 
 we look at the prut < ols and the correspondence that took place at the time, 
 are easily aeon. It was asserted on the part of the British negotiators that 
 this interdiction was necessary for the protection of the fisheries, because, if 
 the Americans were permitted to enter {or any other purpose except to obtain 
 woo<l and water, or to escape stress of weather, they might fish on their way. 
 It was therefore deemed necessary to have the power of excluding them for 
 every other purpose. It is true that we have the power, but the question is 
 whether wo are justified in uiing it or not. That depends on whether it is 
 necessary for the pvirjwse/or which it was given. If you can show it is no 
 longer neci-ssary that this power should be eioroised for the purpose of pro- 
 tecting the fisheries, then your right to exercise the power, so far as the 
 vexed '(uestion is concerned, is gone. I think the hon. gentleman (Sir .lohn 
 71 acdnnald) will find at this time of day that it is pretty diliicult to contend 
 for a strict construction of the law. The hon. gentleman knows that the 
 Minister of Customs and the Minister of Marine and Fisheries, who are 
 largely nr rinsible for the state of irritation that existed in conse(|uence of 
 what was done during the past three or four years, made these regulations, 
 not for the purpose of preventing the Americtns from fishing in our waters, 
 but as a matter of commercial policy, thinking that by imposing such restric- 
 tions upon the American fishermen, the American Government, to secure the 
 relaxation of those rostriations, would be disposed to enter into more favor- 
 able trade relations with us in respect of our fiahepies than at that time 
 existed. So hou, gentlemen will see that the object of the Government in 
 making these regulations was altogether outside of the Treaty of 18<t8. The 
 Treaty of 1818 had nothing whatever to do with our trade with the United 
 States ; it had nothing to do with aecurii ^ us more extended trade relations 
 srith the United States ; it had nothing whatever to do with securing the free 
 admission of our tish into the i>orts of the Unitou States ; it had simply tu 
 do with thu exclusion of the American fishermen from fishing within the 
 waters which are recognir.ed as being witltin Ilritish North Araarioan sov- 
 ereignty. It was for that purpose, and for that purpose alone, that these 
 oonditions were inserted in the treaty ; ami it is in pursuance or in main- 
 ienanoe of this right that the exercise of these powers of exolusion ean alon* 
 be justified." 
 
 
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18 
 
 The conv6reion of regulations of police, which have lost their 
 reason for being, into exclusive rights of sovereignty, and their 
 enforcement as such for the purpose of injuring the occupation of 
 citizens of a friendly State, with the object of cnntpelling that 
 State to bring its tariff legislation into harmony with the ideas 
 and requirements of the Dominion, are so lucidly and exhaustively 
 dealt with in Mr. Mills's observations that little remains to be 
 said. The Government of the United States merely asks that the 
 Treatyof 1818 should be fairly interpreted according to the manifest 
 intent of theframers, and by the light of the new conditions which 
 have arisen; and that Canada shall respect the forms and usages 
 of comity and accord to American citizens those liberties and pri- 
 vileges which are freely conceded by the United States to Cana- 
 dian citizens, and by every civilised nation to the subjects of 
 other nations. This reasonable demand is submitted to Her 
 Majesty's Government, with whom the treaty was contracted, in 
 the profound l)elief that that Government will not countenance a 
 line of conduct which it repudiated twenty years ago as being 
 " inconsistent with the general policy of the Empire," and like- 
 wise as imperilling the friendship and good neighborhood which 
 have so long existed on this continent and elsewhere between it 
 «nd the Goverament of tlio United States. 
 
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