314 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 



diifereiit principles of law in relation to the subject matter here 

 referred to, from those that we are insisting npon in this controversy 

 to-day; and that we should be quite content to have the law which 

 applies and exists, and the rights that are claimed in respect of the 

 fisheries of Newfoundland and Nova Scotia, applied to the controversy 

 which we are here engaged upon. 



Now, I would like to remind the Tribunal shortly (for I must be par- 

 doned for dealing witli this a little exhaustively), how this matter 

 arises. When America (that which is now the United States, or part 

 of it), was a Colony of Great Britain, Great Britain had entered into 

 certain Treaties with Spain and with France, under which Treaties 

 unquestionably there were conceded to Great Britain fishing rights 

 over a considerable extent of the sea beyond the 3-mile territorial limit. 

 It is not ad rem to go into the history of those Treaties. It is enough 

 to say that those extended rights as between those Powers, parties to 

 the Treaties, were given by the Treaties, in other words, by Conven- 

 tion and Agreement of the parties. In 1776 the American Independ- 

 ence was declared; and, following that Declaration of Independence 

 and after the War of Independence, the Treaty of 1783 was entered 

 into between Great Britain and the new independent Sovereign Power, 

 now the United States. I first call your attention to what that Treaty 

 was. 



I wish to remind you, before I refer to it, that my friend Mr. Carter, 

 no doubt with Mr. Phelps' Argument before him, asserted a contention 

 based upon the statements contained in the Argument. On the 21st 

 of April, on i)ages 492 and 493 of the printed report will be found my 

 friend Mr. Carter's argument. 



Now I have iiistanoecl the Pribilof Islands. Take the fisheries on the banks of 

 Newfoundland, which are also another illustration of that. I will not say that they 

 are a full and perfect illustration, but they will answer for the purpose of my argu- 

 ment. Great 13ritain asserted, at an early period, an exclusive right to the fisheries 

 on the Newfoundland banks because she had created a national industry which was 

 engaged in, and sustained, by her subjects resorting to those banks for the purpose 

 of gathering fish. And she claimed that the carrying on of that industry was a 

 property of hers. Upon the United States gaining its indepeudeuce, the United 

 States asserted a right to participate in those industries. They said, "We were a 

 part of Great Britain originally, and, indeed, were the people who went there and 

 created this industry ; but, having gained our independence, we have not lost our 

 right to carry on this fishery". That right was denied, and an attempt to exclude 

 them was still maintained, it being admitted on both sides that it was an industry 

 to which each nation had a peculiar claim. Great Britain insisting it was her own 

 and that the United States had no right to it, and the United States going on the 

 ground that it was a national industry, and that they had a right to participate in it, 

 because they were one of ttie original creators of it. There are numerous other cases 

 of laws passed by Great Britain for the purpose of protecting'the Herring Fisheries, 

 and so on. 



The Presidknt. — Are those fisheries exclusive of other nations than American and 

 English? 



Mr. Carter. — I do not think they are practically asserted now as being exclusive 



of other nations; but they were originally, and there wore contests with other 



1096 nations for the possession. They tend to illustrate my argument only; in the 



particular case they were not defensible, but they illustrate the view. The 



correspondence is printed in our Argument which fully supports it. 



The Prksident. — But if the exclusive right was not maintained? 



Mr. Carter. — It was maintained for a while; but I do not think it has been main- 

 tained down to now. 



Thereupon, my learned friend, Mr. Phelps, interposes and expresses 

 his dissent from that, and intimated, as I gathered from him (he will 

 correct me if I am wrong) that he meant to say in some sense or other 

 that assertion was doubted. 



Mr. Phelps. — What I said was, our fishery rights now are derived 

 under the Treaty of 1779. 



