134 CASE OF GEEAT BRITAIN. 



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. 



COMITY. 



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 can- 

 not 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 spe- 

 cifically defined by agreement, and that the concession to American 

 fishermen of the same commercial facilities as are accorded to trad- 

 ing-vessels would have the effect of altering the whole character 

 of the liberties granted by the treaty of 1818, and of removing limita- 

 tions 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 dis- 

 tinction 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 for- 

 eign 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. 



