442 APPENDIX TO BRITISH CASE. 



There is, however, no statute against fishermen buying bait, obtain- 

 ing supplies, bartering or transhipping fish, if they comply with the 

 fiscal regulations of the Government regarding all trade and com- 

 merce. If a fisherman has violated no statute or rule respecting 

 trade, commerce, and navigation in this realm, there is no statute 

 which can condemn him, because he is a fisherman, for having bought 

 bait and supplies and transhipped cargoes. So long as there is no 

 statute prohibiting it, our fishermen have gone on exercising that 

 privilege, not believing they were excluded from it by the treaty of 

 1818, whether they were correct or not. It is in that view only that 

 the facts regarding seizures are of any importance; but yet we may 

 make our answer at once and say, whether we have the right to do 

 those things or not, we do not pretend that it was given to us by the 

 treaty of 1871. . . . 



******* 



I have put the argument of the Counsel for the Crown as strong as 

 I could put it ; they say you exercise that right now and you did not 

 exercise it before. Our answer is simply that we have always exer- 

 cised it, and that we have done it irrespective of the treaty of 1854 or 

 of the treaty of 1878 [sic\. We have never been interfered with in 

 exercising it. There is no case of condemnation of a vessel for exer- 

 cising that right ; and if there had been a good many, it would have 

 made no difference to your Honors, because the judgments would 

 have been simply the provincial interpretation of the treaty given ex 

 parte, and it is certain that no act of Great Britain has ever sanc- 

 tioned the position that the United States had not this right, irre- 

 spective of treaties. Then, as has been suggested by my colleagues 

 and I follow the suggestion merely the whole correspondence be- 

 tween the Governor-General and the head of the Colonial Office, and 

 between the United States Government and the British Government, 

 shows that Great Britain never intended that American fishermen 

 should be excluded from the use of those liberties or rights, whatever 

 be our claim to them, or whether we had them as of right or not. 

 These privileges are those which fishermen have always exercised, 

 and it nas only been as population increased and fiscal laws have be- 

 come important and the inhabitants have become more apprehensive 

 in regard to vessels hovering about the coast, that nations have en- 

 acted laws restricting persons in the exercise of those rights. The 

 learned Counsel in support of his argument cited Phillimore, /, page 

 224, Kent 's Commentaries, vol. 1, pages 32 to 36; and Wheatorfs Int. 

 Law (Dana's ed.), sections 167, 169, and 170. 



* * ***** 



We are satisfied that the United States are permitted by the Brit- 

 ish Government to do those acts, whether it be from comity, from 

 regard to the necessities of fishermen, from policy, or from some 

 other reason, I know not, and so long as we are not disturbed we are 

 content. If we are disturbed, the question will then arise, not before 

 this tribunal, but between the two nations, whether we are properly 

 disturbed by Great Britain; and if we should come to the conclu- 

 sion on both sides, that there being a dispute on that subject which 

 should be properly settled, then it is to be hoped that the Govern- 

 ments will find no difficulty in settling it; but this tribunal will dis- 

 charge its entire duty when it declares that under article 18 of the 



