562 APPENDIX TO BRITISH CASE. 



for this reason that inasmuch as the enforcement of this Treaty, to 

 some extent, devolves on the Government of Canada, the Parliament 

 of the Dominion has in one of the sections already quoted of the 

 statute relating to " fishing by foreign vessels" (31 Vic., cap. 61. 

 s. 19) entrusted the executive with power to mitigate the severity of 

 those provisions when an appeal to executive interference can be 

 justified. In relation to every law of a penal character the same 

 power for the same purpose is vested in the executive. Mr. Phelps 

 will find it difficult, however, to discover any authority among the 

 jurists of his own country or of Great Britain, or among the writers 

 on international law, for the position that against the plain words of 

 a treaty or statute, an interpretation is to be sought which will obviate 

 all chances of hardship and render unnecessary the exercise of the 

 executive power before mentioned. 



It might fairly be urged against his argument, that the Conven- 

 tion of 1818 is less open to an attempt to change its plain meaning 

 than even a statute would be. The latter is a declaration of its will 

 by the supreme authority of the State, the former was a compact 

 deliberately and solemnly made by two parties, each of whom ex- 

 pressed what he was willing to concede, and by what terms it was 

 willing to be bound. If the purposes for which the United States 

 desired that their fishing vessels should have the right to enter British 

 American waters included other than those expressed, their desire 

 cannot avail them now, nor be a pretext for a special interpreta- 

 tion, after they assented to the words " and for no other purpose 

 whatever." If it was " preposterous " that their fishermen should 

 be precluded from entering provincial waters " to post a letter " or 

 for any other of the purposes which Mr. Phelps mentions, they would 

 probably never have assented to a treaty framed as this was. Having 

 done so, they cannot now urge that their language was " preposterous " 

 and that its effect must be destroyed by resort to " interpretation." 



But that which Mr. Phelps calls " literal interpretation " is by no 

 means so preposterous as he suggests, when the purpose and object of 

 the treaty come to be considered. While it was not desired to inter- 

 fere with ordinary commercial intercourse between the people of the 

 two countries, the deliberate and declared purpose existed on the 

 part of Great Britain, and the willingness existed on the part of the 

 United States to secure, absolutely and free from the possibility of 

 encroachment, the fisheries of the British possessions in America, to 

 the people of those possessions, excepting as to certain localities in 

 respect of which special provisions were made. To effect this it was 

 not merely necessary that there should be a joint declaration of the 

 right which was to be established, but that means should be taken to 

 preserve that right. For this purpose a distinction was neces- 

 336 sarily drawn between United States' vessels engaged in com- 

 merce and those engaged in fishing. While the former had 

 free access to our coasts, the latter were placed under a strict prohi- 

 bition. 



The purpose was to prevent the fisheries from being poached on, 

 and to preserve them to "the subjects of His Britannic Majesty in 

 North America," not only for the pursuit of fishing within the 

 waters adjacent to the coast (which can under the law of nations be 

 done by any country) but as a basis of supplies for the pursuit of 

 fishing in the deep sea. For this purpose it was necessary to keep 



