QUESTION SEVEN. 55 



demnation over fishing vessels having on board any goods, other than 

 necessary supplies, whilst engaged in the fishery or in going to or 

 from the fishing grounds (British Case, App., p. 91). Certain ob- 

 jections were taken by the American representatives, and the clauses 

 were withdrawn. But it is to be observed that no objection was 

 made to the substance of the clause declaring that the article of the 

 treaty should not be construed to extend to any privilege of carrying 

 on trade, and that there was no suggestion at any time during the 

 negotiation that trading privileges should be enjoyed by the Ameri- 

 can fishermen on the treaty shores. Indeed, Mr. Rush and his col- 

 league had been instructed to negotiate for trading privileges, but 

 the negotiations had failed (British Case, p. 128). 



It will be remembered that the British statute of 1786 was in force 

 in Newfoundland in 1818. Under it the sale of fishing vessels or 

 their equipment, of nets or of bait, to persons other than British 

 subjects was expressly prohibited. 



There can be no doubt that the treaty of 1818 proceeds upon the 

 basis that the inhabitants of the United States were not to use the 

 treaty shores for the purposes of trade. 



NON-TREATY COASTS. 



A 



The assertion of the British Case that (British Case, p. 150) 

 " The treaty of 1818 did not confer any commercial privileges " 

 appears to be admitted by the United States Case as to the non-treaty 

 coasts, for it declares that (United States Case, p. 190) 



" the provisions of the treaty would seem to have no bearing on either 

 side of the question." 



64 At another place the Case says (United States Case, p. 



189) : 



"It should be noted in passing, however, that the United States 

 did not claim that commercial privileges on the Canadian coasts de- 

 pended upon the treaty of 1818, the contention of the United States 

 on that point being stated by Secretary of State Bayard in his note 

 of May 10, 1886, to Sir Lionel Sackville-West, the British Minister 

 at Washington at that time " 



In this note, Mr. Bayard, after referring to the reciprocal arrange- 

 ments between Great Britain and the United States in 1830, and to 

 certain legislation on similar lines, said that (British Case, App., 

 p. 300)- 



" These arrangements, so far as the United States are concerned, 

 depend upon municipal statute and upon the discretionary powers of 

 the Executive thereunder." 



Upon these separate and voluntary actions of the two Governments, 

 no claim of right can, of course, be founded. There is no treaty 



