994 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 



they are what we claim them to be, it being merely one of those acts 

 of permission, which, notwithstanding how it may have been de- 

 scribed, could have no legal effect upon the relations between the 

 parties. There was a period when, under the reciprocity treaty of 

 1854, they would have had the right to go there ; under the treaty of 

 1871 they would have had the right to go there, and since the treaty 

 of 1871, under the modus vivendi and otherwise, they might have 

 gone there, but it is perfectly clear, it is absolutely clear as we submit, 

 from the extracts and matters that I have referred to, that down to 

 the present time, if the Americans ever did go into one of these 

 ports, it was not to catch cod-fish. They have had no other business 

 there at any time except one and that was the purchase of herring. 

 They have been there only for that purpose and the contrary cannot 

 be shown, I submit, from anything that has occurred in this case. 

 In so far as I am instructed and informed they have never set up this 

 claim until now to catch cod-fish because they never wanted to catch 

 cod-fish and they never set up the right to catch herring because 

 they never caught any herring; they always purchased the herring 

 which they required, and it is only now, after the expiry of all these 

 years, that we hear of these supposed rights such as the United States 

 are contending for. They are the people who have been sleeping on 

 their rights because they never set up a right. This is a matter 

 of claim which is disputed and they never did anything with regard 

 to this very question of their rights, the only question for determina- 

 tion, until 1905, or thereabouts. Then, how does the matter come 

 up? It does not come up at all under relations between the parties 

 such as existed in 1818 when the treaty was made. The question 

 now arises for the first time, as Sir Robert Bond says, and he is the 

 first to deal with the question. They are now setting up a new right 

 for the first time to prosecute a new fishery and to carry on a new 

 business under the treaty in the waters of Newfoundland which it is 

 abundantly, manifestly, and clearly shown was not in the contem- 

 plation of the parties at the time the treaty was made. 



JUDGE GRAY: What is the fishery they are prosecuting in these 

 bays? 



SIR JAMES WINTER: Only herring, and that has arisen from the 

 fact of the United States coming in and making a claim to catch her- 

 ring in the Bay of Islands and other bays on the west coast the first 

 time that they have asserted the claim positively as a matter in ques- 

 tion to be dealt with seriously and to be passed upon and disposed 

 of. That will appear 'abundantly from the evidence when it is gone 

 into. If reliance is placed upon the fact in any future part of the 

 case that the United States fishermen did exercise their rights to 

 catch fish in those waters, all I can state in a general way is, that as 

 far as I am instructed, it is not so, that they have carried on no 



