ARGUMENT OF JOHN S. EWABT. 1341 



selves; secondly, the French and Spanish, who are under treaty obli- 

 gations with Great Britain; and. thirdly, all other non-inhabitants. 



And the questions, therefore, may be put somewhat in this way : 



First, Can British Legislatures prohibit British subjects fishing 

 on United States vessels ? 



Secondly, Can Newfoundland prohibit persons who, by articles of 

 treaty have been excluded for 200 years, from fishing upon United 

 States vessels? 



And, thirdly. Can NeAvfoundland enact clause 5 of the statute of 

 1906 a statute that has not gone into force, but may be used as a 

 test of the right of Newfoundland ? 



It is found at British Case Appendix, p. 758. The 5th paragraph 

 of that statute reads : 



I* No alien, not so entitled by treaty or convention for the time 

 being in force, shall fish in the waters of this Colony;" 



The rest of the paragraph deals merely with the penalty and the 

 enforcement of it. But the question I seek to ask is : Can Newfound- 

 land, so far as United States rights are concerned, enact that : 



" No alien, not so entitled by treaty or convention for the time 

 being in force, shall fish in the waters of this Colony; " ? 



Now, Sirs, it seems to me very necessary that, in considering this 

 question, we should endeavour, as far as possible, to put ourselves 

 back in the position of 1783. The position at present with reference 

 to the personnel of ships is so widely different from what it was 

 in those early days of sailing-vessels, that perhaps it is somewhat 

 difficult to appreciate the great value that was placed upon the pos- 

 session of a very large number of hardy seamen who were available 

 not only for commerce, but principally in case of war. The early 

 Star Chamber rules and the early statutes, some of which are before 

 the Tribunal in our Case Appendix, are full of provisions intended 

 to encourage the fisheries as a nursery for seamen. And other 

 nations pursued the same policy. As soon as the United States 

 became independent and found itself in need of these seamen as it 

 very soon did it also commenced by a system of bounties to pro- 

 vide for the increase by encouragement of the fishermen. I am not 

 going to trouble the Tribunal with many of these numerous statutes, 

 but there are two of the earlier ones to which I should like to refer 

 the Tribunal. 



The first is the statute of 1699, which is to be found in the British 

 Case Appendix, at p. 525. One clause of it is of some importance. 

 It is the last few words of the first clause the last four lines of the 

 first clause: 



" and that no alien or stranger whatsoever (not residing within the 

 kingdom of England, dominion of Wales, or town of Berwick upon 



