1590 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 



SIR CHARLES FITZPATRICK: If you go to that coast under the 

 treaty of 1818, on your construction of the treaty, you are in Amer- 

 ican waters practically during all the time that you are there. Would 

 your situation then be the same as if you went there, a foreigner, 

 merely in the exercise of your commercial privileges ? 



MR. ELDER: I do not see what there is in the treaty of 1818 that 

 would place me in any different position. Because of the mere fact 

 that instead of going into, we will say for the moment, waters ex- 

 clusively in British territorial jurisdiction, we went into waters that 

 were partly under American jurisdiction, ought our right to be less 

 there? 



SIR CHARLES FITZPATRICK: Not less, but would they be different? 

 I think they would be different. 



MR. ELDER: As I said at the outset, and as appears by argument 

 of learned counsel, Sir Robert Finlay and Mr. Ewart, no great stress 

 is laid upon the exercise of commercial privileges being not in accord- 

 ance with the treaty or the intention of the treaty of 1818. They 

 did not propose to discuss that, and did not, but they confined 

 themselves to saying that the question itself meant something entirely 

 different, so that the somewhat protracted discussion, which is 

 963 in our printed Argument, as to the nature of trading and its 

 relation to these coasts, need not be gone into. Of course it is 

 perfectly obvious that even so far as the southern coast of Newfound- 

 land was concerned, we had the right to carry on some trade with the 

 people, because we might hire places to dry fish and cure fish, and 

 undoubtedly we could pay for them in one way or another, money or 

 barter, but as I say, it is not necessary to go into that discussion, and 

 for a still further reason, which involves the last citation I will 

 trouble the Court with. That is the repeated statement that was 

 made by Sir Edward Grey concerning this very question. It is to be 

 found in the United States Case Appendix, pp. 974 and 975. Mr. 

 Root had brought out clearly in his letter that these registered ves- 

 sels had the right both to trade and to fish, so that this question of 

 the combined right, which is the one we have here, whether we put it 

 as was put by the distinguished arbitrator whether trading vessels 

 could fish or put it the other way round, was squarely before Sir 

 Edward Grey when he received that letter, and he writes at p. 974 : 



" It is admitted that the majority of the American vessels lately 

 engaged in the fishery on the western coast of the Colony were regis- 

 tered vessels, as opposed to licensed fishing- vessels, and as such were 

 at liberty both to trade and to fish. The production of evidence of 

 the United States' registration is therefore not sufficient to establish 

 that a vessel, in Mr. Root's words, ' does not propose to trade as well 

 as fish,' and something more would seem clearly to be necessary." 



There is no word or suggestion there that there is any incongruity 

 or impropriety in the right of both fishing and trading, of having the 



