ARGUMENT OF ELJHU BOOT. 1971 



for purposes of bank fishing, might take herring at any time and in 

 any manner, " notwithstanding any law to the contrary " (p. 709 of 

 the British Case Appendix) : 



" Notwithstanding any law to the contrary, it shall be lawful for 

 the owner of any vessel owned and registered in this Colony, which 

 shall be fully fitted out, supplied and ready to prosecute the Bank 

 fishery, and shall have obtained a Customs Clearance for the said 

 fishery to haul, catch, and take herring, at any time and by any 

 means, except by in barring or enclosing such herring in a cove, inlet, 

 or other place, to an extent not exceeding sixty barrels for any one 

 voyage, to be used as bait in prosecuting the said Bank fishery in the 

 said vessel." 



Now Sir James Winter explained that very frankly as being called 

 for by the necessities of the Newfoundland bank fishermen. They 

 had to have bait, and accordingly here was the statute authorising 

 them to take bait no seine limitation, no Sunday limitation " any 

 law to the contrary notwithstanding." Newfoundland bank fisher- 

 men may take their bait as best they can, and when they can. 



Yet upon the full length of the treaty coast no one but a Newfound- 

 land fisherman is at liberty to take bait with a seine or herring trap. 

 Everywhere off the treaty coast, Newfoundlanders can take herring 

 for any purpose, with herring traps and herring seines, if they see 

 fit. And everywhere treaty coasts or non-treaty coasts Newfound- 

 landers engaged in the bank fishing may take their bait. 



Now, there is a shore protection statute a statute for the protection 

 of Newfoundland fishermen against all the world. I do not know 

 that they had Americans particularly in view in that discrimination 

 which they made, but the fact that they did include the whole Ameri- 

 can treaty coast in this prohibition would seem to indicate it. They 

 certainly meant to stand for Newfoundland fishermen against all the 

 rest of mankind; and they did it, and they did it effectively if the 

 British theory be true that the grant of the treaty of 1818 to the 

 United States is subject to the British right of legislation. 



The Sunday provision, introduced in 1876, is another illustration. 

 It was not religious fervour; because it did not prohibit the taking 

 of cod-fish, and cod-fish is the great industry of Newfoundland. The 

 great mass of this population are taking cod-fish. They can do that 

 on Sunday. But it is the practice and the custom of the herring 

 fishers who go to the places where the herring come in in schools, to 

 want their day in the week to go home to their families ; and they do 

 not want anybody competing with them when they do go home to 

 their families. And they put this prohibition upon this particular 

 industry to keep competitors from taking the herring while they 

 wanted to stay at home. They were not resting fish, they were rest- 

 ing Newfoundlanders. 



