AWARD OP THE FISHERY COMMISSION. 1583 



eagerness, and a Danish vessel should come here and buy it in the mar- 

 ket, complying with all the regulations of the market and fiscal laws, 

 and then set sail for Greenland, surely that vessel could not be seized 

 and condemned. 



I have put the argument of the counsel for the Crown as strong as I could 

 put it ; they say you exercise that right now and you did not exercise it be- 

 fore. Our answer is simply that we have always exercised it, and that we 

 have done it irrespective of the Treaty of 1854 or of the Treaty of 1878. 

 We have never been interfered with in exercising it. There is no case of 

 condemnation of a vessel for exercising that right ; and if there had 

 been a good many, it would have made no difference to your honors, 

 because the judgments would have been simply the provincial interpre- 

 tation of the treaty given exparte, and it is certain that no act of Great 

 Britain has ever sanctioned the position that the United States had not 

 this right, irrespective of treaties. Then, as has been suggested by my 

 colleagues and I follow the suggestion merely the whole correspond- 

 ence between the governor-general and the head of the colonial office, 

 and between the United States Government and the British Government, 

 shows that Great Britain never intended that American fishermen should 

 be excluded from the use of those liberties or rights, whatever be our 

 claim to them, or whether we had them as of right or not. These privi- 

 leges are those which fishermen have always exercised, and it has only 

 been as population has increased and fiscal laws have become important 

 and the inhabitants have become more apprehensive in regard to vessels 

 hovering about the coast, that nations have enacted laws restricting 

 persons in the exercise of those rights. The learned counsel in support 

 of his argument cited Phillimore, J, page 224, Kent's Commentaries, vol. 

 1, pages 32 to 36; and Whealon's Int. Laic (Dana's ed.), sections 167, 

 169, and 170. 



I have read these passages, Mr. Dana continued, not that they dis- 

 tinctly assert, or, indeed, that they take up the very question I am pre- 

 senting before this tribunal, but they show the general principles upon 

 which the great writers on international law the governments them- 

 selves and the people have acted with regard to fishermen and their 

 ' rights, especially of supplying their wants from time to time in the ports 

 ! and harbors of all countries. These rights have been recognized as in- 

 ! cidental to the nature of man and the nature of the earth he occupies. 

 However boastful we may be of ourselves, we are such feeble creatures 

 that we cannot subsist many hours without food, shelter, and clothing, 

 and fishermen and sailors must get these where they can. Laws respect- 

 ing pure commerce, that is, the right to go with a cargo to sell and turn 

 it into the great body of the property of the country, rest on other 

 grounds ; but the right to exercise the industry by which men live, as 

 fishermen do by fishing, should be extended as far as possible, and origi- 

 nally had no limit. It passed within the category of those imperfect 

 rights, such as innocent transit and innocent use of waters. These 

 rights have been exercised for the reasons there assigned, which are 

 deeper as well as older than all treaties, conventions, and statutes. 



As the treaties stand, fishing is an innocent use of all the waters of 

 the Dominion. Great Britain has never prohibited the exercise of those 

 rights. She may find it expedient to do so, or the policy of the Domin- 

 ion or perhaps some excited political feeling or hostility against the 

 United States for some wrong, real or supposed, may lead it to do so; 

 but it has never been done, and that is the reason why we have always 

 been in the exercise of those rights. When the provincial government 



