AWARD OF THE FISHERY COMMISSION. 1639 



and justice consider that as part of the privilege given to the fishermen 

 or inhabitants of the United States. I am glad I am furnishing my 

 friends something to think of, even if it amuses them. 



Mr. THOMSON. You are. 



Mr. TRESCOT. I thought I was. The three points which I make, are 

 these : 



1. That in valuing the exchange of privilege, the extent to which the 

 privilege is offered is a fair subject of calculation, and that a privilege 

 opened to "all British subjects" is a larger and more valuable privilege 

 than one restricted to only the British subjects resident in the Dominion. 



2. That in valuing the exchange of privilege, only the direct value 

 can be estimated, and the consequences to either party cannot be taken 

 into account. 



3. That so far as British subjects participate in the inshore fishery in 

 United States vessels upon shares, their fishery is in no sense the fishing 

 or fishermen of inhabitants of the United States. 



With regard to the history of these treaties, there are two subjects in 

 that connection which I do not propose to discuss at all. One is the 

 headland question. I consider that the statement made by my distin- 

 guished colleague who preceded me has really taken that question out 

 of this discussion. I do not understand that there is any claim made 

 here that any portion of this award is to be assessed for the privilege of 

 coming within the headlands. As to the exceedingly interesting and 

 very able brief, submitted for the other side, I am not disposed to quar- 

 rel with it. At any rate, I shall not undertake to go into any argument 

 upon it. It refers entirely to the question of territorial right, and the 

 question of extent of jurisdiction questions with which the United 

 States has nothing to do. They have never been raised by our govern- 

 ment, and probably never will be, because our claim to fish within the 

 three-mile limit is no more an interference with territorial and jurisdic- 

 tional rights of Great Britain than a right of way through a park would 

 be an interference with the ownership of the property, or a right to cut 

 timber in a forest would be an interference with the fee-simple in the 

 soil. 



Mr. THOMSON. Do you mean to say there would be no interference 

 there ? 



'Mr. FOSTER. Certainly not. It would be simply a servitude. You do 

 not mean to say that my right to go through your farm interferes with 

 the fee-simple of the property ? 



Mr. THOMSON. It does not take away the fee-simple, but it interferes 

 with my enjoyment of the property. 



Mr. TRESCOT. That is another question, because compensation may be 

 found and given. I simply say that it does not interfere with the terri- 

 torial or jurisdiction right. That is the view I take of it, at any rate, 

 and I think I can sustain it, if it ever becomes necessary. 



Then, with regard to the character of the Convention of 1818. I wish 

 to put on record here my profound conviction that, by every rule of diplo- 

 matic interpretation and by every established precedent, the Convention 

 of 1818 was abrogated by the Treaty of 1854, and that when that treaty 

 was ended, in 1866, the United States and Great Britain were relegated 

 to the Treaty of 1783 as the regulator of their rights. That proposition 

 I will maintain whenever the proper time arrives. But certainty I am 

 not at liberty to take that ground here at all, and for this reason : that 

 by the action of the two governments and by the formal incorporation, 

 so to speak, of the Treaty of 1818 in the Treaty of 1871, that treaty is made 

 the practical rule of decision in this case ; consequently, we have noth- 



