1732 AWARD OF THE FISHERY COMMISSION. 



Mr. DANA. It is not Mr. Foster. 



Mr. DOUTEE. No. 



Mr. DANA. You do not know the author ? 



Mr. DOUTRE. I think I do. 



Mr. FOSTER. Unless that is Professor Pomeroy's argument, it is some- 

 tiling I have never before heard of. 



Mr. DOUTRE. It is his argument, I am informed. 



Mr. DANA. I wish also to say that this Review has no quasi-judicial 

 authority. It is private property, and edited by private persons. 



Mr. DOUTRE. I thus consider all publications of this nature. 



All these acts are plainly unlawful, and would be good grounds for the confiscation of the 

 offending vessel, or the infliction of pecuniary penalties. The treaty stipulates that "Amer- 

 ican fishermen shall be admitted to enter such bays and harbors for the purpose of shelter, 

 of repairing damages therein, of purchasing wood, and obtaining water, and for no other 

 purpose whatever.'' Even assuming, as has sometimes been urged, that the words "for 

 no other purpose whatever " refer exclusively to matters connected with the business and 

 process of fishing, the prohibition still covers all the acts enumerated. To use the bays and 

 harbors as places of convenience in which to clean and pack fish, to procure bait, to prepare 

 to fish, or to land cargoes offish, would be an invasion of the exclusive fishing rights within 

 the territorial waters secured to British subjects and denied to American citizens. "Pre- 

 paring to fish," if permitted, would render it almost impossible to prevent actual fishing. 

 When, from considerations of policy, statutes are made to declare some final result illegal, 

 the legislature uniformly forbids the preliminary steps which are directly connected with 

 that result, lead up to it, and facilitate its accomplishment. Thus, if Congress should ab- 

 solutely prohibit the landing of certain goods in our ports, the United States Government 

 would doubtless listen with amazement to a complaint from foreign importers that " preparing 

 to land " was also prohibited. All customs and revenue regulations are framed upon this 

 theory. The provision of the Imperial and Canadian statutes making it a penal offense for 

 American vessels "to prepare to fish " while lying in territorial waters, seems, therefore, to 

 be a "restriction necessary to prevent " their taking fish therein, and for that reason to be 

 lawful and proper. 



The claim of right to sell goods and buy supplies, the traffic in which 

 the Nova Scotia act was intended to prevent, is thus commented on : 



This particular claim has not yet been made the subject of diplomatic correspondence be- 

 tween the two governments, but amongst the documents laid before Congress at its present 

 WMion is a consular letter, from which we quote : 



" It (the Treaty of 181b) made no reference to and did not attempt to regulate the deep-sea 

 finhericB, which were open to all the world. * * * It is obvious that the words ' for no 

 other purpose whatever' must be construed to apply solely to such purposes as are in con- 

 travention to the treaty, namely, to purposes connected with the taking, drying, or curing 

 fall within three marine miles of certain coasts, and not in any manner to supplies intended 

 for the ocean fisheries, with which the treaty had no connection." 



All this is clearly a mistake, and if the claims of American fishermen, partially sanctioned 

 by the United States Executive, rest upon no better foundation, they must be abandoned. 

 In fact, the Htipulation of the treaty in which the clause occurs has reference alone to ves- 



ib employed in dwp-sea fishing. It did not require any grant to enable our citizens to 

 



(ngagr in their occupation outside the territorial limits, that is, upon the open sea ; but 

 y were foi bidden to take, dry, or cure fish in the bays and harbors. They were per- 

 . however, to come into those inshore waters for shelter, repairs, wood, and water, 

 d for no other purpose whatever." To what American vessels is this privilege given? 

 t<; thc.se that fish in the open sea. To say that the clause "for no other purpose 



d with regular fixhing voyages, necessary, convenient, or customary in the business of 

 ing, and are not to be extended to other acts of an entirely different and purely commercial 

 nature. 



PrMiih-nt (Jrnnt declares that so far as the Canadian claim is founded upon an alleged 



the Convention of 1*18, it cannot be acquiesced in by the United States. He 



unng the conference whirl, preceded the signing of this treaty, the British com- 



r Proposed a clause expressly prohibiting American fishermen from carrying on 



ritli BrttUh subjects and from having on board goods except such as might be 



U< T.Ti* ry prosecution of their voyages. He adds : 



us proposition, which is identical with the construction now put upon the language of 

 was emphatically rejected by the American commissioners, and thereupon 



