124 ARGUMENT OF GREAT BRITAIN. 



the purposes of this argument, there will be, I think, a general agree- 

 ment that we can dismiss the hake, haddock, and halibut fisheries. 

 It is admitted, also, that the cod fishery is essentially a deep-sea 

 fishery, and does not, therefore, come within the scope of your exami- 

 nation, especially as the question of bait and supplies, which alone 

 connected it with this discussion, has been eliminated by your former 

 decision." 



"We have left, then, only the herring fishery and the mackerel 

 fishery. As to the herring fishery, I shall say but very few words. 

 The herring fishery on the shores of the Magdalen Islands we claim 

 of right a few scattering catches elsewhere are not appreciable 

 enough to talk about; and we have, therefore, only the herring fish- 

 eries of Newfoundland and Grand Manan. The former is essentially 

 a frozen-herring business, and I do not believe there exists a question 

 that this business, both at Newfoundland and Grand Manan, is en- 

 tirely a mercantile business, a commercial transaction, a buying and 

 selling, not a fishing. The testimony on this subject is complete, 

 and is confirmed by Mr. Babson, the collector of the port of Gloucester, 

 who has told you that the Gloucester fleet, the largest factors in this 

 business, take out licenses to touch and trade, when they go for 

 frozen herrings, thus establishing the character of their mercantile 



voyage. 

 141 " The only open question, then, as to the herring fishery, is 



the fishery for smoked and pickled herring at Grand Manan, 

 and in the Bay of Fundy, from Latite to Lepreaux, and whether 

 that is conducted by United States fishermen within the three-mile 

 limit; a question, it seems to me, very much narrowed when you come 

 to consider that from Eastport, in Maine, to Campobello is only a 

 mile and a half, and from Eastport to Grand Manan is only six or 

 seven miles." 



Mr. Dana said (British Counter-Case, App., p. 188) : 



" Your honours will also observe that until 1830 the mackerel fish- 

 eries were unknown. There was no fishery but the cod fishery. The 

 cod fisheries were all the parties had in mind in making the Treaty 

 of 1818. and to this day, as you have observed from some of the wit- 

 nesses, ^Fishing,' by the common speech of Gloucester, fishing means, 

 ex vi termini cod-fishing is one thing and * mackereling ' is another. 

 ******* 



" I suppose this tribunal is satisfied that we do not catch cod within 

 three miles of Newfoundland; that we do not catch even our bait 

 there, but that we buy it." 



Until 1905, therefore, the relation between Newfoundland and 

 United States fishermen was that of vendors and purchasers of 

 frozen herring and fresh bait. If the purchasers did a little jigging 

 while in the harbours completing their purchases, such action was 

 rot of sufficient importance to raise international controversy. 



It is submitted that non-assertion of rights which are not being 

 pubstantially invaded cannot justly be referred to as evidence of non- 

 existence of those rights. 



