177 



that is the extent of the position \vhi(;h will he taken, but I do not expect to refer 

 to (lie paint at all. 



Mr. Thomson. — In reference to the time at which this motion should 'oe heard, in 

 view of the arfifuments which the leipned Afjjent of the United States has used, I 

 shall not, on behalf of Her Majesty's Government, call upon this Commission to 

 say this is an improper time for that purpose. We have no objection that this 

 application on the part of the counsel of the United States' Government should be 

 heard at length, and so they may be enabled to understand at all times, on all 

 reasonable occasions, the exact ground upon which we stand. There is nothing 

 unreasonable in the view which has been put forward by them in this respect. 

 They are entitled to know whether the Commission is going to take the matter, 

 nained in their notice of motion, into consideration or not. We therefore have no 

 objection that your Excellency and your Honours should determine this point at 

 once, and wc do not complain of the time at which the motion is made. 1 shall 

 now come to the substance of the motion. The Agent of the United States has 

 travelled out of the record, and has referred to lighthouses, and other matters not 

 contained in tiiis motion. He also alluded to the injuries which were committed on 

 our coasts by the American fishermen, and he says that we have put them all 

 forwanl in our case as subjects for compensation. I am not here now to consider 

 the question whether we have done so or not. I at present only intend to discuss 

 whether the matters included in this motion are matters coming within the jurisdic* 

 tion of this Court or not. I read the motion ; it states : — 



" Tlie counsel and Agent of the United States ask the Honourable Commissioners to rule declaring 

 that it is not competent for this Commission to award any compensation for commercial interconrse 

 bfitwcicn tlic two countries, and that tlie advantasos resulting from the jjinctico of purchasing bait, ice, 

 sujjplies, &o., and from being allowed to transship cargoes in liritish waters, do not constitute any 

 foundation for an award of compensation, and shall be wholly excluded from the consideration of this 

 tribunal." 



The tribunal will see that these are the words inviting discussion ; and these I 

 am here o answer, and nothing else. Satisfactory answers could be given to the 

 other matters to which Mr. Foster has called attention, if this were the proper 

 time to give them. As to the lighthouses, for instance, it is quite obvious that these 

 make the value of the fisheries themselves very much greater to the Americans than 

 they would be otherwise ; but I say again, that I am not going to discuss that 

 question now. If it should arise hereauer, I shall do so. We shall undoubtedly be 

 obliged to discuss it eventually at the end of the case, but the question now is, 

 whether it. falls within the jurisdiction of this tribunal to award to Great Britain 

 any pecuniary compensation for the rights which the Americans have undoubtedly 

 exercised since the Washington Treaty was negotiated, of coming into our waters, 

 and. instead of taking; bait with their own lines and nets, as by the terms of that 

 Treaty they have a right to do, purchasing it from our citizens, of buying ice here 

 as well, and of getting supplies and transshipping their cargoes. It is said in the 

 reply of Her Majesty (page 8, I think) that these privileges are clearly incidental ; 

 that, looking at the whole scope and meaning of the Treaty, it is clear that these 

 are incidental privileges for which the American Government can afford to pay. 

 The words of our reply, read by Mr. Foster, are these : — 



"By the terms of Article XVIIl of the Treaty of Washington, United States' fishermen were 

 granted permission to land upon the said coasts and shores and islands, and also upon the Magdalen 

 Islands, for the purpose of drying their nets and curing their fish. The words, for no other purpose 

 whatever, are studiously omitted by the fi-amers of the last-named Treaty, and the privilege, in common 

 witii the subjects of Her BritannicMajesty, to take fish and to land for tisliing purposes, clearly includes 

 the liberty to purcha.se bait and supplies, tninsship cargoes, &c., for which Her Majesty's Government 

 contend it has a right to claim compensation. 



" It is clear that these privileges were not enjoyed under the Convention of 1818, and it is equally 

 evident that they are enjoyed under the Treaty of Washington." 



Well, that is the argument which was put forward by Her Majesty's Govern- 

 ment, but whether that argument commends itself to the judgment of this tribunal 

 or not, is not for me to say, though to my mind it is a very strong and very forcible 

 one. Referring to the wording of the Treaty itself, and to the Convention of 1818, 

 the Ist section of the latter states : — 



'■ Whereas dill'erences have arisen respecting the liberty claimed by the United States, for the 

 inhabitants thereof to take, dry, and cure fish on certain coasts, bays, harbours, and creeks of h.s 

 Britannic Majesty's dominions "in America, it is agree<l between the High Contracting Parties that the 



