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I 



the ports and harbours of all countries. These rights have been recognized as 

 inciclcntal 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 wlicro they can. I^aws respecting 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 

 originally had no limit. It passed within the category of those imperfect rights, 

 such as innocent transit, and innocent use ol 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, tishing is an innocent use of all the waters of the 

 Dominion. Great Mritain has never prohibited the exercise of those rights. She 

 may find it expedient to do so, or the policy of the Dominion, 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 undertook to exclude us from those privileges, they 

 were taken to account at once, and their action was stopped by the British 

 Government. 



We arc now brought to the last question, and that is, did we renounce those 

 rights, the right to purchase bait, ice, supplies, and to transship, by clauses in the 

 Treaty of 1818 ? For the pin-pose of this argument, 1 am perfectly indifferent which 

 way your Honours sliall construe these clauses. The tJovernnient of the United 

 States docs not interpret them as a renunciation of these rights. I do not believe, 1 

 cannot believe, that the Treaty had any such reference. But it is certain that nothing 

 therein refers to the purchasing of cargoes of frozen herring, which has been often 

 referred to before the Commission. That is a purely mercantile cnterprize. A 

 Boston vessel comes to this coast with a manifest, and equipped in every respect as 

 a trader, though a fisherman at all other times, and after satisfying the Custom- 

 house authorities, she purchases a cargo of frozen herring, and proceeds with them 

 to the Boston market. That is a mercantile enterprize; it is not anything that is 

 renounced by fishermen, as such, in the exercise of their rights to fish. Suppose a 

 merchant at Newfoundland siiould take a fishing-vessel not employed at that time, 

 and load her with frozen iicrring, and send her to Boston, where, after she had been 

 entered at the Custom-house, and satisfied all the fiscal regulations, her cargo would 

 be sold. Would any one pretend that her right to do that was derived from the 

 Treaty giving a right to fish within three miles of the American coast, and land 

 and dry their nets? Certainly not. Therefore we may cut off" at once all reference 

 to that. If your Honours sliall say that, by the Treaty of 1818, the United States 

 did not renounce those rights, and did not notice them one way or another, that is 

 sufficient for us. If your Honours shall deciiie tliat, so far as fishing within three 

 miles is concerned, the United States renounced tiie right to purchase anything 

 except wood, then we submit that the right of purchasing anything else has not been 

 granted to us by the Treaty of 1871, and therefore we cannot be called upon to 

 make any compensation. 



We arc satisfied that the United States are permitted by the British Govern- 

 ment to do those acts, whether it, be from comity, from regard to the necessities of 

 fishermen, from policy, or from some other reason, I know not, and so long as we are 

 not disturbed, we are content. If we are disturbed, the question will then arise, 

 not before this tribunal, but between the two nations, whether we arc properly 

 disturbed by Great Britain ; and if we should come to the conclusion on both sides, 

 that there being a dis|)ute on that subject whicii should be properly settled, then it 

 is hoped that the Governments will find no difficulty in settling it; but this tribunal 

 will discharge its entire duty when it declares that, under Article XVIII of the Wash- 

 ington Treaty, no such rights or privileges are conceded to the United States. 



Mr. Thomson.- I do not propose to answer Mr. Dana's argument at present, but 

 1 will call the attention of the Commission to the fact that it was an original argu- 

 ment, and not .i reply. In view of the fact tiiat there are a number of witnesses 

 waiting to be examined, and the short time the Commission has to sit before it takes 

 an adjournment, I do not propose now to offer any observations in reply to the 

 learned counsel, but no doubt before the case is through, previous to that time, I will 

 take occasion to answer the arguments. 



[280] 2 F 



