cxlviii INTRODUCTION 



As a matter of fact the right to touch and trade was acquired by the 

 British Order in Council, dated November s, 1830,1 taken in connection 

 with the Act of Congress of May 29, 1830, and President Jackson's 

 Proclamation of October 5, 1830, relative to trading with the British 

 Colonies.^ 



It is evident, therefore, that under the Order in Council American 

 vessels possessed the right to touch and trade within Newfoundland 

 waters, and as the license is general, American vessels were free to enter 

 both the treaty and non-treaty coasts for the purpose of trade. But 

 American vessels are not merely provided with licenses to fish, they are 

 furnished with an American registry which includes the right to fish 

 and in addition the right to trade. The question arose whether a vessel 

 entitled under the Convention of 181 8 to fish within the treaty waters 

 might, at one and the same time, be licensed to trade and actually engage 

 in trading, or whether the fishing vessel should be limited to taking, 

 drying, and curing fish, or whether such vessel might, during the same 

 voyage, by virtue of the Order in Council of 1830, trade as well as fish? 



The United States maintained that the Convention of 18 18 was 

 silent on the question; that while it gave American fishermen and their 

 vessels engaged in the fishery the right to enter the treaty waters in 

 the pursuit of their calling, there was nevertheless nothing in the con- 

 vention which would forbid a fishing vessel to trade as well as fish. In 

 trading, however, the vessel would derive no aid whatever from the 

 convention, its right to trade resting upon an independent and specific 

 authorization. The form of the question is rather unfortunate, because 

 it is evident from what has been said that the treaty does not entitle 

 American vessels to trade. There is, however, nothing- in the convention 

 to prevent fishing vessels from trading if, by virtue of a subsequent 

 treaty, American vessels obtained the right to enter Newfoundland 

 ports for purposes of trade. The issue presented to the court would have 

 been clearer had the word "disentitled" been used instead of "entitled," 

 because if American fishing vessels obtained no right to trade under 

 the Convention of 1818 they were not prevented, for the matter is 

 not discussed. The question, however, is not academic and is of very 

 considerable importance, because a fishing vessel entering the treaty 

 waters might, if allowed to trade, purchase bait and proceed to the Grand 



' "And His Majesty doth further, . . . declare that the ships of and belonging to the 

 said United States of America, may import from the United States aforesaid, into the British 

 possessions abroad, goods the produce of those States, and may export goods from the British 

 possessions abroad to be carried to any foreign country whatever." (Appendix, British Case, 

 PP- S70, S7i) 



' For the text of these documents, see Appendix, U. S. Case, Vol. II, pp. 1123-1126. 



