local use of the inhabitants on all this coast with a positive provision against their being taken at any period of the year by seines upon the American and the French fishery coasts which commence approximately at the commencement of the American coast on the south coast of Newfoundland and extend to the point where the French fishery began under their treaty with Great Britain."

Then there is a section regarding Sunday catching which I pass over because it does not affect the immediate point, and then he concludes at the foot of p. 2852 [p. 468, supra]:

"Experts have a great many ideas upon this subject, but that is a novel idea to me and I think that the explanation of this provision with reference to herring is to be found, not in this idea suggested by Sir Robert, but in the fact of the peculiar manner in which local fishermen carry on their fishery by fixed nets set out from the shore. They naturally want to go and visit their homes on Sunday."

546

Here learned counsel mixes up the question of Sunday fishing, as I respectfully submit, with the other question as to whether it is necessary to make this regulation against the use of seines, and to forbid fishing on Sunday on account of its effects upon the fishery. He continues:

"Here are these fixed nets catching fish all the time for them. While they are observing Sunday their nets are working just as hard as ever they were and they do not want any other fishermen to come around and disturb these nets. That is the explanation of the prohibition against Sunday fishing and the hardship of making American fishermen, whose families are across the sea and whose return to their families is thus prolonged, conform to this, as a convenience to local fishermen, is so obvious, to say nothing of the chance of the failure to which such interference subjects the fishing ventures. Upon this subject the Tribunal has only to turn to this Fortune Bay incident where it is stated explicitly that by virtue of the interference with the right to take this school of herring which had come into Fortune Bay on Sunday, the vessels were compelled to return to the United States without any catch of fish whatever, this fish being elusive, going into particular places at their own pleasure and not observing Sunday like we do, and when they go in there it being necessary to take them or not take them at all at that time."

Now, Mr. President, in making these observations, the learned counsel must have left upon the mind of any person who listened to him the impression, although he did not state it in so many words, that large seines were used, on one side, by the American and that, on the other side, nets-the smaller article-catching fish in smaller quantities, were used by the people from the shore; that the nets that he speaks of were fixed from the shore and, therefore, that only Newfoundland fishermen could use them; and, secondly, that the Newfoundland fishermen did not use seines. The general impression that was left from his observations, I think, was that this was a dis

crimination, or rather legislation which allowed Newfoundland fishermen to use nets from the shore and forbade American fishermen using and catching fish by seines from their boats. That was the impression which, I submit, must have been left upon the mind of any person who heard the argument; in fact, that is the only sense in which this charge of discrimination, I think, can be of any force or effect.

Now, learned counsel failed to state to the Tribunal the whole facts of the case. When I say the "facts of the case" I refer to the customs, usages, and practices observed in carrying on the fishery on this part of the coast as well as on all parts of the coast. The fact is that seines were used before this legislation was enacted, and have been used ever since, down to the present time by the Newfoundland fishermen. This legislation was and must have been directed principally against Newfoundland fishermen. The legislation, merely by accident, happened to be passed when the United States fishermen had the same rights to catch fish upon the coasts as Newfoundlanders had, in 1862, when the Reciprocity Treaty of 1854 was in force, but since that time-and the legislation was intended for all time-it has been kept in force against the fishermen of Newfoundland, and in relation to those parts of the coast where the Americans have no right to fish. I may go further and say that at the time of the passing of this legislation the only fishery carried on by means of these seines was carried on in the waters of Fortune Bay and its vicinity, and that had been carried on by the Newfoundland fishermen only, and not by the fishermen of the United States or any other country. That fishery was carried on by the use of these large seines at certain seasons of the year in the waters of Fortune Bay and it was found that the herring fishery was being injured; or, at any rate, it was a fact that the herring fishery was dwindling away, or being injured by some cause or other, and the cause of that injury was supposed, and is still supposed to be the use of seines by our fishermen and the catching of enormous quantities of herring, particularly in the spring, in the months of March and April, as well as also by the taking of herring during the spawning season. The legislation was directed towards the protection of herring from the two methods of injury: one, the taking of herring in large quantities at the spawning season; and, the other, the practice which had prevailed of taking herring in very large quantities in the spring; by which methods it was supposed that the herring fishery had been damaged and diminished. Those against whom that legislation was directed, therefore, in the first place, were the fishermen of Newfoundland; certainly it was not against the Americans, because neither then nor at any other time, except once, so far as we can discover, have the Americans ever used seines for the purpose of catching fish in Newfoundland waters.

547

The exception to which I referred was at the time of the occurrence in Fortune Bay, when the question was raised and discussed to some extent, but not disposed of or finally settled either one way or the other, but in so far as my researches have enabled me to discover, this is the only case in which the Americans have availed themselves of the opportunity of using seines for the prosecution of the herring fishery in Newfoundland. Another misconception on the part of learned counsel

SIR CHARLES FITZPATRICK: Do you say that legislation originated in 1862?

SIR JAMES WINTER: I have taken the legislation of 1862

SIR CHARLES FITZPATRICK: I do not want you to go into details; I put the question-do you say it originated in 1862?

SIR JAMES WINTER: Yes, Sir.

SIR CHARLES FITZPATRICK: That is all I want to know.

SIR JAMES WINTER: I am not positive whether there was legislation to the same effect before 1862. My recollection rather is that there was legislation in 1858, or thereabouts. My observation was for the purpose of showing that since 1862 this legislation has been in force. The other point with regard to which the statements of learned counsel were not exactly consistent with the facts is his description of the manner in which the shore fishermen set their nets. It is quite true that the shore fishermen set their nets, and that sometimes they do operate from the shore in the sense that their boats row out from the shore for the purpose of setting their nets, but it is perfectly competent, perfectly easy, and, as a matter of fact, it is done repeatedly-over and over again, continually, although not quite universally-that nets may be set without any connection with the shore whatever, that nets may be set from a vessel or from a boat, moored in the water, watched and tended, and the fish hauled and taken from these nets, just as well as from the shore and sometimes better, and that it is and always has been perfectly competent for the American fishermen, in the full exercise of their rights, to catch herring by means of nets from their own vessels and with their own boats. There is one explanation of the whole matter, one observation, or one statement of fact, which applies to the whole case, and which may be taken as running through the whole case, and that is that down to 1905 it was more profitable and convenient for the Americans to come down and purchase in small quantities from our people such herring as they required-which were only for the purpose of bait and not for the purpose of selling in the market as an article of food. The business in which our people were engaged was that of selling herring as an article of food every season to foreigners and exporting it. That is the real purpose for which the Newfoundland people caught herrings. The United States fisher

men never engaged in the prosecution of the fishery for the purpose of selling herring as an article of consumption or as an article of exportation upon a large scale. The Fortune Bay incident was only one case, and an entirely exceptional one, in which it appears that the United States fishermen, or one of them, had ever thought of engaging in this industry. In this case one of these American fishermen thought it would be a profitable undertaking to come down to the Newfoundland shore and make a haul of a large quantity of herring. He came down for that purpose at a season when, it appears, the law forbade the taking of herring by seines, but he did it, I presume, on the advice that a law of Newfoundland forbidding the taking of herring at that season, did not apply to the American fishermen, and that they would not be bound by it. However, that is a mere speculation as to what may have been in his mind. I merely now point to the fact that the Fortune Bay incident is the only case, as far as I know, upon record, in which any American fishermen have engaged in that business, or have intended to engage in the business of catching herring by means of seines in Newfoundland waters. So that the legislation which is complained of as being directed against Americans, and only against Americans, was, in point of fact, directed against the Newfoundland fishermen, and only against the Newfoundland fishermen, and the Newfoundland fishermen, from that time down to to-day, have been governed by that legislation and have submitted to it, because, in their own belief and in the belief of their representatives in the Legislature, the provision is necessary for the protection and preservation of the industry, and it has been adopted for that and for no other purpose.

548 Now, Mr. President, having stated merely in outline these

broad facts in relation particularly to the shore fishery, I would ask the Tribunal to follow me while I make a statement, as brief as I can under the circumstances, as to the course of legislation which has taken place in Newfoundland in the nature of the regulation of the fisheries for the purpose of examining it in relation to the observations made by learned counsel on the other side in order that we may discover how far his broad and general observations as to the discriminatory character of this legislation and as to its being unnecessary are sustained by the facts of the case. Before looking at the legislation in detail, I would make this statement of an important matter of fact and of history, and it is that until the year 1887 the United States fishermen had always been permitted to purchase bait and supplies freely in the treaty waters. However, in that year, the Newfoundland Legislature passed the Bait Act, as it is called. It was amended in 1888 and 1889; it was re-enacted in 1892, and in 1893 another Act was passed, called the Foreign Fishing-Vessels Act. I

unite these two together for the purpose merely of bringing out the fact that the legislation was of this character in both Acts, namely, that they both contained provisions, regulations, and clauses under which the American fishermen were enabled to procure bait by purchase from the Newfoundland people. These Acts are still in force. In 1888 an effort was made to effect a permanent arrangement with the United States for the protection of the fisheries, and a treaty was arranged with the United States, but the contemplated arrangement finally fell through because the treaty was not confirmed or accepted by the Senate of the United States. Under the modus vivendi between the parties, which was arranged when the treaty was agreed upon at first by the Commissioners, and which extended over a period of three years, the United States fishermen were enabled to procure bait in the waters of Newfoundland by simply applying for and taking out a licence. This licence enabled them to purchase bait, supplies, and other things freely in all the waters of Newfoundland and Labrador. The treaty of 1818 did not expressly, of course, enable them to do so even with regard to the west coast-it only gave them the right to take fish. As a matter of fact, there can be no dispute that after the Bait and other Acts were passed and this system. of issuing licences to the American fishermen was adopted, they were enabled to purchase bait wherever they required it all around the coast of Newfoundland, and no exception whatever was taken to it. There was no reason for taking exception to it. It was convenient for both parties. It was convenient for the United States fishermen to come to Newfoundland and purchase the bait which they required for the prosecution of their cod fishery, which cod fishery, it must be remembered all through this case, was carried on, if not entirely exclusively, almost exclusively, upon the banks of Newfoundland far distant from the shore upon the one side and Labrador upon the other; any other fishery carried on by the United States fishermen upon the parts of the coast to which this treaty refers, namely, the south coast from Rameau to Cape Ray, being so small that I merely mention it, as just an exception, if it can be called an exception at all; if they ever did catch any fish upon that part of the coast it was to a very small extent indeed.. Their principal business-I am not sure but their whole business was the fishery upon the banks distant from the shores and the coasts of Newfoundland on the one side, and of Labrador upon the other; and, for the purposes of their fishery, mainly on the banks, this system of purchasing under licence was agreed upon and carried out.

THE PRESIDENT: They were required to pay a fee for the licence? SIR JAMES WINTER: They paid a fee. It was part of the arrangement that, inasmuch as they had no right to these privileges, and the question of their rights under the treaty and otherwise, was a matter