In 1876, an Act was passed prohibiting fishing on Sundays. All that we know of that, or all that there is upon record, and all that anybody can find in relation to that matter, is that there was no objection upon the part of the United States fishermen to that legislation then, and for the reason that they were not taking herring. THE PRESIDENT: If you please, Sir James: Is this Act of 1876 in the Appendix to the British Case?

SIR JAMES WINTER: I think so, Sir. Yes, it is at p. 707.

THE PRESIDENT: Thank you, Sir.

SIR JAMES WINTER: About the middle of the page, No. 119, section 4.

THE PRESIDENT: Oh, yes.

SIR JAMES WINTER (reading):

"No person shall, between the hours of Twelve o'clock on Saturday night and Twelve o'clock on Sunday night, haul or take any Herring, Caplin or Squids, with nets, seines, bunts, or any such contrivance, or set or put out any such net, seine, bunt, or contrivance, for the purpose of such hauling or taking."

And it will be noticed that, in the following year

SIR CHARLES FITZPATRICK: If I understand you, now, you say that you are dealing exclusively with the question of legislation in so far as it may be considered as a regulation of the fishery? You have left the other legislation aside?

SIR JAMES WINTER: What other legislation?

SIR CHARLES FITZPATRICK: The legislation with respect to the sale of fish, and the employment of Newfoundland fishermen.

SIR JAMES WINTER: Certainly.

SIR CHARLES FITZPATRICK: And you are now coming to the legislation upon the subject of regulation pure and simple?

SIR JAMES WINTER: I was not on the question of the sale of fish to foreign fishermen at all. It only came up incidentally.

SIR CHARLES FITZPATRICK: Well, I meant so far as it did come up. SIR JAMES WINTER: In order to explain the position, in order to show that there was

SIR CHARLES FITZPATRICK: I understand. I understand that, and that you are now coming to the question of regulation, pure and simple.

SIR JAMES WINTER: Certainly.

557

I am now proposing to deal only with the question of legislation in relation to the observations of counsel on the other side as to the objectionable character of this legislation, &c., making such observations upon it as may be necessary; but I shall be very brief indeed in my comments, because the same observation applies to nearly all the legislation, and that is that the United States made no objection to it. Some of these regulations did affect the Americans in their fishery, and some did not.

In the following year, 1877, an Act, to be found at p. 707 of the Appendix to the British Case, was passed which extended the Sunday provision to all kinds of bait-fishes, which are named:

"That the Fourth Section of the said recited Act shall be held to include and apply to the jigging of Squids, and to the use of any contrivance whatever, and to any mode of taking and obtaining Fish for Bait."

That is, that all kinds of fish to be taken for bait are not to be disturbed are not to be taken on Sundays.

I may make the explanation here that this was necessary, because the bait-fishes in Newfoundland, and particularly herring and the other fish called caplin, are of such habits that it was believed, and still is believed, that it is necessary to give them what is called a day of rest somewhere or other; that the unbroken continuous prosecution of the fishery has the effect of driving the fish away from the places to which they are in the habit of resorting; that if one small place to which the fish go is continually being fished, nets being set out, and boats brought there and their moorings put out, and nets put out, and catching going on continually without any intermission, the effect of it is ultimately, in the course of time, to drive the fish away from these grounds, and that it is necessary that there should be an intermission at some time or other of the practice of continuous fishing. And it was believed that that purpose, as well as the observance of the Sabbath, could be combined by making Sunday a sort of day of rest for these two fishes.

JUDGE GRAY: Did that Sunday law permit the staking of nets that might work in the absence of their owners during Sunday?

SIR JAMES WINTER: No. That Act, I think, prohibited the actual placing of the nets on Sunday.

JUDGE GRAY: But, in practice, could they place such a net, as Mr. Turner intimated they could, on Saturday night, in the secular part of the week, and let it remain until Monday, so that it might work in the absence of the owner?

SIR JAMES WINTER: Oh, it might be left in the water, if it was set out on Saturday night. It might be left in the water until Monday morning.

JUDGE GRAY: Well, then, that would not effectuate the object of giving the herring a rest, would it?

SIR JAMES WINTER: Oh, yes, it would.

JUDGE GRAY (continuing): Although it gave a rest to the owners of the nets?

SIR JAMES WINTER: I must correct that misapprehension. The Sunday prohibition applies only to seining, not to nets. It has not the same effect at all. The effect of a net, with a few herring in it, as described by counsel, struggling in the water, would not do any

harm such as I have been endeavouring to describe. There would be no objection to that. It is the catching by seines every day in the week and during Sunday which is objectionable.

DR. DRAGO: I think this Act refers to nets, in Section 4.

THE PRESIDENT: It says with "nets, seines, bunts, or any such contrivance."

DR. DRAGO: Yes. It says: It is forbidden to set out nets, seines, bunts, or any contrivance between the hours of 12 o'clock on Saturday and 12 o'clock on Sunday night.

SIR JAMES WINTER (reading) :

"No person shall, between the hours of Twelve o'clock on Saturday night and Twelve o'clock on Sunday night, haul or take any Herring, Caplin or Squids, with nets, seines, bunts, or any such contrivance, or set or put out any such net, seine, bunt, or contrivance, for the purpose of such hauling or taking."

558 That agrees, I think, with the statement that I just made, and that is, that the mere leaving of a small net in the water during Sunday is not objectionable. It does not do any harm. But, constantly putting out and hauling in the nets is what produces the effects that are intended to be prevented by this legislation,the constant threshing of the water by the boats and the moorings, and the putting out and hauling in of the nets, the oars, &c., those are the things which it was considered were doing harm and driving the fish away from the grounds; and that if a fisherman put out his net on Saturday night and left it there until Monday morning, there was no harm done. However, I am not now discussing the propriety or otherwise of the measure. I am only endeavouring to explain, as far as I know, the reasons why the legislation was passed.

In 1879 (p. 708 of the British Case Appendix) will be found an Act which amended the previous acts relating to the catching of herring, by altering the date of the close season from the 20th October to the 18th April.

THE PRESIDENT: If I am not wrong, Sir, there is here, already, in the law of 1872, a proviso:

"Provided, that nothing herein contained shall prevent the taking of herrings by nets set in the usual and customary manner, and not used for in-barring or enclosing herrings."

You have explained, Sir James, already, the words "not used for in-barring"?

SIR JAMES WINTER: Yes.

THE PRESIDENT: But what is the use of the words first given in the proviso:

"Provided that nothing herein contained shall prevent the taking of herrings by nets set in the usual and customary manner"?

To what does that allude? What is the meaning of this exception? SIR JAMES WINTER: Because it might, but for that provision "nets set in the usual and customary manner," be considered that the setting of a net would be in-barring.

THE PRESIDENT: Yes.

SIR JAMES WINTER: They used to bar them in small quantities. SIR CHARLES FITZPATRICK: But you can take herrings by nets, without in-barring or enclosing them?

SIR JAMES WINTER: Oh, yes.

SIR CHARLES FITZPATRICK: Is not that the explanation of the proviso?

SIR JAMES WINTER: Yes: "And not used for in-barring or enclosing herrings."

THE PRESIDENT: "In the usual and customary manner."

SIR CHARLES FITZPATRICK: That is, provided you do not use them to in-bar?

SIR JAMES WINTER: Yes; provided they are not used for in-barring.

It appears as if that proviso was really unnecessary. It was put in merely out of abundant caution:

"Provided that nothing herein contained shall prevent the taking of herrings by nets set in the usual and customary manner, and not used for in-barring or enclosing herrings in a cove, inlet or other place."

I think I would further suggest this, as an explanation of that proviso, that that was intended to meet the words in the first line of that section:

66 'No person shall haul, catch, or take herrings by or in a seine or other such contrivance."

"Other such contrivance" might have been intended to mean "net"; and therefore the proviso was made afterwards with regard to nets: Provided that a net may be used, but not used "for inbarring or enclosing herrings in a cove, inlet, or other place."

In 1882 an Act was passed, which will be found at p. 709 of the Appendix to the British Case.

559 SIR CHARLES FITZPATRICKS When did the Washington Treaty end?

SIR JAMES WINTER: In 1883, I think.

THE PRESIDENT: 1885.

SIR JAMES WINTER: Yes; it continued until 1885. In 1882 an Act was passed regulating cod-traps. The only observation upon that is that the United States fishermen did not use traps, made no objection to the provisions of the Act, and no trouble arose out of that. There are laws in force, and regulations also, in relation

to cod-traps; and as to those, all that I can say is that the United States fishermen either do not use cod-traps at all, or if they do, they have made no objection to the provision, and are complying with it. There has been no trouble.

THE PRESIDENT: Will you permit me to interrupt you a moment, Sir James? I have found now, in a Newfoundland statute of 20th May, 1882, on p. 709 of the British Appendix, a disposition that reminds me again of a question which was put a while ago by Mr. Justice Gray. He asked what is to be done with the net which has been set out on Saturday, perhaps at 11 o'clock in the night, and remains until Monday morning.

In the statute of 1882 I think there is, concerning another object, a disposition which would give an answer to that question, but which leads to perhaps a different conclusion concerning the Act of 1876. In the statute of 1882 there is a disposition, under section 2:

"No person shall, at any time within the period of two years set or permit to remain set, or to remain in the water, any Net or other contrivance whatsoever for the capture or taking of Salmon or Trout, . . . . between . . . . Friday and . . . . Monday."

This disposition does not apply to our case. It applies only to

salmon and trout in the rivers.

SIR JAMES WINTER: Oh, yes.

THE PRESIDENT: But it would give an answer to the question put by Mr. Justice Gray. Perhaps one could conclude that, as the statute of 1882 disposes expressly of the case of the net being permitted to remain in the water, that according to the law of 1876 the question ought to be answered in the opposite sense, because there is no disposition there of the matter specifically; that the consequence would be that the net might remain in the water, notwithstanding the Sunday.

SIR JAMES WINTER: That question has been dealt with, I may say, and legislated upon since, and I refer the Tribunal to p. 720-legislation passed in 1891.

THE PRESIDENT: It is No. 51.

SIR JAMES WINTER: Section 51:

"No person shall catch, take or bar herring in a seine, net or other contrivance, between the hours of twelve o'clock on Saturday night and twelve o'clock on Sunday night, and no nets or other contrivances (except seines containing herring which shall have been barred before twelve o'clock on Saturday night) shall be allowed to be set or remain in the water during the aforesaid period, under a penalty not exceeding one hundred dollars."

It would appear from that that this very question of leaving the nets set out during Sunday has been dealt with in this manner, and that now it is unlawful to leave the net there during Sunday, and the net must be taken up on Saturday night. The legislation