men to whom we have extended such generous treatment are precisely those who have worked most strenuously to injure us in our trade relations with their country. We now propose to convince those men that the hands that have bestowed the privileges they have enjoyed have the power to withdraw those privileges. In doing this we simply rise to the full dignity of matter-of-fact statesmen. With the Administration of the United States we have no shadow of a cause for complaint. They have treated us with the greatest courtesy whenever we have approached them, and have manifested both a friendly and just attitude toward this colony. It is not the fault of the Administration at Washington that we are where we are to-day in this matter; the fault lies solely at the door of those who, for petty personal interests, have misrepresented facts, and, by so doing, have deceived those who represent them in the Senate of their country. .

And so on.

This measure, therefore, of 1905, was passed, as I have said, for the reasons which I have given. It was intended only for what might be called a commercial purpose, entirely outside and irrespective of the position of the United States as fishermen under the treaty of 1818. No change whatever took place in the relations of the parties, or has taken place in that regard.

THE PRESIDENT: Please, Sir James, if I understood you correctly, you said that in 1893 the Government of Newfoundland thought itself entitled to prohibit the enlistment of Newfoundlanders, but that in the cases you mention, supplementing a man who had been lost by accident, and so on, they permitted the issue of a licence? SIR JAMES WINTER: Yes.

THE PRESIDENT: But, in principle, in 1893, the enlistment of Newfoundlanders was considered as illicit? Was not that the purpose of the Act of 1893, section 1, which says the Governor-in-Council may authorise the issue of licences to foreign fishing-vessels for the following purposes; for the shipping of crews, and so on-that presupposes, in principle, that the shipment of crews was not allowed? SIR JAMES WINTER: It was done, I presume, in order to give the Government power, at any time they saw fit, to put a stop to that. THE PRESIDENT: Yes.

SIR JAMES WINTER: It was left in the hands of the Government to give a licence or refuse a licence.

THE PRESIDENT: To make exceptions?

SIR JAMES WINTER: Yes; but clearly it does not involve the principle that the shipping of crews would be illicit.

THE PRESIDENT: It did not go so far as that?

SIR JAMES WINTER: It did not go so far as to declare it illicit, because under the comity of nations they might come in and ship crews if nobody made any objection.

THE PRESIDENT: But they would reserve to themselves the power of forbidding it?

SIR JAMES WINTER: Yes, that was intended, that they should reserve the power at any time it would be considered expedient to forbid the shipping of crews in Newfoundland waters.

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That was continued, without any friction and without any difficulty, for twelve years, the negotiations for reciprocal relations going on all the time, Newfoundland hoping and expecting that an arrangement satisfactory to both parties would be come to. When they failed, Newfoundland then stood upon what she considered, and upon what she still considers to be her legitimate and constitutional rights in the matter.

It is not necessary to go into a discussion, and we are not likely to profit by any discussion of the wisdom or otherwise of the fiscal or commercial policy of these countries on either one side or the other. It is sufficient for our present purpose to show the Tribunal that in this action or policy of the Newfoundland Government they were acting, not only within their rights, but that they were not acting in any way in hostility to or in derogation of the rights of the American people under the treaty of 1818, as counsel's observations might make it appear they had done. His observations were to the effect that this legislation was for the purpose of interfering with American fishermen in the exercise of their treaty rights. It was not so.

The learned counsel also took exception to one of the provisions of the recent regulations relating to the taking of herring with seines over a certain portion of the coast from Cape LaHune, on the west coast, and running by the west and north through the Straits of Belle Isle to Cape John. He said at p. 2851 of the typewritten argument [p. 467 supra]:—

"Now by section 25 of the regulations dealing with the American treaty coast, the prohibition of section 21 was reinforced by this provision:

"No herring, seine, or herring trap shall be used for the purpose of taking herring on that part of the coast from Cape La Hune on the west coast, and running by the west and north through the Straits of Belle Isle to Cape John.'

"An absolute prohibition upon the American treaty coasts against taking fish at any season of the year by seines, but permission, by sections 21 and 24, to take fish by these means, for bait and for immediate use, by the local inhabitants during any period of the year. The particular part of this coast to which I refer-Cape LaHune—commences, I am told, about 30 miles to the eastward of the Rameau Islands which are found here. It is an absolute prohibition to take any herring with the seine extending all round here down to Cape St. John which is here, these regulations having been made during the time that both the American and French Fishery rights existed on this coast, being made to take in both the French coast and the American coast."

This statement is a good deal, if I may so term it, mixed up; but the point to which I wish to call attention is this: That this territory from Cape La Hune to the eastward, within about 30 miles of the Rameau Island, includes of course waters over which the Americans had no right, and at the time of the passing of these regulations the Americans were not fishing, as I have stated, with seines at all, and this was purely a fishery regulation, intended to protect that part of the coast from seining, because on that part of the coast, from Cape LaHune right around, the herring were found to be not in sufficient abundance to withstand seining. The herring were more abundant in other parts of the coast farther to the eastward, in Fortune Bay. The great fishing ground for herring is in Fortune Bay, and it was found necessary and useful to prohibit seining altogether from Cape La Hune right round to the west, into the Gulf of St. Lawrence, and right north to Cape John. And, further than that, to show that it was not intended against the Americans, the prohibition is right through the Straits of Belle Isle to Cape John, a long distance on the north-east coast of the island, where the Americans have no right of fishing, and where it could not have been directed against them.

This examination of this legislation, Mr. President, I consider necessary in order to satisfy the Tribunal, as far as I can, that not one of these acts or regulations was designed to injuriously affect in any way whatever the rights and privileges of the Americans under the treaty of 1818. In so far as the fishery was concerned, the fishery regulations applied to the people of both countries, both when the Americans were fishing under the treaties of 1854 and 1871 and also when they had not those rights. They were aimed at our own people principally, because the prohibition against any appliance, no matter what it is-seines, cod-traps, bultows, or anything else-applies to ten Newfoundland fishermen as against one United States fisherman to whom it can apply at all. The only fishery-I cannot help repeating it too often, because it is important to this case the only fishery that can be called a fishery, that was carried on by the fishermen of the United States in Newfoundland waters down to 1905 and down to the present day, was the cod fishery, and that out in the deep waters, not even near the coast of Newfoundland. They only came into the ports,

bays, harbours, and creeks for the purpose of getting bait, and 568 when they came in for the purpose of getting bait they invari

ably purchased it and never fished for it. None of these minor fishery regulations that are on the Newfoundland statute book, numerous as they are, as the Court will see, was intended to have any relation to or effect upon American fishermen, nor as a matter of fact has it had. The Americans have taken no notice whatever of them, and we have heard nothing about them until the present moment in this case. The whole object of these rules and regulations was the

preservation and protection of the fisheries whether the United States participated in them or not, as they did for a great period of the time over which the legislation extended. It would be impossible and utterly impracticable for the Newfoundland Legislature to devise or contrive any rules or regulations which would injure the American fishermen and not injure the Newfoundland fishermen as the fishery is carried on.

I will pass on to a few observations upon what was said by the learned counsel in relation to the character of these regulations; that is as to whether they were or were not necessary for the preservation of the fishery and as to whether they were good or objectionable. I do not know how far an enquiry of that sort would be relevant to the present position of this case, because Question 1, which is submitted. to the Tribunal is, broadly and generally, as to the power or the right of Great Britain, or the colony, to make laws and regulations in relation to the prosecution of the fishery, and the question for the Tribunal is: Assuming these regulations to be reasonable, whether it is competent for the United States to object to them altogether, no matter how reasonable they may be, and whether there is power to pass them at all without the consent of the United States? I do not see that the criticisms of learned counsel upon these regulations have any direct bearing upon or relevancy to the question which is before the Tribunal; but, in so far as they may have any bearing upon the question, I must just refer to these observations and endeavour to answer them very briefly and precisely as well as I can.

Speaking of bultows and trawls, learned counsel I shall not refer to his language, but generally-made the observation that there was great difference of opinion among qualified authorities as to the wisdom of legislating to prohibit the use of bultows or trawls. No doubt upon this question there is a considerable difference of opinion, and there probably will be for many years. Some scientific authorities are of the opinion that regulations prohibiting the use of bultows are not necessary, that bultows or trawls do not damage the fishery; others are of the opinion that, on the contrary, they do, and particularly in certain localities. Newfoundland has such legislation as it considers desirable, after having considered the matter most carefully, and after having had the experience and the opinion of the best qualified authorities in the country. It must be borne in mind in any consideration of this question that the trade and commerce, and almost the whole life and existence of Newfoundland depend upon the successful prosecution of the cod fishery more than any other fishery, and of other fisheries also, but to a minor degree, and that it is not only the interest but the duty of the people and legislators of Newfoundland to study these matters carefully from day to day and year to year. The result is that under our legislation, regula

tions are made dealing with all sorts of matters affecting the prosecution of the fisheries-bultows amongst them-and that from time to time, profiting by the experience gained from year to year, these rules are changed, amended and sometimes rescinded altogether. This goes on and must of necessity go on from year to year. Among other things, those who are entrusted with these powers and duties have come to the conclusion that in certain places bultows are objectionable, that they have a bad effect upon the fishing operations of these localities and the result is, without going into details, as has already been stated, at certain places which are marked on the maps, which I believe, are being put in for the information of the Tribunal, these regulations against the use of bultows are in force. It is not general or universal. It is only applied to certain places around the coasts and shores of the island and, as one of my associates has observed, none of these places are where the Americans go to catch fish. None of these regulations affect the Americans in the prosecution of their fishery except in one place only, and that is between the Rameau Islands and Cape Ray where the use of bultows is prohibited. As I have stated already, the position of the United States fishermen on that matter is either that they do not fish there at all, or if they do fish at all in that neighbourhood it is to a very small extent indeed. The fishing grounds, as everybody knows, because it is a matter of public knowledge and notoriety, are farther than 3 miles out to sea. If any fish are caught in near the shore it is in very small quantities. The American fishermen have complied with the law, because there is no evidence before this Court to the contrary, and we must presume that they have obeyed the law. Certainly they have never found any fault with the law up to the present time. On the other hand, as I have stated, on other parts of the coast bultows are prohibited, but it is only the Newfoundland fishermen who are prohibited from using them by these rules and regulations, because the Americans have no right to fish there, and even when they had the right they never went there to fish because the fishery prosecuted by the American fishermen is out in the deep water on the banks and not in the bays, creeks and harbours of Newfoundland where these bultow regulations are in force.

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THE PRESIDENT: Perhaps it would be useful for us to indicate the different localities on the map.

SIR JAMES WINTER: All I can say is

THE PRESIDENT: Perhaps one of the other gentlemen will have the kindness.

SIR JAMES WINTER: I might observe that counsel on the other side. said that they had maps and were ready to furnish them to the Court. JUDGE GRAY: This gentleman (referring to Mr. O'Reilly) will point them out on the map here.