clearances, or documents, I do not remember exactly what they are called. There are two kinds, one called by one name and another by another name. The point to which I wish to call attention is, that they were the same vessels which would be engaged in the cod fishery in the summer months, that afterwards came in the winter to the Bay of Islands to purchase herring. Therefore, a confused idea got among those who do not understand the case, without looking closely into it, that American fishing-vessels, when they were in the Bay of Islands purchasing herring, were there under their treaty rights. They were not. They were there simply on the same footing as any commercial vessels from any other part of the world; and the fact that they were American fishing-vessels at another season of the year is to be borne in mind, because it is endeavoured to be made to appear that these differences, or that these questions which afterwards arose with regard to the purchase of herring, had some connection and an important bearing on the right of the American fishermen under the treaty and on the treatment they were receiving at the hands of the Newfoundland Government.

Whether the treatment they received when they came down to purchase herring from Newfoundland fishermen was hostile or not, friendly or unfriendly, the point I wish to bring out is, that it had nothing whatever to do with their treaty rights under the treaty of 1818.

Then the Act of 1905 was passed. The issue then between the parties, or the trouble or difficulty that led to the enactment of this measure, related entirely to what may be called commercial matters or commercial transactions, and previously to 1905, with regard to the matter of the engaging of crews. This is a point which I think is of importance. With regard to the provision in the Act of 1893 concerning the engagement of crews, that clearly had reference only to the engagement of two or three men, in case there might be a shortage in the crew on account of an accident, a man leaving or becoming ill, or some more men being required. In order to meet such a case as that, that clause was put in the Act of 1893 to facilitate matters. Further, as has just been suggested to me, it was to meet the case of a bona fide fishing-vessel coming down into Newfoundland waters, being short of a man, or requiring a man or two-this provision was put in to enable the master to get a man in Newfoundland to make up his crew.

SIR CHARLES FITZPATRICK: Which provision do you refer to now? SIR JAMES WINTER: The license to engage crews in Newfoundland. Number one of the Act of 1893.

SIR CHARLES FITZPATRICK: Page 730?

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SIR JAMES WINTER: And for the shipping of crews. It is p. 730. That was meant to refer to a bonâ fide shortage in crew, 92909°-S. Doc. 870, 61-3, vol 10– -4

where a man might have been left behind by some accident, or something of that sort. Just the same kind of thing as was referred to by Mr. Turner in his address when he was commenting on this Act of 1905.

But, when it came to 1905, matters stood upon an entirely different . footing, and the position that then presented itself was this:-

In 1905 the Newfoundland Government, acting under the powers which they had under their Acts, refused to permit the fishermen of Newfoundland to sell herring to the Americans, which they claimed they had a perfect right to do, and to which the treaty of 1818 had no reference whatever.

This policy, adopted by the Newfoundland Government with regard to the shipping of crews, has not, and ought not to be permitted to have any bearing upon the questions that are now before the Tribunal in relation to keeping faith, or not keeping faith, in the matter of the articles of the treaty of 1818. It was simply a termination of what may be called "commercial privileges," that is, the right to come in and buy herring, the fishermen of Newfoundland then being prohibited, or not being permitted, to sell herring to United States fishermen. Now, this is what took place: The United States. fishermen resorted to the plan which is the subject of discussion under another question here, that is, of employing, not as the Newfoundlan 1 Government contend, a bona fide crew as a fishing crew for its vessel, but employing a number of men-Newfoundlanders-to catch fish for them, and put them on board their vessels, calling or describing them as part of their crew.

As a matter of fact it appears the very first fish that were caught under this arrangement were paid for at the rate of so much per barrel for the number of barrels of herring that they put on board, not as servants would be paid at the rate of so much per day for their services as members of a crew. In other words, substantially, for all practical purposes, it was just as much a purchase and sale of herring as it was before the Act of 1905. That was the condition of things existing in 1905. I merely call attention to it on account of the observations which were made by learned counsel, Mr. Turner, when he called the attention of the Tribunal to the unfriendly character, the hostile character as he termed it, of this legislation as against the American fishing vessels, that under this they were prohibited, as it would appear, from doing that which no friendly power would interfere with, that is, from getting a sufficient number of men to make up their crews, and so on. It was not to prevent them from getting bonâ fide crews, it was done to prevent them from going through a transaction which, under the name of hiring men for their crew, was nothing more than the purchase of herring, which it had been decided to prohibit, and which had already been pro

hibited by statute, and by the power vested in the Governor-inCouncil for that purpose.

JUDGE GRAY: Sir James, what was the policy of that prohibition of the purchase of herring?

SIR JAMES WINTER: It was because the parties had come to a deadlock over other commercial negotiations. They had been endeavouring to negotiate terms for a sort of reciprocity, mutual trade relations, tariffs, and so forth, and they had failed entirely in their negotiations. The United States, on the one side, wanted to come down and get our herring and take them up to the United States, as they had been doing. They got the herring and imported them into the United States free of duty, although purchased from New foundland people, as appears abundantly by the correspondence. They had been taking these herring into the United States market and selling them. The Government of the day, the Government of Newfoundland, were endeavouring to make, as I have said, terms of reciprocity with the United States under which herring and other fish of Newfoundland might be admitted duty free into the United States market in return for considerations or other privileges.

JUDGE GRAY: It was retaliatory?

SIR JAMES WINTER: Purely retaliatory fiscal legislation, one country legislating against another upon purely commercial matters.

And this legislation of 1905 was followed by a more stringent measure in 1906 on the part of Newfoundland, which prohibited the fishermen of Newfoundland from engaging as part of the crew of United States vessels. This policy or Act on the part of Newfoundland was, as I have said, the outcome of this deadlock.

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In order to show the position in which matters stood previously and down to this date, I refer the Tribunal to p. 424 of the Appendix to the Counter-Case of the United States, where the speech of Sir Robert Bond will be found explaining the reasons, or the course of events which led up to, and, in his view, justified and necessitated the passing of that measure:-

"For fifteen years, by a free and generous policy toward our fisher friends of the New England States, we have endeavored to show them that in our desire to secure a measure of reciprocal trade with their country we intend them no injury whatever; on the contrary, we desire to compete with them on equal terms for the enormous market that the 85 millions of people in the United States offers for fishery products. In 1890 we said to the people of the United States, Remove the tariff bar that shuts our fishery products out of your markets, and we will grant you all the supplies that you require at our hands to make your fishing a success. The offer still holds good. For the reason that I have explained, the past fifteen years the fishermen of the United States have received those supplies without the tariff barrier to the admission of our fishery products into the United States being removed by act of Congress, but we find the very

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 LaHune 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 Laune-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."