it, and it is not necessary that I should read it. It begins generally by saying that: "The destruction that the use of these seines has worked in the mackerel fishery, both on the coasts of the United States and Canada, has ceased to be either a matter of doubt or controversy, the consideration, therefore, of remedial measures is of paramount importance." 571 That is the statement with which it begins, and then, it will be found, upon reading it through, that some very decided opinions and views are held, not only in Canada by this writer, but in the United States, and particularly by Professor Brown Goode, who is an eminent authority upon these matters-a citizen of the United States holding an official position in that country, whose opinions are given throughout this article in several places. Upon these some of the States of the United States have taken action and have legislated. The Dominion of Canada has legislated, giving effect to the opinions set forth in this report strongly and unequivocally against the use of purse seines, and this legislation is in general operation throughout Canada. Further than that similar legislation-one general, sweeping provision against the use of purse seines in Newfoundland, anywhere, at any time and at all times, has been the law for years, and it has never been taken exception to by any one. Now, for the first time, it appears that this question of the use of purse seines arises and, unfortunately it arises in connection with the very difficulties that have led up to this arbitration. In fact, it will be found in the correspondence and otherwise that the United States fishermen, in the exercise of their treaty rights, claimed the right to do either one thing or the other; they said that they must. have the right to employ Newfoundland fishermen, which is one of the matters in question here, or they must use purse seines. They began to use purse seines, and the correspondence, which passed immediately before the reference of these matters to this Tribunal took place, will show that that is one of the principal questions, which is at the present time acute; I mean the question as to whether or not the Americans can come down and use purse seines in the waters of Newfoundland under the treaty. What Newfoundland says and we have to say it here to-day-is that this is not a mere matter of a trifling regulation, a matter of no vital importance, or of no far-reaching consequences, and that it does not come under the general description given of the term used on the other side with relation to the question of one nation giving up its sovereignty to another and leaving certain small subsidiary matters of detail to be settled afterwards by mutual arrangement between the parties in the exercise of what is called the comity of nations. Learned counsel said that where the treaty itself did not provide for matters of detail and there were some small and subsidiary matters and difficulties which presented themselves and which required agreement or regulation, or arrangement between the parties, the good sense of the nations on both sides, actuated by friendly and honourable feelings towards each other, could be relied on to take care of them, and that the parties would be able to agree upon these minor and subsidiary matters. They did not stand, he said, in the way of the application of the doctrine which he was contending for, and that under such a treaty as this was supposed to be, where a nation had parted with its control over these matters had parted with its sovereignty, had divested itself of its sovereignty, so that it was not able to legislate in reference to these small matters of detail, such matters of detail would be provided for afterwards by the good sense of the parties concerned. These were what I think he described by the word "modalities." All I have to observe upon this subject is that this is no modality in so far as the interests of the colony are concerned. This is not a mere subsidiary and trifling matter of detail, not provided for by treaty or arrangement, as to which the good sense and comity of nations would make provision afterwards. This is a vital matter which goes right down to the question of the very existence, as we may call it, of the right, or privilege, or property which is in question here. The regulation of the fisheries down on the Newfoundland coast may be a very trifling thing indeed to the United States; it may be a modality, or a triviality, or it may have applied to it any other term that will mean insignificance. To the people of Newfoundland it is not a modality and it is no trifle. This question involving the right of the fishermen of the United States to use purse seines in defiance of the opinion, in defiance of the laws, and in defiance of the Legislature of Newfoundland, is not a mere matter of modality. It is a matter affecting the most vital interests of the colony. To return to the simile of the land and to the subject of the servitude, this is not a mere servitude which is in question in so far as the colony of Newfoundland is concerned. This is the enjoyment by the United States of a servitude, and the question is whether they shall be allowed to enjoy that servitude in such a manner as to destroy not only the servitude itself, but the very existence of the colony of Newfoundland from whom they get this servitude or this privilege. On the subject of purse seines, my attention has just been called by my associates to a further passage in the report, at p. 195, of the Appendix to the Counter-Case on the part of Great Britain, which I shall read to the Tribunal: "The United States Government realizing the disastrous falling off on its coasts of the mackerel fishery, but being unable to directly control or successfully prohibit the use of purse seines, to which such falling off was attributed, passed an Act prohibiting the land ing of mackerel taken by means of these seines on any part of the coast of the United States, before the first of June in each year. As by this date many of these migratory fish had found their way to the coast of Nova Scotia and the Gulf of St. Lawrence, it will readily be seen that had the fish been at all plenty in the waters named, the seining operations of the United States vessels would, to a very much larger extent than was done, have been there carried on all such vessels being provided with purse seines." 572 The reason, as I am instructed-it is a public matter, and, of course, there will be no question about it--that this Act was passed by the United States Congress in this form was that the catching of fish itself and the method of catching it was a matter for the Legislature of each particular State, and, seeing that the legislation of the particular States concerned had not prevented the use of purse seines, for reasons, which, no doubt, commended them to those States, the Federal Legislature, realising the disastrous consequences, and apparently taking a different view of it from that of the several States, accomplished the object, not by prohibiting the catching of mackerel, but by prohibiting the landing of mackerel taken by means of purse seines on any part of the coasts of the United States before the 1st June in each year. We must therefore claim, not only that these purse seines are mischievous and bad in their effects, but we must also claim, on behalf of Great Britain and the colonies, the right to control the fisheries of Newfoundland and Canada in such a manner as to prevent these destructive practices and to preserve these fisheries. Of course this question, under Question 1, is one for the consideration of the Tribunal as to whether or not we have the power to legislate in such matters. I would make this further observation upon this general matter, that there has never been any desire to refuse to entertain any objection that the United States may have to any of the laws or regulations in force in Newfoundland in relation to the fisheries in so far as they affect the operations of United States fishermen. There has never been any complaint or objection upon these matters, or, if there has, there has never been any refusal, and there never will be any refusal, to hear, to consider, and to entertain any objection that may be put forward. There is no interest on the part of Newfoundland, no object, no purpose to be served by any refusal to consider any objection that may be made with the view of the protection of the fisheries on the one side, or the repeal of any restriction on the other side if it should be found to be unnecessary or working harshly or injuriously, or creating difficulties for United States fishermen, I have now, Mr. President, disposed, in so far as I am concerned, of this question of the regulations and legislation of Newfoundland; and I would ask the attention of the Tribunal to a few observations which I shall have to offer to them with relation to Question No. 6. The question, as stated, is this: "Have the inhabitants of the United States the liberty under the said article or otherwise to take fish in the bays, harbours, and creeks on that part of the southern coast of Newfoundland which extends from Cape Ray to Rameau Islands, or on the western and northern coasts of Newfoundland from Cape Ray to Quirpon Islands, or on the Magdalen Islands?" The British contention is very briefly stated at p. 123 of the British Case: "The question is whether United States fishermen are, under the treaty of 1818, entitled to take fish, not only on that portion of the 'coast of Newfoundland specified in article one of the treaty, and the shores of the Magdalen Islands, but also in the bays, harbours. and creeks thereof. While the treaty grants to American fishermen liberty to take fish 6 "on the coasts, bays, harbours, and creeks from Mount Joly, on the southern coast of Labrador,' etc. "it gives liberty on the coast' merely of Newfoundland, and on the 'shores of the Magdalen Islands. And the question is, whether the more restricted liberty in these two localities is to be construed as meaning the same as the more ample liberty on the Labrador coast. "For the present purpose the provisions of the treaty may be divided into three parts: "1. American fishermen are to have liberty to take fish in the following places: "(a) Part of the southern, western, and northern coast of Newfoundland,' 66 66 (b) On the shores of the Magdalen Islands.' "(c) On the coasts, bays, harbours, and creeks' of Labrador. 2. American fishermen are to have liberty to dry and cure fish But that is not the question before the Tribunal; it does not relate to the drying and curing of fish but only to the right of taking fish itself. Now, Mr. President, although so much has been written and printed bearing upon it, the question itself is one within a very small compass. And our contention is that it is clear that on the face of the words themselves, they are scarcely capable of a second opinion. It is perfectly clear that there is a difference and that a difference was intended to be made between Labrador, where the liberty was given to fish on the coasts, bays, harbours and creeks, and the west coast of Newfoundland, where the liberty is given only on the coast, the southern coast of Newfoundland from Rameau to Cape Ray, where the liberty is given only on the coast, and the Magdalen Islands, where the liberty is given only on the shores. Or, to put it in another way, that the right to fish in the bays, harbours and creeks is given only in regard to Labrador, in addition to coasts, of course, of Labrador. 573 A clear, unqualified, plain distinction is drawn between Labrador on the one side and the other localities or districts or areas or whatever they may be called upon the other. There can be no question as to what is the obvious meaning of the words, the clear, plain, simple meaning of the words. But if there is a question before this Tribunal,-and it has been raised,-it is whether the plain and obvious meaning of the words is to be altered? Are the words to be read in any sense differently from that in which they appear in the treaty itself? It will, of course, have already been observed by the Tribunal, in reading over the Case and Counter-Case and the Arguments in this matter, as no doubt has been done by the Court, that the contention-broadly the contention on the side of the United States is that the word "coast" necessarily includes "bays, harbors and creeks." I suppose it is their contention that it would include it anywhere, and that it includes it here in this particular document, this particular treaty-that the word "coasts" includes the "bays, harbors and creeks." Or, to put it in another way, that the intention of the parties was to include "bays, harbors and creeks," and that the words "bays, harbors and creeks" must, as it is called, be read into the treaty. They are not there now, but they must be read into the treaty, and so the meaning contended for by the United States be practically accomplished or given. Our contention is, to start with, that the question is, and the onus is, upon the other side-if I may use the familiar expression-the onus is upon those who set up the contention against the British contention the onus is upon them to show that the word "coasts" was intended to include "bays, harbors and creeks." Now, how that burden can be borne-how that onus can be carried and borne by the other side-will depend of course upon many considerations. But I may say this: that if it were a strict trial of the question according to the strict practice and formula in a British court or a court of the United States, I think, as far as I am aware of the law of that country-the principle would apply that the onus would be upon the other side to show that the word "coast" included "bays, harbors and creeks," or that "bays, harbors and creeks" ought to be read into the treaty if they are not there already. The first contention that would arise is that it is not competent to go outside of the document itself. There are the words themselves. They are capable of the meaning which we attribute to them. On the face of them they themselves bear a plain and obvious meaning, and it is not competent for a court that has to construe a document of that sort to go outside of the face of the document itself. It is obvious therefore on the face of it, it is plain and clear that those who drew that document-presuming, of course, as a matter of law as well as a matter of fact, in this case that they knew what they were doing- |