THE PRESIDENT: If I understand you correctly, Sir James, you mean that because there are two coasts of Labrador, they use the term in the plural?

SIR JAMES WINTER: Yes.

THE PRESIDENT: But then would it not have been the consequence, in the treaty of 1818-if you will have the kindness to look at the Treaty, at p. 30 of the British Appendix-that also they are speaking of two coasts of Newfoundland, the western and northern coast of Newfoundland?

SIR JAMES WINTER: No. With all respect, I take issue upon that. I say that the western and northern coast of Newfoundland is one coast, and is intended by the parties to mean one coast. By looking at the map it will be seen that, being all within one limit, from Cape Ray to Quirpon, it is described as one coast, with the two adjectives, western and northern, prefixed to it. It is one coast, described as "western and northern."

SIR CHARLES FITZPATRICK: You see, unfortunately, on p. 89, they speak of the southern and eastern coasts of Labrador.

SIR JAMES WINTER: That is what I call attention to.

SIR CHARLES FITZPATRICK: Then why not have used the word "coast" there on the southern and eastern coast of Labrador?—

SIR JAMES WINTER: Because they are understood as two distinct. coasts, being referred to as the southern coast, the eastern coast and the northern coast. The three taken together are described as the coasts. And that would further appear from the description that is given of the southern coast, namely, from Mount Joli to Esquimaux Bay, which clearly corresponds with the idea, or fits in with the idea of the southern coast. Then there is an eastern coast and a northern coast.

The first cross which I have made on the map that has been handed up to the arbitrators shows Esquimaux Bay.

THE PRESIDENT: And the second is Huntingdon Island, further up? SIR JAMES WINTER: And the second is Huntingdon. That is the one referred to in article A, on p. 89:

"the southern and eastern coasts of Labrador, which extends from Mount Joli to Huntingdon Island."

So that, by that offer, they got these two coasts, the southern and eastern coasts of Labrador, as far as Huntingdon Island. Then, having proceeded so far with the negotiations, and the offer having been made by the British Plenipotentiaries down to Huntingdon Island, and no further, the next step to which I will call the attention of the Tribunal is to be found on p. 91, dated the 7th October, 1818:

591

"Mr. Gallatin and Mr. Rush present their compliments to Mr. Robinson and Mr. Goulburn, and beg leave to send them the enclosed

paper, containing some remarks on the articles handed to them at the conference yesterday. They are to be considered as unofficial, according to the intimation given yesterday, when they were promised, and have been drawn up merely under the hope that, by possessing the British Plenipotentiaries of some of the views of the American plenipotentiaries before the next meeting on the 9th, the progress of the negotiation may be accelerated."

Up to this time it appears they had not disclosed their ultimatum or instruction. Then they go on:

"The American plenipotentiaries are not authorized by their instructions to assent to any article on that subject which shall not secure to the inhabitants of the United States the liberty of taking fish of every kind on the southern coast of Newfoundland, from Cape Ray to the Ramea Islands, and on the coasts, bays, harbors and creeks from Mount Joli, on the southern coast of Labrador, to and through the Straits of Belleisle and thence northwardly, indefinitely, along the coast; and also, the liberty of drying and curing fish in any of the unsettled bays, harbors, and creeks of Labrador and of the southern coast of Newfoundland, as above described; with the proviso respecting such of the said bays, harbors, and creeks as may be settled."

It would appear that even then, having submitted what was their ultimatum as it were, they had no instruction and no power to agree to any article that did not contain this stipulation, and that therefore would be indicated as being their proposal, what they would take, and even from that they omitted the west coast of Newfoundland. The west coast of Newfoundland does not appear in any of these proposals upon either one side or the other up to this time.

The result of these negotiations then appears in the treaty itself. We have nothing to throw any light upon what further passed between the parties until the treaty itself is agreed to, as will be found upon p. 30, and there, for the first time, in black and white, does it appear that the west coast of Newfoundland is, as it were, thrown in; and the reason why it was done, or how it came to be done, does not appear anywhere. It does not appear to have been a subject of discussion, of negotiation, or of consideration, between the parties at all. It appears not even to have been referred to in the correspondence or negotiations that I have read; and so far there is no explanation of it, except that it was just thrown in, in a sort of general way, after the other terms had been agreed upon-a sort of free gift on the part of the British Plenipotentiaries, the gift of a thing to which neither party attached the slightest value or importance at that time. And, particularly also for the reason, as will I think be manifest, that over that part of the coast the French had the right of drying and curing fish on the shores. So far then as drying and curing on the shores was concerned, it was impossible to give it to them, because it would be interfering with the French;

and, even now, under the treaty, it is not given to the Americans to dry and cure on that part of the coast. The most then that the British Plenipotentiaries could give would be the right to catch the fish on the coast outside, if they chose to do so, if there were any fish for them to catch.

Then I will ask the Tribunal to look at p. 94 of the British Case Appendix, where Messrs. Gallatin and Rush send their report to the Secretary of State, accompanying the treaty, stating how the negotiations have proceeded, and what they have accomplished. And, this appears:

"We succeeded in securing, besides the rights of taking and curing fish within the limits designated by our instructions as a sine qua non, the liberty of fishing on the coasts of the Magdalen Islands, and of the western coast of Newfoundland, and the privilege of entering for shelter, wood, and water, in all the British harbours of North America."

They there describe that coast of Newfoundland as one coast. "On the western coast." It included a little bit farther around to Quirpon, which is not exactly west, but that is the general description they give of the coast, the one limit or area which they called 66 coast "_" "the western coast of Newfoundland." "Both were suggested as important to our fishermen, in the communications on that subject which were transmitted."

JUDGE GRAY: They seem to have thought they had secured the privilege of entering, for shelter and so on, all the British har592 bours of North America, from the fourth line of that first sen

tence, which of course would include the harbours on the western coast. I refer to the fourth line of paragraph No.1, " Fisheries ":"and the privilege of entering for shelter, wood and water, in all the British harbours of North America."

SIR JAMES WINTER: Outside of the treaty coast, all the British harbours of North America for shelter, but it did not touch upon this particular area. They did not call particular or specific attention to the matter we are now considering; of course if they had, we should not have been here to-day.

JUDGE GRAY: But they describe in general terms what they have secured. They had secured certain areas for fishing, and certain areas for drying, and all the areas outside of those limits for shelter.

SIR JAMES WINTER: I will now ask the attention of the Tribunal to an observation in this report which shows clearly the contention that I have put forward, that these arrangements that were made at that time, that which the parties had in view as the one object of their solicitude on this part of the coast at any rate, had relation to the cod fishery and the cod fishery only.

I will call attention to the concluding paragraph of this part of the Report:

"It will also be perceived that we insisted on the clause by which the United States renounce their right to the fisheries relinquished by the Convention, that clause having been omitted in the first British counter-projet. We insisted on it with the view-1st. Of preventing any implication that the fisheries secured to use were a new grant, and of placing the permanence of the rights secured and of those renounced precisely on the same footing. 2d. Of its being expressly stated that our renunciation extended only to the distance of three miles from the coasts. This last point was the more important, as, with the exception of the fishery in open boats within certain harbors, it appeared, from the communications above mentioned, that the fishing-ground on the whole coast of Nova Scotia, is more than three miles from the shores;"

This was their justification when it became a question of their having given up a fishery on the coast of Nova Scotia which they had previously enjoyed. They had the privilege, before that, on other parts of the coasts of Newfoundland, and British North America, and in renouncing and giving up those they thought they were justified, because the fisheries on the coast of Nova Scotia, which they were giving up, they thought, were all 3 miles outside of the coast line.

"Whilst, on the contrary, it is almost universally close to the shore on the coasts of Labrador. It is in that point of view that the privilege of entering the ports for shelter is useful, and it is hoped that, with that provision, a considerable portion of the actual fisheries on that coast (of Nova Scotia) will, notwithstanding the renunciation, be preserved."

That is, having the right to enter into the non-treaty coast in Nova Scotia for the purposes of shelter, they would still be able to avail themselves of the fishery on that coast, although 3 miles outside of the coast line.

Now, in confirmation of that Report, I would call the attention of the Tribunal to p. 130 of the British Case Appendix-a despatch from the Right Honourable Viscount Falkland to the Right Honourable Lord John Russell, 8th May, 1841. I shall not read that. It is a long document, but at the end on p. 130 it says:

"The Plenipotentiaries however acted on bad information,"

The subject-matter under discussion was a dispute as to whether they had given up the fishery on the coast of Nova Scotia. After disposing of that question, which was very long and tedious, as a matter of history, this part comes in:

The Plenipotentiaries however acted on bad information, and were mistaken, beyond three miles from the land, very few, if any herring or mackerel, the chief objects of pursuit are to be caught,

and the natives of the United States are now consequently disappointed, and discontented, at not continuing to enjoy that wh. they had as they conceived only apparently covenanted to give up.-Mr. Rush in his Memoirs, page 400, Cap. 19 claims credit for his astuteness in regard to this arrangement and the introduction into the Treaty of a clause not found in the British contreprojet in the following words,

"It was by our act that the United States renounced the right to the fisheries not guaranteed to them by the Convention.-That clause did not find a place in the British contreprojet. We deemed it proper under a threefold view: First, to exclude the implication of the fisheries secured to us being a new grant; secondly, to place the rights secured and renounced on the same footing of permanence;

thirdly, that it might expressly appear that our renunciation 593 was limited to three miles from the coasts.' This last point

we deemed of the more consequence from our fishermen having informed us that the whole fishing ground on the coasts of Nova Scotia extended to a greater distance than three miles' from the land: whereas along the coasts of Labrador it was almost universally close in with the coast."

This, I respectfully submit, brings us up to a point where the intention of the parties-the clear manifest intention of the parties— is expressed, is reduced to words, and set forth clearly and beyond question in the terms of the treaty itself. We have here a clear, satisfactory and abundant statement, setting before us what was present in the minds of the parties themselves; not a mere matter of inference from the construction of words. We have here the clearest testimony, I respectfully submit, as to what was actually passing in the minds of the negotiators themselves at the time they drew this treaty. Our contention is that they reduced into plain, clear, unequivocal language exactly what they intended.

Two things are abundantly manifest. First, that the negotiations related, so far as this part of the fisheries was concerned (and when I say this part of the fisheries I refer to the Newfoundland and Labrador coasts) only to the cod fishery. There was no other fishery at that time worth talking about, so far as I can understand, except the mackerel fishery, which was not in the waters of Newfoundland, or on that part of the coast. It was clearly only the cod fishery all through that the parties had in view.

And, secondly, that there was this broad difference or distinction between the conditions of the coast of Labrador, and that of all other parts of the coast of Newfoundland or elsewhere; that in all other parts except Labrador, the cod fish is found only in deep water, and almost entirely more than 3 miles outside of the coast. When they do come within 3 miles of the coast, it is in comparatively small quantities at any rate in that part of the coast. As I have said already, on the headlands-near the headlands on each side of the bays of Newfoundland, the cod fish do come in to the coast, within 3