fact, the United States fishermen had not openly exercised their rights under the treaty on that part of the coast, that United States fishermen had never carried on a fishery on that part of the coast, that there was no cod fishery for them to carry on and that, as a matter of fact, there is not, in this whole case, from beginning to end, a single bit of evidence that can be called evidence, that ever a fish was caught under the rights of the treaty of 1818 by a United States fisherman from Cape Ray round to Quirpon, with one exception only-as far as any statement of that sort appears-and that was in the year 1823. There is an account of the proceedings that took place in relation to some fishermen who were ordered off the fishing grounds by the French and correspondence took place which I shall not go into in detail. Great Britain was drawn into that case; the United States set up the sovereignty of Great Britain and they claimed that they had the right to be on the fishing grounds in those waters by virtue of their treaty rights under their treaty with Great Britain. It was only in connection with that question that the matter came up for consideration. I submit that that will be found to be the only case in which there is any evidence whatever of any fish having been caught upon that part of the coast, from Cape Ray to Quirpon, or from Rameau to Cape Ray, by American fishermen. But, supposing that there had been, what difference would it have made? Would it be said that, even if they had no right to come in there, if they had come in there continually and repeatedly, that it would make any difference now when their strict rights under the treaty come to be enquired into? We say that it would not. Great Britain might have allowed American fishermen to come in there freely to catch fish although they had no treaty right. That would not put a different construction on the treaty. If it is clear that the treaty did not give them the right, their coming in there, once, or twice, or a dozen times, or a hundred times, or a thousand times, under the circumstances, ought not to make any difference when we are coming to adjudicate upon their strict rights, as we are to-day. It is freely acknowledged that there was no population on that part of the coast to interfere with them if they had come in. They might come in and fish there and it would not be worth the while of anybody to object to them. The British Government would not know if they were there unless there was someone to tell them, and there was no resident population on that part of the coast. They may have gone in there after 1823 frequently, but if they did go in there and if they did catch fish there-which must have been only a few fish-no legal effect can be given to that circumstance that would alter the rights of the parties under the treaty of 1818. It could not be turned into a consent on the part of Great Britain, or a waiving or a giving up of her rights, if

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they are what we claim them to be, it being merely one of those acts of permission, which, notwithstanding how it may have been described, could have no legal effect upon the relations between the parties. There was a period when, under the reciprocity treaty of 1854, they would have had the right to go there; under the treaty of 1871 they would have had the right to go there, and since the treaty of 1871, under the modus vivendi and otherwise, they might have gone there, but it is perfectly clear, it is absolutely clear as we submit, from the extracts and matters that I have referred to, that down to the present time, if the Americans ever did go into one of these ports, it was not to catch cod-fish. They have had no other business there at any time except one and that was the purchase of herring. They have been there only for that purpose and the contrary cannot be shown, I submit, from anything that has occurred in this case. In so far as I am instructed and informed they have never set up this claim until now to catch cod-fish because they never wanted to catch cod-fish and they never set up the right to catch herring because they never caught any herring; they always purchased the herring which they required, and it is only now, after the expiry of all these years, that we hear of these supposed rights such as the United States are contending for. They are the people who have been sleeping on their rights because they never set up a right. This is a matter of claim which is disputed and they never did anything with regard to this very question of their rights, the only question for determination, until 1905, or thereabouts. Then, how does the matter come up? It does not come up at all under relations between the parties such as existed in 1818 when the treaty was made. The question now arises for the first time, as Sir Robert Bond says, and he is the first to deal with the question. They are now setting up a new right for the first time to prosecute a new fishery and to carry on a new business under the treaty in the waters of Newfoundland which it is abundantly, manifestly, and clearly shown was not in the contemplation of the parties at the time the treaty was made.

JUDGE GRAY: What is the fishery they are prosecuting in these bays?

SIR JAMES WINTER: Only herring, and that has arisen from the fact of the United States coming in and making a claim to catch herring in the Bay of Islands and other bays on the west coast-the first time that they have asserted the claim positively as a matter in question to be dealt with seriously and to be passed upon and disposed of. That will appear abundantly from the evidence when it is gone into. If reliance is placed upon the fact in any future part of the case that the United States fishermen did exercise their rights to catch fish in those waters, all I can state in a general way is, that as far as I am instructed, it is not so, that they have carried on no

fishing operations of any sort, with the one exception that I have spoken of in 1823, that since then there is no evidence of it at all, and, I submit, that as a matter of fact there has been no fishing in those waters since then. The reason is that the fish are not there. It is not worth their while to go there and the question has never arisen. Confusion may have arisen in the minds of the people since then. There may have been a general idea that they had the right to fish there from the fact that American fishermen come down from the United States, bringing with them licences to touch and trade. Naturally they come in the same vessel as those which are engaged in the deep sea fishery, they go indiscriminately into all ports and buy their herring and bait, and they being American fishermen who have the right to prosecute the cod fishery on the banks, the notion has got out, that the Americans have the right to go into those waters to catch fish. But the fact that the question is now raised for the first time is because, up to the present time, they have never done cod fishing, as it was expected and contemplated when the treaty was made, and they now come in to prosecute a business to which the Newfoundland Government, at any rate, very strongly object, namely, the fishing for herring in the bays on the west coast. When they set up this claim for the first time it becomes necessary to enquire strictly into their legal rights. Then, for the first time, we examine their title deeds to see what their title is to exercise this new fishery, to carry on a new business which it is the object and purpose of the Newfoundland Government, for the present at any rate, to prohibit altogether. Having decided to put an end to the purchase and sale of herring, as it has been going on, the United States turn around and, for the first time, set up the right to catch herring in those waters, and to catch herring by employing Newfoundland fishermen as part of their crews. It is out of this new claim and out of this new business that this whole trouble has arisen. These facts are so sufficiently well established that it is not necessary to occupy the time of the Tribunal by referring to them in detail. It may have been generally believed and supposed by all parties concerned that the Americans had the right to go in and fish in Newfoundland waters and the distinction between the cod fishery, which it was intended, under the treaty of 1818, that they should be permitted to carry on, and the herring fishery which they are now, for the first time, trying to enter upon, was never pointed out, never appeared and never arose.

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They made a treaty for the purpose of catching cod-fish in 1818. They put the word "coasts" in the treaty, which gave them the cod fishery, and gave them the cod fishery because they did not want anything more than the cod fishery. If at the time of making the treaty they had wanted the herring they would have put in the words

"bays, creeks, and harbours." They did not want the herring at that time: there was no herring there, and there was no herring there for years afterwards. It is only recently that this herring business has grown up, and it has grown up on account of the settled population. There being now a population settled down on that part of the coast and the people catching the herring from the shore, it has made it necessary for the Americans to come in and purchase herrings from these people; but even yet it is a comparatively new business.

THE PRESIDENT: The treaty, by its language, is not limited to the cod fishery; it extends to the taking fish of every kind?

SIR JAMES WINTER: Yes; I am thankful for the suggestion. Our contention is that they have the right to catch fish of every kind, but we say: Catch fish of every kind on the coast. We further say to them: You have the right to take fish of every kind, and we have no objection to your taking fish of every kind, but you have no right to take fish in the bays, creeks, and harbours of the west coast. If you read the word "cod-fish" into the treaty, as we say it should be, we have no objection to your going into the bays and creeks and catching such cod-fish as you can find there. But if you do not read into the treaty the word "cod-fish," then you must not read into it the words "bays, creeks, and harbours." If you stand upon your strict rights, and not only upon your strict rights, but upon your rights as the negotiators honestly intended them, then you must construe 66 coasts" in the manner we contend for. You wanted to carry on the cod fishery, and the word "coasts" was sufficient to give you what you wanted. That is our contention. You put "coasts" on the west coast, and when you got down to Labrador, when you wanted to go into the bays, creeks, and harbours, you put those words in the treaty. You could have put "bays, creeks, and harbours" into the treaty in both cases. That is our contention, and I say with all respect that all the facts and surrounding circumstances show that that was undoubtedly the intention of the parties-that that is what was in their minds and nothing else. This whole trouble has arisen from the fact that now an attempt is being made to justify the prosecution of an entirely new business in the waters of Newfoundland on these treaty coasts which was not contemplated by the parties, which was not contemplated by the negotiators, and which is, under the terms of the treaty itself, excluded, and from which they are forbidden.

I have endeavoured to submit the Argument for the British Case upon this question in as brief outline as possible, and only, as I have said, to establish what I hold to be a prima facie case upon the construction of this treaty. I do not consider that I am called upon to proceed any further, because I should be only, perhaps, groping in the dark in dealing with questions and points which possibly may not arise; but, at any rate, if they should arise, if any defence or any

answer to our contention be set up by the other side, and if new matter is introduced, it will devolve upon counsel who follow me to deal with such questions. I thank the Tribunal for the patient hearing they have given me.

THE PRESIDENT: The Court will adjourn until 2 o'clock.

[The Tribunal, at 11.55 o'clock A. M., took a recess until 2 o'clock P. M.]

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AFTERNOON SESSION, TUESDAY, JULY 5, 1910, 2 P. M.

THE PRESIDENT: Please begin your Argument, Mr. Warren.

ARGUMENT OF THE HONORABLE CHARLES B. WARREN ON BEHALF OF THE UNITED STATES.

MR. WARREN: Mr. President, the duty has been assigned to me of presenting, in behalf of the United States, its submission relating to and bearing upon the 5th Question of the Special Agreement between the United States and the Government of Great Britain under which this High Tribunal is convened.

Before undertaking to perform this duty, however, I desire to associate myself with the sentiments so well expressed by the honcured president of this Tribunal at its first session.

Inasmuch as the Tribunal has manifested a desire that this submission proceed rapidly I shall not take this occasion to express, in my own behalf, sentiments to which I should desire to give expression were these hearings not already of long duration, and were it not evident that they must of necessity continue days longer.

The fact that this controversy, however, which, in the matters at least that touch its history, reaches back before the beginning of the Government of the United States of America and of the Dominion of Canada, and before the beginning of local government in the colony of Newfoundland, and which has continued while the Dominion of Canada has been growing to such great proportions, is now, after having been for many years the subject of diplomatic controversy and dispute, submitted to this Tribunal for arbitration, entitles the two Governments here represented to be known to all the world as advocates of the principle of the settlement of international disputes by arbitration.

Inasmuch as this is an arbitration between two nations, and the adjustment of differences between states by arbitration is on trial, it seems important to the counsel for the United States that every fact and every principle of law which might have a bearing on the award should be fully presented and argued, in order that, whatever the result may be, the world will know that these two nations fully presented this submission, and that justice was done between them.