TWENTY-FIFTH DAY: MONDAY, JULY 18, 1910.

The Tribunal met at 10 o'clock a. m.

THE PRESIDENT: Proceed, Mr. Ewart.

MR. EWART: Mr. President and gentlemen of the Tribunal, at the last session I was engaged in an endeavour to lay before the Tribunal some of the principal features of the situation of 1818. I had referred to the extreme importance, in those days of sailing-ships and frequently recurring war, of seamen and fishermen; and I had referred to the statutes of 1699 prohibiting certain aliens from fishing in Newfoundland waters, to the statute of 1775, which made difficult the seduction of fishermen from Newfoundland, and to the statute of 1786, which prohibited the desertion from Newfoundland of British fishermen.

I wish now to call more particular attention to a clause of the 1699 statute, and to ask a question with reference to its interpretation, because it seems to me that the answer to that question will prove to be of some importance as we go on. British Case Appendix, p. 525, the last clause of the first section, is as follows:

"and that no alien or stranger whatsoever (not residing within the kingdom of England, dominion of Wales, or town of Berwick upon Tweed) shall at any time hereafter take any bait, or use any sort of trade or fishing whatsoever in Newfoundland, or in any of the said islands or places abovementioned."

And the question which I want to ask is: Whether that statute applied only to aliens who were fishing for themselves, or whether it applied also to aliens who were fishing for other people? The United States, as the Tribunal is aware, draws a very fine, and, as they say, a clear distinction between those cases cases of men fishing for themselves, in which case they are fishing for themselves, and cases of men fishing for other people, when it is said they are not fishing at all.

Now, Sirs, it seems to me that this section applies to both cases, and it would certainly include the case of an alien not residing within the specified limits who fished for other people.

In order to test that, I wish to suppose that a Frenchman residing in the island of Jersey had been arrested and was being prosecuted under the statute for fishing in Newfoundland waters. The man would admit that he had been fishing there; his only defence would be that he was being paid for it by some Englishman; and the question is whether that would be a valid defence the mere fact that he was acting in the pay of somebody else? Would that relieve him from the penalty of this statute, which prohibits an alien of his description from doing that act? It seems to me, Sirs, that the question only has to be asked in order to be answered; and if we

may assume that the judge who tried that man would answer it as I suppose, the decision would form a valuable precedent for the construction of later statutes to which I shall afterwards refer.

The third feature in the situation in 1818, to which I wish to call attention, and merely at the present moment to remind the Tribunal of, is the exclusion by treaties from Newfoundland waters of the French and of the Spanish.

The fourth feature-it also has only to be mentioned-was the difficulty of communication in those days as compared with the present. Nowadays it is quite easy for numbers of Europeans to go to the United States and to take occupation there. In earlier times it was quite beyond the possibility of imagination that any fishermen would be found in American fishing-vessels who were not inhabitants of the United States. They might not be citizens of the United

States, but they would certainly be inhabitants of the United 812 States. And it is therefore impossible to believe that the

negotiators of the treaties of 1783 or 1818 contemplated the possibility of non-inhabitants of the United States fishing in United States vessels.

The next feature of the situation, and the last which I wish to recall to the recollection of the Tribunal, is the pleading of Mr. Adams on behalf of the American fishermen. To his mind, the idea had never presented itself of any other persons than American fishermen fishing in American vessels. I merely give the citations of the passages to which I refer because they have already been read to the Tribunal. They occur in the letters from Mr. Adams to Lord Bathurst (British Case Appendix, pp. 66, 68, and 69) and his letter to Lord Castlereagh (British Case Appendix, p. 76).

Summing up the situation, then, I would put it in this way: that the personality of the fishermen was at that day extremely important; that the 1699 statute prohibited aliens residing outside of the specified limits from fishing; that the statutes of 1775 and 1786 prohibited desertion from Newfoundland-the 1786 statute penalising the entry of Newfoundlanders into foreign service, which of course would include United States service; that by treaties the French and Spanish fishermen had been excluded from the fisheries; that nobody was asking admission to them except the American fishermen; and, finally, that nobody contemplated Americans having in their fishing-vessels any persons other than inhabitants of the United States of America.

Turning for a moment to the treaty of 1783, there are one or two points to which I wish to call attention. The Tribunal is aware of the nature of the recital of that statute, and the only other point that I wish to refer to is the renunciation clause. Its form indicates very clearly the total absence of any idea that non-inhabitants would

be found in American fishing-vessels. It will be observed that it permits the entry of American fishermen into British ports for shelter; but if there had been any idea that in those American vessels there might be persons other than American fishermen, these other persons would have been included in the permission. Nobody had thought of such a thing, and the permission was given to American fishermen only.

I now wish to pass on to the first statute after the 1818 treaty, namely, the statute of 1824 (British Case Appendix, p. 567). That statute repealed the old statute of 1699 and certain portions of other statutes. In section 2, in lieu of the section in the 1699 statute which I have just commented upon, this statute provided as follows—

"And be it further enacted, That no Alien or Stranger whatsoever shall at any Time hereafter take Bait, or use any sort of Fishing whatsoever in Newfoundland, or the Coasts, Bays or Rivers thereof, or on the Coast of Labrador, or in any of the Islands or Places within or dependent upon the Government of the said Colony; always excepting the Rights and Privileges granted by Treaty to the Subjects or Citizens of any Foreign State or Power in Amity with His Majesty."

That section calls for two observations. The Tribunal will observe, in the first place, the word "whatsoever." The previous statute of 1699 prohibited aliens not residing in England, Wales, or Berwick. This statute removes that exception. It applies to all aliens. The second observation is with reference to an exception which is now created for the first time because of the treaty between Great Britain and the United States-the last lines:

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always excepting the Rights and Privileges granted by Treaty to the Subjects or Citizens of any foreign State or Power in Amity with His Majesty."

Now, Sirs, it seems to me that the construction of that statute is identical with the construction of the statute of 1699, that is that it would apply to aliens, whether they were fishing for themselves or fishing for somebody else. I will not recall or re-picture the trial, but it does seem to me that if defence was set up to a prosecution under this statute, that an alien, although actually fishing, was under engagement to somebody else, that the defence would be an extremely bad one. And the only observations that are open, as I think, to the United States with reference to this statute are two: It might say that this statute was a breach of the treaty because it prohibited the employment of persons who were non-inhabitants. But plainly it is not a breach of the treaty, because it expressly saves all treaty rights. And the only other observation, as it seems to me, would be that, notwithstanding this statute, non-inhabitants could be employed, which raises the point that I have discussed as to the 1699 statute (and this

one, which is completely in pari materia) as to whether those statutes did not prohibit fishing by aliens, although fishing for somebody else.

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THE PRESIDENT: May I draw your attention, Sir, to the last proviso clause in section 2 of the statute of 1819 on the page just preceding-p. 565 of the British Case Appendix, at the end of section 2:

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provided that nothing in this Act contained shall apply, or be construed to apply to the ships or subjects of any Prince, Power or State in amity with His Majesty, who are entitled by treaty with His Majesty to any privilege of taking, drying or curing fish on the coasts, bays, creeks or harbours, or within the limits in this Act described."

What might be the reason that, besides the " subjects of any Prince, Power or State" they also mention the "ships"? Of course, in a treaty with the United States the expression "subjects" is not quite correct; it should be "inhabitants" instead of "subjects."

MR. EWART: It should be " inhabitants "; yes, Sir.

THE PRESIDENT: Perhaps it is not a great difference. But what might be the reason that, besides the "subjects," the "ships" are also mentioned here?

MR. EWART: The President will observe that this section relates to the non-treaty shores, and provides for the prohibition of persons not natural-born subjects of His Majesty in any foreign ship, vessel, or boat from fishing in non-treaty waters. Then the proviso to which you referred is that nothing in the Act is to

"be construed to apply to the ships or subjects of any Prince, Power or State in amity with His Majesty, who are entitled by treaty with His Majesty to any privilege of taking, drying or curing fish on the coasts, bays, . .

The word "ships" evidently goes back to the word "ships" in the first part of the first clause:

"That from and after the passing of this Act it shall not be lawful for any person or persons, not being a natural born subject of His Majesty, in any foreign ship, vessel or boat, nor for any person . . .

The President will see that the clause is somewhat comprehensive, and for the purposes of the first clause would properly include the word "ships," and therefore when the proviso is reached it includes the word "ships." That is what suggests itself to me, Sir.

I think it advisable (because these statutes are a little complicated) to ask permission to make a little summary of the effect of them, as I have presented them to the Tribunal. First, there seem to have been in England, Wales, and Berwick, prior to 1699, foreigners available for employment as fishermen. Second, those for

eigners were, by the statute of 1699 (British Case Appendix, p. 525), permitted to fish at Newfoundland. All other foreigners were excluded, even if they resided in Jersey or Guernsey. Third, this exclusion extended to these other foreigners, whether they desired to fish for themselves or to fish for British subjects. Fourth, the statutes of 1775, section 12 (British Case Appendix, p. 546), and of 1786, section 12 (British Case Appendix, p. 558), were directed against the employment of British subjects by foreign fishermen, even including the United States. Fifth, by the treaty of 1783, the places of permitted residence of those who were to fish were extended so as to include the United States. The joint effect of the statute of 1699, and the treaty of 1783, was that no aliens could fish unless they resided in England, Wales or Berwick (by the statute) or the United States (by the treaty). Sixth, the statute of 1824, section 2 (British Case Appendix, p. 567), widened the scope of the prohibition against fishing, by removing the exception of the statute of 1699 in favour of foreigners residing in England, Wales, and Berwick. After the statute of 1824, all foreigners, other than those having treaty rights, were prohibited from fishing, whether they resided in England or not. Seventh, the joint effect, therefore, of the treaty of 1783, and the statute of 1824, was that no aliens could fish unless they resided in the United States. Eighth, this prohibition extended to foreigners whether they desired to fish for themselves, or to fish for persons who had a right to fish.

Now, Sirs, I wish to call the attention of the Tribunal to the close similarity existing between the 1824 statute, that I have just been referring to, and the Newfoundland statute of 1906 (British Case Appendix, p. 758). When I say statute of Newfoundland, the

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Tribunal will remember that that statute never really became operative, because of the modus vivendi between Great Britain and the United States. I read from p. 758 of the British Case Appendix, section 5:

"No alien, not so entitled by treaty or convention for the time being in force, shall fish in the waters of this Colony;

In effect it is the same as the British statute of 1824, passed almost immediately after the treaty of 1818. Both of them prohibit aliens from fishing. Both of them make an exception in favour of persons having treaty rights. And if I have been correct in my assumption that the statutes of 1699 and 1824 applied not only to persons desiring to fish for themselves, but to persons desiring to fish for other people who had rights, then I must be correct in saying that this statute would have the same interpretation and the same effect. If so, it seems to me that our case is established; because the United States cannot say that this clause is a breach of the treaty, inasmuch as the