QUESTION SEVEN. Are the inhabitants of the United States whose vessels resort to the treaty coasts for the purpose of exercising the liberties referred to in Article I of the treaty of 1818 entitled to have for those vessels, when duly authorized by the United States in that behalf, the commercial privileges on the treaty coasts accorded by agreement or otherwise to United States trading vessels generally? SCOPE AND MEANING OF THE QUESTION. The positions of the United States and Great Britain, as presented in their respective Cases and Counter Cases, differ so widely in regard to the scope and meaning of this Question that it is desirable that the grounds, on which the position of the United States rests, be discussed herein with some detail. The British Case assumes throughout that the United States must prove that commercial privileges were secured by the treaty of 1818 in order to sustain its contention under this Question. The United States does not so understand the Question. As pointed out in the discussion of Question Three, the United States has never asserted, and does not now assert, that general commercial privileges for its fishing vessels constitute any part of the liberties referred to in Article I of the treaty of 1818. That treaty neither conferred nor—as the United States contends-denied commercial privileges. It was a treaty concerning a fishing liberty, carrying the rights necessarily incidental to such liberty, and did not concern itself with commercial privileges. General commercial privileges, so far as the British North American colonies were concerned, were first extended to the inhabitants of the United States by the British Order in Council of November 5, 1830. Reciprocal commercial privileges were granted by the United States for the benefit of the inhabitants of those colonies, by the Act of Congress, May 29, 1830, and by a presidential proclamation of October 5, 1830. By subsequent independent and concurrent action of the two Governments, these commercial privileges received a large extension in the course of years "in the interest of propinquity." The importance attached to them by the United States and its belief that its fishing vessels were entitled to exercise them is shown by the message of President Grant of December 5, 1870, and by the Act of Congress of March 3, 1887. In the view of the United States it is unnecessary to consider the development of the trade relations between the two peoples; no burden is placed upon the Tribunal of examining the scope, character, or permanency of these reciprocal privileges, because the Question under consideration assumes as the basis on which it rests that commercial privileges have been accorded and do exist; and the inquiry presented to the Tribunal concerns only their exercise by certain of the inhabitants of the United States. The words of the Question are: Are the inhabitants of the United States whose vessels resort to the treaty coasts for the purpose of exercising the liberties referred to in Article I of the treaty of 1818 entitled to have for those vessels * * * the commercial privileges on the treaty coasts accorded by agreement or otherwise to United States trading vessels generally? It is manifest that the Tribunal is not called upon to determine by what agreement the privileges are accorded, and the intentional generality of the word "otherwise " shows that no such determination is called for or permissible. Whatever the privileges are, and however they were accorded, and whatever others may hereafter be accorded, it is of importance to ascertain whether during their continuance any of the inhabitants of the United States, duly authorized by their own Government to take advantage of them, can be deprived of them by reason of anything contained in, or fairly to be implied from the treaty of 1818. To this extent the British contention, that "it is the construction of that treaty alone which is submitted to the judgment of this Tribunal," is correct. The situation is this: A liberty has been granted by treaty entitling the inhabitants of a nation to enter the jurisdiction of the nation granting the liberty for the purpose of prosecuting there a gainful vocation. In addition to this liberty, certain privileges have been a British Case, Appendix, 786. CU. S. Case, 156-158. d U. S. Case, Appendix, 96 accorded to the inhabitants of the first country whereby they have also the right to enter the same jurisdiction for the purpose of trade. The question is whether these inhabitants, when exercising the treaty liberty, are precluded from enjoying at the same time these trading privileges; or, when enjoying such privileges, are prohibited from exercising the treaty liberty. In other words, the question is whether, as to the matter of commercial privileges now or hereafter accorded, there is anything in the treaty of 1818 which justifies a discrimination by Great Britain against the inhabitants of the United States who are exercising the liberty granted by that treaty. The issue presented by the Question is formulated in the British Case, with substantial exactness in the closing part of the statement of the contention of Great Britain. The contention begins: Great Britain contends that American fishermen can not claim as of right to exercise any liberties in British territorial waters, unless those liberties were granted by the treaty of 1818; that no commercial privileges were so granted." It should be observed that in the above extract Great Britain confuses commercial privileges with liberties under the treaty, but, as pointed out in the Counter Case of the United States in the discussion of Question Three, the only liberties referred to in the treaty are the liberties of taking, drying, and curing fish. This failure to distinguish between treaty liberties and commercial privileges indicates, in the view of the United States, a misapprehension on the part of Great Britain of the correct meaning of the Question. As above stated, the United States does not contend that general commercial privileges were granted by the treaty of 1818 and denies that they are founded upon it. But the second part of the British contention: And that the exercise of commercial privileges by American fishing vessels would be contrary to the intention of that treaty— raises the question with exactness, if the words "American fishing vessels " are understood to mean "the inhabitants of the United States whose vessels resort to the treaty coasts for the purpose of fishing." Certain other observations are suggested by a reading of Question Seven. a British Case, 127. THE UNITED STATES MAY AUTHORIZE THE EXERCISE OF WHATEVER COMMERCIAL PRIVILEGES ARE ACCORDED. Question Seven assumes, as a condition precedent, that the United States has the power to authorize the exercise by its inhabitants of such commercial privileges as now are or may hereafter be accorded, and to determine the due and proper method of such authorization. This is clear from the words, "when duly authorized by the United States in that behalf." It is not claimed that the United States by its authorization can vary or exceed the rights accorded, but that, as to such rights, the authority for their exercise rests with the United States. This authorization is generally in the form of registration, which gives the right both to trade and to fish. The majority of American vessels resorting to the treaty coast are on register; and this was admitted by Sir Edward Grey in his memorandum of February, 1906, in which he stated: It is admitted that the majority of the American vessels lately engaged in the fishery on the western coast of the colony were registered vessels, as opposed to licensed fishing vessels, and as such were at liberty both to trade and to fish." It is to be noted that Sir Edward Grey did not follow this by a denial that American vessels can have the right both to trade and to fish, but said that because they may trade they ought to enter at the customs. In some instances American vessels carry licenses to fish, and in some of these licenses there is added permission "to touch and trade," but the controversy arose with reference to vessels on United States register. The present Question is substantially the same under the two forms of authorization. RIGHTS OF THE UNITED STATES, AND NOT THE RIGHTS OF VESSELS, ARE TO BE DETERMINED. The British Case persistently deals with the Question as if it were a question of the rights of vessels. It states: The treaty confers no rights upon American vessels— And the question is whether the vessels used by such American fishermen are entitled, as of right, to such commercial privileges on the treaty coasts as are from time to time accorded to trading vessels. The United States contends that American fishing vessels resorting to British territorial waters under the terms of the treaty are entitled, as of right a If, in speaking of a vessel's rights, the British Case but used "a convenient and customary form of describing the owner's or master's right and duties in respect of the ship" it might well be said, as Mr. Root, replying to Sir Edward Grey, June 30, 1906, did say "it is probably quite unimportant which form of expression is used." But this is not what the British Case does. After denying in the discussion of Question Two that American vessels have any rights, it proceeds to discuss this Question as if all fishing and trading rights of the United States were rights belonging to vessels, and as if the employment of a vessel as a fisherman or as a trader had the effect of fixing and determining the rights of the inhabitants of the United States who own such vessel. It may fairly be said that the British contention under this Question has no other foundation than this classification of vessels, It is, therefore, important to point out again that the Question is: Are the inhabitants of the United States whose vessels resort to the treaty coast entitled to have for those vessels— * * It has already been shown, under Questions One and Two, that the United States is the real party in interest and that the words “inhabitants of the United States" are not words of limitation, but words aptly describing the sovereign power in which the treaty liberties are vested. The Question in its effect and essence then is this: Is the United States entitled to have for the inhabitants thereof, &c. It may be contended that the words, "trading vessels ", refer to some rights reserved exclusively to vessels having that character and no other. Then this Question is an absurdity. If the United States 66 by agreement or otherwise" secured some commercial privileges, which by the terms of the agreement could only be exercised by vessels exclusively used in trading, then it is preposterous to ask the Tribunal to determine whether they can be exercised by vessels engaged in fishing. No question whatever would be presented. The Question should bear a reasonable construction and one which will present a real issue, which this Question certainly does. a British Case, 127. U. S. Case, Appendix, 979. |