QUESTION THREE.

Can the exercise by the inhabitants of the United States of the liberties referred to in the said article be subjected without the consent of the United States, to the requirements of entry or report at custom-houses, or the payment of light, or harbor, or other dues, or any other similar requirement, or condition, or exaction?

to

SCOPE AND MEANING OF THE QUESTION.

The British Case states the issues raised by the foregoing Question thus: a

The "liberties" referred to in this question are:

1. Liberty to "take fish" on certain coasts, bays, harbours, and creeks; and

2. Liberty to "dry and cure fish" in certain unsettled bays, harbours and creeks-that is, upon the shore.

3. In addition to these two liberties, the United States asserts that its fishermen are entitled to have, for their fishing vessels, the same commercial privileges as are accorded by agreement or otherwise to United States trading vessels generally.

The question then seems to be whether United States fishing vessels are entitled to frequent British coasts, bays, creeks, and even harbours, to land upon British territory, and (if the United States contention be correct) to exercise all the privileges accorded to trading vessels, and yet be exempt from the supervision which all nations exercise over all vessels (not only foreign but their own) coming into their harbours and discharging upon their territory; and exempt also from contribution to the up-keep of lights necessary to the navigation of the waters.

This statement is lacking in that precision which should be employed in stating the issues presented in this case, a lack of precision which it has been necessary to notice in dealing with the other Questions presented to this Tribunal. The United States has never asserted, and does not now assert, that commercial privileges for its fishing vessels constitute any part of the liberties referred to

a British Case, 61.

in the said article "—Article I of the treaty of 1818. Its position is, and always has been, that the treaty of 1818 neither conferred nor denied commercial privileges; and hence that during the period when Great Britain denied all nations the privilege of commercial intercourse with her colonies, neither American fishing vessels nor American vessels of any other character resorting to British-North American waters were entitled to touch and trade at colonial ports. When the policy of non-intercourse had been discontinued, and trading vessels of the United States were permitted intercourse with the colonies, there was nothing in the treaty of 1818 which debarred fishing vessels from commercial privileges. The United States, therefore, by granting its fishing vessels the right to touch and trade, could confer on them, in addition to the treaty right to fish, the commercial privileges which Great Britain, at a period subsequent to 1818, allowed to all American vessels. The distinction is obvious between a contention that commercial privileges were affirmatively granted fishing vessels by the treaty of 1818 and a contention that there is nothing in that treaty intended to except fishing vessels from commercial privileges whenever Great Britain's policy should allow other nations commercial intercourse with her colonies. The United States has never asserted the first, but has always consistently asserted the second contention.

The liberties referred to in the fisheries article, the exercise of which is the subject of Question Three, are but two, namely, (1) the liberty to take fish on certain coasts, and (2) the liberty to dry and cure fish on certain coasts."

These liberties carry everything necessarily incidental to the right to fish, and to dry and cure fish; and what is incidental may some time require ascertainment, but it is not pertinent to any Question before this Tribunal. It is clear that these liberties do not include general commercial privileges. Commercial privileges for its fishing vessels on the treaty coasts, so far as the United States has ever claimed them, grow out of acts of the two Governments outside of the treaty of 1818, and have no relation to it; and, whenever Great Britain has attempted to find some principle of exclusion of fishing vessels in the treaty of 1818, the United States has invariably denied that any such principle could be found in that treaty.

a U. S. Counter Case, 55.

It should be stated further that, when the United States has furnished its fishing vessels with permits to touch and trade, and they have been accorded that privilege, it has never insisted on their immunity from British or colonial commercial and revenue regulations, requiring entry and clearance at custom-houses or the payment of light, harbor, or other dues. It has only been when the colonial governments denied trading privileges and held the American fishing vessels to the treaty right of fishing exclusively, that the latter have refused to conform to the colonial laws relating to entry and clearance at custom-houses and the payment of light, harbor, and other dues. Sir Edward Grey substantially admitted this in his memorandum of February 2, 1906, and the record will be searched in vain for any contention by the Government of the United States that its vessels were immune from such customs and revenue regulations when permitted to enjoy commercial privileges. The United States then disclaims that commercial privileges constitute any part of " the liberties referred to in the said article," and it admits that its fishing vessels when supplied by it with authority to exercise commercial privileges, and when permitted by the colonies to enjoy such privileges, are properly subject in British colonial ports, "to the requirements of entry or report at custom-houses, or the payment of light, harbor, or other dues, or to any other similar requirement, or condition, or exaction." It contends, however, that its fishing vessels, when resorting to the colonial waters exclusively for the treaty purpose of fishing, are not properly subject to any such requirements; and this contention on its part and the negation of that contention on the part of Great Britain. constitute the sole issue for determination by this Tribunal under the submission of Question Three.

APPLICATION OF THE LAW OF SERVITUDES.

Addressing the argument to that issue the United States insists that the principles of international law do not permit Great Britain to subject the fishing vessels of the United States to the requirements and exactions mentioned in Question Three. As shown in the discussion of Question One, the right granted by the treaty of 1818 is a real right and constitutes an international servitude. The treaty

a U. S. Counter Case, 57; British Case, 62.

contains no reservation of power in Great Britain to impose restrictions on the enjoyment of the servitude. Such a right conferred without reservation is to be exercised by the dominant nation independently, and without interference by the servient nation. Any limitation of the enjoyment of the right or burden placed upon it is an interference not countenanced by international law. Recognized authorities hold that it would be an illegal restraint upon the right to impose taxes or other duties on the exercise of the right or to make entrance into the servient territory dependent on conditions not expressly provided for in the treaty."

Although international law does not recognize any legal right in the servient state to impose any restrictions, nevertheless it contemplates that the comity, which prevails between nations, will enable the dominant and servient states, by supplementary agreement, to regulate the exercise of the right in any way that may be reasonable and mutually acceptable. That is exactly what the United States has always been willing to do. Secretary Root in his reply of July 20, 1906, to Sir Edward Grey's memorandum of February 2, 1906, said:

The Government of Newfoundland can not be permitted to make entry and clearance at a Newfoundland custom house and the payment of a tax for the support of Newfoundland light-houses conditions to the exercise of the American right of fishing. If it be shown that these things are reasonable the Government of the United States will agree to them, but it can not submit to have them imposed upon it without its consent."

@ Chrétien: Principes de Droit International Public, Sec. 259, p. 268.

F. De Martens: Traité de Droit International, Vol. I, sec. 93.

Von Holtzendorf: Handbuch des Völkerrecht, Vol. 2, Sec. 52.

Heffter: Le Droit International de l'Europe, Sec. 43.

Bluntschli: Droit International, Sec. 355, p. 212.

Despagnet: Cours de Droit International Public, Sec. 190.

Pradier Fodéré: Traite de Droit International Public, European and American, Sec. 834, 838.

Gareis: Institutionen de Völkerrechts, p. 205.

Rivier: Principes du Droit des Gens, Sec. 58.

Diena Principi di Diritto Internazionale, p. 125.

Fiore: Diritto Internazionale Codificado, (4 Ed., 1909) Sec. 1096.

Oppenheim: International Law, (1905) Secs. 203, 205.

Clauss Lehre von den Staatsdeinstbarkeiten, (1894) pp. 114, 198, 224, 227.

Klüber: Droit des Gens, moderne de l'Europe, pp. 194, 195.

Heilborn: Des System Völkerrechts entwickelt aus den Völkerrachtlichen Bergriffin (1896) p. 30, 34.

Von Ullmann: Völkerrechts, (2 Ed., 1908) Sec. 99, 100.

Vattel's Law of Nations, 1758 (Chitty's translation with notes by Ingraham) Book 2, chap. 7, sec. 89, p. 168.

Dr. Alphonse Rivier: Lerbuch des Völkerrechts, (2 Ed.) p. 192.

Von Neuman: Grundriss des Heutigen Europaischen Völkerrechts, (1885) Sec. 13, pp. 31, 33.

bU. S. Case, 225.

THE INTENTION OF THE NEGOTIATORS.

That the negotiators did not intend to subject American fishermen to any such requirements, and the reasons why they refrained from so doing will appear from an examination of the negotiations leading up to the treaty, and the circumstances and conditions existing at that time.

The south and west coasts of Newfoundland are bold, rocky, and inhospitable, icebound in the winter, and subject to violent tempests at all seasons of the year. The confluence in their neighborhood of the icy currents of the north with the warm Gulf Stream produces these storms and also the dense fogs which veil the coasts and make navigation in their vicinity extremely dangerous. It was not until a comparatively recent period that Great Britain permitted permanent settlements on the Newfoundland treaty coasts. The British Case " recites the policy of exclusion which Great Britain pursued toward the island, and the British statutes amply show that policy, which was to discourage fishermen from settling on the island and reserve the fisheries for the British possessions in Europe. A report of a committee of the House of Commons of Great Britain appointed to inquire into the state of the trade to Newfoundland, dated April 24, 1793, contains the testimony of William Knox, previously connected with Lord North's ministry in England, who said that—

son was over.

* * *

the Island of Newfoundland had been considered, in all former times, as a great English ship moored near the banks during the fishing season, for the convenience of the English fishermen. The Governor was considered as the ship's captain, and all those who were concerned in the fishery business as his crew, and subject to naval discipline while there, and expected to return to England when the seaTo prevent the increase of inhabitants on the Island the most positive instructions were given to the Governors not to make any grants of the lands and to reduce the number of those who were already settled there. Their vessels, as well as those belonging to the colonies, were to be denied any priority of right in occupying station in the bays or harbors for curing their fish over the vessels from England; and he was instructed to withhold from them whatever might serve to encourage them to remain on the Island; and as Lord North expressed it, whatever they loved to have roasted he was to give them raw; and whatever they wished to have raw, he was to give them roasted."

a British Case, 6, 7, 8.

U. S. Counter Case, Appendix, 560, 561.