QUESTION TWO.

Have the inhabitants of the United States, while exercising the liberties referred to in said article, the right to employ as members of the fishing crews of their vessels persons not inhabitants of the United States.

SCOPE AND MEANING OF THE QUESTION.

The position and contentions of the United States in relation to Question Two are stated fully in its Case and Counter Case, and it will here suffice to review them briefly with but little, if any, amplification, except in one particular which does not involve a discussion of the facts and was, therefore, left to be dealt with in the argument.

Question Two involves only the construction of the language of the treaty, and nothing outside the treaty and the sources of information proper to aid in its construction is presented to this Tribunal for its consideration by this Question. The attempt, therefore, of the British Case to present an entirely new question, namely, whether the United States may employ subjects of Great Britain as members of the crews of its fishing vessels contrary to the statutory provisions of Newfoundland, is entirely beside and outside the Question submitted. The Question submitted is the broad one, whether persons not inhabitants of the United States may be employed on American fishing vessels, not whether British subjects may be so employed contrary to the British laws. The Question, as before stated, arises directly on the treaty and is to be answered by the treaty. The extraneous question suggested by Great Britain imports into the case a new and additional element and one foreign to the treaty, namely, the laws and the effect of the laws of Great Britain.

a U. S. Counter Case, 45-53.

The United States submits, quoting from its Counter Case, that "the Question certainly does not ask whether there is anything in the treaty requiring or authorizing British subjects to engage themselves as members of the fishing crews of the inhabitants of the United States, if they are prohibited or even if they are not prohibited from so doing by British laws, which is all that is involved in the British contention above set forth." a

There is a suggestion in the British Case that the United States appears to contend that inhabitants of Newfoundland may take employment on American fishing vessels and that any prohibition against their doing so is a breach of the treaty. In reply to this suggestion it is sufficient to say that, whatever the views of the United States may be upon the subject, no such contention is presented by it in this case, because it is not embraced within the submission by which this Tribunal is bound. The question is not in the case, and is only suggested in the British Case as a possible contention of the United States, and there is, therefore, no occasion to discuss it in this argument.

ERRONEOUS ASSUMPTION IN THE BRITISH CASE AS TO THE INTENTION OF THE NEGOTIATORS.

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The two Governments did not enter into the treaty of 1818 for the benevolent purpose suggested in the British Case, namely, to give occupation to American fishermen who would otherwise suffer for bread. Nor was it the purpose of Great Britain in entering into the treaty to foster in the United States a race of seamen conducive to the national riches in peace and to defense and glory in war." On the contrary, the correspondence which preceded the making of the treaty shows that whatever was the motive of the United States, the motive of Great Britain was wholly economic and in accord with the policy, which she has so long and so successfully pursued, of making treaty engagements which will develop markets in other countries for her manufactured articles. Any construction of the treaty, therefore, based upon the fictitious motives for making it, which are stated in the British Case, would proceed on false premises and lead to erroneous conclusions.

a U. S. Counter Case, 46.

THE EVARTS REPORT.

The British Case quotes a statement made by Secretary of State Evarts in 1880, in his report to the President on the treaty of 1871, as sustaining its contention with reference to Question Two. That statement was as follows:

There was, to be sure, a restriction imposed upon both countries which excluded both equally from extending the enjoyment of either's share of the common fishery beyond the "inhabitants of the United States" on the one side, and "Her Britannic Majesty's subjects on the other, thus disabling either Government from impairing the share of the other by introducing foreign fishermen into the common fishery."

It is evident, when the statement of Secretary Evarts is read in connection with its context, that nothing was further from his mind. than the proposition under consideration. He was arguing that the treaty of 1871 had effected a division of the fisheries between the two nations-the fisheries in their natural extent-and he deduced therefrom that neither nation could extend the enjoyment of the fisheries beyond its own people, nor impair the share of the other by introducing foreign fishermen into the common fishery. He was manifestly referring to extensions of " either's share of the common fishery beyond the inhabitants of the United States" on one side, and "Her Britannic Majesty's subjects on the other, by treaties with foreign countries introducing "foreign fishermen into the common fishery." This fishery he considered was held in equal undivided parts by the United States and Great Britain, and could not be impaired by either without the consent of the other. No question had then arisen or been remotely suggested of the possibility of a contention that the inhabitants of the United States were limited in the human instrumentalities which they might employ in carrying on their fisheries, because the treaty grant was to "inhabitants of the United States."

REFUTATION OF THE BRITISH CONTENTIONS.

As shown in the Counter Case of the United States, the contention of Great Britain is, not that every person on board an American fishing vessel must be an inhabitant of the United

a British Case, Appendix, 284.

States, but that no such person is entitled to take fish unless he is an inhabitant of the United States. Taking up this contention of Great Britain the United States presents the following considerations:

1. It has been shown in the discussion of Question One that the fishery right granted by the treaty of 1818 was a national right held by the United States for the benefit of its inhabitants. The United States regards its right in this fishery as the foundation of a national industry, which not only furnishes a source of food supply for its own people, but gives to it a medium of exchange with the world at large which will add to its national wealth. That the fishery to its fullest extent was to be enjoyed by the United States for both domestic and export purposes was avowed by the representatives of the United States prior to the making of the treaty of 1783 and prior to the making of the treaty of 1818.

By the municipal law common to the two countries, if a fishery right is one of profit and not of pleasure, it carries with it the right of exercise by a master and his servants. If of pleasure alone, it can be exercised only by the master.”

It is submitted that the rule of the common law of England and the United States is based on sound reason and justice; and, therefore, that a similar rule must, under the broad and equitable principles of international law, be applied by this Tribunal to the determination of the Question here submitted.

2. It is conceded that the granting nation may accompany such a grant as that under consideration with such conditions in respect of its exercise as it may deem proper and if the use of the words "inhabitants of the United States" in the granting part of the treaty was intended to limit the exercise of the right, in the sense that only inhabitants of the United States should engage in the manual act of fishing in British waters, that would be the rule to be followed. That the words were used with that intention appears to be the British view according to the letter of Sir Edward Grey quoted in the Counter Case of the United States. Such a position,

a U. S. Case, Appendix, 220, 221, 223, 225, 267, 272, 273.

Duchess of Norfolk's Case, Yearbook, 12 Hen., 7, 25; 13 Hen., 7, 12, pl. 2; Wickham & Hawker, 7 Mees. & W., 63-77, by Baron Parke.

CU. S. Counter Case, 48.

it is submitted, is narrow in the extreme and is inconsistent with the intention of the treaty.

The words in question clearly were not intended as a limitation. They were words of grant and were intended to describe the grantee. They are affirmative words, not words of negation or limitation. If a limitation follows from their use it could only be because the nature of the right granted and the character in which the grantee took the right imperatively require such limitation, but, as has been shown, the nature of the right and the character in which it was taken not only do not require any such limitation but conclusively negative it.

3. If the narrow construction contended for by Great Britain be the correct one, then it follows that inhabitants of the United States who wish to take fish in the waters of the treaty coast must themselves take the fish out of the water, and have no right to employ non-inhabitants to do that work for them. What policy could Great Britain have had in 1818 requiring the imposition of such a limitation? What policy, it may be asked, dealing with the subject from a broader view, could Great Britain have had in 1818 to introduce any limitation concerning the crews of fishing vessels? As a matter of fact there would have been no advantage to Great Britain at that time, from any point of view, to stipulate against the employment of foreigners in American fishing crews.

4. If the fish are taken for the benefit of inhabitants of the United States, by employees who are not such inhabitants, it is a taking by inhabitants of the United States in the sense of the words used, considered either in their ordinary significance or in their legal significance of the law, in as much as an act performed by an agent is held to be that of the principal. What Great Britain was concerned about was to guard her fisheries against use by any nation other than the United States, and this is the full extent to which the use of the words "inhabitants of the United States" in connection with the grant of the fishery right may be considered as a limitation. The purpose of Great Britain was to confer on the United States for the benefit of its inhabitants the right of fishery to be enjoyed by such inhabitants, but by them alone, in any proper