(2) Do they include the right, and whether or not (a) To catch herring for bait to be used ii. Off the Grand Banks? (b) To trap and can lobsters? With regard to the first point, it will be evident that everything depends upon the interpretation to be put upon the Treaty of 1783, together with the declaration with which it must be read as an integral whole. Now the body of the Treaty gives the French the same right of enjoyment as they possessed under the Treaty of Utrecht. The latter assured the full sovereignty of Newfoundland to England, minus certain definite rights which we lost pro tanto by granting to the French the privilege of fishing along a certain portion of the coast. Nothing is said, to imply that this privilege was to be exclusive. On the contrary, even if it had been, so many decades elapsed before any objection was raised to the right of the British to fish there (though they had done so from the very year of the Treaty) that any such exclusive privilege must needs have been lost by prescription. But the unfortunate declaration goes further, and adds that the King of England will take the most positive measures to prevent "que ses sujets ne troublent en aucune manière par leur concurrence la pêche des Français." I give the words in the original, because Lord Salisbury uses “interrupt” in quoting, which is a word of much narrower meaning than "troubler." The phrase is, I think, capable of expressing either of two meanings: "shall not compete SO as to trouble," or "shall not compete and thereby trouble," i.c., in effect," shall "shall not trouble even by competing," according as the emphasis is laid upon "concurrence" or "troublent." If the former, and at first sight, the more natural, interpretation is put upon the words, we are confronted with the difficulty that both the body of the Treaty and the declaration state that the arrangement is come to in order to put an end to the disputes which have been constantly going on. These could not but be increased if such a vague limitation as that of competition were meant to be adopted. It seems little short of absurd that the French should be safeguarded from mere competition and not be protected against the far more tangible molestation of having their source of supply drained to an unlimited extent by the fisheries of other nations on the coast. The alternative is to regard the express mention of competition as being intended to put the case at its highest, and, therefore, a fortiori to cover graver kinds of interference. This construction would accord with the passing of the Act of Parliament which we have mentioned, and with the fact that the Governor in 1822 states, in a proclamation forbidding all annoyance to the French fisheries, that "the right of fishing is reserved to the subjects of " His Most Christian Majesty in full and complete enjoyment." But the ipsissima verba of Mr. Algernon Fitzherbert (afterwards Lord St. Helens), who negotiated the Treaty, are even more convincing. "I ventured," he writes, "to propose as a mezzo termine, that the exclusive "right should not be mentioned in the Treaty, but that we "should promise ministeriellement to secure it to the "French fishermen by means of proper instructions to that "effect to the Government of Newfoundland. To this the "Count of Vergennes assented." The whole transaction, says Mr. Prowse in his "History of Newfoundland," was dishonest. There was to be a sham treaty signed and set before the English House of Commons. The real treaty was to depend upon the word of the Ministry, and, afterwards, on the declaration of the King. But in the first place the treaty and the declara tion are not antagonistic, the latter goes further in regard to a certain matter than the former: it adds, but does not alter; whilst the attempt to set it aside on the ground that it was "dishonest" is specious, but fallacious. The dishonesty was not between the contracting parties, i.e., the King of Great Britain and the King of France, but between King George's Ministers and those to whom they are, by the English Constitution, morally responsible. Not even in the English law of contract does fraud or misrepresentation constitute a ground for rescission if it is directed against a person not a contracting party. The second point turns on the meaning of pêcher and poisson in the Treaty. The French would limit it to codfish. It has been stated that the word "cod-fish" appeared in the draft project of article 13, and it is suggested that the word was altered to "fish" out of mere euphemistic reasons. But this is a dangerous sort of argument, for it cuts both ways. That a certain word was different in an earlier document may prove, not that the meaning of the earlier was intended to be conveyed by the latter, but that the first was designedly corrected in the second. Cod-fish, moreover, though by far the most abundant fish off Newfoundland, is not and never was the only species, so that if we are to adopt the plain and not unreasonable sense of the word, "fish" must be taken to include every kind of fish, at the very least those (like herring) which were caught, even though only occasionally, at the time of the Treaty. It appears somewhat unjust to deny a herring the title of "fish," simply because it is liable to be used as bait. One might as well say that an ox is not an animal because it may one day become beef. It is equally difficult to grasp the contention that, at any rate, if your herring is to be used as bait elsewhere than on the French shore it cannot be included in the category of fish. Had cod-fish been the word used in the Treaty, it is conceivable that the right of catching herring for bait might be argued to be implied by the Treaty; for the concession would otherwise have been capable of being rendered nugatory, since it is as impossible to fish for cod without bait as to marry without a wife, and we have seen that it is a wellestablished principle of international law that each stipulation in a treaty should, if possible, be so construed as to be operative. In such a case it might well be urged that the inferred right of taking herring should be confined to its narrowest limits, and not be extended to a right to take them for use elsewhere. But, as it is, there is no room for these niceties of interpretation. If "fish" is to mean anything else than fish, the onus of proof is upon those who set up that allegation. The lobster question presents many difficulties. Against the argument that lobsters are not fished for and dried, but trapped and canned, may be set the use of the expression "lobster fisheries." Of course, lobsters are crustacea and not pisces, but it must be remembered that we have to deal with the language and the zoology, not of to-day, but of some two centuries ago. It has been pointed out that such distinguished naturalists as Rondelet and Belon classed crustaceans amongst fish. But authorities have been quoted on the other side as well, so that it is clear that lobsters were not universally regarded as fish. Possibly those who signed the treaty went to their graves without having debated the point at all whether lobsters are fish or not. That they did not have them in view in concluding the Treaty is made probable from the fact that it was only after about a hundred and fifty years from the date of the Treaty of Utrecht that the Newfoundland waters came to be used for the taking of lobsters, and almost certain from the consideration that if they had intended them to be covered by "fish" they would have said so expressly, in face of the difference of ideas prevailing as to the relations subsisting between fish and lobster. Until further light is thrown upon the state of mind of the parties, we must regard lobsters as a matter not provided for in the Treaty. The question we have then to answer comes to this: supposing the English and French, at the time they entered into their mutual obligations, had had lobster catching and trapping in view, what would they have contracted in that respect? I believe we can give a tolerably decisive answer to this question by answering another. Why did France obtain from England in 1713 that diminution of her sovereign territorial rights over the island which the granting of the French fishing privileges constituted? We have already touched on the answer-because she wished to protect the interests of some of her subjects whose means of livelihood lay in the fisheries, and who would otherwise have been rendered penniless. Now these men had been engaged on the codfisheries, not on lobster catching, and it thereby seems. pretty certain that all the French were concerned with was the cod-fisheries and nothing else. If this reasoning be correct, it would result, not only that the French had no right to demand the removal of the native lobster establishments (provided their cod-fishing was not interfered with), but had no right to engage in that business themselves. The dispute between ourselves and the United States of America as to the Alaskan boundary* turns on the meaning to be given to a treaty, ambiguous by reason of the insufficient knowledge of its authors. The area in dispute is a long strip of coastline bordering on British Columbia * Vide: Alaska and the Klondike, by Angelo Heilprin, London 1899; Blue Book, Treaty Series No. 19, 1899; Articles; in the Fortnightly Review, Sept. 1899; North American Review, Oct. 1899; Edinburgh Review, April 1900; LAW MAGAZINE AND REVIEW, Feb. 1900. Most interesting is the article by Mr. John W. Foster in the National Geographic Magazine, Nov. 1899. He is ex-Secretary of State of the U.S.A., and actually a member of the International Joint High Commission, |