consideration, and they must not be enforced at all by Imperial officers if they appear calculated to place the Americans at a disadvantage in comparison with British fishermen in the waters which, by the Treaty of 1818, are opened to vessels of the United States. On the contrary, their unequal operation should, in this case, be reported to their Lordships, a copy of the Report being at the same time sent to the Governor of the colony.

Upon this letter were based the instructions to naval officers in British North American waters. It was brought to the attention of the United States Government in the summer of 1870, and no exception was taken by them to its terms in relation to the matter now under consideration.

LICENCES, 1866-1870.

After the expiration of the reciprocity treaty in 1866, and prior to the treaty of 1871, United States fishermen were permitted, for the seasons 1866-9, access to the shore fisheries upon payment of licence fees.

MR. BOUTWELL'S CIRCULAR, 1870.

In 1870, seeing little hope of a renewal of treaty arrangements, the Canadian Government determined (8th January) to end the licence system, and to exclude United States fishermen from the coasts not included in the 1818 treaty. The United States Secretary of the Treasury (Mr. Boutwell) issued a circular to the Collectors of Customs (16th May, 1870) advising them of the altered situation. On the 9th June he issued another circular, inserting in it the extremely important words (App., p. 237.) :

Fishermen of the United States are bound to respect the British laws and regulations for the regulation and preservation of the fisheries to the same extent to which they are applicable to British or Canadian fishermen.

MR. BOUTWELL'S CIRCULAR RE-ISSUED.

1872, March 6.-Mr. Boutwell re-issued the same circular-having in it the words just quoted.

Particular attention is called to this very clear and very definite statement on the subject of regulations-a statement that is in entire uniformity with the contention of His Majesty's Government.

NEWFOUNDLAND, 1873-4.

1873.-The treaty of 1871 again opened up the coast fisheries of the United States to colonial fishermen, and the fisheries on the 31 colonial nontreaty coasts to American fishermen; and Newfoundland, under the power reserved in the treaty, passed a statute providing for suspension of all laws which might operate to

prevent the articles of the treaty from taking full effect. To this enactment was added the following clause (App., p. 706) :—

Provided that such laws, rules, and regulations relating to the time and manner of prosecuting the fisheries on the coasts of this island, shall not be in any way affected by such suspension.

The United States Secretary of State, Mr. Fish, objected to this proviso, and properly so. for clearly it was either unnecessary, or else it was a modification of the treaty. If, by the treaty, United States fishermen were bound to observe the local regulations, the proviso was unnecessary and mere surplusage; and if they were not so bound, the proviso altered the treaty. The statute was therefore re-enacted without this proviso. (App., p. 706.)

FIRST ASSERTION BY UNITED STATES OF PRESENT CLAIM.

1878. In 1878 (ninety-five years after the treaty of 1783, and sixty years after the treaty of 1818) the United States, for the first time, raised the contention that (App., p. 270)—

If there are to be regulations of a common enjoyment, they must be authenticated by a common or a joint authority.

FORTUNE BAY.

The question arose out of a fishermen's quarrel in Fortune Bay (Newfoundland). United States fishermen on a Sunday, and during the close season, stretched their nets across the bay, from one shore to the other, thus "barring" all the herring then in the bay; and for that purpose landed upon the shores of the bay. They had no right to operate from the shore, and, in addition to that, they were committing a breach of three local laws: (1) Fishing on Sunday; (2) fishing in close season; (3) "barring" herring. Their operations were forcibly stopped by Newfoundland fishermen, and the Government of the United States made a claim in consequence of such interruption.

The long diplomatic correspondence which ensued ended by payment to the United States of damages for the seizure, on the ground that, whether or not the United States fishermen were wrong (as to which both parties maintained their own opinion), British private subjects had no right to take the law into their own hands. The following extracts from the correspondence sufficiently indicate the positions assumed. Mr. Evarts (United States Secretary of State) said (28th September, 1878) (App., p. 270) :—

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This Government conceives that the fishery rights of the United States, conceded by the Treaty of Washington, are to be exercised wholly free from the restraints and regulations of the statutes of Newfoundland now set up as authority over our fishermen, and from any other regulations of fishing now in force or that may hereafter be enacted by that Government.

It may be said that a just participation in this common fishery by the two parties entitled thereto, may, in the common interest of preserving the fishery and preventing conflicts between the fishermen, require regulation by some competent authority. This may be conceded. But should such occasion present itself to the common appreciation of the two Governments, it need not be said that such competent authority can only be found in a Joint Convention, that shall receive the approval of Her Majesty's Government and our own.

LORD SALISBURY, 1878.

Lord Salisbury replied (7th November, 1878) (App., p. 271) :—

I hardly believe, however, that Mr. Evarts would, in discussion, adhere to the broad doctrine which some portions of his language would appear to convey, that no British authority has a right to pass any kind of laws binding Americans who are fishing in British waters; for if that contention be just, the same disability applies à fortiori to any other Power, and the waters must be delivered over to anarchy. On the other hand, Her Majesty's Government will readily admit-what is, indeed, self-evident-that British sovereignty, as regards those waters, is limited in its scope by the engagements of the Treaty of Washington, which cannot be modified or affected by any municipal legislation. I cannot anticipate that with regard to these principles any difference will be found to exist between the views of the two Governments.

If, however, it be admitted that the Newfoundland Legislature have the right of binding Americans who fish within their waters by any laws which do not contravene existing Treaties, it must further be conceded that the duty of determining the existence of any such contravention must be undertaken by the Governments, and cannot be remitted to the discretion of each individual fisherman. If any American fisherman may violently break a law which he believes to be contrary to treaty, a Newfoundland fisherman may violently maintain it if he believes it to be in accordance with treaty. As the points in issue are frequently subtle, and require considerable legal

knowledge, nothing but confusion and disorder could result 33 from such a mode of deciding the interpretation of the treaty.

“Her Majesty's Government prefer the view that the law enacted by the legislature of the country, whatever it may be, ought to be obeyed by natives and foreigners alike who are sojourning within the territorial limits of its jurisdiction; but that if a law has inadvertently been passed which is in any degree or respect at variance with rights conferred on a foreign Power by treaty, the correction of the mistake so committed, at the earliest period after its existence shall have been ascertained and recognized, is a matter of international obligation."

MR. EVARTS, 1879.

Mr. Evarts (1st August, 1879) agreed with this view (App., p. 273):

Removing, as this explicit language does, the only serious difficulty which threatened to embarrass this discussion, I am now at liberty

to resume the consideration of these differences in the same spirit, and with the same hopes so fully and properly expressed in the concluding paragraph of Lord Salisbury's despatch.

And he deprecated the ascription to him of a position different from that of Lord Salisbury (App., p. 273) :-

There is another passage of Lord Salisbury's despatch to which I should call your attention. Lord Salisbury says, 'I hardly believe, however, that Mr. Evarts would, in discussion, adhere to the broad doctrine which some portion of his language would appear to convey, that no British authority has a right to pass any kind of laws binding Americans who are fishing in British waters; for if that contention be just, the same disability applies, à fortiori, to any other Powers, and the waters must be delivered over to anarchy.' I certainly cannot recall any language of mine, in this correspondence, which is capable of so extraordinary a construction. I have nowhere taken any position larger or broader than that which Lord Salisbury says: Her Majesty's Government will readily admit what is, indeed, self-evident, that British sovereignty as regards those waters is limited in its scope by the engagements of the Treaty of Washington, which cannot be affected or modified by any municipal legislation.' I have never denied the full authority and jurisdiction either of the Imperial or colonial Governments over their territorial waters, except so far as by Treaty that authority and jurisdiction have been deliberately limited by these Governments themselves.

Lord Salisbury replied (3rd April, 1880) that Her Majesty's Government (App., p. 280)

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have always admitted the incompetence of the colonial or the Imperial Legislature to limit by subsequent legislation the advantages secured by treaty to the subjects of another Power. If it should be the opinion of the Government of the United States that any Act of the colonial legislature subsequent in date to the Treaty of Washington has trenched upon the rights enjoyed by the citizens of the United States in virtue of that instrument, Her Majesty's Government will consider any communication addressed to them in that view with a cordial and anxious desire to remove all just grounds of complaint.'

MR. EVARTS AND LORD SALISBURY.

The two statesmen appeared, therefore, to concur in the principle involved, although differing as to its application to the particular facts then under discussion.

Mr. Evarts (Ante, p. 33)

never denied the full authority and jurisdiction either of the Imperial or colonial Governments over their territorial waters, except so far as by treaty that authority and jurisdiction have been deliberately limited by these Governments themselves.

He claimed no jurisdiction or share of sovereignty on behalf of the United States. On the other hand, Lord Salisbury admitted as self

evident (Ante, p. 32)—

that British sovereignty as regards those waters is limited in its scope by the engagements of the treaty . which cannot be modified or affected by any municipal legislation.

They agreed, too, that if (Ante, p. 32)—

the Newfoundland legislature have the right of binding Americans who fish within their waters by any laws which do not contravene existing treaties, it must further be conceded that the duty of determining the existence of any such contravention must be undertaken by the Governments, and cannot be remitted to the judgment of each individual fisherman.

MR. EVARTS.

Both in assertion of principle and in tone, Mr. Evarts' letters display wide divergence from the attitude always theretofore assumed by the United States, and so clearly stated by Mr. Marcy twenty-two years before (1856). Until and during the period covered by Mr. Evarts' letters, British cruisers had enforced, and were enforcing, British laws as against United States fishermen, and were regulating their actions. Some Government had to supply the police power necessary for the purpose. Without demur, for nearly a century the British Government had done it; and the United States had agreed that the British Government was but exercising its right and discharging its duty.

Mr. Evarts, in his letters, avoided reference to the unbroken practice; and Mr. Marcy's circular, he disposed of (in his report to the President, 17th May, 1880) as follows (App., p. 283) :—

In the full copy of this circular, which is appended (No. 5) to the Babson and Foster report, the fishery regulations of the provinces to which it relates are recited, and a reference to these is sufficient to displace any inference that this Government has assented to any curtailment, past or previous, by provincial legislation of the freedom of the inshore fishery as conceded to our fishermen by the terms. of the Reciprocity Treaty or the Treaty of Washington. One of these regulations relates to the demarcation of "gurry grounds," and the other to reservation of spawning grounds, during the spawning season, from invasion. "Gurry," or the offal of fish, was supposed to infect the waters, and the regulation was not of the right of taking fish, but of poisoning them. The care of the spawning beds in spawning season, in like manner was a regulation of the breeding of fish, not a regulation of modes of American fishing. Both these regulations met the approval of this Government, and were required by Mr. Marcy to be respected by our fishermen, for this reason, and in