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 fall 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," 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

the sense of being within the reasonable province of local civil jurisdiction, and not encroaching upon the province of freedom of the fishery as imparted by the Reciprocity Treaty. But the right of this Government to inspect all such laws and pass upon them, as falling one side or other of the line thus firmly drawn, is explicitly stated by Mr. Marcy. He says:

Should they be so framed or executed as to make any discrimination in favour of British fishermen, or to impair the rights secured to American fishermen by that Treaty, those injuriously affected by them will appeal to this Government for redress.

Accordingly, the fishermen are directed to make complaint, upon the case arising, either in respect to any law or its execution, "in order that the matter may be arranged by the two Governments." This language is in some respects important, and in some not quite accurate:

(1.) Mr. Evarts says that regulations (1) of the disposition of offal and (2) of close season upon the spawning grounds were regarded as

being within the reasonable province of local civil jurisdiction, and not encroaching upon the province of freedom of the fishery, as imparted by the Reciprocity Treaty.

This admission covers the whole case. For all that His Majesty's Government contends for is authority to make "reasonable"

36

regulations.

(2.) It is incorrect to treat Mr. Marcy's circular as referring merely to (1) gurry grounds and (2) close seasons. In addition to those, it specifically mentioned a regulation prohibiting the setting of seines "across the mouth of any haven, river, creek, or harbour." The case which Mr. Evarts was dealing with was one of setting a seine across a whole bay. Mr. Marcy thought that that too

was

within the reasonable province of local civil jurisdiction.

(3) And it is incorrect to say that one of the reasons which actuated Mr. Marcy in requiring obedience to local laws was that they had "met the approval of this Government." For although Mr. Marcy, in the appendix to his circular, referred specifically to the three local laws which he had seen, his injunction of obedience applied to those which he had not seen. He commenced his appendix with the words:

It is believed that the principal regulations referred to above are the following:—

This was Mr. Evarts' last word upon the subject. And we may take him as admitting that (Ante, p. 32)

1. The common interest of preserving the fishery and preventing conflicts between the fishermen require regulation by some competent authority.

2. Some of such regulations are (Ante, p. 35)

within the reasonable province of local civil jurisdiction.

3. Those that are within the "province of local civil jurisdiction " are those which do not modify or affect "the engagements of the treaty."

4. 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 be further conceded that the duty of determining the existence of such contraventions must be undertaken by the Governments, and cannot be remitted to the judgment of each individual fisherman.

It is not pretended that, in his letters, Mr. Evarts says nothing inconsistent with these admissions, or, indeed, contradictory of them. But it is contended that Mr. Evarts so admitted, and that these admissions cover the point now in controversy. For Mr. Evarts' language suffices to show that

37

MR. EVARTS.

(1.) The liberty accorded by the treaty was an ordered and regulated liberty, and not an unlimited licence.

(2.) It was one which was to be subject to such laws as were— within the reasonable province of local civil jurisdiction.

(3.) And such laws would, therefore, not modify or affect "the engagements of the treaty;" but, on the contrary, would be a fulfilment of it. Would not the United States have had fair ground of complaint if the United Kingdom had failed to do that which was essential for the preservation of the fisheries, fisheries in which the United States were interested, but which they themselves could not protect?

LORD SALISBURY'S DESPATCH, 1880.

Reliance has been placed by the Government of the United States upon some expression in Lord Salisbury's despatch of the 3rd April, 1880, which refers to the fact that American fishermen took the rights conferred by the treaty subject to any restrictions upon British fishermen which existed at the date of the treaty. It is, however, submitted that Lord Salisbury's despatch, read as a whole, contains no admission that regulations with regard to the exercise of the fishing could not be passed by the British or Colonial legislatures subsequent to the treaty. Confirmation of this is to be found in the passages which have been already quoted from the letter of Lord Salisbury to Mr. Welsh of the 7th November, 1878. (Ante, p. 32.)

LORD GRANVILLE'S STATEMENT, 1880.

The position of His Majesty's Government is summed up with perfect clearness by Lord Granville, who succeeded Lord Salisbury as Foreign Secretary, in his despatch of the 27th October, 1880, to Mr. Lowell. Lord Granville said (App., p. 289) :

In the first place, I desire that there should be no possibility of misconception as to the views entertained by Her Majesty's Government respecting the conduct of the Newfoundland fishermen in violently interfering with the United States fishermen, and destroying or damaging some of their nets. Her Majesty's Government have no hesitation in admitting that this proceeding was quite indefensible, and is much to be regretted. No sense of injury to their rights, however well founded, could, under the circumstances, justify the British fishermen in taking the law into their own hands, and committing acts of violence; but I will revert by and by to this feature

38

in the case and will now proceed to the important question raised in this controversy, whether, under the Treaty of Washington, the United States fishermen are bound to observe the fishery regulations of Newfoundland in common with British subjects. Without entering into any lengthy discussion on this point, I feel bound to state that, in the opinion of Her Majesty's Government, the clause in the Treaty of Washington which provides that the citizens of the United States shall be entitled, " in common with British subjects," to fish in Newfoundland waters within the limits of British sovereignty, means that the American and the British fishermen shall fish in these waters upon terms of equality; and not that there shall be an exemption of American fishermen from any reasonable. regulations to which British fishermen are subject.

Her Majesty's Government entirely concur in Mr. Marcy's circular of the 28th March, 1856. The principle therein laid down appears to them perfectly sound, and as applicable to the fishery provisions of the Treaty of Washington as to those of the treaty which Mr. Marcy had in view. They cannot, therefore, admit the accuracy of the opinion expressed in Mr. Evarts' letter to Mr. Welsh of the 28th September, 1878, "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," if by that opinion anything inconsistent with Mr. Marcy's principle is really intended. Her Majesty's Government, however, fully admit that, if any such local statutes could be shown to be inconsistent with the express stipulations, or even with the spirit of the treaty, they would not be within the category of those reasonable regulations by which American (in common with British) fishermen ought to be bound; and they observe, on the other hand, with much satisfaction, that Mr. Evarts, at the close of his letter to Mr. Welsh of the 1st August, 1879, after expressing regret at "the conflict of interests which the exercise of the treaty privileges enjoyed by the United States appears to have developed," expressed himself as follows:

There is no intention on the part of this [the United States'] Government that these privileges should be abused, and no desire that their full and free enjoyment should harm the colonial fishermen.

While the differing interests and methods of the shore fishery and the vessel fishery make it impossible that the regulation of the one should be entirely given to the other, yet if the mutual obligations of the treaty of 1871 are to be maintained, the United States' Government would glady co-operate with the Government of Her Britannic Majesty in any effort to make those regulations a matter of reciprocal convenience and right, a means of preserving the fisheries at their highest point of production, and of conciliating a community of interest by a just proportion of advantages and profits.

39

Her Majesty's Government do not interpret these expressions in any sense derogatory to the sovereign authority of Great Britain in the territorial waters of Newfoundland, by which only regulations having the force of law within those waters can be made. So regarding the proposal, they are pleased not only to recognize in it an indication that the desire of Her Majesty's Government to arrive at a friendly and speedy settlement of this question is fully reciprocated by the Government of the United States, but also to discern in it the basis of a practical settlement of the difficulty; and I have the honour to request that you will inform Mr. Evarts that Her Majesty's Government, with a view to avoiding further discussion and future misunderstandings, are quite willing to confer with the Government of the United States respecting the establishment of regulations under which the subjects of both parties to the Treaty of Washington shall have the full and equal enjoyment of any fishery which under that treaty is to be used in common. The duty of enacting and enforcing such regulations, when agreed upon, would, of course, rest with the Power having the sovereignty of the shore and waters in each case.

CESSATION OF DISCUSSION, 1880-1905.

Discussion as to regulations was apparently found to be unnecessary, and was never undertaken; Mr. Blaine succeeded Mr. Evarts as Secretary of State; indemnity for the Fortune Bay affair was agreed upon (with special reservation of respective opinions as to treaty rights); and the suggestion of joint regulations disappeared. British cruisers continued to patrol the fishing grounds; the local laws were enforced as before; and for many years no complaint. or protest was heard of.

CORRESPONDENCE, 1905-6.

1905. The United States objected (19th October, 1905) to a Newfoundland statute, upon the ground that, under its provisions, United States fishing vessels might be seized for doing that which the treaty permitted them to do. (App., p. 757.) In reply. Sir Edward Grey (2nd February, 1906) pointed out that the clauses. of the statute to which objection had been taken, were controlled by another clause which preserved (App., p. 494)—

the rights and privileges granted by treaty to the subjects of any State in amity with His Majesty.