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This despatch appears to concede that effective legislative regulation of the treaty territory and rights is both possible and necessary; and there can, of course, be no such regulation if any of the fishermen are not amenable to it. This must mean that such effective legislation was in the contemplation of the negotiators of the treaty, and is consistent with the treaty rights.
EFFECT OF UNITED STATES CONTENTION.
If the contention that the two Governments must agree upon joint regulations for the control of the fishermen of both countries be sound, it follows that, in the absence of agreement, the fishery is left without regulation at all, so far at least as American fishermen are concerned. This is equivalent to giving them a right to destroy the subject-matter of the treaty.
The logical result of the contention of the United States as formulated in this despatch would seem to be that:
(1.) Regulations are necessary.
(2.) To be effective they must apply to all fishermen, both British and American.
(3.) Legislation necessary to give validity to such regulations must be enacted by Great Britain; but by force of the treaty, Great Britain is prohibited from exercising this right of legislation until the United States has expressed approval or concurrence.
There is no trace in the treaty of any intention that the power of regulation by Great Britain should be curtailed. Great Britain
does not claim the right to destroy that which is conceded by the treaty to American fishermen, but the right only to make regulations which are necessary or desirable for the preservation of the fisheries for the benefit of British and American fishermen alike.
CONTENTIONS OF HIS MAJESTY'S GOVERNMENT.
The position assumed by His Majesty's Government is generally indicated by the following propositions:
1. His Majesty has sovereign power over the territory in question. 2. The exclusive right to legislate with regard to the conduct of the fisheries in the territory in question resides with the British and Colonial legislatures.
3. The United States has no share in such sovereignty.
4. The treaty of 1818 did not transfer or abandon the complete sovereignty of Great Britain over the treaty waters and territory in question.
5. The sovereignty of Great Britain existed independently of the treaty altogether. It is in no way dependent upon the treaty,
6. Subjection to British legislative control was inherent in, and formed an essential part of, the very subject-matter of the treatythe taking of fish in British waters.
7. The effect of the treaty stipulation was to confer upon inhabitants of the United States a liberty to participate in this subjectmatter, with its necessary subjection to legislative control.
8. The language of the treaty does not suggest that the conferring of this liberty involved any surrender of control, or any alteration in the characteristic qualities of the subject-matter. On the contrary, the liberty granted was expressed to be a liberty in common with British fishermen, as to whom there could be no pretence that the treaty abandoned any attribute of sovereignty or changed any quality of its subject-matter.
9. The treaty simply operated as an agreement by which Great Britain undertook not to exercise her sovereignty so as to nullify the liberty conferred by the treaty to participate in taking fish in British waters, or so as to make unfair discrimination in favour of her own subjects, or against American inhabitants resorting to the treaty
10. By the very fact of resorting to the treaty waters in assertion of the treaty liberty, American inhabitants come under the obligation to observe the regulative legislation found in operation there from time to time.
11. The contention of the United States appears to be that the British Government cannot make any regulations, however necessary for the preservation of the fisheries, without the concurrence of the United States. It is not, and cannot be contended that the United States can themselves make such regulations, and it is submitted that it is impossible to find in the treaty any provision that the sovereignty of His Majesty, in respect of the territory in question, is to be subject to the veto of the United States Government. Such a provision would be contrary to all principle, and unworkable in practice.
HISTORY OF THE QUESTION.
ABSENCE OF DIFFICULTY, 1783-1878.
From 1783 to 1878 British and Colonial laws, regulative of the fisheries, were enforced against British and American fishermen alike. without any contention being raised that American fishermen were exempt from their operation, or that, for their control, the concurrence of the United States was necessary.
According to present United States contention, regulations should have been drawn up in 1783, and again in 1818, and submitted to the United States for approval. That was not done. Nobody sug92909°-S. Doc. 870, 61-3, vol. 4- 3
gested the doing of it. Everybody acted as though it were unnecessary. British officials enforced the existing laws. The legislatures amended them from time to time, as experience proved to be necessary. United States fishermen treated them as operative and binding. The United States Government made no complaint.
In 1856, and on several occasions between 1866 and 1872, the attention of the United States Government was called to the necessity of fishermen obeying Colonial laws, but no objection was taken. It was not until 1878 that the present contention was first raised.
BRITISH STATUTE, 1819.
1819.-Immediately after the execution of the treaty of 1818, the British Parliament passed a statute for the express purpose of providing for the making of such regulations as might be rendered necessary by the access of United States fishermen to the shore fisheries. (App., p. 565.) After reciting the treaty, the statute (59 Geo. III, c. 38) enacted
That from and after the passing of this Act, it shall and may be lawful for His Majesty, by and with the advice of His Majesty's Privy Council, by any order or orders in council, to be from time to time made for that purpose, to make such regulations, and to give such directions, orders, and instructions to the Governor of Newfoundland, or to any officer or officers on that station, or to any other person or persons whomsoever, as shall or may be from time to time deemed proper and necessary for the carrying into effect the purposes of the said convention, with relation to the taking, drying, and curing of fish by inhabitants of the United States of America, in common with British subjects, within the limits set forth in the said article of the said convention, and hereinbefore recited; any Act or Acts of Parliament, or any law, custom or usage to the contrary in anywise notwithstanding.
No protest or complaint was ever made by the United States with respect to that statute.
MR. MARCY'S CIRCULAR, 1853.
1853.-Encroachments by United States fishermen had rendered necessary greater vigilance in the protection of British rights, and some excitement having arisen among the American vessel owners, Mr. Marcy (United States Secretary of State) issued a circular to the Directors of Ports (9th July) for the guidance of the fishermen (App., p. 201):
Any armed resistance on the part of the fishing vessels, either singly or combined, would be an act of private hostility which can never receive any countenance from this Government.
You will omit nothing that your knowledge of the circumstances may suggest, and which our good faith towards a Power with which.
we are, and desire to remain, at peace demands, to prevent any rash or illegal movements intended or calculated to violate our obligations towards a friendly foreign Power and our colonial neighbours.
I have been directed by the President to invite your prompt and personal attention to this matter, and to assure you that he places entire confidence in your active and judicious exertions to soothe the present irritation of popular feeling, excited in some instances, it is said, by unfounded reports of alleged violation of our national rights. Every good citizen should be solicitous to prevent any occurrence which may further excite that feeling. No violation of the colonial local law should be attempted, and their civil authorities and other officers should have due respect paid to them within their jurisdiction. In case of insult to the American flag or of injury to our fishermen, you will request them to transmit the particulars, properly substantiated, to the Department of State instead of attempting to settle the difficulties themselves.
RECIPROCITY TREATY, 1854.
1854. By the Reciprocity treaty of 1854, the British coast fisheries, which had been closed against United States fishermen, were opened to them, the operative words being that (App., p. 36)— the inhabitants of the United States shall have in common with the subjects of Her Britannic Majesty the liberty to take fish.
Reciprocally, certain United States coast fisheries were opened to British fishermen.
MR. MARCY'S CIRCULAR, 1855.
1855. At the commencement of the ensuing season, the United States Secretary of State (Mr. Marcy) sent (12th July, 1855) the following circular to the various Collectors of Customs (App., p. 207):
It is understood that there are certain Acts of the British North American colonial legislatures, and also, perhaps, Executive Regulations, intended to prevent the wanton destruction of the fish which frequent the coasts of the colonies and injuries to the fishing thereon. There is nothing in the Reciprocity Treaty between the United States and Great Britain which stipulates for the observance of these regulations by our fishermen; yet, as it is presumed, they have been framed with a view to prevent injuries to the fisheries, in which our fishermen now have an equal interest with those of Great Britain, it is deemed reasonable and desirable that both should pay a like respect to those regulations, which were designed to preserve and increase the productiveness and prosperity of the fisheries themselves. It is, consequently, earnestly recommended to our citizens to direct their proceedings accordingly. You will make this recommendation known to the masters of such fishing vessels as belong to your port, in such manner as you may deem most advisable.
I am, &c.
W. L. MARCY.
It is believed that the principal regulations referred to above are the following, from the Revised Statutes of New Brunswick, vol. i, title 22, cap. 101:
7. The wardens of any county shall, when necessary, mark out and designate in proper positions "gurry grounds," putting up notices thereof, describing their limits and position, in the several school houses and other most public places in the parish where the said gurry grounds are marked out, publishing the like notice in the
Royal Gazette;" and no person after such posting and publication shall cast overboard from any boat or vessel the offal of fish into the waters at or near the said parish at any place except the said gurry
12. Within the parishes of Grand Manan, West Isles, Campo Bello, Pennfield, and St. George, in the County of Charlotte, no seine or net shall be set across the mouth of any haven, river, creek, or harbour, nor in such place extending more than one-third the distance across the same, or be within 40 fathoms of each other, nor shall they be set within 20 fathoms of the shore at low-water mark.
15. No herrings shall be taken between the 15th of July and 15th of October in any year, on the spawning ground at the southern head of Grand Manan, to commence at the eastern part of Seal Cove, at a place known as Red Point; thence extending westerly along the coast and around the southern head of Bradford's Cove, about five miles, and extending one mile from the shore; all nets or engines used for catching herring on the said ground within that period shall be seized and forfeited, and every person engaged in using the same shall be guilty of a misdemeanour and punished accordingly.
It will be observed that the specified rules belonged to three classes: (1) as to disposition of offal; (2) as to methods of fishing; and (3) as to close seasons. Attention of His Majesty's Government was called to this circular, and representations were at once made to Mr. Marcy on the subject.
The British Minister at Washington (Mr. Crampton) in his letter to the Earl of Clarendon (7th August, 1855) explained the view which, in these representations, he was urging upon Mr. Marcy— a view precisely the same as that now entertained by His Majesty's Government (App., p. 208) :
It appears to me that American citizens, while within British jurisdiction, would be subject to the penalties attached to the infringement of all legal regulations, local, as well as general, by which British subjects are bound; and not less to those affecting the fisheries, provided always that these latter did not trench upon the rights secured by treaty to citizens of the United States. Did any such law or police regulation exist, or were any such to be enacted, the Government of the United States would no doubt be justified in demanding its abrogation;-but the principle now enounced by Mr. Marcy extends much further, for it goes to exonerate American citizens from the penalties attaching to the violation of all British laws and regulations, however unobjectionable, now affecting, or which may hereafter affect, the British fisheries; and leave their observance