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to depend solely on the good feeling or good sense of the individuals who may at any time happen to be engaged in those fisheries.
In reply the Earl of Clarendon said (11th October, 1855) (App., p. 208) :
28 By the Reciprocity Treaty between this country and the United States, American citizens are admitted to the benefit of certain fisheries carried on in British waters in common with Her Majesty's subjects. It follows as a necessary consequence that such American citizens are bound to observe the existing laws and regulations established for the conduct of such fisheries by which British subjects are bound. This is necessarily implied in the very words of the article of the treaty, but independently of all agreement, it would follow, on general principles, that American fishermen pursuing their occupation within British territory would be bound to observe the local laws and regulations in like manner as all foreigners are bound to observe the municipal laws of the country in which they are resident.
It is indeed literally true, as Mr. Marcy states, that there is no express stipulation in the Reciprocity Treaty which bids American citizens to observe the British colonial regulations, but the obligation to do so did not require a stipulation; it attaches upon American citizens as soon as they claim the benefit of the Treaty.
Upon those instructions Mr. Crampton had a conversation with Mr. Marcy. He pointed out the objections to the language of the circular, and proceeded as follows (App., p. 210.) :—
I admitted, I said, that if any of those laws were framed or executed so as to make an unfair discrimination in favour of British fishermen, or directly or indirectly to deprive American fishermen of the privileges secured to them by the Reciprocity Treaty, this would afford just ground for representation to Her Majesty's Government by the Government of the United States. But I called Mr. Marcy's attention to the danger of allowing to each individual the right to judge for himself whether a regulation was in conformity with the provisions of the Treaty or not, and at once to object to observe it.
Mr. Marcy appeared entirely to concur in this view of the matter, and said that he would cause such an alteration to be made in the wording of the circular instruction to be issued for the approaching fishing season as would obviate the objection which I had put
MR. MARCY'S NEW CIRCULAR, 1856.
Mr. Marcy shortly afterwards sent to Mr. Crampton the draft of a new circular in which Mr. Crampton made certain amendments, and Mr. Marcy issued (28th March, 1856) another circular, in which he said (App., pp. 209, 211.) :—
It is deemed reasonable and desirable that both United States and British fishermen should pay a like respect to such laws and regulations, which are designed to preserve and increase the productiveness of the fisheries on those coasts. Such being the object of 29 these laws and regulations, the observance of them is enjoined
upon the citizens of the United States in like manner as they are observed by British subjects. By granting the mutual use of the inshore fisheries, neither party has yielded its right to civil jurisdiction over a marine league along its coast. Its laws are as obligatory upon the citizens or subjects of the other as upon its own. The laws of the British provinces, not in conflict with the provisions of the Reciprocity Treaty, would be as binding upon citizens of the United States within that jurisdiction as upon British subjects. Should they be so framed or executed as to make any discrimination in favour of the British fisherman, or to impair the rights secured to American fishermen, by that Treaty, those injuriously affected by them will appeal to this Government for redress.
The circular carried the same appendix as that of the previous season, indicative of the effect of the existing British regulations.
THE STATUS QUO ANTE.
The status quo ante was thus recognised, and the present contention of His Majesty's Government is, in effect, adopted in Mr. Marcy's revised circular.
Among the regulations which were recognized as not "impairing the rights secured to American fishermen by that treaty" were such as those which then existed in New Brunswick (1) as to disposal of offal, (2) as to methods of fishing, and (3) as to close seasons.
The regulations to which Mr. Marcy specifically referred were, however, only some of those then in force in the colonies. Mr. Marcy was aware of that fact, for the appendix to his circular commenced with the words (App., p. 209.)—
It is believed that the principal regulations, &c.
But whatever the nature of them might be, Mr. Marcy recognized that they were binding upon United States fishermen, unless they were in conflict with the provisions of the treaty.
MR. CARDWELL'S INSTRUCTIONS.
1866-1870.-Mr. Cardwell (British Colonial Secretary) in a letter to the Lords of the Admiralty (12th April, 1866) said (App., p. 221.) :
Americans who exercise their right of fishing in Colonial waters in common with subjects of Her Majesty are also bound, in common with those subjects, to obey the law of the country, including such colonial laws as have been passed to ensure the peaceable and profitable enjoyment of the fisheries by all persons entitled thereto.
The enforcement of the colonial laws must be left as far as 30 the exercise of rights on shore is concerned, to the colonial authorities, by whom Her Majesty's Government desire they shall be enforced with great forbearance, especially during the present season. In all cases they must be enforced with much forbearance and
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.
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.
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.
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 ruption.
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) :—
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 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