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to resume the consideration of these differences in the same spirit, and with the sare 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)
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 selfevident (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.
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
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
(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"
(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
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—
(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 werewithin 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 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.