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Indians dwelling on either side of the said boundary line, freely to pass and repass by land or inland navigation into the respective territories and countries of the two parties on the continent of America (the country within the limits of the Hudson's Bay Company only excepted), and to navigate all the lakes, rivers, and waters thereof, and freely to carry on trade and commerce with each other.
In such a case, no one would suggest that British subjects were to be free from United States law when trading upon United States territory. No one would pretend that the only United States laws that could apply to them were those that were in force at the date of the treaty. No one would argue that the treaty permission was a qualification of United States sovereignty. And no one would doubt that the United States could afterwards enact (without anticipation of British remonstrance) such laws as it pleased, regulative of all the actions of British subjects while upon United States territory, provided that no discrimination, injurious to British subjects, were made between them and United States citizens, and that the rights conferred by the treaty were not nullified.
Some of such laws, indeed, the British Government might possibly not have approved, but Her Majesty's Government could not question the right of the United States to settle such questions for its own people, and for all persons coming within its jurisdiction.
TREATY OF 1854.
The Reciprocity Treaty of 1854.-Still more applicable and pertinent is the illustration afforded by the Reciprocity Treaty between Great Britain and the United States, section one of which provided as follows (App., p. 36) :—
It is agreed by the High Contracting Parties that in addition to the liberty secured to the United States fishermen by the above-mentioned convention of October 20, 1818, of taking, curing, and drying fish on certain coasts of the British North American Colonies therein defined, the inhabitants of the United States shall have, in common with the subjects of Her Britannic Majesty, the liberty to take fish of every kind, except shell-fish, on the sea-coasts and shores and in the bays, harbours, and creeks of Canada, New Brunswick, Nova Scotia, Prince Edward's Island, and of the several islands thereunto adjacent, without being restricted to any distance from the shore, with permission to land upon the coasts and shores of those colonies and the islands thereof, and also upon the Magdalen Islands, for the purpose of drying their nets and curing their fish; provided that, in so doing, they do not interfere with the rights of private property or with British fishermen in the peaceable use of any part of the said coast in their occupancy for the same purpose.
Upon this language, which, so far as the present controversy is concerned, cannot be validly distinguished from the language of the treaty under discussion, no such contention was ever made as that which the United States now puts forward.
As has already been shown in detail, American fishermen were uniformly held to be subject to the local regulations; and that they were so subject was explicitly recognized in Mr. Marcy's circular. (Ante, p. 28.)
THE ST. LAWRENCE.
Navigation Regulations in the Gulf of St. Lawrence.-On account of their ownership of territory abutting on a part of the River St. Lawrence, the United States always claimed a natural right to navigation of that part of the river between them and the sea, and finally a certain right was conceded to them. But the United States never asserted that the natural right which they claimed exempted their vessels from amenability to the local regulations as to navigation.
TREATY OF 1871.
Again, section 27 of the Washington treaty of 1871, between Great Britain and the United States, provided for the use by citizens of the United States
of the Welland, St. Lawrence, and other canals in the Dominion on terms of equality with the inhabitants of the Dominion; and the Government of the United States engages that the subjects of Her Britannic Majesty shall enjoy the use of the St. Clair Flats Canal on terms of equality with the inhabitants of the United States.
But it has never been contended that citizens of either country were to be exempt from the local laws of the other country when within its territory. No one has suggested that "on terms of equality" (similar in meaning to the words "in common" in the treaty under discussion) meant that although the citizens of both countries were subject to law when at home, they were free from law when abroad.
The true construction of the treaty of 1818 is opposed to the contention of the United States. The terms of article one are not ambiguous: they give certain definite liberties, and they give nothing more. There is no suggestion of any exemption from British jurisdiction, nor is there any expression in that article, or any other article, which in any way points to such a construction. If it had been intended to derogate from British sovereignty, express provisions would have been introduced, such, for instance, as are to be found in the treaties with Eastern Powers which confer extraterritorial rights.
Not only are there no express words in article one to limit British sovereignty, but the terms of the article are inconsistent with any
implied reservation of that kind. The liberty granted is expressed to be a liberty "in common" with British fishermen. Now, there can be no pretence that British fishermen are not subject to the sovereign power of His Majesty, and these words show that American fishermen are to have the same liberty as British fishermen, but no more. If they were to have the liberty free from the control of the sovereign power, the liberty to fish at any time or at any season, in any place, and with any kind of net or other instrument, then it is evident that they would have, not a common liberty, but a liberty much greater than that enjoyed by British fishermen.
Liberty to enter foreign territory, and to trade there, or fish there, does not imply exemption from the local law, nor freedom to act as each one pleases. It means, of course, to trade or fish subject to the local laws regulative of such actions.
Under the treaty in question United States fishermen have liberties on the land as well as on the water. They have "the liberty to take fish" in the water, and "to dry and cure fish" on the land. And they are either free from, or subject to, the local laws both afloat and ashore; for it is clear that their operations may be reasonably controlled in one place and not in the other.
It can not be contended that a treaty which gives to an alien, liberty to enter United States territory (for example) and to do certain acts there, renders him exempt from all the municipal laws of the United States which have never been sanctioned by the alien's Government. Japanese, for example, have treaty liberty to enter the United States and transact business there; does the United States ask Japan's approbation of its laws before applying them to Japanese?
The argument is, of course, quite as strong when applied to territorial waters as when applied to land, for as Hautefeuille says:
Les parties de la mer qui baignent les côtes, qui les avoisinent immédiatement et leur servent en quelque sorte de frontières, sont ce que tous les publicistes ont appelé les mers territoriales. D'après les principes du droit primitif, l'océan est libre. Il n'en est pas de même pour les mers territoriales; elles sont, aucontraire, soumises à la souveraineté de la nation maîtresse de la côte baignée par elles; elles sont sous sa domination de la même manière et au même titre que la terre. Ce n'est pas une dérogation aux règles immuables de la loi primitive, c'est seulement une exception au principe général, exception dérivée de cette loi même, et qui repose sur la nature de la mer territoriale, de l'absence des conditions qui mettent l'océan hors de la possession humaine."
Article one of the treaty under discussion gives to the inhabitants of the United States, liberty to fish on certain parts of the coasts of British territory. The term "liberty," as here used, is equivalent merely to permission. It is true that when granted by treaty it
"Des droits et des Devoirs des Nations Neutres," 2nd ed. vol. i, p. 83.
became as between Great Britain and the United States a matter of right, but there can be no question as to the extent of what was granted. It was merely permission to fish, in common with British fishermen, and was necessarily subject to the right of regulation by the Government of the country, inasmuch as, in the absence of such regulation, the subject-matter of the grant might itself be destroyed.
EFFECT OF UNITED STATES CONTENTION.
The view contended for by the United States would appear to involve the most extraordinary consequences. They assert that only with the consent of the United States, can American fishermen be subjected to regulations made by the British parliament. It follows that, failing such consent, either the American fishermen are to be subject to no regulations at all, or that the American Government is to have the exclusive right of framing regulations which are to govern the action of American fishermen in British territory. Both alternatives are equally impossible. It is obvious that American fishermen must be subject to regulation, and that anarchy on these fisheries is impossible. It is equally obvious that the American Government cannot have the right to frame regulations to be enforced within British territory. Any provision conferring such power would amount to a partition of sovereignty such as has found place only in treaties with Oriental States, and is wholly out of place as between such countries as Great Britain and the United States. Indeed, no such contention appears to be put forward on behalf of the United States, and the point is referred to here only as illustrating the inherent absurdity of the contention that, for the purpose of such regulations, the concurrence of the American Government is necessary.
EFFECT OF WAR OF 1812.
It has from time to time been earnestly contended by the United States that the war of 1812 did not terminate the liberties to take and dry and cure fish which were granted by the treaty of 1783; that the treaty of 1783 merely recognised and continued the rights which the fishermen of the United States possessed as subjects of the British Crown before the Declaration of Independence; and that the treaty of 1818, in its turn, recognised and continued existing rights. This view has always been repudiated by Great Britain, and, for reasons which will be submitted to the Tribunal if reliance is placed on this contention in the United States Case, cannot be sustained.
But even if this suggestion on the part of the United States were sound, it is difficult to see how it is reconcilable with their contention on the question which is now under consideration. For if the citizens of the United States are now enjoying the rights
which they formerly enjoyed as subjects of the British Crown, and their present rights are merely in continuation of those former rights, the rights which they can now assert are not greater than those which they could have maintained in the period before the Declaration of Independence; for the contention is that they are the same rights recognised and continued by the two treaties. Now, before the war of Independence it is indisputable that these rights of fishing were subject to control and regulation by the British parliament, which could have prescribed the times, the seasons, and the manner in which the fishing was to be carried on; and any such legislation would have bound the inhabitants of the thirteen colonies, which subsequently became the United States of America, in the same way and to the same extent as it would have been binding upon any other subjects of the British Crown. If, then, the right or liberty of fishing which is enjoyed by the inhabitants of the United States under the treaty of 1818 is the same, in respect of the more limited area defined by the treaty, as the right which they enjoyed as British subjects, that right or liberty is subject to regulation by British legislation.
It is therefore submitted on the part of Great Britain that the exercise of the liberty conferred by the treaty is subject to reasonable regulation by Great Britain, Canada, and Newfoundland with reference to the various matters mentioned in question No. 1, and that, for the validity of such regulations, the consent of the United States is not necessary.