The Legislature of Newfoundland, by an act of May 5, 1873, undertook to give its consent to the treaty and to admit the United States to the full benefit of the fishing privileges of the treaty, but in suspending in favor of the United States all laws in conflict with the treaty, a proviso was added "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." This act of the Newfoundland Legislature was brought to the attention of Mr. Fish, then Secretary of State, and he was asked by the British minister, Sir Edward Thornton, to advise the President to issue a proclamation that Newfoundland had complied with the treaty requirements and was entitled to the benefit of its provisions." Mr. Fish, in a reply dated June 25, 1873, referred to the proviso in the Newfoundland act, stating that from the note of the British minister it would appear that the proviso contemplated a restriction in point of time of the herring fishery, and declared that the treaty placed no limitation of time upon the right of taking fish, and therefore that the Newfoundland act did not appear to be such consent to the application of the treaty to Newfoundland as was contemplated by the act of Congress. He declined, accordingly, to advise the President to issue the proclamation. The British Government, through its diplomatic representative at Washington and the colonial authorities of Newfoundland, struggled unsuccessfully against the position taken by Mr. Fish, and finally, recognizing the force of his objection and yielding to it, Newfoundland, on March 28, 1874, amended the act by eliminating the objectionable proviso. THE MARCY CIRCULAR. On June 16, 1855, the lieutenant-governor of New Brunswick sent to Mr. Crampton, British minister at Washington, a copy of the laws and regulations of New Brunswick governing the fisheries in that Province, for the purpose of having the latter submit them to the Government of the United States with the view of securing their approval by that Government and bringing them to the atten a U. S. Counter Case, 34; Appendix, 87. tion of American fishermen, then lately admitted to fish in New Brunswick waters by the treaty of 1854. As a result Mr. Crampton subsequently had an interview with Mr. Marcy, Secretary of State of the United States, and on July 12, 1855, Mr. Marcy prepared and sent to the collector of customs of Boston a circular on the subject." The British Government raised some objection to a clause in the circular, and the correspondence, which followed, between Mr. Marcy and Mr. Crampton and the positions taken by the two Governments are fully discussed in the Counter Case of the United States. In the communication from Mr. Crampton to Mr. Marcy concerning the draft of the circular sent to him for comment, Mr. Crampton suggested, as a substitute for the clause objected to, the following: "American citizens would, indeed, within British jurisdiction, be equally liable with British subjects to the penalties prescribed by law for a willful infraction of such regulations." a Mr. Marcy declined to accept the language suggested, but inserted instead the following clause: By granting the mutual use of the inshore fisheries neither party has yielded its right to civil jurisdiction 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 favor of the 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. Mr. Marcy was here considering, first, the obligatory force of the laws of the two nations generally, and, second, their obligatory force when taken in connection with the reciprocity treaty. As to the first he recognized the full jurisdiction of each nation over its territory; but, as to the second, he conceded the binding force of the laws only when "not in conflict with the reciprocity treaty;" as will be seen when the entire circular is read, he enjoined on fishermen of the United States obedience to the local laws and an appeal to their Government if such laws were so framed or enforced as to injuriously affect their rights. The direction to obey the local laws without a U. S. Counter Case, 29; British Case, Appendix, 205. British Case, Appendix, 207. U. S. Counter Case, 29-32. British Case, Appendix, 210-211. reference to their character was in the interest of comity and good order. That Mr. Marcy was speaking of the obligatory effect within the British jurisdiction of the British laws regulating the fisheries in a de facto sense is evident. That view had been suggested to him by Mr. Crampton, and Mr. Marcy's purpose was to prevent a collision between the fishermen and the authorities, which might have resulted from a refusal of the American fishermen to observe the local laws, which Mr. Crampton had stated the provincial magistrates would have no choice but to enforce. The United States contends that all that this correspondence shows is that Great Britain submitted certain existing colonial laws and regulations to the Secretary of State of the United States and secured the approval of the latter and his direction to American fishermen to observe such laws and regulations. Mr. Marcy approved them provisionally as reasonable and desirable, but reserved the right to the United States to pass on them if in their practical application they should prove to be "so framed or executed as to make any discrimination in favor of the British fishermen, or to impair the rights secured to American fishermen by that treaty." Read in the light of these facts, it is submitted that there is nothing in the Marcy circular which conflicts with the position now assumed by the United States. THE BOUTWELL CIRCULAR. On June 9, 1870, Mr. Boutwell, Secretary of the Treasury of the United States (not Secretary of State, as erroneously stated in the British Case), issued a circular informing American fishermen of the status of their fishing rights on the non-treaty coasts under the treaty of 1818. In that circular Mr. Boutwell made the statement that "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." d It is shown in the Counter Case of the United States that this circular related only to the Canadian non-treaty coasts, on which the @ British Case, 13. British Case, Appendix, 237-249. U. S. Counter Case, 37-39. license system for foreign fishing vessels had been lately discontinued by the Canadian government. There was no controversy at that time of any kind about American rights on the treaty coasts, and it was necessary for the British Case to detach from its context the statement of Mr. Boutwell in order to give it an unwarranted application to the treaty coasts. THE HALIFAX ARBITRATION AND AWARD. Under the treaty of 1871, which in its grant of fishing rights is in effect the same as with that of 1818; that is to say, the right was to inhabitants of the United States in common with British subjects, the question whether the fishing rights of Americans in the British inshore waters exceeded in value those of the British in American inshore waters plus the commercial rights conceded to Great Britain by the treaty, and, if so, to what extent, was submitted to the Halifax tribunal consisting of one arbitrator from each nation and a neutral umpire. The proceeding was an international arbitration and each nation submitted its case in due and regular form and followed that submission with written and oral arguments. The British case claimed an award against the United States of $2,880,000 for the new fishing privileges on the coasts of Newfoundland, and of $12,000,000 for those on the other coasts of British North America, or a grand total of $14,880,000." The Tribunal awarded against the United States the payment of the gross sum of $5,500,000. An examination of the case presented by Great Britain at Halifax in support of its demand will show: First. That Great Britain then assumed, for the purposes of the enormous award which it claimed against the United States and which it received, although not to the full extent claimed, that the grant of a fishing right to inhabitants of the United States "in common" with British subjects was not the restricted right now claimed to be implied by those words, but that the grant ceded and conveyed the entire freedom of the fisheries in their natural extent. Second. That this entire freedom extended to the point of depleting and possibly destroying, the inshore fisheries through the unlimited exercise of such right in any and all seasons of the year, and a U. S. Counter Case, Appendix, 555. U. S. Case, Appendix, 1115. with any means and implements which the American fishermen might see fit to employ. Not only was there no suggestion of any control by Great Britain which might limit the enjoyment of the right and thereby diminish the damages, which Great Britain was demanding from the United States, but on the contrary the British case is filled with suggestions negativing any such control by future legislation. More than that, it would have been impossible for Great Britain to have presented any evidence of the value of a fishery, the extent of which was dependent on laws to be made by her from time to time limiting the enjoyment of the fishery. Accordingly there is found throughout the British case submitted at Halifax the broadest statements of the complete freedom from restraint of the fishery granted to the United States, and of the right of the United States to fish without limitations as to time or the instrumentalities to be employed. It was even suggested that fishing might be carried on to the extent of depleting and destroying the inshore fisheries." The treaty of 1871, in its words descriptive of the nature of the right granted, is in effect the same as that of 1818. The right is described in the treaty of 1871 as" in addition to the liberty secured " by the treaty of 1818. Lord Salisbury, in his letter of April 3, 1880, described the rights granted by the treaty of 1871 as "superadded" to those of the treaty of 1818. The United States submits, therefore, that the contention of Great Britain upon which the Halifax award was made was more than a mere action taken on a cognate subject, to be applied by analogy to the present controversy as to the true meaning of corresponding provisions in the treaty of 1818. It was an action on the identical subjectmatter now being litigated, and such as would be binding and conclusive between individuals under the municipal law of the two countries, and, it is believed, under the municipal law of every country. It was also an action which, without reference to the binding effect of the award would constitute an equitable estoppel in the municipal courts of the United States and Great Britain, where parties are not permitted to take inconsistent positions when it would be inequitable for them to do so. Assuming that an international tribunal engaged in applying the principles of international law will be not less insistent than the U. S. Counter Case, Appendix, 532, 535, 538, 542, 547, 550, 552, 562. 92909°-S. Doc. 870, 61-3, vol 8——6 |