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of a fisherman for larceny or for an assault and battery and other like breaches of the local law, impair such faculty. Of this character are laws or regulations against the casting of stones or ballast, the offal of fish and other deleterious matter into the waters of harbors. Since such regulations are chiefly of local concern and do not limit and impair the American fishing right, obedience to them, by American fishermen, may properly be asked by Great Britain.

It should be repeated in this connection that a decision of this Tribunal against the contention of Great Britain does not mean that the fisheries are to go unregulated or unprotected. The United States is as desirous as Great Britain of maintaining the productiveness of the fisheries, in which it has a joint and equal right, and will always be ready, as it has been in the past, to join in making appropriate regulations which are equitable and fair between the fishermen of the two nations, if any are found to be necessary.

REGULATIONS REFERABLE TO PUBLIC MORALS.

With reference to regulations desirable on grounds of public morals, the United States does not controvert the right of Great Britain to make laws in the interest of public morals, but, with one possible exception, there does not seem to be any relation whatever between public morals and regulations governing the hours, days, or seasons when fish may be taken or the method, means, and implements used in the taking of fish. It may be that a prohibition against fishing on Sunday would come within the category of a regulation desirable on the ground of public morals. No other regulation, however, now in force or ever in force on the treaty coasts, relating to the time or manner of fishing, has any relation to public morals, and it is difficult to imagine any other possible regulation of that character which could have such relation. It may fairly be assumed then, that in so far as the British contention in this Question predicates any regulations on public morals, the regulations contemplated were those prohibiting fishing in territorial waters on Sunday.

Sunday observance, it may be admitted, is an important matter, but the civilized countries of the world hold widely divergent views concerning the proper regulation thereof, and it seems rather a strained application of any principle on which Sunday laws are founded, to direct them against fishing in the maritime belt. There

are many matters of national policy which a state may desire to advance or promote, and the United States does not admit that there is any principle of public law which gives Great Britain authority, at the expense of American fishing rights, to conserve and advance the British policy of Sabbath observance any more than any other policy which may commend itself to that Government. If the law is directed at the time and manner of taking fish, and does in fact limit and restrain the treaty right of American fishermen to take fish, it contravenes the treaty right, and the propriety of the policy, which it is supposed to subserve, is wholly immaterial.

Great Britain may some time consider it desirable that British national holidays be observed on the sea by cessation from labor and that the holy days of the Established Church of England be respected. Humane instincts may be aroused to the point of inducing the British Government to make laws against methods of fishing which inflict pain, and necessity may induce Great Britain at some time, as sovereign of the territory over which the fisheries are being carried on, to impose a license tax on the liberty to fish, or an excise tax on each individual's catch of fish. If Great Britain may say that those entitled by treaty to an unlimited right to fish in British waters must refrain from fishing one day out of every seven, in aid of the British religious policy, that Government may go so far as to claim an equal right to proscribe other days, and to impose any other limitations on the fishing right which commend themselves in aid of these or of any other policies connected or unconnected with the regulation of the fisheries.

Apart from the question of the power to impose British Sunday laws on American fishermen, which alone has been discussed up to this point, there still remains to be considered the reasonableness of such laws, either within themselves, or within the standard set up by Great Britain; viz., "desirable on grounds of public morals."

It may be said of such laws that they are not reasonable in any sense when directed against foreigners having treaty rights to fish in the territorial waters, because they do not operate as a regulation of fishing, but a prohibition against fishing.

Furthermore, Sunday laws are not reasonable in any sense when applied to foreigners whose vessels must come, as in this case, a distance of three hundred leagues, for the purpose of enjoying their treaty rights. Where fishing vessels can make at most two and

usually only one voyage during the season, it is unreasonable to limit in any way the number of days in which they may engage in fishing.

Such laws are not reasonable from any standpoint, in view of the peculiar nature of the fishing pursuit. Mackerel and herring and other sea fishes which move in schools and visit the shores at certain seasons only are elusive, appear at one place to-day and at another to-morrow and the next day may have disappeared. They must be taken whenever and wherever opportunity offers if they are to be taken at all.

It is submitted further that prohibitions against sea-fishing on Sunday is not reasonable in the sense that it is desirable on grounds of public morals. Those whose pursuits are on the great deep may well be said to be engaged in works of necessity and not to be included in the divine command against labor on the Sabbath day. Such is the manner of looking on the efforts of men engaged in other branches of maritime life, and equal indulgence is due the brave and hardy men who pursue their calling on the seas in the frail crafts of the fishermen. It is believed that fishermen engaged in vessel-fisheries the world over fish on Sunday and that laws against such fishing are unknown in most Christian countries. Moreover, Sunday laws are not based on the idea of enforcing the religious command, but on the policy of not permitting in public open and flagrant disregard of the religious sense of the people. It can hardly be pretended that the people on shore can be seriously shocked in their religious sensibilities by the Sunday fishing of American vessels on the treaty coasts.

Finally, it is to be observed that the laws adopted by Newfoundland prohibiting Sunday fishing are not based on any principle of conserving public morals. The only kind of fishing on Sunday which is prohibited is the taking of herring with seines," and the inhabitants are at liberty to engage as fully as they may think proper in the taking of all other kinds of fish. This prohibition clearly has nothing to do with public morals and evidently is based upon some policy of local convenience with which the United States has no concern except that it applies to the kind of fishing in which the American fishermen are chiefly interested.

a U. S. Case, Appendix, 202.

LEGISLATIVE AND ADMINISTRATIVE ACTION AND DIPLOMATIC CORRESPONDENCE SINCE 1818.

It is now proposed to consider briefly the significance of certain statutes, and administrative acts on the part of the two Governments, and the interchange of views between their diplomatic representatives, extending from 1818 down to the present time, which are referred to in the Cases and Counter Cases of the United States and Great Britain.

THE BRITISH ACT OF JUNE 14, 1819, AND THE ORDER IN COUNCIL OF JUNE 19, 1819.

The force of these formal acts of Great Britain, taken immediately after the treaty of 1818 was made, constituting a contemporaneous construction of the treaty by that Government contrary to the meaning for which it now contends, has already been pointed out, and it has been shown that Great Britain did not attempt to depart from the construction thus given the treaty until recent years. Further discussion of this subject would seem to be unnecessary.

NEWFOUNDLAND'S LEGISLATIVE ACCEPTANCE OF THE TREATY

OF 1871.

The fisheries articles of treaty of 1871 were extended to Newfoundland by Article 32 of that treaty, with the proviso that if the Imperial Parliament, the Legislature of Newfoundland, or the Congress of the United States should not embrace the Colony of Newfoundland in their laws enacted for the purpose of carrying the treaty into effect, then that the fisheries provisions of the treaty should not extend to Newfoundland."

The Congress of the United States, by section 2 of the Act of March 1, 1873, provided, pursuant to the treaty, that whenever the Newfoundland Government should give its consent to the application to Newfoundland of the stipulations and provisions of Articles 18 to 25 of the treaty, inclusive, and allow the United States the full benefits of all the stipulations therein contained, then that colony should be entitled to avail itself of the stipulations of the treaty."

a U. S. Case, Appendix, 32.

U. S. Counter Case, Appendix, 60.

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.

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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.
U. S. Counter Case, Appendix, 195, 196.
CU. S. Counter Case, 33; Appendix, 196–197.
d U. S. Counter Case, 34; Appendix, 87.

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