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It is evident from this correspondence, that at that time the United States was invited to assist in making the regulations, and likewise to join in their enforcement in British waters.

JOINT ACTION OF GREAT BRITAIN AND FRANCE.

It is deemed proper in this connection without going into the matter at length, to call attention to several conventions between Great Britain and France relating to the regulation of the Newfoundland fisheries on the French treaty coast.

a

By the treaty of 1857, which failed to secure the sanction of the legislature of Newfoundland, provision was made for joint commissioners to adjust differences arising under the treaty, and these commissioners were given power, subject to the approval of the two Governments, to frame "regulations for the exercise of concurrent rights by the parties to this convention with a view to prevent collisions.” Under the arrangements of 26th April, 1884, and of 14th November, 1885, which were also dissented from and defeated by the government of Newfoundland for reasons not involved in this case, it was provided that the superintendence and the police of the fisheries should be exercised by the ships of war of the two countries, which were to notify to each other mutually any infractions of the treaty and to record all such infractions; to oppose operations of the British subjects which might interrupt the French fishermen; to draw up reports of interferences on shore which disturbed the drying and preparing of fish, such reports being made competent evidence in judicial proceedings; to secure the persons of offenders and their boats, to be given up to the local authorities and dealt with by them; and to administer immediate justice within the limits of their powers, with regard to complaints brought to their notice. Resistance to their directions or injunctions was made resistance to competent authority."

By the treaty of 1904 France renounced the fishery rights established by the treaty of Utrecht and confirmed by subsequent treaties, but retained for her citizens the right of fishing on a footing of equality with British subjects in the waters of Newfoundland from Cape St. John to Cape Ray. France thus renounced the right to dry and cure fish on land, and also the claim of an exclusive right

a U. S. Case, Appendix, 58; U. S. Counter Case, 23.
U. S. Case, Appendix, 69; U. S. Counter Case, 23.

to fish which she had ineffectually asserted for over a century, retaining the right to fish on the prescribed coasts on a footing of equality with British subjects. French rights of fishing under this new treaty are not as great as the American rights under the treaty of 1818, either in the extent of coasts or in the essential nature of the rights. Yet the two Governments agreed by that treaty that the policing of the fishing and the prevention of illicit liquor traffic and smuggling of spirits, should form the subject of regulations drawn up in agreement by the two Governments."

All these treaties show the entire practicability of regulations to be made by the joint action of the two Governments, as well as of their joint administration and enforcement within British territory. While the regulations mentioned in the treaty of 1904 for the policing of the fishing, appear to have been such only as might be necessary to secure the fair participation of the French in the fisheries and to preserve order among the fishermen, the admission. of France to participation in the making and administration of such regulations was certainly as much in derogation of British sovereignty as any contention advanced by the United States in this case.

The treaty of 1904 is noticeable also in the fact that it expressly reserves to Great Britain the power to establish closed seasons and to make regulations for the improvement of the fisheries, a reservation not made in the treaty of 1818.

BRITISH ADMISSION OF DOMINANT FRENCH RIGHTS.

It is impossible to examine the conduct by Great Britain of the fishing controversy with France without being convinced that the former fully recognized that the French treaty right in Newfoundland waters was a real right as distinguished from a mere obligation, and that it constituted an international servitude which limited the territorial sovereignty of Great Britain. The large measure of authority to be exercised by France in British waters conferred by the treaties above mentioned prove this fact. The declarations of British statesmen from time to time prove it. It is shown by the declaration of the Earl of Derby to the governor of Newfoundland, contained in his letter of June 12, 1884, that,

"the peculiar fisheries rights granted by treaties to the French in Newfoundland invest those waters during the months of the year

a U. S. Case, Appendix, 83.

when fishing is carried on in them both by English and French fishermen with a character somewhat analogous to that of a common sea for the purpose of the fishery." a

It is shown by Lord Salisbury's reference to the French fishery right in Newfoundland. in his speech in the House of Lords on March 19, 1891, when he said:

Judging from some utterances that I have seen of-I am sorry to say-responsible parties, they seem to imagine that the embarrassments with which they are struggling are brought on as a result of their loyalty to the Queen and of their connection with this country. That is a great mistake. I do not for a moment think that there is the slightest probability or chance of the realization of those utterances by which their political position would be modified; but I only say that it is a great mistake to imagine that this difficulty with France would be in the slightest degree affected if they were now at liberty to tender their allegiance to any other sovereignty or state in the world. The rights of the French would attach to that part of the coast under whatever allegiance they might be."

FRENCH ASSERTION OF DOMINANT RIGHTS.

The aggressive assertion of her rights by France whenever they were disturbed in any manner by Newfoundland and the ready yielding to these assertions by the statesmen of Great Britain also show the consciousness of Great Britain of the strength of the French right as constituting an international servitude.

On December 13, 1858, Lord Cowley, British minister to France, wrote to Count Walewski, the French minister for foreign affairs, that the report had reached the British ministry that the commander-in-chief of the French naval forces in Newfoundland waters had formally notified him that from the commencement of the ensuing season the French cruisers would "vigorously enforce as against British subjects the rights secured to France by existing treaties," and added that the Imperial Government would not be surprised if her Majesty's Government gave on their part "a counter notice that, from the same date, French subjects will be required strictly to conform themselves to the terms of the treaties between the two countries." c

This was a declaration by the French Government of its purpose to invade with its naval forces the territorial jurisdiction of Great Britain and to there employ those forces against British subjects for the protection of the French fishermen, and the only response of

a U. S. Counter Case, Appendix, 30.

Hansard's Parliamentary Debates, 3d ser., Vol. CCCLI, p. 1413.
CU. S. Counter Case, Appendix, 257.

Great Britain was that, if France chose this extreme method of maintaining her rights, Great Britain would employ similar methods against any infraction of the treaty by French subjects and would require them strictly to conform themselves to the terms of the treaty. The British Government again evidenced its consciousness of the nature of the French right, when, on June 12, 1884, the Earl of Derby wrote to the governor of Newfoundland urging the acceptance of the arrangement then lately concluded with France, giving France extensive rights of interference in the waters of Newfoundland in the protection of her fisheries, and said:

In return for the advantages to the colony above enumerated, Her Majesty's Government would, under the present arrangement, recognize little more than the de facto state of things existing as regards the acts of authority exercised every fishing season by the French cruizers in the waters over which the French treaty rights extend, and the exercise of these acts on the part of French cruizers would only take place in cases of infraction of the very reasonable provisions of this arrangement, and then only in the absence of any of Her Majesty's cruizers.

On September 20, 1886, Count d'Aubigny wrote to the Earl of Iddesleigh in the following peremptory terms:

MY LORD: A decree of the Newfoundland government, dated the 9th August last, has prohibited lobster fishing for three years, from the 30th September next, in Rocky Harbour (Bonne Bay, "French shore ").

I am instructed to inform your excellency that, in view of the fishery right conferred on France by the treaties in the part of the island to which the decree applies, a right which can evidently not be restricted in its exercise, it is impossible for my Government to recognize in any way the validity of the measure taken by the Newfoundland authorities."

The decree of the Newfoundland Government, to which Count d'Aubigny referred, was professedly for the purpose of preserving the lobster fishery by establishing a closed season for three years.

On July 5, 1887, the Marquis of Salisbury responded to the statement of Count d'Aubigny as follows:

With reference to Count d'Aubigny's letter of the 20th September last, in regard to the prohibition by the Newfoundland government of fishing for lobsters in Bonne Bay, I have the honor to acquaint your Excellency that a despatch has been received from the governor of that colony in which he states that his Government have given a formal assurance that the prohibition will not be enforced against French citizens to whom there had not been any intention of applying it."

a U. S. Counter Case, Appendix, 308.

U. S. Counter Case, 19, 20; Appendix, 316, 317.

U. S. Counter Case, Appendix, 319.

U. S. Counter aCse, Appendix, 322.

A reference to the correspondence in the French controversy is unnecessary to show the complete recognition of the real character of such a right as that enjoyed by fishermen of the United States under the treaty of 1818 and its effect in limiting British territorial sovereignty, in view of the declaration of Lord Salisbury to Mr. Evarts in his letter of November 7, 1878:

On the other hand, Her Majesty's Government will readily admitwhat 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."

The statesmen of Great Britain appear to have recognized the real character of the American fishing right from the very beginning. On November 6, 1818, Mr. Gallatin, one of the negotiators of the treaty of 1818, wrote to Mr. Adams, Secretary of State, as follows:

That right of taking and drying fish in harbors within the exclusive jurisdiction of Great Britain, particularly on the coasts now inhabited, was extremely obnoxious to her, and was considered as what the French civilian call a servitude."

THE CORRESPONDENCE OF 1905-1907.

No occasion for a renewal of the controversy over fishery regulations on treaty coasts appears to have been presented until 1905, when, owing to the unfriendly attitude of Newfoundland toward American fishermen, it became necessary for Secretary Root to bring up the subject for discussion with Great Britain.

The correspondence, which ensued, is reviewed at length in the Case of the United States, and does not require a re-examination here."

It is sufficient for the present to point out that the arguments advanced by Mr. Root in his letter of June 30, 1906, have never been answered by Great Britain, but that Sir Edward Grey, in a note to Mr. Reid dated June 20, 1907, proposed a temporary arrangement of the fisheries question, pending submission to the United States of all British laws and regulations on the subject, with a view to their amendment.

Later a proposition was made by the United States to submit the question to arbitration before The Hague Tribunal, and that proposition led to the making of the Special Agreement under which this arbitration is held.

a U. S. Case, Appendix, 658.
British Case, Appendix, 97.

CU. S. Case, 207, et seq.

d U. S. Case, Appendix, 1005.
e U. S. Case, Appendix, 1008.

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