QUESTION ONE. 19 



For the present purpose it is sufficient to call attention to the follow- 

 ing passages: 



" The Government of the United States fails to find in the treaty 

 any grant of right to the makers of colonial law to interfere at all, 

 whether reasonably or unreasonably, with the exercise of the Ameri- 

 can rights of fishery, or any right to determine what would be a 

 reasonable interference with the exercise of that American right if 

 there could be any interference." (App., p. 499.) 



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" The treaty of 1818 either declared or granted a perpetual right to 

 the inhabitants of the United States, which is beyond the sovereign 

 power of England to destroy or change. It is conceded that this 

 right is, and for ever must be, superior to any inconsistent exercise 

 of sovereignty within that territory. The existence of this right is 

 a qualification of British sovereignty within that territory. The 

 limits of the right are not to be tested by referring to the general 

 jurisdictional powers of Great Britain in that territory, but the limits 

 of those powers are to be tested by reference to the right as defined 

 in the instrument creating or declaring it. The Earl of Derby in a 

 letter to the Governor of Newfoundland, dated the 12th June, 1884, 

 said : ' The peculiar fisheries rights granted by treaties to the French 

 in Newfoundland, invest those waters during the months of the year 

 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 fishery.' And the same observation is ap- 

 plicable to the situation created by the existence of American fishing 

 rights under the treaty of 1818. An appeal to the general jurisdiction 

 of Great Britain over the territory is therefore a complete begging 

 of the question, which always must be, not whether the jurisdiction 

 of the Colony authorizes a law limiting the exercise of the treaty 

 right, but whether the terms of the grant authorize it. (App., 



p. 500.) 



******* 



The claim now asserted that the Colony of Newfoundland is en- 

 titled at will to regulate the exercise of the American treaty 

 22 right is equivalent to a claim of power to completely destroy 

 that right. This Government is far from desiring that the 

 Newfoundland fisheries shall go unregulated. It is willing and 

 ready now, as it has always been, to join with the Government of 

 Great Britain in agreeing upon all reasonable and suitable regula- 

 tions for the due control of the fishermen of both countries in the 

 exercise of their rights, but this Government cannot permit the exer- 

 cise of these rights to be subject to the will of the Colony of New- 

 foundland. The Government of the United States cannot recognize 

 the authority of Great Britain or of its colony to determine whether 

 American fishermen shall fish on Sunday. The Government of New- 

 foundland cannot be permitted to make entry and clearance at a 

 Newfoundland Custom House and the payment of a tax for the sup- 

 port of Newfoundland lighthouses conditions to the exercise of the 

 American right of fishing. If it be shown that these things are 

 reasonable, the Government of the United States will agree to them, 

 but it cannot submit to have them imposed upon it without its con- 

 sent." (App., p. 500.) 



