28 CASE OF GREAT BRITAIN. 



prevent the articles of the treaty from taking full effect. To this 

 enactment was added the following clause (App., p. 706) : 



Provided 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. 



The United States Secretary of State, Mr. Fish, objected to this 

 proviso, and properly so. for clearly it was either unnecessary, or else 

 it was a modification of the treaty. If, by the treaty, United States 

 fishermen were bound to observe the local regulations, the proviso 

 was unnecessary and mere surplusage ; and if they were not so bound, 

 the proviso altered the treaty. The statute was therefore re-enacted 

 without this proviso. (App., p. 706.) 



FIRST ASSERTION BY UNITED STATES OF PRESENT CLAIM. 



1878. In 1878 (ninety-five years after the treaty of 1783, and sixty 

 years after the treaty of 1818) the United States, for the first time, 

 raised the contention that (App., p. 270) 



If there are to be regulations of a common enjoyment, they must be 

 authenticated by a common or a joint authority. 



FORTUNE BAY. 



The question arose out of a fishermen's quarrel in Fortune Bay 

 (Newfoundland). United States fishermen on a Sunday, and during 

 the close season, stretched their nets across the bay, from one shore to 

 the other, thus " barring " all the herring then in the bay ; and for 

 that purpose landed upon the shores of the bay. They had no right 

 to operate from the shore, and, in addition to that, they were com- 

 mitting a breach of three local laws: (1) Fishing on Sunday; (2) 

 fishing in close season; (3) "barring" herring. Their operations 

 were forcibly stopped by Newfoundland fishermen, and the Govern- 

 ment of the United States made a claim in consequence of such inter- 

 ruption. 



The long diplomatic correspondence which ensued ended by pay- 

 ment to the United States of damages for the seizure, on the ground 

 that, whether or not the United States fishermen were wrong (as 

 to which both parties maintained their own opinion), British private 

 subjects had no right to take the law into their own hands. 

 32 The following extracts from the correspondence sufficiently 

 indicate the positions assumed. Mr. Evarts (United States 

 Secretary of State) said (28th September, 1878) (App., p. 270) : 



This Government conceives that the fishery rights of the United 

 States, conceded by the Treaty of Washington, are to be exercised 

 wholly free from the restraints and regulations of the statutes of 

 Newfoundland now set up as authority over our fishermen, and from 

 any other regulations of fishing now in force or that may hereafter 

 be enacted bv that Government. 



