476 APPENDIX TO BRITISH CASE. 



concession, needs no serious comment here. If the " Case " of either 

 Government could fairly be referred to as maintaining propositions 

 to which it should be held in this contention, the special arguments 

 pro and con of counsel cannot usefully be resorted to for this purpose. 

 In this interlocutory argument on the commercial question of British 

 Counsel, in answering Mr. Foster, maintained the opposite construc- 

 tion of the Treaty. Neither view had any important relation to the 

 subject then under discussion. 



The second topic of Lord Salisbury's despatch, from which aid is 

 sought for his main proposition, is the presentation of Mr. Marcy's 

 Circular to the Collectors of Customs, while the reciprocity Treaty 

 was in force, for promulgation among our fishermen, the whole text 

 of which Lord Salisbury incorporates in his note. 



In the full copy of this Circular, which is appended (No. 5) to the 

 Babson and Foster Report, the fishery regulations of the provinces 

 to which it relates are recited, and a reference to these is sufficient 

 to displace any inference that this Government has assented to any 

 curtailment, past or previous, by provincial legislation of the freedom 

 of the inshore fishery as conceded to our fishermen by the terms of 

 the Reciprocity Treaty or the Treaty of Washington. One of these 

 regulations relates to the demarcation of " gurry grounds," and the 

 other to the reservation of spawning grounds, during the spawning 

 season, from invasion. " Gurry," or the offal of fish, was supposed 

 to infect the waters, and the regulation was not of the right of taking 

 fish, but of poisoning them. The care of the spawning beds in spawn- 

 ing season, in like manner, was a regulation of the breeding of fish, 

 not a regulation of modes of American fishing. Both these regula- 

 tions met the approval of this Government, and were required by 

 Mr. Marcy to be respected by our fishermen, for this reason and in 

 the sense of being within the reasonable province of local civil juris- 

 diction, and not encroaching upon the province of freedom of the 

 fishery as imparted by the Reciprocity Treaty. But the right of this 

 Government to inspect all such laws and pass upon them as falling 

 one side or the other of the line thus firmly drawn is explicitly stated 

 by Mr. Marcy. He says : 



Should they be so framed or executed as to make any discrimination in 

 favour of British fishermen, or to impair the rights secured to American fisher- 

 men by that Treaty, those injuriously affected by them will appeal to this 

 Government for redress. 



Accordingly, the fishermen are directed to make complaint, upon 

 the case arising, either in respect to any law or its executions, " in 

 order that the matter may be arranged by the two Governments." 



The position of this Government as laid down in my despatch of 

 September 28, 1878, is, therefore, unembarrassed by any attitude in 

 this contention heretofore taken in any diplomatic discussion of par- 

 allel Treaty engagements. Any particular interpretation of the 

 Treaty as to the right to use the strand in fishing with seines ceases 

 to be of significance in the issue now joined with the British Govern- 

 ment, because the provincial laws in question prohibit the use of the 

 seines at all, and the main proposition of the British Government 

 subjects our Treaty rights to such legislation. So, too, the scope of 

 this main proposition can be neither obscured nor confused by the 

 irrelevant consideration of the local jurisdiction within three miles 

 of the shore, over persons or property, of the running of civil or 



