DESPATCHES, BEPORTS, COEEESPONDENCE, ETC. 477 



criminal process, of health or police regulations, of territorial sover- 

 eignty in the abstract. The issue between the two Governments is as 

 to Avhat regulations of the freedom the fishery, in the very matter of 

 the time and manner of taking fish, remain a part of British sover- 

 eignty over the fishery under the colour of sovereignty over the 

 place, when exclusive sovereignty over the fishery has been parted 

 with by Great Britain, and a participation in such fishery has been 

 acquired by the United States, in the terms and on the considerations 

 of the Treaty of Washington. 



Upon this issue the position of this Government was notified to 

 the British Government in September, 1878, as follows : 



This Government conceives that the fishery rights of the United States, con- 

 ceded by the Treaty of Washington, are to be exercised wholly free from 

 284 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 by that Government. 



Upon this issue the position of the British Government is now 

 notified to us by the despatch of Lord Salisbury of April 3, ultimo, 

 as follows. Referring to these Statutes of Newfoundland, Lord 

 Salisbury says: 



These regulations, which were in force at the date of the Treaty of Wash- 

 ington, were not abolished, but confirmed by the subsequent Statutes, and are 

 binding under the Treaty upon the citizens of the United States in common 

 with British subjects. The United States fishermen, in landing for the purpose 

 of fishing at Tickle Beach, in using a seine at a prohibited time, and in barring 

 herrings with seines from the shore, exceeded their Treaty privileges and were 

 engaged in unlawful acts. 



Lord Salisbury further states that Her Majesty's Government 

 "have always admitted the incompetence of the Colonial or the 

 Imperial Legislature to limit by subsequent legislation, the advan- 

 tages secured by Treaty to the subjects of another Power." 



There are but two grounds upon which the subordination of the 

 United States' freedom of the inshore fisheries to Imperial or pro- 

 vincial legislation, curtailing or burdening that freedom ever has 

 been, or in the nature of the case can be, placed. 



The first is that of reserved general sovereignty within the three- 

 mile limit, under cover of which it is pretended there lurked in the 

 concession of the freedom of this fishery to the United States in 

 common with Great Britain, the power of one party in the privi- 

 lege of this common fishery to regulate the enjoyment of it by the 

 other. The statement of this proposition confutes it. The United 

 States would have acquired nothing of right if the concession was 

 constantly subject to the will of Great Britain for its exercise and 

 enjoyment. Accordingly Lord Salisbury disclaims this pretension 

 as ever having been held by the British Government as a reserved- 

 power, capable of exercise by any regulations subsequent to the date 

 of the Treaty of Washington. But, manifestly, antecedent regula- 

 tions, as having force subsequent to the Treaty, cannot be sustained 

 upon the ground of sovereignty over the Treaty concession by any 

 better reason than new legislation of that quality and effect. If the 

 Treaty predominates over subsequent provincial legislation, en- 

 croaching upon the Treaty concession by stronger reason, it sup- 

 plants previous provincial legislation, subversive or restrictive, of 

 the Treaty concession. If such previous legislation persists after 



