34 COUNTER CASE OF THE UNITED STATES. 



The proviso to which American Govt. object, has relation to enact- 

 ments as to time and mode of taking herring and salmon shown by 

 experience to be necessary for the preservation of those fisheries and 

 consequently for the common interest of all engaged in them. 



Supplementing this telegram, the Crown Law Officer of Newfound- 

 land prepared a report for the Governor of Newfoundland under date 

 of July 14, 1873, in which he said 



In the first place it will probably be conceded by the Govt. of the 

 U. S., that the exercise of Treaty rights is at all times subject to such 

 fair and reasonable Police or Municipal regulations of the State 

 within which they are to be exercised as are common to all, and not 

 inconsistent with the bona -fide operation of the stipulations of the 

 Treaty. 



The proviso would in this view be quite unnecessary and there- 

 fore harmless but it will also be observed that it is not prospective in 

 its terms, but has reference solely to the status quo of the fisheries, 

 to which it applies, at the time of the ratification of the Treaty by 

 the High Contracting parties it runs thus 



" 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 laws referred to in this proviso as such laws are and can from 

 the language be none other than the laws mentioned in the former 

 part of the same section, viz. " the laws of this Colony which operate 

 to prevent the said Articles from taking full effect " and which are to 

 be suspended. The whole clause is with regard to this question in 

 the present tense. 



Copies of those existing laws are annexed to this despatch they are 

 acts passed respectively in the years 1860 and 1862, and regulate the 

 contrivances for taking Herring and Salmon and the mode and time 

 for using those contrivances. 6 



On July 30, 1873, the British Minister wrote to the Department of 

 State enclosing this report and stating 



that the " laws, rules and regulations " referred to in the Proviso of 

 the 1st Section of the Newfoundland Act transmitted in my note 

 above mentioned, were intended to benefit American as well as 

 English fishermen, and were necessary for the preservation of herring 

 and salmon. These laws are already in existence, and the proviso does 

 not refer to any further restrictions. 



The explanations contained in the telegram and report and letter 

 above referred to proved to be unsatisfactory, and failed to remove 

 Mr. Fish's objection to the proviso in the act above quoted; and 

 upon the definite refusal by the United States to accept that act 

 as a compliance with the requirements of the treaty, the Newfound- 

 land Legislature re-enacted the act with the proviso eliminated, 



British Case Appendix, p. 253. c U. S. Counter-Case Appendix, p. 197. 

 * U. S. Counter-Case Appendix, p. 198. 



