42 COUNTER CASE OF THE UNITED STATES. 



poses upon them a heavy penalty for the exercise of their rights under 

 the Treaty, and we may reasonably apprehend that this penalty will 

 be so severe in its practical effect as to be an effectual bar to the ex- 

 ercise of the Treaty right. 



I feel bound to urge that the Government of Great Britain shall 

 advise the Newfoundland Government that the provisions of law 

 which I have quoted are inconsistent with the rights of the United 

 States under the Treaty of 1818, and ought to be repealed ; and that, 

 in the meantime, and without any avoidable delay, the Governor in 

 Council shall be requested by a Proclamation which he is authorized 

 to issue under the 8th section of the Act respecting Foreign Fishing- 

 Vessels, to suspend the operation of the Act." 



It is true that Sir Edward Grey in reply expressed the view that 

 Mr. Root's objections to the act were met by section 7, which pre- 

 served " the rights and privileges granted by treaty to the subjects of 

 any State in amity with His Majesty." His explanation of the 

 effect of this provision was as follows: 



In view of this provision, His Majesty's Government are unable to 

 agree with the United States' Government in regarding the provi- 

 sions of sections 1 and 3 as " constituting a warrant to the officers 

 named to interfere with and violate " American rights under the Con- 

 vention of 1818. On the contrary, they consider section 7 as, in 

 effect, a prohibition of any vexatious interference with the exercise 

 of the Treaty rights whether of American or of French fishermen. 

 As regards section 3, they admit that the possession by inhabitants of 

 the United States of any fish and gear which they may lawfully take 

 or use in the exercise of their rights under the Convention of 1818 

 cannot properly be made prima facie evidence of the commission of 

 an offence, and, bearing in mind the provisions of section 7, they can- 

 not believe that a Court of Law would take a different view. 6 



It is doubtful, however, whether the act would have been inter- 

 preted in this way if the United States had not been entitled to 

 object to its enforcement, for the original intention of the Newfound- 

 land Legislature in passing the act was altogether in conflict with 

 the explanation advanced by Sir Edward Grey, as appears from the 

 following extract from Mr. Root's reply to Sir Edward Grey's note : 



The Premier of Newfoundland in his speech in the Newfoundland 

 Parliament, delivered on the 12th April, 1905, in support of the For- 

 eign Fishing Bill, made the following declaration : 



" This Bill is framed specially to prevent the American fishermen 

 from coming into the bays, harbours, and creeks of the coast of New- 

 foundland for the purpose of obtaining herring, caplin, and squid 

 for fishing purposes." 



And this further declaration: 



" This communication is important evidence as to the value of the 

 position we occupy as mistress of the northern seas so far as the fish- 



U. S. Case, p. 210. TT. S. Case, p. 219. 



