46 COUNTER CASE OF THE UNITED STATES. 



And, after stating the British position on this point and reserving 

 " further discussion of the point until they are in possession of the 

 Case of the United States," the British Case concludes with the con- 

 tention 



That the Colonial legislatures and the Imperial Parliament retain 

 the power of prohibiting any of His Majesty's subjects from engaging 

 as fishermen in American vessels, and that the exercise of this power 

 is in no way inconsistent with the treaty. 



This contention, it will be observed, relates solely to the effect 

 of the treaty upon the observance of British laws by British subjects, 

 whereas Question 2, as shown above, according to the understanding 

 of it accepted by both Governments, asks merely whether the treaty 

 permits the inhabitants of the United States to employ persons not 

 inhabitants of the United States for fishing purposes in treaty waters. 

 The Question certainly does not ask whether there is anything in the 

 treaty requiring or authorizing British subjects to engage themselves 

 as members of the fishing crews of the inhabitants of the United 

 States, if they are prohibited or even if they are not prohibited from 

 so doing by British laws, which is all that is involved in the British 

 contention above set forth. The United States, therefore, does not 

 regard this contention of Great Britain as within the scope and mean- 

 ing of the Question submitted for the decision of the Tribunal. 



The positions of the two Governments. 



The respective positions of the two Governments on this Question 

 are disclosed in the diplomatic correspondence of 1906 conducted by 

 Mr. Root and Sir Edward Grey, which is fully set forth in the Case 

 of the United States. As appears from this correspondence, both 

 sides concurred in the view that the fishing carried on under the 

 treaty of 1818 was essentially " a ship fishing" ; and, although Great 

 Britain asserted that the treaty conferred no rights on fishing vessels 

 as such, yet it admitted that the inhabitants of the United States were 

 entitled to the same rights of fishing for their vessels as for them- 

 selves. Sir Edward Grey said on this point in his memorandum of 

 February 2, 1906: 



As regards the treatment of American vessels from which Ameri- 

 can fishermen exercise the Treaty right of fishery, His Majesty's 

 Government are prepared to admit that, although the Convention 

 confers no rights on American vessels as such, yet since the Ameri- 



British Case, p. 59. 



