1438 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 



Empire^ that the fishing rights formerly enjoyed by the people of 

 the Colonies and described in the instrument of partition continued 

 notwithstanding the war of 1812, and were in part declared and in 

 part abandoned by the Treaty of 1818, lead to any different conclu- 

 sion. It may be that under this view the rights thus allotted to the 

 Colonies in 1783 were subject to such Regulations as Great Britain 

 had already imposed upon their exercise before the partition, but the 

 partition itself and the recognition of the independence of the Col- 

 onies in the Treaty of partition was a plain abandonment by Great 

 Britain of the authority to further regulate the rights of the citizens 

 of the new and independent nation." 



That Mr. Root's opinion was such as one would gather from the 

 extract which I have now read may be seen at p. 502 of the British 



Case Appendix in a passage in a letter from Congressman 

 869 Gardner, which was published in the " Boston Herald." This 



Mr. Gardner is no doubt the same man as is referred to in Mr. 

 Root's first letter to the British representative at Washington, which 

 occurs on p. 491 of the British Case Appendix. Mr. Root there com- 

 menced his letter by saying : 



" Mr. Gardner, the representative in Congress of the Gloucester 

 district, has placed in my hands a number of despatches received by 

 him from masters of American vessels now on the Newfoundland 

 coast. These despatches are answers to inquiries sent by him at my 

 request for the purpose of ascertaining definitely, if possible, what 

 is the precise difficulty there." 



This Congressman Gardner evidently was in close touch with the 

 United States Secretary of State, and in his letter (British Case 

 Appendix, p. 491) he indicates the view of the State Department. 

 The tribunal will observe that the second paragraph of the letter 

 purports to reflect the view held by the department with reference 

 to purse seining: 



" The State Department holds that the local regulation prohibit- 

 ing purse seining is unreasonable as against American fishermen." 



Then, in the clause at the end of p. 502, are these words : 



" My advice as to the coming fishing season is to refrain from ship- 

 ping British subjects in British waters or British ports. I am aware, 

 of course, that this advice, if carried out practically precludes gill 

 netting for the coming season, unless that operation is carried on by 

 combining the crews of several vessels. The State Department is 

 now contending with the Government of Great Britain that New- 

 foundland had no right to interfere with our fishermen by any regu- 

 lation that did not exist when the Treaty of 1818 was made. At the 

 same time we have offered to join with Great Britain in agreeing to 

 reasonable regulations. The courses of diplomacy, however, are so 

 slow that I do not believe it would be possible to arrive at any definite 

 conclusion prior to 1907." 



I think that we may therefore take it that the traditional view 

 which the United States has held from 1814 down to 1907 necessi- 



