PERIOD FROM 1811 TO 1888. 173 



in his note of April 3, 1880, to the American Charge at London, as 

 follows, so far as it relates to the questions now under consideration: 



Such being the facts, the following two questions arise: 



1. Have United States fishermen the right to use the strand for 

 purposes of actual fishing? 



2. Have they the right to take herrings with a seine at the season 

 of the 3'ear in question, or to use a seine at any season of the year for 

 the purpose of barring herrings on the coast of Ne\\'f oundland ? 



The answers to the above questions depend on the interpretation of 

 the treaties. 



Further, they used seines for the purpose of in-barring herrings, and 

 this leads me to the consideration of the second question, namely, 

 whether United States fishermen have the right to take herrings with 

 a seine at the season of the year in question, or to use a seine at any 

 season of the year for the purpose of barring herrings on the coast of 

 Newfoundland. 



The in-barring of herrings is a practice most injurious, and, if con- 

 tinued, calculated in time to destro}' the fishery; consequently it has 

 been prohibited b}^ statute since 1862, 



In my note to Mr. Welsh, of the 7th of November, 1878, I stated 

 "that British sovereignty, as regards these waters, is limited in its 

 scope by the engagements of the Treaty of Washington, which cannot 

 be modified or affected by anj municipal legislation," and Her Majes- 

 ty's Government fully admit that United States fishermen have the 

 right of participation on the Newfoundland inshore Jisheries, in com- 

 mon\\\i\\ British subjects, as specified in Article XVIII of that treaty. 

 But it can not be claimed, consistently with this right of participation 

 in common with the British fishermen, that the United States fisher- 

 men have any other, and still less that they have greater rights than 

 the British fishermen had at the date of the treaty. 



If, then, at the date of the signature of the Treaty of Washington, 

 certain restraints were, by the municipal law, imposed upon the British 

 fishermen, the United States fishermen were, by the express terms of 

 the treaty, equally subjected to those restraints, and the obligation to 

 observe in common with the British the then existing local laws and 

 regulations, which is implied by the words "in common,^' attached to 

 the United States citizens as soon as they claimed the benefit of the 

 treat}^. That such was the view entertained by the Government of 

 the United States during the existence of the reciprocity treaty, under 

 which United States fishermen enjoyed precisely the same rights of 

 fishing as they do now under the Treaty of Washington, is proved con- 

 clusively by the circular issued on the 28th of March, 1856, to the col- 

 lector of customs at Boston, wliich so thoroughly expressed the views 

 of Her Majesty's Government on this point that I quote it here in 

 extenso. 



"Department of State, 



' ' Washington, March 28, 1856. 



"Sir: It is understood that there are certain acts of the British 

 North American colonial legislatures, and also, perhaps, executive 

 regulations intended to prevent the wanton destruction of the fish 

 which frequent the coasts of the colonies, and injurious to the fishing 



