222 CASE OF THE UNITED STATES. 



on which the appUcation of any provisions of Colonial law to Ameri- 

 can vessels engaged in the fishery can be objected to is that it unrea- 

 sonably interferes with the American right of fishery." 



The Government of the United States fails to find in the Treaty 

 any grant of right to the makers of Colonial law to interfere at all, 

 whether reasonably or unreasonably, with the exercise of the Ameri- 

 can rip;hts of fishery, or any right to determine what would be a rea- 

 sonable interference with the exercise of that American right if there 

 could be any interference. The argument upon which the Memo- 

 randum claims that the Colonial Government is entitled to interfere 

 with and limit the exercise of the ^Vmerican right of fishery, in accord- 

 ance with its own ideas of what is reasonable, is based first, upon 

 the fact that, under the terms of the Treaty the right of the inhabitants 

 of the United States to fish upon the Treaty coast is possessed by 

 them ''in common with the subjects of His Britannic Majesty;" 

 and, second, upon the proposition that "the inhabitants of the 

 United States would not now be entitled to fish in British North 

 American waters but for the fact that they were entitled to do so 

 when they were British subjects," and that "American fishermen 

 cannot therefore rightfully claim any other right to exercise the right 

 of fishery under the Treaty of 1818 than if they had never ceased to 

 be British subjects." 



Upon neither of these grounds can the inferences of the Memoran- 

 dum be sustained. The qualification that the liberty assured to 

 American fishermen by the Treaty of 1818 they were to have "in 

 common with the subjects of Great Britain" merely negatives an 

 exclusive right. Under the Treaties of Utrecht, of 1763 and 1783, 

 between Great Britain and France, the French had constantly main- 

 tained that they enjoyed an exclusive right of fishery on that portion 

 of the coast of Newfoundland between Cape St. John and Cape Raye, 

 passing around by the north of the island. The British, on the other 

 hand, had maintained that British subjects had a right to fish along 

 with the French, so long as they did not interrupt them. 



The dissension arising from these conflicting views had been serious 

 and annoying, and the provision that the liberty of the inhabitants of 

 the United States to take fish should be in common with the liberty 

 of the subjects of His Britannic Majesty to take fish was precisely 

 appropriate to exclude the French construction and leave no doubt 

 that the British construction of such a general grant should apply 

 under the new Treaty. The words used have no greater or other 

 effect. The provision is that the liberty to take fish shall be held in 

 common, not that the exercise of that liberty by one people shall be 

 the limit of the exercise of that liberty by the other. It is a matter 

 of no concern to the American fishermen whether the people of New- 

 foundland choose to exercise their right or not, or to what extent 

 they choose to exercise it. The statutes of Great Britain and its 

 Colonies limiting the exercise of the British right are mere voluntary 

 and temporary' self-denjnng ordinances. They may be repealed 

 to-morrow. Whether they are repealed, or whether they stand, the 

 British right remains the same, and the American right remains the 

 same. Neither right can be increased nor diminished by the deter- 

 mination of the other nation that it will or will not exercise its right, 

 or that it will exercise its right under any particular limitations of 

 time or manner. 



