224 CASE OF THE UNITED STATES. 



of sovereignty within that territory. The existence of this right is a 

 qualification of British sovereignty within that territory. The 

 hniits of the right are not to be tested by referring to the general 

 jurisdictional powers of Great Britain in that territory, but the limits 

 of those powers are to be tested by reference to the right as defined 

 in the instrument created or declaring it. The Earl of Derby in a 

 letter to the Governor of Newfoundland, dated the 12th June, 1884, 

 said: "The peculiar fisheries rights granted by Treaties to the French 

 in Newfoundland invest those waters during the months of the year 

 when fishing is carried on in them, both by English and French fisher- 

 men, with a character somewhat analogous to that of a common sea 

 for the purpose of fishery." And the same observation is applicable 

 to the situation created by the existence of American fishing rights 

 under the Treaty of 1818. An appeal to the general jurisdiction of 

 Great Britain over the territory is, therefore, a complete begging of 

 the question, which always must be, not whether the jurisdiction of 

 the Colony authorizes a law limiting the exercise of the Treaty right, 

 but whether the terms of the grant authorize it. 



The distinguished writer just quoted observes in the same letter: — 



"The Government of France each year during the fishing season 

 employs ships of war to superintend the fishery exercised by their 

 countrymen, and, in consequence of the divergent views entertained 

 by the two Governments respectively as to the interpretation to be 

 placed upon the Treaties, cjuestions of jurisdiction which might at any 

 moment have become serious have repeatedly arisen." 



The practice thus described, and which continued certainly until as 

 late as the modification of the French fishing rights in the year 1904, 

 might well have been followed by the United States, and probably 

 would have been, were it not that the desire to avoid such cpiestions 

 of jurisdiction as were frequently arising between the French and the 

 English has made this Government unwilling to have recourse to such 

 a practice so long as the rights of its fishermen can be protected in 

 any other way. 



The Government of the United States regrets to find that His 

 Majesty's Government has now taken a much more extreme position 

 than that taken in the last active correspondence upon the same ques- 

 tion arising under the provisions of the Treaty of Washington. In 

 his letter of the 3rd April, 1880, to the American Minister in London, 

 Lord Salisbury said: — 



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

 'that British sovereignty as regards these waters, is limited in scope 

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

 modified or affected by any municipal legislation,' and Her Majesty's 

 Government fully admit that United States' fishermen have the right 

 of participation on the Newfoundland inshore fisheries, in common with 

 British subjects, as specified in Article XVIII of that Treaty. But it 

 cannot be claimed, consistently with this right of participation in com- 

 mon with the British fishermen, that the United States' fishermen 

 have any other, and still less that they have any 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 Brit- 

 ish fishermen, the United States' fishermen were, by the express terms 

 of the Treaty, equally subjected to those restraints, and the obligation 



