PERIOD FROM 1905 TO 1909. 973 



and, if she does not purpose to trade as well as fish, she is not bound to 

 enter at any Newfoundland custom-house." 



His Majesty's Government agree that the Government of New- 

 foundland could not require that American fishermen seeking to 

 exercise the Treaty right should take out a licence from the Colonial 

 Government. No licence is required for what is a matter of right, 

 and no such licence has, His Majesty's Government are informed, been, 

 in fact, required. 



With the last part of the proposition it will be more convenient to 

 deal in conjunction with proposition 3. 



Proposition 3 states: 



"The only concern of the Government of Newfoundland with such 

 a vessel is to call for proper evidence that she is an American vessel, 

 and therefore entitled to exercise the Treaty right, and to have her 

 refrain from violating any laws of Newfoundland not inconsistent 

 with the Treaty." 



It has already been pointed out that the Convention of 1818 confers 

 no rights on American vessels as such, and that the exercise of the 

 right of fishing under the Convention is subject to the condition that 

 the fishing is carried on by inhabitants of the United States. His 

 Majesty's Government, however, agree that no law of Newfoundland 

 should be enforced on American fishermen which is inconsistent with 

 their rights under the Convention. 



Mr. Root's note does not give any indication of what laws of the 

 Colony would be regarded by the United States' Government as incon- 

 sistent with the Convention if applied to American fishermen. The 

 opinion of His Majesty's Government on this point is as follows: 



The American fishery, under Article I of the Convention of 1818, 

 is one carried on within the British jurisdiction and "hi common 

 with" British subjects. The two Governments hold different views 

 as to the nature of this Article. The British Government consider 

 that the war of 1812 abrogated that part of Article III of the Treaty 

 of Peace of 1783 which continued to inhabitants of the United States 

 "the liberty" (in the words used by Mr. Adams to Earl Bathurst in his 

 note of the 25th September, 1815) "of fishing and drying, and curing 

 their fish within the exclusive jurisdiction on the North American 

 coasts to which they had been accustomed while themselves forming 

 a part of the British nation," and that consequently Article I of the 

 Convention of 1818 was a new grant to inhabitants of the United 

 States of fishing privileges within the British jurisdiction. The 

 United States' Government, on the other hand, contend that the war 

 of 1812 had not the effect attributed to it by the British Government, 

 and that Article I of the Convention of 1818 was not a new grant, 

 but merely a recognition (though limited in extent) of privileges 

 enjoyed by inhabitants of the United States prior, not only to the 

 war, but to the Treaty of 1783. Whichever of these views be adopted, 

 it is certain that 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. Amer- 

 ican fishermen cannot therefore rightly claim to exercise their right 

 of fishery under the Convention of 1818 on a footing of greater freedom 

 than if they had never ceased to be British subjects. Nor consistently 

 with the terms of the Convention can they claim to exercise it on a 

 footing of greater freedom than the British subjects "in common 



