PERIOD FEOM 1905 TO 1909. 983 



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, questions 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 hi 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 questions 

 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 or 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 Xylll of that Treaty. 

 But it cannot 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 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 

 British fishermen, the United States' fisnermen 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 Treaty." 



Under the view thus forcibly expressed, the British Government 

 would be consistent in claiming that all regulations and limitations 

 upon the exercise of the right of fishing upon the Newfoundland coast, 

 which were in existence at the time when the Treaty of 1818 was 

 made, are now binding upon American fishermen. 



Farther than this, His Majesty's Government cannot consistently 

 go, and, farther than this, the Government of the United States can- 

 not go. 



For the claim now asserted that the Colony of Newfoundland is 

 entitled at will to regulate the exercise of the American Treaty right 



