THE FROZEN-HEKRING INDUSTRY. 449 



subjects or gone beyoud their treaty privileges, and refused to admit the competency of municipal 

 legislation to nullify or diminish aught from the privileges granted by the Imperial Government. 

 He held, moreover, that, even if the local laws could in any case have such an effect, they certainly 

 were not so intended in the present instance, and, in support of this position, cited section 18 of 

 the Newfoundland law alleged to have been infringed, which is as follows : 



" Nothing in this chapter shall affect the rights and privileges granted by treaty to the subjects 

 of any state or power in amity with Her Majesty." 



Regarding the amount of the claim against Great Britain, Mr. Evarts said : 



" The evidence in this case shows that the catch which the United States fishing fleet had on 

 this occasion actually realized was exceptionally large, and would have supplied profitable cargoes 

 for all of them. When to this is added the fact tLat the whole winter was lost and these vessels 

 compelled to return home in ballast; that this violence had such an effect on this special fishery 

 that in the winter of 1878-'79 it has been almost entirely abandoned, and the former fleet of twenty- 

 six vessels has been reduced to eight, none of which went provided with seines, but were compelled 

 to purchase their fish of the inhabitants of Newfoundland, the United States Government is of 

 opinion that $105,305.02 may be presented as an estimate of the loss as claimed, and you will con- 

 sider that amount as being what this Government will consider as adequate compensation for loss 

 and damage." 



The British Government finally acknowledged that local legislation passed after the ratifica- 

 tion of the treaty of Washington ought not to affect the American fishermen in any of their rights, 

 but it claimed that any laws existing prior to 1871 should be considered as binding upon our fish- 

 ermen. Lord Salisbury, thereiore, in his letter of April 3, 1880, omits the question of " Sunday 

 fishing," but bases the case of his Government on an act passed by the colonial legislature of New- 

 foundland on March 27, 1862. He shows that section 1 of that act forbids the taking of herring 

 with a seine between the 20th of October and the 12th of April, and further prohibits the use of 

 seines at any season for the purpose of barring herring. In this letter he claimed that the fisher- 

 men of the United States had no right to use the shores of Newfoundland for purposes of actual 

 fishing, and (2) that they had no right to use a seine for herring at that particular season of the 

 year, and, indeed, that they could not use one for barring herring at any time. Ho states that the 

 evidence in the case shows that " on 1 he day in question a large number of the crews of the United 

 States fishing vessels came on shore and from the beach barred the herring, the ends of their seines 

 being secured to the shore." This fact alone, he thinks, would warrant his Government in refusing 

 to pay the claims for losses sustained by our citizens. 



In commenting upon the language of the treaty, he said: 



" Thus, while absolute freedom in the matter of fishing in territorial waters is granted, the 

 right to use the shore for four specified purposes alone is mentioned in the treaty articles from 

 which United States fishermen derive their privileges, namely, to purchase wood, to obtain water, 

 to dry nets, and cure fish. 



" The citizens of the United States are thus, by clear implication, absolutely precluded from 

 the use of the shore in the direct act of catching fish. This view was maintained in the strongest 

 manner before the Halifax Commission by the United States agent," &c. 



The American vessel-owners in their claims for damages had included not only the actual 

 expenses of the voyage, but also the profits that might have accrued to them from the sale of the 

 fish, these last being figured on the basis of profits in former years of vessels engaged in the same 

 business. 



SEC v 29 



