xxu INTRODUCTION 



In 1887 Lord Salisbury wrote: 

 "Her Majesty's Government have always held that there is nothing in the Xlllth 

 Article of the Treaty of Utrecht, or in the Declaration of 1783, which deprives British 

 subjects of the right of taking fish at sea off that part of the shore to which the French 

 Treaty rights apply, provided they do not molest the French fishermen in the exer- 

 cise of their Treaty right of fishing, nor interrupt them by their competition. It is 

 manifest that such molestation and interruption can only refer to a physical obstruc- 

 tion and impediment to the exercise of the French right of fishery, and not to any 

 diminution of the French catch of fish which may be supposed to result from the mere 

 participation by British fishermen in the sea fishery." '■ 



It is not necessary for the present purpose to consider the rights 

 possessed by French fishermen upon the French shore; that is to say, 

 that portion of Newfoundland lying between Cape St. John and Cape 

 Ray, because the Arbitration of 1910 was confined to fishing rights in 

 Newfoundland waters. It may be said, however, in passing, that the 

 right to subject the shore to the use of French fishermen was what is 

 technically known as an international servitude and was treated as such 

 in the French diplomatic correspondence, notably in M. Waddington's 

 note^ of December 15, 1888, to Lord Salisbury, and in M. Delcasse's cir- 

 cular note of April 12, 1904, to French diplomatic oflicers, notifying them 

 of the conclusion of the Convention of 1904 between Great Britain and 

 France, by which the right to use the French shore for dr)dng and curing 

 was specifically renounced.' 



The note quoted in the text thus continues: 



"And although in accordance with the true spirit of the Treaty and Declaration of 1783, 

 prohibitory Proclamations have from time to time been issued, on occasions when it has been 

 found that British subjects, wliile fishing within the limits in question, have caused interrup- 

 tion to the French fishery, yet in none of the public documents of British Government — neither 

 in the Act of Parliament of 1788, passed for the express purpose of carrying the Treaty of 1783 

 ■ into effect, nor in any subsequent Act of Parliament relating to the Newfoundland fishery, nor 

 in any of the instructions issued by the Admiralty or by the Colonial Office, nor in any Proc- 

 lamation which has come under my view, issued by the Governor of Newfoundland or by the 

 British Admiral upon the station — does it appear that the right of French subjects to an exclu- 

 sive fishery, either of codfish or of fish generally, is specifically recognized." 



'■ Lord Salisbury's note, dated August 24, 1887, to the French Ambassador, M. Wad- 

 dington. (Appendix, U. S. Counter Case, p. 323.) 



On the origin and nature of French fishing rights and their non-exclusive character, see the 

 exhaustive and convincing memorandum enclosed in Lord Salisbury's note, dated July 9,-i88g, 

 to M. Waddington. (Appendix, U. S. Case, Vol. II, pp. 1086-1096.) 



' "What is understood by 'the method of carrying on the fishery' is defined by the develop- 

 ments following this phrase in the text of the declaration. It is a modtis vivendi of the French 

 on a coast which has ceased to belong to them, which is regulated; it is their provisional encamp- 

 ment, their right to cut wood necessary for their small repairs, which is confirmed; it is, in a 

 word, the most thorough commentary on the territorial rights of the British Crown in respect 

 of the temporary servitude ('servitude temporaire') agreed to by it. 'The method of carrying 

 on the fishery' signifies the international police regulations which shall govern the relations of 

 the fishermen of the two nations, and an impartial examination precludes the discovery of the 

 least restriction on the method of fishing of the French, or on the manner of preparing the fish, 

 provided that the French establishments preserve, as they do to-day, the character of 'tempo- 

 rary buildings' possessed by the scaffold." (Oral Argument, Vol. II, p. 1422.) 



' M. Delcass6's circular note, dated April 12, 1904, to French diplomatic officers: 



