Ixvi INTRODUCTION 



the exerdse of that right was unregulated the finding of the Tribunal 

 that the words "in common" subjected American fishermen to regula- 

 tion rejects the identity, destroys the analogy, and invaUdates the con- 

 clusions sought to be drawn from both. Indeed the finding of the 

 Tribunal on this point renders discussion of the French Treaty right 

 useless and the supposed consequences based upon principles of law 

 apphcable to the French Treaty rights irrelevant.' 



It has been intimated that the attitude of Great Britain toward the 

 regulation of American fishing rights within Newfoundland waters was 

 such as to suggest that the claim to regulate was placed upon the lowest 

 ground consistent with the maintenance and exercise of sovereignty. 

 It therefore appears necessary to examine what regulation of American 

 fishing rights was attempted from the conclusion of the Convention of 

 1818 down to the negotiations which led to the formulation and sub- 

 mission of the issues between the two governments. In the correspond- 

 ence passing between Lord Sahsbury and Mr. Evarts it was stated that 

 the laws in force at the time of the Treaty of Washington (May 8, 1871), 

 (the terms of which, so far as the additional fishing grounds granted for 

 ten years by this Treaty are concerned, are identical with the Conven- 

 tion of 1818) were binding upon the United States, because the 

 grantee acquired rights as defined and hmited at the time of the grant, 

 and it was laid down by Lord Salisbury as a fundamental principle that 

 the rights secured by the Treaty of 1871 could not be modified by sub- 

 sequent municipal legislation. It is true that Lord SaUsbury's suc- 

 cessor. Lord Granville, took the broader ground that municipal laws 

 regulating the fishery would be binding upon American fishermen in 

 so far as such regulations were not inconsistent with the terms of the 

 grant. It will faciUtate the discussion of the subject to ascertain what 

 laws were in efEect in the year 18 18 respecting the Newfoimdland fish- 

 eries and its exercise, because the statement of Lord Salisbury may be 

 regarded as a statement of general principle applicable to the construc- 

 tion of treaties in general and as an admission of the Umitation which 

 the treaty placed upon future action of the grantor. In 1906 Lord 

 Elgin stated, on behalf of the British government, that the only laws 

 regulating the fishery which were in effect in the year 181 8 and which, 

 according to Lord Salisbury, were binding upon the United States were 

 the following. 



'Although France was not a party to the arbitration, the Tribunal felt itself justified 

 in passing upon the nature of the French right, saying, "the French right, designated in 

 1713 merely 'an allowance' (a term of even less force than that used in regard to the 

 American fisheries), was neverthless converted, in practice, into an exclusive right." 



Appendix, p. 405; Oral Argument, p. 1439. 



