INTRODUCTION Ixvii 



"Light dues were presumably not levied in 1818, seines were apparently in use, 

 the prohibition of Sunday fishing had been abolished in 1776 (see 15 George III, Chap. 

 31), and fishing-ships were exempted from entering at Custom-house, and required 

 only to make report on first arrival and on clearing (see same Act). United States 

 vessels could, on the basis of the status quo in 1818, only be asked to make report at 

 custom-house on arrival and on clearing." • 



Admitting Lord Salisbury's statement to be correct it would follow 

 that American fishing vessels would only be required to report at custom- 

 houses on arrival and on clearing, that light dues could not be exacted, 

 and that seines might be used. In other words, the manner of fishing 

 was unregulated so far as light dues and seines were concerned, and the 

 manner was only regulated in the requirements of the customs service, 

 and that to a very limited extent. The prohibition of Sunday fishing 

 had been repealed and the time of fishing was unregulated. It may be 

 said that existing legislation is finding per se upon American fishermen, 

 and that the local sovereign could enact future legislation subject to the 

 protests of the United States; but the language of Lord Salisbury's 

 dispatch would seem to deprive the local sovereign of the right to pass 

 such legislation, because, speaking for his government, he stated as 

 Secretary of State that Her Majesty's Government "have always 

 admitted the incompetence of the Colonial or the imperial legislature 

 to limit by subsequent legislation the advantages secured by Treaty 

 to the subjects of another power." ^ 



It would seem that this passage draws a clear distinction between 

 legislation, however reasonable, which the grantor may pass, the reason- 

 ableness of which may be corrected by diplomatic protest, and legisla- 

 tion which the grantor is incompetent to pass, because in the first case 

 the grantor is responsible for an mireasonable exercise of an existing 

 power, whereas in the second case the power itself does not exist, and 

 therefore the legislation is, as far as the grantee is concerned, null and 

 void. Its nullity may indeed be questioned by diplomatic protest, but 

 the nullity arises not from the protest, but from the lack of power to 

 enact legislation. It may be said that the correspondence referred to 

 the Treaty of Washington, not to the Convention of 1818, but the terms 

 of the grant of the Treaty of Washington of 1871, in so far as fishing 

 rights were concerned, were identical with the grant of 1818. For 

 example, the Convention of 1818 granted the liberty, within specified 

 limits, to the inhabitants of the United States, to take fish "in common 

 with the subjects of His Britannic Majesty." The Treaty of 1871 pro- 



' Lord Elgin's telegram to Governor MacGregor, dated August 8, igo5. (Appendix, U. S. 

 Case, Vol. II, p. 987.) 



' Lord Salisbury's note, dated April 3, i88o, to Mr. Hoppin. (Appendix, p. 431; Appen- 

 dix, British Case, p. 278; Appendix, U. S. Case, p. 683.) 



