INTRODUCTION Ixxi 



law as far as the United States is concerned, because it is a settled prin- 

 ciple of American jurisprudence that a treaty as the law of the land 

 annuls inconsistent provisions of local legislation. Future laws con- 

 sistent with the provisions of the Reciprocity Treaty would be vaUd 

 and binding, because "neither party has jdelded its right to civil juris- 

 diction over a marine league along its coast." It is presumed that the 

 legislature acts within its power, and all doubts on this point should 

 be decided, not by the fishermen on the spot, but by their government 

 on appeal, and any law or regulation will be objectionable if in fact or 

 in execution it discriminates in favor of British fishermen, or if it impairs 

 the right secured to American fishermen by the Reciprocity Treaty. 

 The treaty is the measure of the right. Legislation inconsistent with the 

 treaty is without effect, but this matter is to be determined by the 

 diplomatic intervention of the United States, not by action of American 

 fishermen alleging an injury to their fishing rights. Such is the Ameri- 

 can interpretation of the Marcy Circular, and it would seem that this 

 interpretation is neither false nor strained. 



The British interpretation, on the contrary, regards the circular as 

 an admission that American fishermen frequenting British waters are 

 subjected to local legislation (for which under Lord Salisbury's interpre- 

 tation an express clause would be necessary for future legislation), and 

 that the local sovereign retaining "its right to civil jurisdiction over a 

 marine league along its coast " might regulate the fishery, provided such 

 regulation be not inconsistent with the terms of the treaty. Should it, 

 however, be inconsistent with the treaty, the question is one for diplo- 

 matic negotiation between the two countries, with the presumption in 

 favor of the reserved right of Great Britain as local sovereign, provided 

 the regulations do not discriminate in favor of British fishermen. In 

 other words, equaUty under the treaty is the test and, if equality 

 be preserved, the regulation is effective even though it be not consented 

 to by the American Government. 



The matter is not free from doubt, and if the British interpretation 

 is correct, the circular is an admission against American interests, just 

 as Lord Salisbury's admissions under the Treaty of 1871 are admissions 

 against Great Britain. The Reciprocity Treaty was terminated by the 

 United States in 1866 and, from 1866 until the Treaty of Washington in 

 1871, the Convention of 1818 was the measure of American fishing 

 rights in British American waters. In the interval between the abroga- 

 tion of the Reciprocity Treaty of 1854 and the Treaty of Washington, 

 Mr. Boutwell, Secretary of the Treasury, issued a circular to inform 

 American fishermen of their rights and duties in Canadian waters. In 



