INTRODUCTION Ixxvii 



existence at the time of the conclusion of the treaty and the obligation 

 to observe it was not assumed, and because of Lord Salisbury's state- 

 ment that the Colonial Legislature was incompetent (to pass 'legislation 

 subsequent to the treaty in violation of its terms) would render the 

 prohibition inapplicable to American fishermen without the consent of 

 the United States. 



The American view is clearly put in Mr. Evarts' correspondence, as 

 appears from the following extracts: 



"This Government conceives that the fishery rights of the United States, con- 

 ceded by the Treaty of Washington, are to be exercised wholly free from the restraints 

 and regulations of the Statutes of Newfoimdland, now set up as authority over our 

 fishermen, and from any other regulations of fishing now in force or that may hereafter 

 be enacted by that government. 



"It may be said that a just participation in this common fishery by the two parties 

 entitled thereto may, in the common interest of preserving the fishery and preventing 

 conflicts between the fishermen, require regulation by some competent authority. 

 This may be conceded. But should such occasion present itself to the common appre- 

 ciation of the two Governments, it need not be said that such competent authority 

 can only be found in a joint convention that shall receive the approval of Her Majesty's 

 Government and our own. Until this arrangement shall be consummated, this Gov- 

 ernment must regard the pretension that the legislation of Newfoundland can regulate 

 our fishermen's enjoyment of the treaty right as striking at the treaty itself. 



"It asserts an authority on one side, and a submission on the other, which has not 

 been proposed to us by Her Majesty's Government, and has not been accepted by 

 this Government. I cannot doubt that Lord Salisbury will agree that the insertion 

 of any such element in the Treaty of Washington would never have been accepted 

 by this Government, if it could reasonably be thought possible that it could have been 

 proposed by Her Majesty's Government. The insertion of any such proposition by 

 construction now is equally at variance with the views of this Government." ' 



The evidence submitted by the British Government before the Hali- 

 fax Commission proved that the United States had used the nets and 

 other instrumentalities forbidden by local statutes of 1862 and that 

 the increased value of the catch by means of such instrumentalities 

 swelled the amount of the award. Mr. Evarts, therefore, held that 

 Great Britain was estopped from denying the right of Americans to 

 fish in a manner and at a time which they had purchased by the Treaty 

 of 1871 and paid for by the Halifax award. It is also evident that as 

 the award included twelve years, not merely the fractions of time between 

 the going into effect of the treaty and the Halifax award of 1877, it 

 presupposed the right of American fishermen to continue to take fish 

 during the future as in the past. Otherwise the United States would 

 have paid the full price for a free fishery, although subject to be deprived 



• Sept. 28, 1878. Mr. Evarts to Mr. Welsh, Appendix, p. 416; Appendix, U. S. Case, 

 Vol. II, p. 652. 



