CORRESPONDENCE 427 



The act of 1876 provides that "no person shall, between the hours of twelve o'clock 

 on Saturday night and twelve o'clock on Sunday night, haul or take any herring, 

 caplin, or squid, with net, seine, bunts, or any such contrivance, for the purpose of 

 such hauling or taking." 



It seems scarcely necessary to do more than place the provisions of the treaty 

 and the provisions of these laws in contrast, and apply the principle, so precisely and 

 justly announced by Lord Salisbury as self-evident, "That British sovereignty, as 

 regards these waters, is liihited in its scope by the engagements of the Treaty of Wash- 

 ington, which cannot be modified or affected by any municipal legislation." For it 

 will not be denied that the treaty privilege of "taking fish of every kind, except 

 shell-fish, on the sea coast and shores, in the bays, harbors, and creeks" of Newfound- 

 land, is both seriously "modified" and injuriously affected by "municipal legisla- 

 tion," which closes such fishery absolutely for seven months of the year, prescribes a 

 special method of exercise, forbids exportation for five months, and in certain localities 

 absolutely limits the three-mile area which it was the express purpose of the treaty 

 to open. 



But this is not all. When the Treaty of 1871 was negotiated, the British Govern- 

 ment contended that the privilege extended to United States fishermen, of free fishing 

 within the three-mile territorial limit, was so much more valuable than the equiva- 

 lent offered in the treaty, that a money compensation should be added to equalize 

 the exchange. The Halifax Commission was appointed for the special purpose of 

 determining that compensation, and, in order to do so, instituted an exhaustive 

 examination of the history and value of the colonial fisheries, including the herring 

 fishery of Newfoundland. Before that commission, the United States Government 

 contended that the frozen-herring fishery in Fortune Bay, Newfoundland, the very 

 fishery now under discussion, was not a fishery but a traffic; that the United States 

 vessels which went there for herring always took out trading permits from the United 

 States custom-houses, which no other fishermen did; that the herring were caught 

 by the natives in their nets, and sold to the vessels, the captains of which froze the 

 herring after purchase, and transported them to market; and that, consequently, 

 this was a trade, a commerce beneficial to the Newfoundlanders, and not to be debited 

 to the United States account of advantages gained by the Treaty. To this the British 

 Government replied, that whatever the character of the business had been, the treaty 

 now gave the United States fishermen the right to catch as well as purchase herring; 

 that the superior character of the United States vessels, the larger capacity and more 

 efiicient instrumentality of the seines used by the United States fishermen, together 

 with their enterprise and energy, would all induce the United States fishermen to 

 catch herring for themselves, and thus the treaty gave certain privileges to the United 

 States fishermen which inflicted upon the original proprietor a certain amount of loss 

 and damage, from this dangerous competition, which, in justice to their interests, 

 required compensation. The exercise of these privileges, therefore, as stated in the 

 British Case, as evidenced in the British testimony, as maintained in the British 

 argument, for which the British Government demanded and received compensation, 

 is the British construction of the extent of the liberty to fish in common, guaranteed 

 by the treaty. 



Mr. Whiteway, then Attorney-General of Newfoundland, and one of the British 

 counsel before the commission, said in his argument: 



"And now one word with regard to the winter herring-fishery in Fortune Bay. 

 It appears that from forty to fifty United States vessels proceed there between the 



