448 APPENDIX 



out a license from the Colonial Government. No license is required for what is a 

 matter of right, and no such license has, His Majesty's Government are informed, 

 been, in fact, required. 



With the last part of the proposition it will be more convenient to deal in conjunction 

 with proposition 3: 



.Proposition 3 states: 



"The only concern of the Government of Newfoundland with such a vessel is to 

 call for proper evidence that she is an American vessel, and therefore entitled to exer- 

 cise the Treaty right, and to have her refrain from violating any laws of Newfoundland 

 not inconsistent with the Treaty." 



It has already been pointed out that the Convention of 1818 confers no rights on 

 American vessels as such, and that the exercise of the right of fishing under the Con- 

 vention is subject to the condition that the fishing is carried on by inhabitants of the 

 United States. His Majesty's Government, however, agree that no law of Newfound- 

 land should be enforced on American fishermen which is inconsistent with their rights 

 under the Convention. 



Mr. Root's note does not give any indication of what laws of the Colony would 

 be regarded by the United States' Government as inconsistent with the Convention 

 if applied to American fishermen. The opinion of His Majesty's Government on this 

 point is as follows: 



The American fishery, under Article I of the Convention of 1818, is one carried 

 on within the British jurisdiction and "in common with" British subjects. The two 

 Governments hold different views as to the nature of this Article. The British Govern- 

 ment consider that the war of 18 12 abrogated that part of Article III of the Treaty 

 of Peace of 1783 which continued to inhabitants of the United States "the liberty" 

 (in the words used by Mr. Adams to Earl Bathurst in his note of the 25th September, 

 1815) "of fishing and drying, and curing their fish within the exclusive jurisdiction 

 on the North American coasts to which they had beer, accustomed while themselves 

 forming a part of the British nation," and that consequently Article I of the Con- 

 vention of 1818 was a new grant to inhabitants of the United States of fishing privi- 

 leges within the British jurisdiction. The United States' Government, on the other 

 hand, contend that the war of 1812 had not the effect attributed to it by the British 

 Government, and that Article I of the Convention of 1818 was not a new grant, but 

 merely a recognition (though limited in extent) of privileges enjoyed by inhabitants 

 of the United States prior, not only to the war, but to the Treaty of 1783. Which- 

 ever of these views be adopted, it is certain that inhabitants of the United States 

 would not now be entitled to fish in British North American waters but for the fact 

 that they were entitled to do so when they were British subjects. American fisher- 

 men cannot therefore rightly claim to exercise their right of fishery under the Con- 

 vention of j8i8 on a footing of greater freedom than if they had never ceased to be 

 British subjects. Nor consistently with the terms of the Convention can they claim 

 to exercise it on a footing of greater freedom than the British subjects "in common 

 with" whom they exercise it under the Convention. In other words, the American 

 fishery under the Convention is not a free but a regulated fishery, and, in the opinion 

 of His Majesty's Government, American fishermen are bound to comply with all 

 Colonial Laws and Regulations, including any touching the conduct of the fishery, 

 so long as these are not in their nature unreasonable, and are applicable to all fisher- 

 men alike. One of these Regulations prohibits fishing on Sundays. His Majes^'s 

 Government have received information that several breaches of this Regulatksn. wese 



