which shall not only ensure the execution thereof, with his accustomed good faith and punctuality, but will besides give, on his part, all possible efficacy to the principles which shall prevent even the least foundation of dispute for the future. To this end, and in order that the Fishermen of the 2 Nations may not give cause for daily quarrels, His Britannic Majesty will take the most positive measures for preventing his Subjects from interrupting, in any manner, by their competition, the Fishery of the French, during the temporary exercise of it which is granted to them, upon the coasts of the Island of Newfoundland; and he will, for this purpose, cause the fixed settlements which shall be formed there, to be removed. His Britannic Majesty will give orders that the French Fishermen be not incommoded in cutting the wood necessary for the repair of their scaffolds, huts, and Fishing Vessels. The XIIIth Article of the Treaty of Utrecht, and the method of carrying on the Fishery, which has at all times been acknowledged, shall be the plan upon which the Fishery shall be carried on there; it shall not be deviated from by either Party; the French Fishermen building only their scaffolds, confining themselves to the repair of their Fishing Vessels, and not wintering there; the Subjects of His Britannic Majesty, on their part, not molesting, in any manner, the French Fishermen, during their fishing, nor injuring their scaffolds during their absence. The King of Great Britain, in ceding the Islands of St. Pierre and Miquelon to France, regards them as ceded for the purpose of serving as a real shelter to the French Fishermen, and in full confidence that these Possessions will not become an object of jealousy between the 2 Nations; and that the Fishery between the said Islands and that of Newfoundland shall be limited to the middle of the Channel." FRENCH COUNTER-DECLARATION OF SEPTEMBER 3, 1783. [Extract.] The principles which have guided the King, in the whole course of the Negotiations which preceded the re-establishment of Peace, must have convinced the King of Great Britain, that His Majesty has had no other design than to render it solid and lasting, by preventing, as much as possible, in the 4 quarters of the World, every subject of discussion and quarrel. The King of Great Britain undoubtedly places too much confidence in the uprightness of His Majesty's intentions not to rely upon his constant attention to prevent the Islands of St. Pierre and Miquelon from becoming an object of jealousy between the 2 nations. As to the Fishery on the coasts of Newfoundland, which has been the object of the new arrangements settled by the 2 Sovereigns upon this matter, it is sufficiently ascertained by the Vth Article of the Treaty of Peace signed this day, and by the Declaration_likewise delivered to-day, by His Britannic Majesty's Ambassador Extraor dinary and Plenipotentiary; and His Majesty declares that he is fully satisfied on this head. U. S. Case Appendix, p. 54. In regard to the Fishery between the Island of Newfoundland and those of St. Pierre and Miquelon, it is not to be carried on by either Party, but to the middle of the Channel, and His Majesty will give the most positive orders that the French Fishermen shall not go beyond this line. His Majesty is firmly persuaded that the King of Great Britain will give like orders to the English Fishermen." In connection with the foregoing fisheries provisions, it should be noted that they were continued and confirmed by Article XIII of the Treaty of May 30, 1814, and Article XI of the Treaty of November 20, 1815, between Great Britain and France, which Articles are as follows: ARTICLE XIII OF THE TREATY OF MAY 30, 1814. The French right of Fishery upon the Great Bank of Newfoundland, upon the Coasts of the Island of that name, and of the adjacent Islands in the Gulf of St. Lawrence, shall be replaced upon the footing on which it stood in 1792. ARTICLE XI OF THE TREATY OF NOVEMBER 20, 1815. The Treaty of Paris of the 30th of May, 1814, and the final Act of the Congress of Vienna of the 9th of June, 1815, are confirmed, and shall be maintained in all such of their enactments which shall not have been modified by the Articles of the present Treaty." The correct interpretation of the foregoing treaty provisions was a matter of dispute between Great Britain and France for many years, France contending that the provisions should be interpreted as granting to French fishermen exclusive fishing rights on the coast of Newfoundland within the prescribed limits, which came to be known as the "French Coast," and as preventing the establishment of fixed settlements of whatever nature on that portion of the coast. Great Britain on the other hand has always denied that such rights were exclusive, and, although admitting that the French had certain prior rights to the use of the shore during the fishing season, has maintained that the British fishermen had rights in common with the French in the taking of fish in the waters of the French treaty coast. The British position with respect to the French rights on the Newfoundland coast under these treaties and accompanying declarations is officially stated in the following extract from a note written July 10, 1838, by Viscount Palmerston to Count Sebastiani: @ U. S. Case, Appendix, p. 56. U. S. Case, Appendix, p. 1083. It is true that the privilege secured to the fishermen of France by the Treaty and Declaration of 1783, a privilege which consists in the periodical use of a part of the shore of Newfoundland for the purpose of drying their fish, has in practice, been treated by the British Government as an exclusive right during the period of the fishing season, and within the prescribed limits; because, from the nature of the case, it would scarcely be possible for British fishermen to dry their fish upon the same part of the shore with the French fishermen, without interfering with the temporary establishments of the French for the same purpose, and without interrupting their operations. But the British Government has never understood the Declaration to have had for its object to deprive British subjects of the right to participate with the French in taking fish at sea off that shore, provided they did so without interrupting the French cod fishery." So far as the above quoted treaty provisions relate to the taking of fish, which is the chief point of interest in the present connection, in distinction from the drying and curing of them, it will be observed that they respectively provide as follows: The treaty of 1713 provides that "it shall be allowed to the subjects of France to catch fish in that part only, and in no other besides that, of the said Island of Newfoundland, which stretches from the place called Cape Bonavista, to the northern point of the said Island, and from thence running down by the western side, reaches as far as the place called Point Riche." The treaty of 1763 provides that "the subjects of France shall have the liberty of fishing on a part of the coasts of the Island of Newfoundland, such as is specified in Article XIII of the Treaty of Utrecht." The treaty of 1783 provides that "the French fishermen shall enjoy the fishery which is assigned to them by the present Article, as they had the right to enjoy that which was assigned to them by the Treaty of Utrecht," the only difference being that under this treaty the "French Shore" on the east coast of Newfoundland began at Cape St. John, instead of at Cape Bonavista, and on the west coast was extended to Cape Ray, at its southern extremity. The British Declaration of September 3, 1783, provides that "His Britannic Majesty will take the most positive measures for preventing his Subjects from interrupting, in any manner, by their competition, the Fishery of the French, during the temporary exercise of it which is granted to them, upon the coasts of the Island of New foundland." The obvious meaning of this stipulation is, and it has been U. S. Case Appendix, p. 1096. so interpreted by Great Britain, not that the British will not compete with the French, but merely that, if they do compete, they will not interrupt the fishery of the French by their competition. It will be perceived from the foregoing analyses that the provisions in the French treaties relating to the taking of fish, are almost identical with the language used in the fisheries article of the treaty of 1783 between the United States and Great Britain with reference to the fishing liberty of the inhabitants of the United States on the British coasts generally; and that the provisions of the British declaration of 1783 requiring that the British fishermen shall not interrupt the French fishermen, as they have been interpreted by Great Britain, have practically the identical effect that the use of the expression "in common" in its reciprocal application to American and British fishermen has in the treaty of 1818, as interpreted by the United States. In other words, under the British interpretation of the French treaties, they provided in effect that the French "shall have the liberty of fishing" on the coast specified, but that they shall not be interrupted by the British fishermen in their competition with them; and this interpretation of the French treaties exactly describes the fishing liberty "in common" with British subjects which the inhabitants of the United States have under the treaty of 1818 as interpreted by the United States. Nevertheless, although Great Britain in the controversy with France has always maintained that French fishermen had merely a fishing liberty in common or concurrently with British subjects and has asserted territorial jurisdiction over the waters in which the French liberty of fishing was exercised, just as Great Britain now asserts such jurisdiction over the waters of the treaty coasts defined by the treaty of 1818 with the United States, yet, throughout the entire period during which the French treaty of 1783 and the subsequent treaties continuing the French rights were in force, neither Great Britain nor Newfoundland has ever undertaken to establish, much less enforce, any fishing regulations against the French fishermen in the waters of the "French Coast" or to limit or restrain in any way the exercise of the liberty of fishing secured to the French under those treaties. U. S. Counter-Case Appendix, p. 323. Conclusive evidence of the British position on this point is furnished by the Act passed by the British Parliament in 1788 (28 Geo. III, cap. 35), entitled "An Act to enable His Majesty to make such regulations as may be necessary to prevent the inconvenience which might arise from the competition of His Majesty's subjects and those of the Most Christian King, in carrying on the fishery on the Coasts of the Island of Newfoundland." This act recites the provisions of Article XIII of the treaty of Utrecht, and of Article V of the treaty of peace of 1783 with France, and of the British declaration accompanying the treaty of 1783, and that It is expedient in conformity to the definitive treaty of peace and the declaration aforesaid, that His Majesty's subjects should be prevented from interrupting in any manner, by their competition, the aforesaid fishery of the subjects of His Most Christian Majesty, during the temporary exercise thereof, which is granted to them on the coast of Newfoundland; And provides * * In order, therefore, that His Majesty may be the better enabled to carry the said several treaties and declarations into faithful and punctual execution, and to make such regulations as may be expedient, respecting the fishery in the manner herein after mentioned, be it enacted by the King's Most Excellent Majesty, that it shall and may be lawful for His Majesty, his heirs and successors, by advice of council, from time to time, to give such orders and instructions to the Governor of Newfoundland, or to any officer or officers on that station, as he or they shall deem proper and necessary to fulfill the purposes of the definitive treaty and declaration aforesaid; and if it shall be necessary to that end, to give orders and instructions to the Governor, or other officer or officers aforesaid, to remove, or to cause to be removed, all ships, vessels and boats belonging to His Majesty's subjects which shall be found within the limits aforesaid, and also, in case of refusal to depart from within the limits aforesaid, to compel any of His Majesty's subjects to depart from thence; any law, usage, or custom to the contrary, notwithstanding." * This act contains no regulations applying to French fishermen exercising their liberty of fishing under these treaties, and as above stated no attempt was ever made by Great Britain to adopt or enforce any fishing regulations against the French fishermen in their treaty waters during the period covered by the French treaty of 1783. It is of peculiar significance, therefore, that the legislation adopted by Great Britain in 1819 for the purpose of carrying out its obligaBritish Case Appendix, p. 561. |