gested the doing of it. Everybody acted as though it were unnecessary. British officials enforced the existing laws. The legislatures amended them from time to time, as experience proved to be necessary. United States fishermen treated them as operative and binding. The United States Government made no complaint.

In 1856, and on several occasions between 1866 and 1872, the attention of the United States Government was called to the necessity of fishermen obeying Colonial laws, but no objection was taken. It was not until 1878 that the present contention was first raised.

BRITISH STATUTE, 1819.

1819.-Immediately after the execution of the treaty of 1818, the British Parliament passed a statute for the express purpose of providing for the making of such regulations as might be rendered necessary by the access of United States fishermen to the shore fisheries. (App., p. 565.) After reciting the treaty, the statute (59 Geo. III, c. 38) enacted

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That from and after the passing of this Act, it shall and may be lawful for His Majesty, by and with the advice of His Majesty's Privy Council, by any order or orders in council, to be from time to time made for that purpose, to make such regulations, and to give such directions, orders, and instructions to the Governor of Newfoundland, or to any officer or officers on that station, or to any other person or persons whomsoever, as shall or may be from time to time deemed proper and necessary for the carrying into effect the purposes of the said convention, with relation to the taking, drying, and curing of fish by inhabitants of the United States of America, in common with British subjects, within the limits set forth in the said article of the said convention, and hereinbefore recited; any Act or Acts of Parliament, or any law, custom or usage to the contrary in anywise notwithstanding.

No protest or complaint was ever made by the United States with respect to that statute.

MR. MARCY'S CIRCULAR, 1853.

1853. Encroachments by United States fishermen had rendered necessary greater vigilance in the protection of British rights, and some excitement having arisen among the American vessel owners, Mr. Marcy (United States Secretary of State) issued a circular to the Directors of Ports (9th July) for the guidance of the fishermen (App., p. 201):

Any armed resistance on the part of the fishing vessels, either singly or combined, would be an act of private hostility which can never receive any countenance from this Government.

You will omit nothing that your knowledge of the circumstances may suggest, and which our good faith towards a Power with which

we are, and desire to remain, at peace demands, to prevent any rash or illegal movements intended or calculated to violate our obligations towards a friendly foreign Power and our colonial neighbours.

I have been directed by the President to invite your prompt and personal attention to this matter, and to assure you that he places entire confidence in your active and judicious exertions to soothe the present irritation of popular feeling, excited in some instances, it is said, by unfounded reports of alleged violation of our national rights. Every good citizen should be solicitous to prevent any occurrence which may further excite that feeling. No violation of the colonial local law should be attempted, and their civil authorities and other officers should have due respect paid to them within their jurisdiction.

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In case of insult to the American flag or of injury to our fishermen, you will request them to transmit the particulars, properly substantiated, to the Department of State instead of attempting to settle the difficulties themselves.

RECIPROCITY TREATY, 1854.

1854.-By the Reciprocity treaty of 1854, the British coast fisheries, which had been closed against United States fishermen, were opened to them, the operative words being that (App., p. 36) —

the inhabitants of the United States shall have in common with the subjects of Her Britannic Majesty the liberty to take fish.

Reciprocally, certain United States coast fisheries were opened to British fishermen.

MR. MARCY'S CIRCULAR, 1855.

1855. At the commencement of the ensuing season, the United States Secretary of State (Mr. Marcy) sent (12th July, 1855) the following circular to the various Collectors of Customs (App., p. 207) :

It is understood that there are certain Acts of the British North American colonial legislatures, and also, perhaps, Executive Regulations, intended to prevent the wanton destruction of the fish which frequent the coasts of the colonies and injuries to the fishing thereon. There is nothing in the Reciprocity Treaty between the United States and Great Britain which stipulates for the observance of these regulations by our fishermen; yet, as it is presumed, they have been framed with a view to prevent injuries to the fisheries, in which our fishermen now have an equal interest with those of Great Britain, it is deemed reasonable and desirable that both should pay a like respect to those regulations, which were designed to preserve and increase the productiveness and prosperity of the fisheries themselves. It is, consequently, earnestly recommended to our citizens to direct their proceedings accordingly. You will make this recommendation known to the masters of such fishing vessels as belong to your port, in such manner as you may deem most advisable.

I am, &c.

W. L. MARCY.

It is believed that the principal regulations referred to above are the following, from the Revised Statutes of New Brunswick, vol. i, title 22, cap. 101:

7. The wardens of any county shall, when necessary, mark out and designate in proper positions "gurry grounds," putting up notices thereof, describing their limits and position, in the several school houses and other most public places in the parish where the said gurry grounds are marked out, publishing the like notice in the Royal Gazette;" and no person after such posting and publication shall cast overboard from any boat or vessel the offal of fish into the waters at or near the said parish at any place except the said gurry grounds.

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12. Within the parishes of Grand Manan, West Isles, Campo Bello, Pennfield, and St. George, in the County of Charlotte, no seine or net shall be set across the mouth of any haven, river, creek, or harbour, nor in such place extending more than one-third the distance across the same, or be within 40 fathoms of each other, nor shall they be set within 20 fathoms of the shore at low-water mark.

15. No herrings shall be taken between the 15th of July and 15th of October in any year, on the spawning ground at the southern head of Grand Manan, to commence at the eastern part of Seal Cove, at a place known as Red Point; thence extending westerly along the coast and around the southern head of Bradford's Cove, about five miles, and extending one mile from the shore; all nets or engines used for catching herring on the said ground within that period shall be seized and forfeited, and every person engaged in using the same shall be guilty of a misdemeanour and punished accordingly.

It will be observed that the specified rules belonged to three classes: (1) as to disposition of offal; (2) as to methods of fishing; and (3) as to close seasons. Attention of His Majesty's Government was called to this circular, and representations were at once made to Mr. Marcy on the subject.

The British Minister at Washington (Mr. Crampton) in his letter to the Earl of Clarendon (7th August, 1855) explained the view which, in these representations, he was urging upon Mr. Marcya view precisely the same as that now entertained by His Majesty's Government (App., p. 208):

It appears to me that American citizens, while within British jurisdiction, would be subject to the penalties attached to the infringement of all legal regulations, local, as well as general, by which British subjects are bound; and not less to those affecting the fisheries, provided always that these latter did not trench upon the rights secured by treaty to citizens of the United States.-Did any such law or police regulation exist, or were any such to be enacted, the Government of the United States would no doubt be justified in demanding its abrogation;-but the principle now enounced by Mr. Marcy extends much further, for it goes to exonerate American citizens from the penalties attaching to the violation of all British laws and regulations, however unobjectionable, now affecting, or which may hereafter affect, the British fisheries; and leave their observance

to depend solely on the good feeling or good sense of the individuals who may at any time happen to be engaged in those fisheries.

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In reply the Earl of Clarendon said (11th October, 1855) (App., p. 208):

By the Reciprocity Treaty between this country and the United States. American citizens are admitted to the benefit of certain fisheries carried on in British waters in common with Her Majesty's subjects. It follows as a necessary consequence that such American citizens are bound to observe the existing laws and regulations established for the conduct of such fisheries by which British subjects are bound. This is necessarily implied in the very words of the article of the treaty, but independently of all agreement, it would follow, on general principles, that American fishermen pursuing their occupation within British territory would be bound to observe the local laws and regulations in like manner as all foreigners are bound to observe the municipal laws of the country in which they are resident.

It is indeed literally true, as Mr. Marcy states, that there is no express stipulation in the Reciprocity Treaty which bids American citizens to observe the British colonial regulations, but the obligation to do so did not require a stipulation; it attaches upon American citizens as soon as they claim the benefit of the Treaty.

Upon those instructions Mr. Crampton had a conversation with Mr. Marcy. He pointed out the objections to the language of the circular, and proceeded as follows (App., p. 210.) :—

I admitted, I said, that if any of those laws were framed or executed so as to make an unfair discrimination in favour of British fishermen, or directly or indirectly to deprive American fishermen of the privileges secured to them by the Reciprocity Treaty, this would afford just ground for representation to Her Majesty's Government by the Government of the United States. But I called Mr. Marcy's attention to the danger of allowing to each individual the right to judge for himself whether a regulation was in conformity with the provisions of the Treaty or not, and at once to object to observe it.

Mr. Marcy appeared entirely to concur in this view of the matter, and said that he would cause such an alteration to be made in the wording of the circular instruction to be issued for the approaching fishing season as would obviate the objection which I had put

forward.

MR. MARCY'S NEW CIRCULAR, 1856.

Mr. Marcy shortly afterwards sent to Mr. Crampton the draft of a new circular in which Mr. Crampton made certain amendments, and Mr. Marcy issued (28th March, 1856) another circular, in which he said (App., pp. 209, 211.) :

It is deemed reasonable and desirable that both United States and British fishermen should pay a like respect to such laws and regulations, which are designed to preserve and increase the productive

ness of the fisheries on those coasts. Such being the object of 29 these laws and regulations, the observance of them is enjoined

upon the citizens of the United States in like manner as they are observed by British subjects. By granting the mutual use of the inshore fisheries, neither party has yielded its right to civil jurisdiction over a marine league along its coast. Its laws are as obligatory upon the citizens or subjects of the other as upon its own. The laws of the British provinces, not in conflict with the provisions of the Reciprocity Treaty, would be as binding upon citizens of the United States within that jurisdiction as upon British subjects. Should they be so framed or executed as to make any discrimination in favour of the British fisherman, or to impair the rights secured to American fishermen, by that Treaty, those injuriously affected by them will appeal to this Government for redress.

The circular carried the same appendix as that of the previous season, indicative of the effect of the existing British regulations.

THE STATUS QUO ANTE.

The status quo ante was thus recognised, and the present contention of His Majesty's Government is, in effect, adopted in Mr. Marcy's revised circular.

Among the regulations which were recognized as not "impairing the rights secured to American fishermen by that treaty" were such as those which then existed in New Brunswick (1) as to disposal of offal, (2) as to methods of fishing, and (3) as to close seasons.

The regulations to which Mr. Marcy specifically referred were, however, only some of those then in force in the colonies. Mr. Marcy was aware of that fact, for the appendix to his circular commenced with the words (App., p. 209.)—

It is believed that the principal regulations, &c.

But whatever the nature of them might be, Mr. Marcy recognized that they were binding upon United States fishermen, unless they were in conflict with the provisions of the treaty.

MR. CARDWELL'S INSTRUCTIONS.

1866-1870.-Mr. Cardwell (British Colonial Secretary) in a letter to the Lords of the Admiralty (12th April, 1866) said (App., p. 221.) :

Americans who exercise their right of fishing in Colonial waters in common with subjects of Her Majesty are also bound, in common with those subjects, to obey the law of the country, including such colonial laws as have been passed to ensure the peaceable and profitable enjoyment of the fisheries by all persons entitled

thereto.

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The enforcement of the colonial laws must be left as far as the exercise of rights on shore is concerned, to the colonial authorities, by whom Her Majesty's Government desire they shall be enforced with great forbearance, especially during the present season. In all cases they must be enforced with much forbearance and