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ing the proposal, they are pleased not only to recognise in it an indication that the desire of Her Majesty's Government to arrive at a friendly and speedy settlement of this question is fully reciprocated by the Government of the United States, but also to discern in it the basis of a practical settlement of the difficulty, and I have the honour to request that you will inform Mr. Evarts that Her Majesty's Government, with a view to avoiding further discussion and future misunderstandings, are quite willing to confer with the Government of the United States respecting the establishment of regulations under which the subjects of both parties to the treaty of Washington shall have the full and equal enjoyment of any fishery which, under that treaty, is to be used in common. The duty of enacting and enforcing such regulations, when agreed upon, would of course rest with the power having the sovereignty of the shore and waters in each case."

The matter was revived by the British Minister at Washington in a letter (3rd May, 1882), to Mr. Frelinghuysen (United States Secretary of State) as follows (United States Case, p. 179) :—

"With reference to correspondence which has passed between Her Majesty's Legation and the State Department respecting the Newfoundland Fisheries question, it is sought to determine what Regulations it would be expedient to enforce for the protection of the fisheries, and to this end attention is called to the following Acts, viz., Cap: 102 Consolidated Statutes Newfoundland,

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"which Documents were appended to the message from President Hayes to the House of Representatives. The United States Government is invited to examine these Statutes, and to state whether they find in them anything open to objection or have any suggestions to make with regard to them.

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"Any Communication which the United States Government may make upon this subject will receive careful consideration on the part of Her Majesty, and when an agreement has been arrived at as to the regulations which should govern the fisheries, the Legislature of Newfoundland will be invited to make the necessary changes in the law if any such should be found to be necessary.'

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In answer to this letter, the United States presented a memorandum (9th May, 1882) which was confined to a criticism of the colonial

statutes.

In reply, Lord Granville wrote to Mr. West as follows (United States Case, p. 183) —

"I have to acknowledge the receipt of your despatch of the 9th May last, transmitting a Memo. drawn up by the State Dept. of the U. S. Government upon certain Acts of the Legislature of Newfoundland for the regulation of the fisheries on the waters of that Colony.

"This Memo was communicated to you by Mr. Frelinghuysen in answer to the request of Her Majesty's Government to be favoured with any suggestions which the United States Government might be

prepared to offer with a view to the friendly consideration by the two Governments of such amendments of the Fishery Regulations as might be reasonably called for in the interests of both countries.

Her Majesty's Government regrets to find that the Memo. contains no suggestion of any kind tending to that object, but that it reopens a discussion on the construction of the Treaty of Washington which it was hoped had been exhausted in the previous correspondence."

No reply was ever made to this letter, although on the 9th October, 1883, a reply was requested (United States Case, pp. 184–5).

CONCLUSION.

The foregoing observations are presented to the Tribunal by way of reply to the points raised in the Case of the United States; but His Majesty's Government contends that, whatever view may ultimately prevail on those points, this question must be primarily determined by the language of the treaty itself. There is nothing in the treaty of 1818 to derogate from the sovereignty of Great Britain over the shores and waters in question, or to restrict her right to regulate the action of all persons coming there. And as to the fisheries, the treaty expressly states that the liberty of fishing is to be enjoyed by Americans "in common" with British subjects; a condition which, if it is to have any meaning at all, must mean that Americans are to enjoy the same rights as British subjects, but no more. The argument on this and the other material points has already been presented in the British Case.

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QUESTION TWO.

AMERICAN FISHERMEN.

The Case of the United States makes no reference to this question, and adduces no arguments bearing upon it. It is, for this reason, not proposed to add anything in this Counter-Case to what has already been said in the Case on behalf of His Majesty's Government.

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QUESTIONS THREE AND FOUR.

CUSTOMS ENTRIES, AND LIGHT AND HARBOUR DUES.

The British Case outlines the course of British and colonial legislation regarding customs entries and light dues before and during the periods covered by the treaties of 1783 and 1818. It was there contended that such legislation was reasonably incidental to laws admitting vessels into a nation's coast waters, that it did not partake of the nature of exclusion, and that it was not in any sense inconsistent with the treaty.

LIGHT DUES.

The United States Case contains no statement of the grounds upon which the contention is made that it is inconsistent with the treaty to exact payment of light dues, except such as may be gathered from the diplomatic correspondence which commenced in 1905, extracts from which are quoted in the Case. That correspondence having been fully considered in the British Case, it will not be again discussed in this Counter-Case. While the United States at that time denied the British right, these dues were still paid under the modus vivendi then entered into, so that the practice theretofore existing was not altered.

CUSTOMS ON NON-TREATY COASTS.

With reference to customs entries and harbour dues on non-treaty coasts, the United States Case, after referring to certain diplomatic correspondence that followed upon several seizures or threatened seizures in 1886 and 1887, proceeds as follows (United States Case, p. 197) :

It appears, therefore, that no objection was raised by the United States to the imposition of harbor dues or the requirement of customs entry in the case of American vessels permitted to enjoy commercial privileges on these coasts, and that the objection on the part of the United States was directed particularly to the imposition of such conditions and exactions upon American fishing vessels exercising their treaty right of entering the bays and harbors on these coasts for the purposes specified in the treaty, when at the same time such vessels were not permitted to enjoy commercial privileges.

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