The lobster having become increasingly rare by consequence of the intensive fishery of which for some years it has been the object, it was agreed that general regulations might be enacted with a view to prohibiting the fishing of this crustacean or even of other fish during a definite time. These regulations will be communicated to us at least three months before coming into force. For the purpose of fostering the propagation of the species, it was stipulated that permanent fishing gear could not be used without the permission of the local authorities. But in order to avoid all contest in this respect, we have asked the British Government to inform us as to what they understood exactly by permanent gear. It results from an exchange of notes between our Ambassador and the Principal Secretary of State that, according to British legislation, these words apply only to permanent establishments. Thus our fishermen will be able to continue to use nets attached to the shore for the duration of a fishery, and which constitute only a transitory method. Nothing, likewise, prevents them from installing lobster traps and the right of taking this crustacean, which had heretofore been denied to us and had given rise to long debates, is now definitely admitted in law as in practice.

Besides the fishing properly so called, we also have other interests on the French shore which had to be taken into consideration, that is, those of the owners of drying sheds and lobster establishments who find themselves dispossessed by reason of the exploitation of the coast heretofore reserved exclusively to their industry. Article 3 of the Convention of the 8th April assures to the proprietors of these establishments, as well as to the sailors employed by them, an indemnity the amount of which is to be determined by a commission of officers from the French and English navy, with eventual recourse to an umpire whose choice will lie with the International Court at The Hague. Every guaranty is consequently foreseen for the equitable compensation of the various enterprises involved.

It will thus be seen that to remove the risk of conflict which threatened to become a disturbing element, we are only abandoning in Newfoundland privileges defensible with difficulty and not at all necessary, while preserving the essential right, that is, fishing in territorial waters, and removing for the future from the field of possible conflict a valuable right-that of fishing freely or unhindered purchasing bait along the entire French shore.

These compensations are not, moreover, the only ones to which we secured consent. . . . [Livre Jaune, 1904, Accords conclus, le 8 avril, 1904, entre la France et l'Angleterre au sujet du Maroc, de l'Égypte, de Terre-Neuve, etc., pp. 7-10.]

Correspondence between the Agents of the United States and Great Britain with the Permanent Court of Arbitration.

No. 1.-To the President and Members of the Tribunal in the North Atlantic Coast Fisheries Arbitration.

AUGUST 13, 1910. GENTLEMEN: Acting on behalf of the United States, pursuant to article 62 of The Hague Convention for the specific settlement of international disputes, I have the honor to call to your attention a question of importance, upon which it is necessary that the views of my Government be made known to the Tribunal.

I had expected that an opportunity would be afforded me, as the agent of the United States, to inform the Tribunal whether or not I had any further communication to make on behalf of my Government to the Tribunal before the adjournment on Friday last. It appears, however, from the closing remarks of the President, that it is expected that the agents will remain in communication with the Tribunal in connection with its further proceedings, and the closing of the oral argument on the seven questions specified in the special agreement of the 27th January, 1909, does not concern the matter to which I now refer.

In any event, it is necessary, under the circumstances, that on behalf of my Government a formal record be made by means of this communication of its position in regard to the further proceedings to be taken with reference to the special questions raised by the answer of Great Britain in regard to the objections stated by the United States to specific provisions of certain legislative and executive acts of Newfoundland and Canada called to the attention of the Tribunal by the United States for action pursuant to articles 2 and 3 of the special agreement of the 27th January, 1909.

At the session of 19th July last, as recorded in protocol 26 of the proceedings, the Tribunal announced, referring to the provisions of article 2 of the special agreement of the 27th January, 1909, that, "it believes that it would facilitate its work and expedite the final disposition of this Case if the parties supply the Tribunal with a detailed statement of the particular provisions of the statutes and regulations to which they object, accompanied by an exposition of the grounds for such objection.

In making this announcement it apparently was assumed by the Tribunal that the United States had already called to the attention of the Tribunal certain legislative and executive acts, and had already asked the Tribunal to point out in what respects, if any, they were inconsistent with the true interpretation of the treaty. Up to

that time, however, the proceedings taken by the United States under article 2 of the treaty had not gone beyond the point of specifying to the opposite Party certain legislative and executive acts, which under article 2 was required to be done within three months of the exchange of notes enforcing the special agreement, in order that the acts so specified might subsequently, if the United States so desired, be called to the attention of the Tribunal for further action, as provided for in article 2.

Nevertheless, as the United States intended to do what the Tribunal supposed to have been already done, viz., to call the attention of the Tribunal to certain acts of the other Party which had been specified within three months of the exchange of notes enforcing the agreement, it was not deemed important to take note of the misapprehension on the part of the Tribunal, and the United States proceeded on the 26th of July to call the attention of the Tribunal to certain acts, pursuant to article 2 of the special agreement; and, further, in compliance with the suggestion of the Tribunal already referred to, in order to facilitate its work and expedite the final disposition of the Case, the United States supplied the Tribunal with a detailed statement thereof, accompanied by an exposition of the grounds of its objections thereto.

By reference to this statement it will appear that the grounds assigned by the United States for objecting to the specific regulations referred to were set forth as follows:

"I. Pursuant to the provisions of Article II of the Special Agreement of January 27, 1909, the United States calls the attention of the Tribunal to certain provisions of the acts specified in the note of June 2, 1909, from the Secretary of State of the United States to the British Ambassador at Washington" (United States Counter-Case Appendix, p. 5), “which provisions are claimed by the United States to be inconsistent with the true interpretation of the Treaty of 1818, if applied to American fishermen on the treaty coasts, because even under the contention of Great Britain, as set out in Question One, they are not:

“(a.) Appropriate or necessary for the protection and preservation of such fisheries and the exercise of the rights of British subjects therein and of the liberty which by the said Article I the inhabitants of the United States have therein in common with British subjects;

“(b.) Desirable on grounds of public order and morals;

"(c.) Equitable and fair as between local fishermen and the inhabitants of the United States exercising the said treaty liberty and not so framed as to give unfairly an advantage to the former over the latter class,

"and also because under the contention of the United States as set out in such Question they are not:

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"(a.) Appropriate and necessary for the protection and preservation of the common rights in such fisheries and the exercise thereof; and "(b.) Reasonable in themselves and fair as between local fishermen and fishermen coming from the United States, and so framed as not to give an advantage to the former over the latter class.

"The specific provisions herein called to the attention of the Tribunal are set out in the First and Second Schedules hereto annexed."

The second and third paragraphs of the statement submitted by the United States were as follows:

"II. Pursuant to Article II of the Special Agreement of January 27, 1909, the United States calls upon the Tribunal to express in its award its opinion upon the aforesaid provisions so specified and called to its attention, and to point cut in what respects they are inconsistent with the principles laid down in the award in reply to Question One."

"III. If the award of the Tribunal be in favor of the British contention as stated in Question One, the United States will ask that the Tribunal refer to a

Commission of expert specialists for a report thereon, in accordance with Article III of the Special Agreement aforesaid, such of the specific provisions set forth in the First and Second Schedules as require an examination of the practical effect thereof in relation to the conditions surrounding the exercise of the liberty of fishery or require expert information about the fisheries themselves, for the determination of their appropriateness, necessity, reasonableness, and fairness as defined in Question One."

In connection with paragraph 3, it will be noted that article 2 of the special agreement contemplates that the award on Question One shall be determined upon before the Tribunal can express its opinion upon the acts specified, and point out in what respects, if any, they are inconsistent with the principles laid down in the award.

So also, article 3 of the special agreement contemplates that the award on Question One shall precede the decision of the Tribunal in regard to the acts specified, for it provides with reference to the function to be performed by the Commission of experts to be appointed, that "Pending the report of the Commission upon the question or questions so referred, and without awaiting such report, the Tribunal may make a separate award upon all or any other questions before it, and such separate award, if made, shall become immediately effective, provided that the report aforesaid shall not be incorporated in the award until it has been considered by the Tribunal." Thereafter, at the session of the 2nd August, Great Britain presented to the Tribunal its answer to the statement of the United States above referred to.

The answer thus presented contained four distinct propositions: 1. An assertion, in effect, that the grounds of objection contained in the statement of the United States were not sufficient. (This was based on an erroneous and misleading allegation as to the scope and application of the statement at the end of paragraph 4 of the paper submitted by the United States.)

2. The contention that in the absence of specific grounds of objection, the regulations referred to must be taken to be reasonable.

3. The submission by Great Britain that the regulations are in fact reasonable, and asking for an award to that effect.

4. An averment that no ground has been laid for the request that some of the provisions should be referred to a Commission of expert specialists.

The United States supposed that its specification of the objections that the particular provisions of the acts to which it called attention were not appropriate or necessary for the protection and preservation of the fisheries, &c.; that they were not desirable on the grounds of public order and morals; that they were not equitable and fair as between local fishermen and the inhabitants of the United States, and that they were so framed as to give an advantage to the former over the latter class and to give such an advantage unfairly, was a full compliance with the request of the Tribunal made on the 19th Julv.

The United States conceived and now understands that the averment in the answer of Great Britain that the said provisions of the acts are reasonable, raised a special issue upon which nothing remains to be done except the production of proof regarding matters of fact and such argument as may be appropriate regarding the effect of the proofs thus adduced.

If, however, the Tribunal should be of the opinion that the specification of grounds of objection thus made by the United States is not sufficient to fairly advise the Tribunal of the grounds of objections, the United States will expect to be advised of the opinion of the Tribunal in that regard, and as a matter of course to have an opportunity to make the statement of grounds more specific, in accordance with the opinion of the Tribunal.

In respect of the production of proof, the United States understands

1. That the production thereof or argument thereupon, in addition to such proof and argument as have already been had as incident to the presentation and discussion of the seven main questions submitted, would be premature before the award, which, as the special agreement plainly contemplates, may render any decision of the question of reasonableness, &c., unnecessary, and which must lay down the principles which are to guide the production and application of proof.

2. That the special agreement of the 27th January, 1909, 1429 contemplates under the terms of articles 2 and 3 that additional proof upon questions of reasonableness, &c., is to be furnished by means of a special Commission of experts, with reference to the report whereof special provisions are made.

The United States has understood that the Tribunal had already determined to appoint a Commission of experts in case the nature of the award is such as to require a consideration of the questions of reasonableness, fairness, necessity, &c. That the United States has been justified in this understanding appears by Protocol No. XXXVI of the proceedings of the 5th August, whereby it is recorded that, in response to the request of the Tribunal to the agent and counsel of the respective parties, the United States on that date designated Mr. Hugh M. Smith to act as a member of the Commission, as provided by article 3 of the special agreement, which designation was received without any intimation that the understanding of the United States evinced thereby was erroneous. The discussion proceeded thereafter, and was declared to be closed on the 12th August, without any intimation that the understanding of the United States was not correct.

The United States accordingly now understands that in case the award of the Tribunal shall be such as to call for any decision upon questions regarding the appropriateness, reasonableness, necessity or fairness of any statute or regulation, such questions will be considered as questions of fact to be determined upon proof furnished by the report of expert specialists, having reference to the grounds of objection which the United States has already presented, or to further specifications in case the Tribunal shall deem further specifications to be appropriate.

In the foregoing statements the United States does not wish to be understood as in any manner conceding that Great Britain does not rest under the burden of alleging and proving affirmatively that there are sufficient grounds which make it reasonable and necessary to impose particular limitations and restrictions upon the exercise in the treaty waters of the liberty granted to the United States by the treaty of 1818.