The most honorable the Marquis of Salisbury to John Welsh, November 7, 1878

The Marquis of Salisbury to Mr. Welsh.

Sir: Her Majesty’s Government have had under their consideration the dispatch from Mr. Evarts, dated the 28th September, and communicated to me on the 12th ultimo, respecting the complaints made by the Government of the United States of the injuries sustained by American fishermen in Fortune Bay in January last.

This dispatch is in reply to my letter of the 23d August, in which I forwarded a copy of the report furnished by Captain Sulivan, of Her Majesty’s ship “Sirius,” on the occurrences in question. Mr. Evarts now remarks that the United States Government have not been put in possession of the depositions which form the basis of that report, and are unable, therefore, to say whether, upon their consideration, the view which the Government of the United States takes of these transactions upon the sworn statements of their own citizens would be at all modified.

Her Majesty’s Government have not had the opportunity of considering the statements in question; but the depositions which accompanied Captain Sulivan’s report, and which I now have the honor to forward, appeared to them, in the absence of other testimony, to be conclusive as regards the facts of the case.

Apart, however, from the facts, in respect to which there appears to be a material divergence between the evidence collected by the United States Government and that collected by the colonial authorities, Mr. Evarts takes exception to my letter of the 23d, on the ground of my statement that the United States fishermen concerned have been guilty of breaches of the law. From this he infers an opinion on my part that it is competent for a British authority to pass laws, in supersession of the treaty, binding American fishermen within the three-mile limit. In pointing out that the American fishermen had broken the law within the territorial limits of Her Majesty’s dominions, I had no intention of inferentially laying down any principles of international law; and no advantage would, I think, be gained by doing so to a greater extent than the facts in question absolutely require.

I hardly believe, however, that Mr. Evarts would in discussion adhere to the broad doctrine which some portion of his language would appear to convey, that no British authority has a right to pass any kind of laws binding Americans who are fishing in British waters; for if that contention be just, the same disability applies à fortiori to any other power, and the waters must be delivered over to anarchy. On the other hand, Her Majesty’s Government will readily admit—what is, indeed, self-evident—that British sovereignty, as regards those waters, is limited in its scope by the engagements of the treaty of Washington, which cannot be modified or affected by any municipal legislation. I cannot anticipate that with regard to these principles any difference will be found to exist between the views of the two governments.

If, however, it be admitted that the Newfoundland legislature have the right of binding Americans who fish within their waters by any laws which do not contravene existing treaties, it must further be conceded that the duty of determining the existence of any such contravention must be undertaken by the governments, and cannot be remitted to the discretion of each individual fisherman. For such a discretion, if exercised on one side, can hardly be refused on the other. If any American fisherman may violently break a law which he believes to be contrary to treaty, a Newfoundland fisherman may violently maintain it if he believes it to be in accordance with treaty. As the points in issue are frequently subtle, and require considerable legal knowledge, nothing but confusion and disorder could result from such a mode of deciding the interpretation of the treaty.

Her Majesty’s Government prefer the view that the law enacted by the legislature of the country, whatever it may be,—ought to be obeyed by natives and foreigners alike who are sojourning within the territorial limits of its jurisdiction; but that if a law has been inadvertently passed which is in any degree or respect at variance with rights conferred on a foreign power by treaty, the correction of the mistake so committed, at the earliest period after its existence shall have been ascertained and recognized, is a matter of international obligation.

It is not explicitly stated in Mr. Evarts’s dispatch that he considers any recent acts of the colonial legislature to be inconsistent with the rights acquired by the United States under the treaty of Washington. But if that is the case, Her Majesty’s Government will in a friendly spirit consider any representations he may think it right to make upon the subject, with the hope of coming to a satisfactory understanding.

I have, &c.,