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British subjects established lobster factories at various places on the French shore which had hitherto been unoccupied. In 1886 French fishermen visited the district for the purpose of catching lobsters, and in 1887 a French warship cut adrift the British lobster-traps. Since that date there has been a lengthy correspondence on this subject between the representatives of the British and French Governments.
In 1888 the French Government put forward the contention that British subjects were violating French rights by erecting factories within the limits of the line of coast reserved to France by the treaties. To this claim the Colony replied that the French were by those very treaties limited to codfishing, and were not entitled to catch lobsters; and that British lobster factories were not prohibited so long as they did not interfere with the French cod-fishery. The French Government responded that the word “fish” in the treaties was not intended to be confined to cod, but included everything that came out of the sea ; and that British factories on the French shore were clearly an infraction of French rights, and did in fact interfere with the full exercise of the Frenchmen's privileges.
After considerable discussion, a modus vivendi was reached in 1890, by which such British factories as were then in existence were permitted to remain, while all questions of principle were reserved for future settlement. In 1891, under pressure from the Imperial Government, the Legislature of Newfoundland passed an Act by which Colonists were compelled to remove from the French shore at the direction of naval officers, and that Act continued in force until 1893. Meanwhile a Bill dealing with the vexed question of jurisdiction was introduced into Parliament, and carried through the House of Lords, but it was dropped upon an undertaking by the Prime Minister of Newfoundland that the Colony would itself legislate on the subject. That undertaking has not been redeemed in a permanent form, but the temporary Act
has been renewed from time to time, and there the matter stands.
Such is the history of the Newfoundland question, and it will be seen therefrom that two points remain to be settled which will be of the highest importance in assessing compensation for the abandonment of French rights that appears to be impending, should such compensation take a pecuniary form. These points are
(1) Is the French possession exclusive or merely concurrent?
(2) Does the French right of fishing include the right to take lobsters ?
Both these questions are of considerable difficulty, and there is much to be said on either side.
With regard to the first question, it must be borne in mind that, up to the date of the Treaty of Versailles, it would appear to be clear that the French possession was only concurrent. It had for the first hundred years after the island's discovery been the custom to appoint an “admiral ” to exercise a rough-and-ready jurisdiction over the fishermen. Although in process of time the appointment of this official had fallen exclusively into the hands of the English, owing to the superiority of their vessels in point of size and equipment, it had originally been made irrespective of nationality. Now, if the various fishing fleets had been kept to separate stations, it would either have been necessary to appoint such an official for each station, or it would have been unnecessary to appoint one at all ; and, therefore, his existence would seem to be at least strong evidence that-as indeed, one would naturally expect-previously to the treaty period vessels fished indiscriminately on any part of the coast. It must be presumed that this arrangement was not altered by the Treaties of Utrecht and Paris; for had there been an intention to make a change, it is to be supposed that that intention would have been expressed in unmistakable terms. The only thing, indeed, upon which it is possible to found as an
indication of such an intention is that the coast-line was, roughly speaking, divided into two equal portions, and that is scarcely a sufficient ground for asserting that any change of the kind was made or intended to be made. It must accordingly be concluded that previously to the year 1783 the French rights were not exclusive but concurrent, and that if there is any provision which to-day deprives British subjects of rights which they enjoyed for several centuries, it is to be found in the Treaty of Versailles.
It is stated, in the first clause of the British declaration attached to the last-mentioned treaty, that the object of George III. was to prevent the occurrence of daily quarrels between the fishermen of the two nations, and obviously the shortest and surest way of effecting this aim was to keep them entirely apart. That this was, in fact, recognized is proved from the subsequent clause in the declaration referring to the ceding of the Miquelon islands to France. In that case the French and English fishermen were to be strictly confined to their respective sides of the channel which flowed between the islands and the southern coast of Newfoundland, and it is difficult to suppose the king did not believe that he was achieving a similar policy in regard to other portions of the coast, when he gave the rather ambiguous promise that he would take “ the most positive measures for preventing his subjects from interrupting in any manner, by their competition," the French fishery. It is, of course, open to argument that the ambiguity was intentional, and that the English Government was thereby maintaining a loophole for escaping from a delicate situation. The earlier explanation, however, seems to be the more natural, particularly when we consider the division of the coast-line.
It had been the policy of the British Government, as has already been shown, to keep the island uninhabited and to disallow permanent settlements; and there would, therefore, have seemed no great hardship in adopting such a method
of preventing future disputes. There was at the time, it must be remembered, no difficulty in obtaining enough fish to afford an ample profit to all engaged in the industry, and the relegation of the fishermen of one nation to one side of the island, and those of the other nation to the other side, probably appeared to the negotiators of the day an easy and natural solution of the problem. On a consideration of all the circumstances, then, there would seem to be at least a strong presumption that it was the intention of the contracting parties to give the French an exclusive possession of the shore from Cape St. John to Cape Ray.
But to intend a thing and to sufficiently express that intention, are two very different matters. To deprive the British fishermen of rights which they had enjoyed uninterruptedly for almost three centuries, there should assuredly have been less ambiguous phraseology than that employed in clause 2 of the declaration. As Lord Palmerston wrote to Count Sebastiani in 1838, the language should have been ample and specific. "For in no other similar instrument, which has come under the knowledge of the British Government, is so important a concession as an exclusive privilege of this description, announced in terms so loose and indefinite. Exclusive rights are privileges which, from the very nature of things, are likely to be injurious to parties who are thereby debarred from due exercise of industry in which they would otherwise engage. Such rights are, therefore, certain to be at some time or other disputed, if there is any maintainable ground for contesting them; and, for these reasons, when negotiators have intended to grant exclusive rights, it has been their invariable practice to convey such rights in direct, unqualified, and comprehensive terms, so as to prevent the possibility of future dispute or doubt.”
Yet, in spite of the absence of definite language, one cannot help feeling that, on this point, the French Government has a strong moral claim to consideration, and that the matter
is pre-eminently one for mutual concessions, and not for the enforcement of a strictly legal view of British rights.
On the question whether the right to fish includes the right to take lobsters, it must be observed that in the eighteenth century terms were not used with the precision to which we are accustomed at the close of the nineteenth. If to-day we intended our words to have a legal significance, we should describe lobsters as crustaceans, and not as fish; but the men of last century were not as exact as we are, and there is at least one competent authority for including lobsters in the latter term. If, then, there had been nothing in the various treaties or otherwise to limit the expression, one would have been inclined to give to the French rights the extended meaning for which the French Government contends. There are, however, two points which militate against that contention. In the first place, it is said that in Newfoundland the word "fish” is a technical term meaning "cod," and that that is the case appears very probable from the fact that the importance of the cod-fishery was so great, until after the middle of the present century, as entirely to engross the energies of the fishermen and distract attention from an alternative industry, which has practically only sprung into notice within the last fifteen years.
But, even without insisting on this technical construction, the treaties themselves contain evidence that the right should be construed in the more restricted sense. No buildings were to be permitted except stages made of boards, and huts necessary and usual for drying fish. The only fish to which that provision was applicable at the date of the treaties, or is applicable at the present day, are the cod; lobsters are not dried, and the lobster-canning factories are substantially built brick buildings. The attention of the contracting parties was obviously confined solely to cod, and that, too, although, as is clear from the letter already cited, lobsters were at the time in considerable abundance on the coast. Lobster-catching,