CO885-(11-13) — Page 478

PUBLIC RECORD OFFICE

CO.

Reference :-

885

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO

12 PUBLIC RECORD OFFICE, LONDON

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United States' citizens, in landing and setting and working their seines from the shore, were guilty of a breach of the Convention of 1818 and the Treaty of Washington of

1871.

The rights secured by these to the citizens of the United States are to take fish on certain portions of the coast of Newfoundland, and to use the shore for the purposes of purchasing wood, obtaining water, drying their nets, and curing fish. The citizens of the United States are thus. by clear implication, absolutely precluded from the use of the shore in the direct act of catching fish.

In endeavouring to use the shore for fishing purposes they committed a breach of the privileges given by the Treaty.

It may

be admitted, with regret, that more force than was necessary may, on the occasion, have been used by the Newfoundland people; but as the citizens of the United States, by a direct infringement of the Treaties and of the rights of the New- foundland people, were the first and real cause of the mischief, Her Majesty's Government sees no reason for compensating them for any damages which they may have sustained in consequence of their own illegal acts.

Her Majesty's Government has already stated "that British sovereignty, as regards these waters, is limited in its scope by the engagements of the Treaty of Washington, which cannot be modified or affected by any municipal legislation.'

And Her Majesty's Government fully admits that United States' fishermen have the right, by Treaty, of participation in the Newfoundland inshore fisheries in common with British subjects.

But it does not follow that from this right of participation in common with the British fishermen, the United States' fishermen have any other, and still less greater, rights than the British; on the contrary, the proper meaning of the provision would be that the rights and the obligations were equal, and that in the territorial waters, as distinct from the shore or land, each had the same and no greater right than the other.

If, then, at the time of the Treaty of Washington, 1871, certain restraints were, by the muncipal law, imposed upon the British fisherman, the United States' fisherman was, by the very words of the Treaty, bound to observe, in common with the British, the then existing local laws and regulations.

""

The obligation implied by the words "in common citizen as soon he claimed the benefit of the Treaty. The local regulations existing at attached upon the United States' the time of the Treaty, and established by the Colonial authorities for the protection of the fisheries, are as binding upon the citizens of the United States, who claim the privileges secured by the Treaty, as they are binding upon the British.

True it is that the Consolidated Statutes of Newfoundland, passed since the Wash- ington Treaty, 1871, contain certain restrictions as to the time and manner of fishing on the shores, and, as already said, those restrictions, when in conflict with the Treaty rights of the United States, cannot be insisted upon by the British Govern-

ment.

But the regulations, which were in force at the time of the Treaty, were not abolished but confirmed by the Statutes subsequent to that time, should have been known to the United States, and are binding, under the Treaty, upon the citizens of the United States in common with British subjects.

This Act at p. 17, Correspondence 3920, should be anncxed for convenience to the

answer.

Her Majesty's Government, sharing the regret expressed by Mr. Evarts on the part of the United States' Government at any apparent conflict of interests or of opinions which may exist as to the privileges secured by the Treaty to the citizens of the United States, will willingly co-operate with the Government of the United States" in settling the mutual obligations of the Treaty of 1871, and in making regulations which shall "be a matter of reciprocal convenience and right, a means of preserving the fisheries at their highest point of production, of conciliating a community of interests by a just proportion of advantages and profits," and removing any future ground or cause of complaint on the part of the Government and citizens of the United States or the British Government and British subjects.

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We have, &c.,

The Right Hon. the Marquis of Salisbury, K.G.,

(Signed) &c.

&c.

&c.

JOHN HOLKER. HARDINGE S. GIFFARD. J. PARKER DEANE.

No. 218a.

(CYPRUS.)

LAW OFFICERS to FOREIGN OFFICE.

MY LORD,

We are honoured with your Lordship's commands, signified in Sir Julian

Temple, February 11, 1880. Pauncefote's letter of the 3rd instant, stating that with reference to our Reports of the 29th December last and the 16th ultimo,* respecting the trial of Sarvas for murder, before the High Court of Justice in Cyprus, he had the honour to transmit to us, by direction of your Lordship, a further despatch and a telegram from the High Commissioner of Cyprus.

That Sir J. Pauncefote was, in the first place to refer us to a memorandum by the legal advisers of the Cyprus Government, enclosed in the Despatch No. 33, com- menting on the statement of the case presented to us in his letter of the 19th December last.

That they observed that the case was not, as therein stated, transferred from the Ottoman Court to the High Court by the Judicial Commissioner "proprio motu," but that the Ottoman Court took the preliminary examination, and "committed the "accused to the Court which, in consequence of his own averments, appeared to it to be the Court of proper jurisdiction." That on that point, Sir J. Pauncefote was,

in the first place, to refer us to the letter of Mr. Cobham, Commissioner at Larnaka, to Mr. Phillips, Judicial Commissioner, of 16th October 1879, and to Mr. Phillips' reply of 18th of October, both of which would be found at page 3 of the printed correspondence.

That those letters showed that the case was transferred to the High Court with the approval of Mr. Phillips, on the application of Mr. Cobham.

That there was no provision in the High Court of Justice Ordinance whereby, in a criminal case, an Ottoman Court could take the preliminary examination and commit a prisoner for trial before the High Court. That it was conceived that the only legal mode in which a case could pass from the one Court to the other was by transfer, under section 108, and that even if the High Court of Justice had jurisdiction to try the case of Sarvas, the proper course would have been to commence “ab initio " by taking the preliminary examination in the High Court as provided by section 165 of the Ordinance.

*

That the legal advisers, in their memorandum, also expressed their regret that the attention of the law officers was not directly called to the fact "that the prisoner's exception to the jurisdiction of the Court was not taken until after he had been "convicted and sentenced."

That on that point Sir J. Pauncefote was to observe, in the first place, that it was considered that if the Court had no jurisdiction, the proceedings were null and void, whether the accused took exception to the jurisdiction or not, and in the next place it appeared from the report of the trial furnished by the Judicial Commissioner that the prisoner's counsel did formally protest against the proceedings, “not knowing to what extent may be the right of the Court to try and sentence a Greek subject." (See Protest, print page 6.)

That in General Biddulph's telegram, No. 8, of the 31st ultimo, it was stated that the Greek Vice-Consul had taken no objection to the jurisdiction of the Court, but only to the capital sentence, and it was urged that the best course would be simply to commute the sentence.

That on that point, Sir Julian Pauncefote was to observe that if, as we had reported, the proceedings were not warranted by law, the trial was "coram non judice,” and the sentence was a nullity and cannot therefore be commuted.

That Sir Julian Pauncefote was to request that we would favour your Lordship with our opinion as to whether the points raised in the two papers under consideration might properly be answered in the sense of the foregoing observations thereon, and whether instructions should be given to the High Commissioner to follow, in the case of Sarvas the course indicated in our Report of the 29th of December, namely, to leave him to the Ottoman Courts to deal with.

Nos. 212a and 213a.

A 20491.-23. 25.-6,86.