CO885-(13-15) — Page 395

PUBLIC RECORD OFFICE

"य

TIT

Reference :-

C.O.885

14 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC-

COPYRIGHT PHOTOGRAPH-NOT TO

See para. 3

of Colonial Office letter;

and para. 9 of Mr. Hall's

Memoran- dum.

See para. 3 of Colonial

2

This statement, however, appears to be entirely inconsistent with the Declarations of 1783. M. Hanotaux apparently argues that the restriction of fishery by French and English respectively to mid-channel was the means, or at least the principal means, by which it was intended to prevent St. Pierre and Miquelon from becoming an "objet de jalousie entre les deux nations," and that, with the exception of this limit, the French are free to act as they please in those islands.

But in the Declarations the stipulations that the islands were not to become an Office letter. object of jealousy, and the limitation of the fishing to mid-channel are in no way connected; they are entirely distinct, and it is impossible to read into the Treaty that the one stipulation is merely ancillary to and explanatory of the other.

See para. 4

of Colonial Office letter. See para. 5 of Colonial

The English Declaration says:--

"Le Roi de la Grande-Bretagne, en cédant les Iles de Saint-Pierre et de Miquelon à Office letter, la France, les regarde comme cédées afin de servir réellement d'abri aux pêcheurs français, et-dans la confiance entière que ces possessions ne deviendront point un objet de jalousie entre les deux nations; et que la pêche entre les dites îles et celle de Terre-Neuve sera bornée à mi-canal.”

See para. 6 of Colonial Office letter.

See para. 7 of Colonial Office letter.

See first part of para. 7 of M. Hano- caux' note; and para. 10 of Mr. Hall's Memoran-

dum.

See paras. 4 and 6 of M. Hanotaur'

note; and

paras. 2, 3,

and 8 of

Mr. Hall's

The paragraph is clearly disjunctive, and its full force would best be obtained by reading after "les deux nations" the words "et dans la confiance entière que la pêche," &c.

The French Declaration places beyond doubt the independence of the stipulations. It

says (paragraph 1) :-

le Roi de la Grande-Bretagne met indubitablement trop de confiance dans la droiture des intentions de Sa Majesté pour ne point se reposer sur l'attention constante qu'Elle aura d'empêcher que les Iles Saint-Pierre et Miquelon ne deviennent point un objet de jalousie entre les deux nations."

Paragraph 2 applies to the fishery arrangements on the Treaty Coast, and paragraph 3 then resumes:—

"Pour ce qui est de la pêche entre l'Ile de Terre-Neuve et celles de Saint-Pierre et Miquelon, elle ne pourra se faire, de part et d'autre, que jusqu'à mi-canal," &c.

This appears to Her Majesty's Government to be a sufficient proof that the three stipulations (1) that the islands were to be "réellement d'abri,” (2) that they were not to become "un objet de jalousie entre les deux nations," and (3) for the regulation of the fishery in the narrow channel between the islands and Newfoundland were three separate and distinct conditions, and in no way dependent on or explanatory of any one of the others.

With regard to M. Hanotaux' further observations on this point in the paragraph beginning "Quant à la réglementation," &c., it is only necessary to remark that he is answering an argument which has never been put forward on behalf of Her Majesty's Government.

M. Hanotaux claims, as a necessary consequence of the cession of St. Pierre and Miquelon, "en toute propriété," that "sous la réserve d'exceptions formellement exprimées, la France est libre d'exercer, en ce qui concerne ces îles, tous les attributs "de la souveraineté."

41

The principle involved in this statement is incontestable, and it is not for Great Britain to question it, since her own contentions with respect to the fishery rights of her subjects and of French citizens respectively are founded upon the doctrine that rights of sovereignty are absolute, except to the extent of derogations from them clearly and expressly made. But while Her Majesty's Government fully concur with the statement of principle made by M. Hanotaux, they must point out that the principle is See para. 3 of Mr. Hall's entirely alien to the facts with which his Excellency connects it.

Memoran-

dum.

Memoran-

dum,

Cession "en toute propriété" conveys full rights of sovereignty within the territory ceded; it does not, of itself, necessarily invest the population of that territory with all the privileges which may be already enjoyed on foreign soil by subjects of the Power to which cession is made. Servitudes over portions of the territory of a foreign State, such as wood-felling and pasturage rights, may belong to the inhabitants of particular districts; and whether a given servitude is, or is not, a privilege which can be enjoyed by all the subjects of a State must depend upon its nature and on all the circumstances of the case. In the instances of St. Pierre and Miquelon, although it is not to be questioned that France owns all sovereign powers within the territory, except in so far they are limited by the engagements that the islands are to serve “réellement d'abri aux pécheurs français," and shall not become an "objet de jalousie,” it does not follow that the inhabitants of the islands have rights of fishing within British waters. order that they may have auch rights they must be proved to be in a position to share in the special effects of those parts of the Treaties previously made, by which limited fishing privileges were conferred on French fishermen. If the customs of the

2.8

In

3

fishery which were taken up into the Treaties were consistent with fishing on the part of the inhabitants of St. Pierre and Miquelon within British waters, the right to fish exists; if they were not consistent with it, the fishermen of St. Pierre and Miquelon are-confined to their own territorial do not possess the right to fish within British waters, and to non-territorial waters other than the strip on the Newfoundland side of the middle of the strait between Newfoundland and the islands. Her-Majesty's Government observe that No claim has See para. I ever been is made by the French Government to the possession of a right to small-boat of Mr. Hall's fishing on the ground of usage existing before the year 1719 1788. So that even on the supposition-most-favourable to Franecy-it has still to-be proved-that-small-beat-fishing is a part of the ancient method of fishing-“-de-tour-temps reconnue,'

Memoran- dum.

and last sen-

M. Hanotaux' statement that no complaint has been made of the people of St. Pierre See para, 8 having for many years past taken part in the regular fishery upon the Treaty Shore is of Colonial not quite accurate. It has been a constant complaint with the Newfoundland fishermen Office letter; that these men, engaging in the fishery on equal terms with them as regards proximity tence of to the fishing grounds, enjoy all the advantages of the bounties granted to fishermen para. 7 of proceeding from France, and the practice complained of has, in fact, led to the Islands of M. Hano- St. Pierre and Miquelon becoming the bases of the fishery, instead of being merely taux' note. places of refuge for fishermen arriving from France. Government, from a desire to take no step which might hamper the development of It is true that Her Majesty's the islands, have not seriously objected to this practice, but the present question is entirely one as to the legitimacy of a new departure.

The next part of M. Hanotaux' argument deals with French rights under the Treaty See para. 9 of Utrecht as distinct from the Declarations. He says:-

of M. Hano- taux' note;

Si les Traités ont défini les conditions dans lesquelles nos marins pourront pratiquer and paras. 9 la pêche, ils l'ont fait de façon à empêcher une extension abusive de leurs entreprises, and 10 of au delà de l'industrie spéciale à laquelle ils doivent se livrer."

Colonial

To this interpretation of the meaning of the Treaties Her Majesty's Government must Office letter. demur. The Treaties have defined the conditions under which the French fishermen may exercise their industry not only negatively, but positively; for they are not only restricted to the one industry, but that industry must be exercised by them strictly in the manner in which they exercised it at the time of the Treaty of Utrecht.

M. Hanotaux continues:-

44

See para. 11

Office letter.

Pêche en mer, séchage, préparation du poisson, résidence temporaire sur le rivage of Colonial comme conséquence du droit de pêche, toutes ces opérations leur sont permises par les Traités. Mais s'ensuit il qu'ils doivent rigoureusement se livrer à chacune d'elles ?"

This statement, also, likewise is not entirely accurate, as the only rights granted are those of fishing and drying; fishing does not imply or require a right to reside, and it follows that residence is only granted, if at all, so far as it is necessary for the purpose of drying.

44

44

dum.

Proceeding on the assumption that the inhabitants of St. Pierre and Miquelon have See para. 4 a right of fishing in British waters, M. Hanotaux goes on to assert that the various of Mr. Hall's acts or operations which in their entirety make up the old customs of the Newfoundland Memoran- fishery are not " forcément toutes corrélatives les unes des autres, sous peine de déchéance du droit de pêche, mais simplement facultatives, en vue d'assurer l'exercice de ce droit," and in particular that "le droit de pêcher ne comporte pas nécessairement l'obligation de sécher ou de résider sur le rivage, mais il en donne la faculté." suggestion here would seem to be that the Declaration of 1783 was intended solely to give facilities to the French for the enjoyment of their privileges, and that customs are mentioned only in confirmuation of, and not in restriction of, those privileges. M. Hanotaux can hardly have put forward such a contention seriously.

46

The

The plain meaning of the Declaration is that the French shall have every facility for See para. 5 enjoying the fishery rights accorded to them by the Treaty of Utrecht, subject to the of Mr. Hall's customs of the fishery, restrictive allusion being at the same time made to certain points m upon which infringement of the customs had taken place.

Memoran-

Memoran-

Without insisting that every practice shall remain rigidly fixed so long as the Treaties See para. 6 are in force, it is evident that the system on which the fishery is conducted must of Mr. Hall's remain the same in all important particulars, the fishermen of each nation fishing dum. according to the customs which were already habitual to them; and Her Majesty's Government cannot admit the claim which, M. Hanotaux apparently seeks to put forward to destroy every obligation by rejecting each usage in turn, and to leave as a residuum an unrestricted right of fishing in such manner as may be convenient to the French themselves.

M. Hanotaux then endeavours to reduce the meaning of the injunction to "faire la See para. 10 pêche" in the manner which has been " de tout temps reconnue to methods of capture

}

of M. Hano- taux' note;