Page:The New International Encyclopædia 1st ed. v. 07.djvu/753

FISHING LAWS. two classes: those which are municipal in their character and sanction, and those which are international.

Some of the rules of municipal law governing fishing rights are fully stated in the article on (q.v.). In Great Britain the right of fishing within the territorial seas and navigable streams belongs prima facie to all British subjects. If any person claims an exclusive right in such waters the burden of proof is upon him to establish that right, by royal or Parliamentary grant, or prescription. In this country the same presumption obtains in favor of public fishing in territorial seas and navigable waters, but it is the State and not the National Government which ordinarily possesses the power of granting or regulating this right.

English law divides private rights of fishery into three principal classes: (1) common of fishery, or of piscary, (2) free fishery, and (3) several fishery. The first of these is not to be confounded with a common fishery which designates the public right of all comers to take fish in public waters, but is a creature of municipal law, and is a right in the nature of a profit, to fish in particular waters in common with other persons. The second term is used in two senses. By some writers and judges it is defined as a franchise or exclusive privilege of fishing in a public river, while others make the term synonymous with several fishery. The latter, all authorities agree, designates the right which the owner of the soil beneath non-navigable waters has to fish in those waters. It is a right of property which he may grant to another while reserving to himself ownership of the soil. When so conveyed and held it is a profit à prendre. See.

A private right of fishery is held subject to the public use of navigable water as a highway and for the free passage of fish. It is also subordinate to regulations which may be prescribed by the State for the public good. Regulations of this character are now very numerous both in Great Britain and in this country. They are intended primarily to prevent the unnecessary destruction of fish and to promote fish culture. They establish close seasons during which fish of certain varieties may not be caught, they regulate the manner of catching them, they prohibit the fouling of streams and ponds, and they annex severe penalties to violations of these provisions.

. International fishing laws are mostly regulated by convention, and the course of their development has largely depended upon the outcome of political disputes. This is especially true of the fishing laws fixed by treaty between the United States and Great Britain, and between Great Britain and France, in Newfoundland and North American waters. These played so important a part in the history of the three countries during the nineteenth century, and still present so many unsolved problems, that they demand careful consideration. Between the United States and Great Britain the existing laws represent a working compromise, whose history runs back to 1783. In that year the Treaty of Paris, which acknowledged the independence of the United States, provided that American fishermen should continue to enjoy the right to fish in the waters of the British possessions in America, but forbade them to dry or cure fish on the coast of Newfoundland and in settled bays, harbors, and creeks of Nova Scotia,

Magdalen Islands, and Labrador, unless by previous agreement with the inhabitants or possessors thereof. This arrangement continued in force until 1818, although, during the negotiations preceding the Treaty of Ghent of 1814, the views of the American and British commissioners clashed so decidedly on the interpretation of fishing rights under the Treaty of Paris that the question was ignored, as otherwise the Treaty of Ghent might not have been concluded. The superior value of the British-Canadian waters had attracted a considerable number of American fishermen, who had established themselves in the most advantageous places for curing and drying fish; and the British Government, anticipating the effect of what they considered an undue advantage, held that the War of 1812 had abrogated the fishing rights fixed by the Treaty of Paris. By the Convention of London of 1818 the United States renounced for American fishermen the liberty of fishing, subject to certain exceptions, within three marine miles of any of the coasts, bays, creeks, or harbors of the British dominions in America, except the right of entering bays or harbors for purposes of shelter, and of obtaining wood and water.

During the succeeding thirty-six years different constructions were put upon these provisions, and seizures of American fishing-vessels were made for trespassing within the three-mile limit. All these difficulties were, however, removed for a time by the Treaty of Washington of 1854, better known as the Reciprocity Treaty, by which mutual restrictions as to sea fisheries, excepting shell-fish, were done away with, and each country was granted full enjoyment of the sea fishing grounds of the other. The termination of this treaty in 1866 by notice of the United States Government placed the whole question back again in the position established by the Convention of London, in which it continued until the Treaty of Washington in 1871 restored the mutual fishing privileges of the Reciprocity Treaty. In the treaty of 1871 provision was made for referring to arbitration the question of the greater value of Canadian fishing-waters, and by the Halifax Commission of 1877 an award of $5,500,000 was made in favor of the Dominion of Canada. This treaty, which went into operation in 1873, was terminated in 1885 according to notice given by the United States Government. The extent of the renunciation made by that government as expressed in the Convention of London was again thrown open to opposite interpretations, and, several American fishing-vessels having been seized, Congress in 1887 passed a retaliatory law authorizing the President, at his discretion, to close American ports to Canadian vessels and merchandise. The discretion was never exercised. In 1888 another attempt to compose these differences was made by the Chamberlain-Bayard Treaty, which was rejected by the United States Senate; but a modus vivendi pending ratification was offered by the British commissioners, and an act of the Dominion Parliament in 1890 enacted this temporary arrangement into law.

It is noteworthy that the termination of the Reciprocity Treaty of 1854 and of the Washington Treaty of 1871 was due in each case to the action of the United States Government; and likewise the proposed Chamberlain-Bayard Treaty, which was acceptable to Great Britain and Canada, was rejected because it was believed