London, February 6, 1906.
Sir: I have the honor to forward herewith a copy of a letter received yesterday from Sir Charles Hardinge, the new permanent under secretary of state for foreign affairs, acting for Sir Edward Grey, and also of the memorandum to which it refers, together with a copy of the act of the Newfoundland legislature of 1893, therein quoted.
Under the impression that you would wish to take up the question soon, in the hope of bringing the discussion to some satisfactory result before the opening of the next fishing season, I thought you might find it a convenience to know the vital points of this memorandum before the arrival of the pouch, and am accordingly cabling you a synopsis, of which a confirmation copy is also inclosed [not printed].
The Secretary of State for Foreign Affairs to Ambassador Reid.
Foreign Office, February 2, 1906.
Your Excellency: The views of the United States Government with respect to the position of affairs on the coast of Newfoundland, and to the rights of American fishing vessels in those waters under the treaty of October 20, 1818, as set forth in Mr. Root's note to His Majesty's ambassador at Washington of the 19th of October last, and in your excellency's communication of the 23d of that month, have received the serious attention of His Majesty's Government.
I have now the honor to inclose a memorandum dealing seriatim with the six propositions formulated by Mr. Root, and with his observations with regard to some of the provisions of recent Newfoundland legislation for the regulation of the fisheries.
As, owing to the prompt measures adopted and to the conciliatory spirit displayed by both Governments, the fishing season has now closed without any collision between the British and American fishermen, or the development of any such friction as was at one time anticipated, it is unnecessary to deal more particularly with the latter portion of Mr. Root's note, which was devoted to that side of the question.
(For the Secretary of State)
Charles Hardinge.
[Subinclosure.—Memorandum.]
Mr. Root's note to Sir M. Durand of the 19th October, 1905, on the subject of the United States fishery in the waters of Newfoundland under the convention of the 20th October, 1818, may be divided into three parts.
The first deals with complaints which had reached the United States Government to the effect that vessels of United States registry had been forbidden by the colonial authorities to fish on the treaty coast, the second with the provisions of "the Newfoundland foreign fishing-vessels act, 1905,"a and the third with the possibility of a lawless and violent interruption of the United States fishery by the inhabitants of the Bay of Islands.
The complaints referred to in the first part of Mr. Root's note were at once brought to the notice of the government of Newfoundland, and they replied that there had been no attempt to prevent American fishermen from taking fish.
The complaints in question appear to have been based on some misunderstanding, and the subsequent course of the fishery proved that the apprehensions on the part of the United States Government to which they gave rise were, fortunately, not well founded.
His Majesty's Government, however, agree with the United States Government in thinking that inasmuch as the privileges which citizens of the United States have for many years enjoyed of purchasing bait and supplies and engaging men in Newfoundland waters have recently been withdrawn and American fishermen have consequently, in Mr. Root's words, been thrown back upon their rights under the convention of 1818, it is desirable that a clear understanding should be reached regarding those rights and the essential conditions of their exercise, and they have accordingly given the most careful consideration to the six propositions advanced in Mr. Root's note as embodying the views of the United States Government on the subject.
They regret, however, that they are unable to record their assent to these propositions without some important qualifications.
Proposition 1 states:
"Any American vessel is entitled to go into the waters of the treaty coast and take fish of any kind. She derives this right from the treaty (or from the conditions existing prior to the treaty and recognized by it), and not from any permission or authority proceeding from the government of Newfoundland."
The privilege of fishing conceded by Article I of the convention of 1818 is conceded, not to American vessels, but to inhabitants of the United States and to American fishermen.
His Majesty's Government are unable to agree to this or any of the subsequent propositions if they are meant to assert any right of American vessels to prosecute the fishery under the convention of 1818 except when the fishery is carried on by inhabitants of the United States. The convention confers no rights on American vessels as such. It inures for the benefit only of inhabitants of the United States.
"An American vessel seeking to exercise the treaty right is not bound to obtain a license from the government of Newfoundland, and if she does not purpose to trade as well as fish, she is not bound to enter at any Newfoundland custom-house."
His Majesty's Government agree that the government of Newfoundland could not require that American fishermen seeking to exercise the treaty right should take out a license from the colonial government. No license is required for what is a matter of right, and no such license has, His Majesty's Government are informed, been, in fact, required.
With the last part of the proposition it will be more convenient to deal in conjunction with proposition 3.
"The only concern of the government of Newfoundland with such a vessel is to call for proper evidence that she is an American vessel, and therefore entitled to exercise the treaty right, and to have her refrain from violating any laws of Newfoundland not inconsistent with the treaty."
It has already been pointed out that the convenion of 1818 confers no rights on American vessels as such, and that the exercise of the right of fishing under the convention is subject to the condition that the fishing is carried on by inhabitants of the United States. His Majesty's Government, however, agree that no law of Newfoundland should be enforced on American fishermen which is inconsistent with their rights under the convention.
Mr. Root's note does not give any indication of what laws of the colony would be regarded by the United States Government as inconsistent with the convention if applied to American fishermen. The opinion of His Majesty's Government on this point is as follows:
The American fishery, under Article I of the convention of 1818,a is one cerried on within the British jurisdiction and "in common with" British subjects. The two governments hold different views as to the nature of this article. The British Government consider that the war of 1812 abrogated that part of Article III of the treaty of peace of 1783 which continued to inhabitants of the United States "the liberty" (in the words used by Mr. Adams to Earl Bathurst in his note of the 25th September, 1815) "of fishing and drying [Page 671] and curing their fish within the exclusive jurisdiction on the North American coasts to which they had been accustomed while themselves forming a part of the British nation," and that consequently Article I of the convention of 1818 was a new grant to inhabitants of the United States of fishing privileges within the British jurisdiction. The United States Government, on the other hand, contend that the war of 1812 had not the effect attributed to it by the British Government, and that Article I of the convention of 1818 was not a new grant, but merely a recognition (though limited in extent) of privileges enjoyed by inhabitants of the United States prior, not only to the war, but to the treaty of 1783. Whichever of these views be adopted, it is certain that inhabitants of the United States would not now be entitled to fish in British North American waters but for the fact that they were entitled to do so when they were British subjects. American fishermen can not, therefore, rightly claim to exercise their right of fishery under the convention of 1818 on a footing of greater freedom than if they had never ceased to be British subjects. Nor consistently with the terms of the convention can they claim to exercise it on a footing of greater freedom than the British subjects "in common with" whom they exercise it under the convention. In other words, the American fishery under the convention is not a free but a regulated fishery, and, in the opinion of His Majesty's Government, American fishermen are bound to comply with all colonial laws and regulations, including any touching the conduct of the fishery, so long as these are not in their nature unreasonable, and are applicable to all fishermen alike. One of these regulations prohibits fishing on Sundays. His Majesty's Government have received information that several breaches of this regulation were committed by American fishermen during the past fishing season. This regulation has been in force for many years, and looking to the insignificant extent to which American fishermen have exercised their right of fishery on the treaty coast in the past, it can not be regarded as having been made with the object of restricting the enjoyment of that right. Both its reasonableness and its bona fides appear to His Majesty's Government to be beyond question, and they trust that the United States Government will take steps to secure its observance in the future.
As regards the treatment of American vessels from which American fishermen exercise the treaty right of fishery, His Majesty's Government are prepared to admit that, although the convention confers no rights on American vessels as such, yet, since the American fishery, is essentially a ship fishery, no law of Newfoundland should be enforced on American fishing vessels which would unreasonably interfere with the exercise by the American fishermen on board of their rights under the convention. The United States Government, on their part, admit in Mr. Boot's note that the colonial government are entitled to have an American vessel engaged in the fishery refrain from violating any laws of Newfoundland not inconsistent with the convention, but maintain that if she does not purpose to trade, but only to fish, she is not bound to enter at any Newfoundland custom-house.
Mr. Root's note refers only to the question of entry inward, but it is presumed that the United States Government entertain the same views on the question of clearing outward. At all events, American vessels have not only passed to the fishing grounds in the inner waters of the Bay of Islands without reporting at a colonial custom-house, but have also omitted to clear on returning to the United States. In both respects they have committed breaches of the colonial customs law, which, as regards the obligations to enter and to clear, makes no distinction between fishing and trading vessels.
His Majesty's Government regret not to be able to share the view of the United States Government that the provisions of the colonial law which impose those obligations are inconsistent with the convention of 1818, if applied to American vessels which do not purpose to trade but only to fish. They hold that the only ground on which the application of any provisions of the colonial law to American vessels engaged in the fishery can be objected to is that it unreasonably interferes with the exercise of the American right of fishery.
It is admitted that the majority of the American vessels lately engaged in the fishery on the western coast of the colony were registered vessels, as opposed to licensed fishing vessels, and as such were at liberty both to trade and to fish. The production of evidence of United States registration is therefore not sufficient to establish that a vessel, in Mr. Root's words, "does not purpose to trade as well as fish," and something more would seem clearly to be necessary. The United States Government would undoubtedly be entitled to complain if the fishery of inhabitants of the United States were seriously interfered with by [Page 672] a vexatious and arbitrary enforcement of the colonial customs laws, but it must be remembered that, in proceeding to the waters in which the winter fishery is conducted, American vessels must pass in close proximity to several customhouses, and that in order to reach or leave the grounds in the arms of the Bay of Islands, on which the fishery has been principally carried on during the past season, they have sailed by no less than three custom-houses on the shores of the bay itself. So that the obligation to report and clear need not in any way have interfered with a vessel's operations. It must also be remembered that a fishery conducted in the midst of practically the only centers of population on the west coast of the colony affords ample opportunities for illicit trade, and consequently calls for careful supervision in the interests of the colonial revenue.
The provisions in question are clearly necessary for the prevention of smuggling, and His Majesty's Government are of opinion that exception can not be taken to their application to American vessels as an unreasonable interference with the American fishery, and they entertain the strong hope that the United States Government will, on reconsideration, perceive the correctness of this view and issue instructions accordingly for the future guidance of those in charge of American vessels.
It is, moreover, to the advantage of the American vessels engaged in the winter fishery in the Bay of Islands that they should report at a colonial custom-house. Owing to the extent and peculiar configuration of that bay, and owing to the prevalence of fogs, vessels that enter its inner waters may remain for days without the local officers becoming aware that they are on the coast unless they so report. In such circumstances it is difficult for the colonial government to insure to American fishermen that protection against lawless interference for which Mr. Root calls in the concluding part of his note.
His Majesty's Government desires further to invite the attention of the United States Government to the fact that certain United States vessels engaged in the fishery refused to pay light dues. This is the first time, His Majesty's Government are informed, that American vessels have refused to pay these dues, and it is preseumed that the refusal is based on the denial by the colonial government of the trading privileges allowed in past years. His Majesty's Government, however, can not admit that such denial entitles American vessels to exemption from light dues in the ports in which they fish. As already stated, American fishing vessels engaged in the fishery under the convention of 1818 have no treaty status as such, and the only ground on which, in the opinion of His Majesty's Government, the application of any colonial law to such vessels can be objected to is that such application involves an unreasonable interference with the exercise of the treaty rights of the American fishermen on board. The payment of light dues by a vessel on entering a port of the colony clearly involves no such interference. These dues are payable by all vessels of whatever description and nationality other than coasting and fishing vessels owned and registered in the colony (which are on certain conditions exempt either wholly or in part). His Majesty's Government trust that in these circumstances such directions will be issued as will prevent further refusals in the future, and they would point out generally that it is the duty of all foreigners sojourning in the limits of the British jurisdiction to obey that law, and that, if it is considered that the local jurisdiction is being exercised in a manner not consistent with the enjoyment of any treaty rights, the proper course to pursue is not to ignore the law, but to obey it, and to refer the question of any alleged infringement of their treaty rights to be settled diplomatically between their Government and that of His Majesty.
Propositions 4, 5, and 6 state:
"Proposition 4. The proper evidence that a vessel is an American vessel, and entitled to exercise the treaty right, is the production of the ship's papers of the kind generally recognized in the maritime world as evidence of a vessel's national character.
"Proposition 5. When a vessel has produced papers showing that she is an American vessel, the officials of Newfoundland have no concern with the character or extent of the privileges accorded to such a vessel by the Government of the United States. No question as between a registry and license is a proper subject for their consideration. They are not charged with enforcing any laws or regulations of the United States. As to them, if the vessel is American, she has the treaty right, and they are not at liberty to deny it.
"Proposition 6. If any such matter were a proper subject for the consideration of the officials of Newfoundland, the statement of this department that [Page 673] vessels bearing an American registry are entitled to exercise the treaty right should be taken by such officials as conclusive."
His Majesty's Government are unable to agree to these propositions, except with the reservations as to the status of American vessels under the convention already indicated, and, with reference to proposition 6, they would submit that the assurance to be given by the Department of State of the United States should be that the persons by whom the fishery is to be exercised from the American vessels are inhabitants of the United States.
In point of fact, the colonial government have informed His Majesty's Government that they do not require an American vessel to produce a United States fishing license. The distinction between United States registration and the possession of a United States fishing license is, however, of some importance, inasmuch as a vessel which, so far as the United States Government are concerned, is at liberty both to trade and to fish naturally calls for a greater measure of supervision by the colonial government than a vessel fitted out only for fishing and debarred by the United States Government from trading, and information has been furnished to His Majesty's Government by the colonial government which shows that the proceedings of American fishing vessels in Newfoundland waters have in the past been of such a character as to make it impossible, from the point of view of the protection of the colonial revenue, to exempt such vessels from the supervision authorized by the colonial customs law.
His Majesty's Government now turn to that part of Mr. Root's note which deals with "the foreign fishing-vessels act, 1905."
His Majesty's Government would have viewed with the strongest disapproval any disposition on the part of the colonial authorities to administer this act in a manner not consistent with His Majesty's treaty obligations, but they are confident that the United States Government will readily admit that the fears expressed on this head in Mr. Root's note have not been realized.
They desire, however, to point out that, though the act in question was passed to give effect to the decision of the colonial government to withdraw from American fishing vessels the privileges which they had been allowed to enjoy for many years previously of purchasing bait and supplies and of engaging crews in the ports of the colony, the provisions objectionable to the United States Government which it embodies are in no sense new. They will be found in "the foreign fishing-vessels act, 1893,"a of which a copy is inclosed. The present act differs from the earlier act in that it takes away, by omission, from the colonial government the power conferred upon them by the earlier act of authorizing the issue of licenses to foreign fishing vessels for the enjoyment of the privileges mentioned. Allowing for this change, the provisions of the two acts are in all essential respects identical. The provisions as to boarding, bringing into port, and searching appear in both acts, and also the provisions as to the possession of bait, outfits, and supplies being prima facie evidence of the purchase of the same in the colonial jurisdiction, except that in the earlier act there was a further provision, consequential on the authority which it conferred on the colonial government to issue licenses, directing that the failure or refusal to produce a license should be prima facie evidence of the purchase of such articles without a license. The position of any American fishing vessel choosing to fish for herself on the treaty coast has consequently been since 1893 the same as it is to-day. His Majesty's Government do not advance these considerations with the object of suggesting that the objections which the United States Government have taken to sections 1 and 3 of the foreign fishing-vessels act are impaired by the fact that these provisions have been on the statute book of the colony since 1893 without protest, and they are ready to assume that no such protest has been lodged merely because the privileges accorded to American vessels in the ports of the colony up to the present have been such as to render it unnecessary for inhabitants of the United States to avail themselves of their right of fishing under the convention of 1818. The object of His Majesty's Government is simply to remove any impression which may have formed itself in the mind of the United States Government that the language of the act of 1905 was selected with any special view of prejudicing the exercise of the American treaty right of fishery, and to point out that, on the contrary, it dates back to 1893—that is, to a time when it was the policy of the colonial government to treat American vessels on a favored footing.
A new act was not necessary to give effect to the present policy of the colonial government. Effect to it could have been given under the act of 1893 by the mere suspension of the issue of licenses to American vessels, and the only object of the new act, as His Majesty's Government understand the position, was to secure the express and formal approval of the colonial legislature for the carrying out of the policy of the colonial government.
Having offered these general remarks, His Majesty's Government desire to point out that, in discussing the general effects of "the foreign fishing vessels act, 1905," on the American fishery under the convention of 1818, the United States Government confine themselves to sections 1 and 3 and make no reference to section 7,a which preserves "the rights and privileges granted by treaty to the subjects of any state in amity with His Majesty." In view of this provision, His Majesty's Government are unable to agree with the United States Government in regarding the provisions of sections 1 and 3 as "constituting a warrant to the officers named to interfere with and violate "American rights under the convention of 1818. On the contrary, they consider section 7 as, in effect, a prohibition of any vexatious interference with the exercise of the treaty rights, whether of American or of French fishermen. As regards section 3, they admit that the possession by inhabitants of the United States of any fish and gear which they may lawfully take or use in the exercise of their rights under the convention of 1818 can not properly be made prima facie evidence of the commission of an offense, and, bearing in mind the provisions of section 7, they can not believe that a court of law would take a different view.
They do not, however, contend that the act is as clear and explicit as, in the circumstances, it is desirable that it should be, and they propose to confer with the government of Newfoundland with the object of removing any doubts which the act in its present form may suggest as to the power of His Majesty to fulfill his obligations under the convention of 1818.
On the concluding part of Mr. Root's note it is happily not necessary for His Majesty's Government to offer any remarks, since the fishing season has come to an end without any attempt on the part of British fishermen to interfere with the peaceful exercise of the American treaty right of fishery.
the foreign fishing vessels act, 1893.
Cap. VI. An act respecting foreign fishing vessels.
(Passed 24th May, 1893.)
Be it enacted by the governor, the legislative council, and house of assembly, in legislative session convened, as follows: Enacting clause.
The governor in council may authorize the issuing of licenses to foreign fishing vessels, enabling them to enter any port on the coasts of this island for the following purposes: The purchase of bait, ice, seines, lines, and all other supplies and outfits for the fishery, and for the shipping of crews. Governor in council may issue licenses to foreign vessels for certain purposes.
Any justice of the peace, subcollector, preventive officer, fishery warden, or constable may go on board any foreign fishing vessel within any port on the coasts of this island, or hovering in British waters within 3 marine miles of any of the coasts, bays, creeks, or harbors in this island, and may stay on board such vessel so long as she remains within such port or distance. Powers of justices of the peace and others.
Any one or the officers or persons hereinbefore mentioned may bring any foreign fishing vessel, being within any port on the coasts of this island, or hovering in British waters within 3 marine miles of any of the coasts, bays, creeks, or harbors of this island, into port, may search her cargo, and may examine the master upon oath touching the cargo and voyage; and the master or person in command shall answer truly such questions as shall be put to him, under a penalty not exceeding $500. And if such foreign fishing vessel has on board any herring, caplin, squid, or other bait [Page 675] fishes, ice, lines, seines, or other outfits or supplies for the fishery, purchased within any port on the coasts of the island, or within the distance of 3 marine miles from any of the coasts, bays, creeks, or harbors of this island, or if the master of the said vessel shall have engaged or attempted to engage any person to form part of the crew of the said vessel in any port, or on any part of the coasts of this island, without a license therefor in writing first granted to any such vessel under the provisions of this act, or has entered such waters for any purpose not permitted by treaty, convention, or act of the legislature, Forfeiture for the time Dein in force, such vessel and the tackle, rigging, apparel, furniture, stores, and cargo thereof shall be forfeited. Officers may seize and examine vessels and cargo in certain cases.
All goods and vessels, and the tackle, rigging, apparel, furniture, stores, and cargo thereof, liable to forfeiture under this act, may be seized and secured by any officer or person mentioned in the second section of this act, and every person opposing any officer or person in the execution of his duty under this act, or aiding or abetting any other person in such opposition, shall be deemed guilty of a misdemeanor, and liable to a fine of $500. Seizure of vessel and penalty for ob structing officer.
In any prosecution under this act, the presence on board of any foreign fishing vessel, in any port of this island, or within British waters aforesaid, of any caplin, squid, or other bait fishes, of ice, lines, seines, or other outfits or supplies for the fishery, shall be prima facie evidence of the purchase of the said bait fishes and outfits within such port or waters, and the refusal or failure to produce a license upon being called upon so to do shall be prima facie evidence of the purchase of bait, ice, lines, seines, or other supplies or outfits for the fishery without a license. Evidence of breach of this act.
All offenders against the provisions of this act may be prosecuted and convicted, and all fines, forfeitures, penalties, and other punishments imposed, recovered, and made, in a summary manner, before a stipendiary magistrate. For the purposes of this act all stipendiary magistrates shall be deemed to be stipendiary magistrates for the colony, and may exercise the jurisdiction given by this act in any part of the colony. Mode of prosecution.
If any person convicted under this act shall feel himself aggrieved by such conviction, he may appeal therefrom to the then next sitting of Her Majesty's supreme court, holden in or nearest the place where such conviction shall have been had, or in St. Johns: provided notice of such appeal and of the cause and matter thereof be given to the convicting magistrate in writing, within seven days next after such conviction, and the party desiring to appeal shall also, within fourteen days after such notice, give and enter into recognizance, with two approved sureties, before the convicting magistrates, conditioned for the appearance of the person convicted at such next sitting of the supreme court, on the first day of such sitting, for the prosecution of the appeal with effect and without delay, to abide the judgment of the court thereon, and for the delivery and surrender of any vessel or other property ordered to be confiscated, and to pay such costs as the court may award. Respecting appeal.
No proceeding or conviction by, nor order of, any magistrate or other officer under this act shall be quashed or set aside for any informality, provided the same shall be substantially in accordance with the intent and meaning of this act. No proceeding to be quashed for want of form.
Nothing in this act shall affect the rights and privileges granted by treaty to the subjects of any State in amity with Her Majesty. Exception in favor of rights by treaty.
Any foreign fishing vessel may enter any port of entry of this island for the purpose of applying for a license under the provisions of this act. Applications for license under this act shall be made to a customs officer at a port of entry in this colony, who is hereby authorized to issue the same. The fee for such license shall be $1.50 per registered ton, to be paid to the customs officer issuing said license. The form of such licenses and the terms and conditions under which the same shall be granted shall be determined by the governor in council. Respecting entry, and applications for licenses.
In this act the word "vessel" shall include any boat or ship registered or not registered, jack, skiff, punt, or launch, whether propelled by sails, oars, or steam. Interpretation.
Section 9 of the act of 1893.↩