R
PUBLIC RECORD
3 4
OFFICE
Reference :--
C.O.88
16 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO
Foreign
Office Con-
fidential
Print, 2285, Pp. 96-9.
Law
Officers'
Reports,
3th Jan.,
863: 9th July,
873:
7th Dec.,
888; 'nd April. 890;
nd July, 691.
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Proposition 2-That you were inclined to think that a United States vessel seeking to exercise the treaty right of fishery need not obtain a licence from the Colonial Government, and that the Colonial Government stated that they did not impose such an obligation. That Mr. Bertram Cox was to enquire whether, in our opinion, the imposition of such an obligation, if it had been made, could have been defended by His Majesty's Government. That the concluding part of this proposition would be most conveniently dealt with in connection with
Proposition 3.--That Mr. Root admitted that the Colonial Government were entitled to have a United States vessel engaged in the fishery refrain from violating any laws of Newfoundland not inconsistent with the Treaty, but maintained that if she did not purpose to trade but only to fish, she was not bound to enter at any Newfoundland Custom House. That, as pointed out in the Governor's telegram of the 28th October, Section 22 of the Customs Act of 1898, required all vessels arriving at a port in the Colony from sea or coastwise to report to the Customs authorities of that port. That either, therefore, Mr. Root was not aware of this provision of the Colonial Law, or if aware, regarded it as inconsistent with the terms of the Convention of 1818, if applied to United States vessels which did not purpose to trade but only to fish. That for the latter view you could find no support. That it could not, you imagined, be contended that because the British Commissioners who negotiated the Convention of 1818 proposed certain restrictions on United States fishing vessels "in order the more effectively to guard against smuggling which were rejected by the United States Commissioners, United States vessels were not subject to the Customs Laws of the Colony. That the same incident would, by similar reasoning, confer on United States fishing vessels the right to trade with British subjects, which, however, the United States Government did not claim. That it was admitted that the majority of the United States vessels now 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. That the production of evidence of United States registration was, 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. That the United States Govern- ment would undoubtedly be entitled to complain if the fishery of United States citizens were seriously interfered with by a vexatious and arbitrary enforcement of the Colonial Customs Laws, but that it must be remembered not only that vessels were required to enter at a Customs House only if they enter a port, but also that the fishery now in question was actually carried on in the ports of the Colony, so that the obligation to report need not, in any way, interfere with the vessels' operations. That it must also be remembered that a fishery thus conducted in the midst of practically the only centres of population on the west coast of the Colony afforded ample opportunities for illicit trade, and consequently called for careful supervision in the interests of the Colonial revenue. That on the general question of the applicability of the Laws of Newfoundland to foreign vessels fishing by virtue of treaties in Colonial waters, Mr. Bertram Cox was to refer us to the reports by Law Officers of the Crown and to remind us that the fishery rights enjoyed by United States citizens under the Convention of 1818 were a survival of the rights which they enjoyed as and when British subjects. That they could hardly, therefore, claim to exercise their right of fishery on a footing of greater freedom than if they had never ceased to be British subjects, or on a footing of greater freedom than the British subjects in common with whom they exercised that right.
Propositions 4, 5 and 6--That you did not see how these propositions could be disputed, but that the distinction between United States registration and the possession of a United States fishing license was of importance, inasmuch as a vessel which, so far as the United States Government was concerned, was at liberty both to trade and to fish, naturally called 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.
you
That would also be glad to receive our observations on that part of Mr. Root's note of the 19th October which dealt with the provisions of Sections 1 and 3 of the Foreign Fishing Vessels Act of 1905.
That similar provisions would be found in Chapter 94 of the Revised Statutes
* Nos. 154 in Vol. I., 840 in Vol. II., 131, 177, and 218 in Vol. IV.
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of Canada, 1886, but an essential difference would be noticed. That the Canadian Act referred only to those portions of the coasts of Canada from which United States citizens were excluded by the Convention of 1818; that the Newfoundland Act, on the other hand, referred not only to the waters of the Colony from which United States fishermen were excluded by the Convention of 1818, but also to those waters in which they were permitted to fish by that Convention. That, moreover, Section 10 of the Canadian Act merely laid the onus of proving the illegality of the seizure of a vessel upon the owner or claimant of the seized vessel, but that Section 3 of the Newfoundland Act went so far as to make the mere possession of certain articles prima facie evidence of the commission of an offence.
Note of
That the United States Government in 1886 objected to the Canadian Law See Mr. which threw the burden of proving the illegality of a seizure upon the owner of Phelp's the vessel seized, but that the British Government of that time refused to entertain 2nd Dec., their objections. But that Section 3 of the Newfoundland Act appeared to you 1886, in to be hardly defensible as applied to that part of the coast on which United States C. 4995. citizens had the right to fish. That the Act of 1893 was not considered by His Se Lord Majesty's Government to be objectionable (with the exception of the provision Iddes in Section 3 for forfeiture, which was regarded as severe in the case of a single Note of leigh's offence), but that Mr. Cox was to point out that it was passed to enable United States 11th Jan., vessels to obtain licences to purchase bait and supplies.
1887, in
That in considering the propriety of Section 3 of the Foreign Fishing Vessels C. 1995. Act, 1905, it must be borne in mind that it applied to the waters in which United States citizens were prevented from fishing by the Convention of 1818 as well as to the waters in which they were allowed to fish by that Convention. That if no objection could be taken to its application to the waters in which United States citizens were not allowed to fish, then the question arose not of its total repeal, as requested by the Government of the United States, but of its amendment so as to prevent or modify its application to those waters in which United States citizens were allowed to fish. That you would accordingly be glad to have our opinion on the following points:-
(1.) Should the Section be repealed altogether, as inapplicable even to the
waters from which United States citizens are excluded?
(2.) If not inapplicable to these waters, should it be amended so as to limit
entirely to these waters?
(3.) If inapplicable to these waters should you recommend the substitution of a section in identical terms with Section 10 of Chapter 94 of the Revised Statutes of Cànada, 1886, and could such a section be made applicable to those waters in which United States citizens have the right to fish? If not, what differentiation between the two sets of waters is required? That in this connection Mr. Cox was to state that you presumed that Section 17 of the Bait Act, No. 6. of 1889, was not open to objection, as it merely directed that the shipping, &c., of bait fishes should be deemed to be prima facie evidence of intention to export, and that the failure to produce a licence shall be prima facie evidence of the absence of a licence.
That as regarded Section 1 of the Foreign Vessels Act, 1905, a general repeal would appear to be out of the question, as so long as Section 3 of Chapter 94 of the Canadian Revised Statutes, 1886, remained un-repealed, objection could hardly be taken to its application to those waters of the Colony from which United States citizens were excluded by the Convention of 1818, but that it might be pointed out that the persons authorized to bring a vessel into port by the Newfoundland Act occupy less responsible positions than those authorized by the Canadian Act. That it would be noticed that one of the objections taken by Mr. Root to the Newfound- land Act was that it invested with extraordinary and summary power officials not only of minor importance, but also presumptively members of the local fishing communities. That the same officials were, however, entrusted with the powers of boarding, searching, examining on oath, and seizing by Sections 14 and 15 of the Bait Act, No. 6, of 1889, and by Sections 12 and 13 of the Governor's Proclamation of the 14th April last, but that it would be noticed that the Bait Act and Proclama- tion did not require that a vessel should be brought into port in order that the examination might take place.
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