PUBLIC RECORD OFFICE
Reference :-
TTIC.O.
.885
16 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO
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That as regarded the application of Section 1 of the Newfoundland Foreign Fishing Vessels Act, 1905, to those waters in which United States citizens were allowed to fish, some such legislation would appear to be required if the decision of the Colonial Government was not to permit the sale of bait and supplies, as the Bait Act did not refer to supplies and did not discriminate between fish taken and fish purchased without a licence, but that you did not perceive how His Majesty's Government could rebut the contention of the United States Government that Section 1 of the Act provided no guarantee against a vexatious and arbitrary inter- ference with the exercise of the United States right of fishery. That you would be glad to receive any suggestions which we might have to offer on this point.
That Mr. Bertram Cox was also to call our attention to the Imperial Order in Council of the 19th June, 1819 (p. 276 of Enclosure F, which forbids “all His Majesty's subjects being in or resorting to the said ports
to interrupt
in any manner the aforesaid fishery," and to say that you presumed that the general terms in which that prohibition was expressed did not prevent an interruption of the United States fishery for the bonâ fide enforcement of the Laws of the Colony. That possibly it might be held to refer only to the acts of private persons, but that if it referred to the acts of officials also, he was to inquire whether the above presumption was correct, and whether merely vexatious interference with the United States fishery on the part of the Colonial officials, such as was feared by the United States Government, would be an offence against the Order in Council.
That Mr. Bertram Cox was also to enquire, having regard to the fact that the Foreign Fishing Vessels Act, 1905. preserved all treaty rights (1) whether the authority given in Section 1 could be regarded as given subject to no act of vexatious interference with the United States right of fishery being committed, and, if so, whether, notwithstanding anything contained in the Section, legal proceedings would lie against any person committing such an act? (2) whether a Court of Law would hold that the provisions of Section 3 did not apply to cases in which the accused persons were entitled by Treaty to take fish!
That before leaving the Act in question. Mr. Bertram Cox was to point out that, owing to its general application to all the waters of the Colony, a United States fishing vessel could be forfeited if it put into the waters in which it was entitled to fish for any other purpose than fishing between Quirpon Island and Cape Ray, and fishing, drying and curing, Letween Cape Ray and Rameau Islands. That those were the only acts "permitted by Treaty or Convention for the time being in force" (the words "or Act of the Legislature" which appeared in the Act of 1893 having been struck out), so that while United States fishing vessels were permitted to put into the bays, &c., from which they were excluded by the Convention of 1818 for the purposes of shelter, repairs, the purchase of wood, and the obtaining of water, they were able to forfeiture if they put into the bays, &c., in which they were permitted to fish for any of those purposes.
That Mr. Cox was also to enclose copies of Two telegrams from the Governor of Newfoundland, dated the 27th October, reporting that a certain United States vessel had refused to pay light dues or to give an account of ship's stores and outfit, and that it was anticipated that other United States vessels would refuse to pay light dues. That the question involved in the refusal to give an account of ship's stores and outfit had alredy been discussed in his letter. That as regarded light dues, he was to refer us to the accompanying Act, No. 19, of 1899. That the Governor stated that this was the first time that United States vessels had refused to pay light dues, but that it should be pointed out that in the past United States vessels had been allowed to buy fish, and that the refusal to pay light dues was probably based on the denial of the Colonial Government of all commercial privileges. That you could not, however, admit that such denial entitled United States fishing vessels to exemption from light dues in the ports in which they were permitted to fish. That it would be seen from the minute of the Privy Council of Canada of the 15th January, 1887 (pp. 83-85 of ('. 4995 (enclosure Q)), that in 1886 the Canadian Government insisted on United States fishing vessels complying with all the commercial regulations in force in Canadian Ports, even though they entered those ports only to obtain wood, water, &c., under the Convention of 1818, and from Lord Salisbury's note of the 24th March, 1887 (p. 95, ibid) that Her late Majesty's Government of that date supported such action. That we should notice that the Colonial Light Dues Act applied to all fishing vessels whether British or Foreign, with the exception of those owned and registered in the Colony, and that
stances.
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even these latter had to pay light dues (though at a reduced rate) in certain circum-
That Mr. Bertram Cox was further to enclose copy of a telegram from the Governor of Newfoundland received on the 29th October relative to the intentions of United States vessels to catch fish in the Bay of Islands with seines (Enclosure W). That for many years the use of the purse seine had been prohibited in all the waters of Newfoundland, and the use of the herring seine in the Bay of Islands and the other great herring bays on the west coast of the Colony, and that recently the prohibition of the herring seine had been extended to all the waters of New- foundland between Cape La Hune, on the south coast, and Cape John, on the east coast, passing by the west. That there could, in your opinion, be no question of the bona fides of this prohibition, and that, in view of the accompanying Law Officers' reports, in particular of that of the 19th July, 1873* (Enclosure J), you felt that His Majesty's Government had no option but to ask the United States Government to see that it was respected, and to remind them of the admissions made, by the United States Government in 1873 [see pp. 167 and 181 of Foreign Office confidential print 2288 (Enclosure X)].
That we should notice that the Foreign Fishing Vessels Act, 1905, rendered a foreign fishing vessel liable to forfeiture "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."
That the United States Ambassador had informed the Marquess of Lansdowne that the captains of United States vessels had been advised that if any men in any of their crews were shipped within three miles of the Newfoundland coast they should be discharged. That Sir W. MacGregor, however, telegraphed on the 25th October that the fishermen of the Colony were going to Canadian ports, or outside the three mile limit, to engage with American vessels. That he added that he would try to prevent their arrest upon American vessels, but that he feared trouble, though not actual collision, over this point. That, thereupon, you tele- graphed to the Governor on the 27th October, asking the following questions:-,
"(1.) Under what Act is, it an offence for foreign fishing vessels to have on
board British subjects not engaged in Colonial waters!"
(2.) Under what Act is it an offence for British subjects to be on board such vessels, whether engaged within or outside Colonial waters, or to assist United States fishermen in treaty right of fishery?"
That in a separate secret and personal telegram you informed the Governor that whatever might be the legal justification for arrest on United States vessels, that course would entail upon His Majesty's Government political difficulties, not only of a most serious character, but also wholly disproportionate to the interests at stake, that His Majesty's Government could not support such action with the slightest prospect of success, that it was consequently out of the question, and that Sir Robert Bond must clearly understand this.
That Mr. Bertram Cox was to enclose copy of a telegram received from the Governor on the same day, which embodied the answers to the above questions (Enclosure Y). That it would be seen from this telegram and from a further telegram from the Governor, received on the 29th of October (Enclosure Z), that no arrest. would take place on an American vessel, and that no American vessel would be seized without first consulting His Majesty's Government. That you would, however, be glad to receive our observations on both telegrams. That from two Telegrams telegrams received yesterday from the Governor (Enclosures AA and BB), it would from be seen that the Attorney-General considered that Chapter 129 of the Newfound- Governor, land Consolidated Statutes (ie., the Bait Act, Enclosure R), did not apply to 1905. Americans fishing on the Treaty Coast of the Colony, and that the Governor had accordingly withheld approval of the Minute of Council embodied in his telegram of the 28th October (Enclosure Z), pending instructions from the Secretary of State. That it would not be in accord with the previous decision of His Majesty's Govern- ment to the effect that any action should be confined to the inhabitants of the Colony, to authorize proceedings under the Bait Act against United States fishermen on the ground that they were aiding and assisting British subjects to contravene the Bait Act, even if it were certain that the Bait Act applied to them,
No. 840 in Vol. II.
30th Oct.,
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