PUBLIC RECORD OFFICE
Reference :-
miniminim
LTC.O.885
18 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC-
COPYRIGHT PHOTOGRAPH—NOT TO
14 May 1907.
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Fifteenth Day. Sovereignty, such as Customs and Municipal Laws, and that subjects of a foreign power that have Treaty rights in the territorial waters subject to Sovereignty are liable to be governed by our fishing laws, when they are applied to British subjects and are admittedly made for the preservation of the fisheries.
NEWFOUNDLAND
FISHERY.
(Sir R. Bond.)
I would also refer to the opinion of an American jurist Hall, which occurs in a passage on International Law. He says in commenting on the
Newfoundland fisheries question :-
“It was argued by the United States that the fishery rights conceded by the Treaty were absolute, and were to be exercised wholly free from the regulations or statutes of Newfoundland, and from any other regulations of fishing now in force, or that may be enacted by that Government, in other words, it was contended that the simple grant to foreign subjects of the right to enjoy certain national property in common with the subjects of the State carried with it by implication au entire surrender in so far as such as such national property was concerned, of one of the highest rights of sovereignty, namely, the right of legislation. That the American Government should have put forward such a claim is scarcely intelligible."
As to the duty of the subjects of one nation to conform to the laws of another, the doctrine is laid down as follows in Phillimore's International Law:--
With respect to merchant and private vessels, the rule of law is that except under the provisions of express stipulation such vessels have no exemption from the territorial jurisdiction of the harbour or port, or, so to speak, territorial waters in which they lie." And this is supported by the late Chief Justice Marshall of the United States as follows :-
When private individuals of one nation spread themselves through another, as business or caprice may direct mingling indis- criminately with the inhabitants of that other, and when merchant vessels enter for the purpose of trade, it would be obviously inconvenient and dangerous to society and would subject the laws to continued infraction and the Government to degradation, if such individuals or merchant ships did not all temporarily submit to local regulations and were not amenable to the jurisdiction of the country, nor can a foreign sovereign have any motive in wishing such exemption. His subjects thus passing into foreign countries are not employed by him, nor are they engaged in national pursuits. Consequently there are powerful motives for not exempting persons of this description from the jurisdiction of the country in which they are found, and not one motive for acquiring it. The implied license therefore, under which they enter can never be construed to grant such an exemption. One sovereign, being in no respect amenable to another is bound by obligations of the highest character not to degrade the dignity of his nation by placing himself or its sovereign within the jurisdiction of another. A foreign sovereign is not understood as intending to subject himself to a jurisdiction inconpatible with his dignity and the dignity of the nation.” English law is the same, as in the celebrated case of the "Franconia,” the judges concurring with Mr. Justice Lindley when he said :--
“It is conceded that even in time of peace the territoriality of a foreign merchant ship within 3 miles of the coast of any State does not
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exempt that ship or its crew from the operation of those laws which relate to its revenue and its fisheries."
And Sir Travers Twiss states the law thus :—
"Treaty engagements in such matters as fisheries in common do not give any other right than that which is expressed in the specific terms.
17
Again, the United States Government, as far back as 1856, recognised not only the right, but the desirability, of the enforcement of the laws of Newfoundland upon United States citizens entering the territorial waters of the Colony to engage in fishing. On the 28th March 1856, the following instruction to the masters of American fishing vessels was issued from the State Department, Washington, namely :-
"It is understood that there are certain Acts of the British North American Colonial Legislature, as also, perhaps, Executive regulations, intended to prevent the wanton destruction of the fish which frequent the coasts of the Colonies and injurious to the fishing thereon, it is deemed reasonable and desirable that both United States and British fishermen should pay a like respect to such laws and regulations which are designed to preserve and increase the productiveness of the fisheries on these coasts. Such being the object of these laws and regulations, the observa- tion of them is enforced upon the citizens of the United States in a like manner as they are observed by British subjects. By granting the mutual use of the inshore fisheries neither party has yielded its right to civic jurisdiction over a marine league along its coast. Its laws are as obligatory upon the citizens or subjects of the other as upon its own.'
"}
In 1886 there was a similar recognition by the Government of the United States of the binding effect of Colonial laws upon its citizens when coming within the jurisdiction of the Colony. In a despatch from Mr. Bayard, of the Department of State, Washington, to Sir Lionel West, bearing date 10th May 1886, it was stated :-
•
"Since 1818 certain important changes have taken place in fishing which have materially modified the conditions under which the business of inshore fishing is conducted, and it must have great weight in any present administration of the Treaty. Everything will be done by the United States to cause its citizens engaged in fishing to conform to to the obligations of the Treaty and prevent an infraction of the fishing laws of the British provinces."
Again, in a despatch from Mr. Bayard to Sir Lionel West of date, 20th May 1886, that gentleman stated that he was desirous that due and full observance should be paid by the citizens of the United States to local laws and commercial regulations of the ports of the British provinces.
44
LL
This position is further upheld by a despatch from the Marquess of Salisbury to Mr. White in 1887, in which he states that "such statutes are clearly within the powers of the respective Parliaments by which they were passed, and are in conformity with the Convention of 1818, especially "in view of the passages of the Convention which provide that the American "fishermen shall be under such restrictions as shall be necessary to prevent them from abusing the privileges thereby reserved to them.”
The question of the legality of laws and regulations in relation to the conduct of the fisheries under the Treaty of 1818 passed by the Canadian
Fifteenth Day,
14 May 1907.
NEWFOUNDLAND FISHERY.
(Sir R. Bond.)
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