PUBLIC RECORD OFFICE
سلسل
Reference :-
C.O.885
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
18 PUBLIC
RECORD OFFICE, LONDON
Fifteenth Day. 14 May 1907.
FISHERI
(Sir R. Bond.)
Parliament was discussed between the British Government and the Canadian
1886. year Government and that of the United States in the
As far back as the year 1844, the Provinces of British North America NEWFOUNDLAND had adopted legislation for the enforcement of the provisions of this very Treaty, They were passed by Nova Scoția, New Brunswick, and Prince Edward's Island, and afterwards by the Dominion of Canada. Even while the dispute was pending between the United States and Canada, an Act was passed to further amend the Act respecting the foreign fishing vessels, which, having passed the Canadian Parliament, was reserved by the Governor-General for His Majesty's pleasure, and eventually received the Royal assent on the 26th November 1886. In March 1886, the Canadian Government promulgated the following instructions to its officers enforcing the Canadian fishery laws:-
"You are to compel, if necessary, the maintenance of peace and good order by foreign fishermen pursuing their calling, and enjoying concurrent privileges of fishing and curing fish with British fishermen, in those parts to which they are admitted by the Treaty of 1888. You are to see that they obey the laws of the country, and that they do not molest British fishermen in the pursuit of their calling, and that they observe the regulations of the fishery laws in every respect."
In a report to His Majesty's Government dated 1886, the late Sir John Thompson, then Minister of Justice, and afterwards Premier of the Dominion of Canada, wrote :-
"L
The right of the Parliament of Canada, with the Royal Assent, to to pass an Act on this subject to give that Trenty effect, or to protect the people of Canada from an infringement of the Treaty itself, is clear beyond question. An Act of that Parliament, duly passed according to constitutional form, has as much the force of law in Canada, and binds as fully offenders who come within its jurisdictions, as any Act of the Imperial Parliament; and the efforts made on the part of the Government of the United States to deny and refute the validity of Colonial Statutes on this subject have been continued for years, and in every instance have been set at nought by the Imperial authorities, or by the judicial tribunals.'
If the Parliament of Canada had, and still has, the right to pass and enforce such laws, the Newfoundland Legislature has an equal right, for its constitution is the same.
an Act That was placed beyond question by the Imperial Act of 1865 “ to remove all doubts as to the validity of Colonial laws," the 7th section of which reads as follows:-
"All laws or reputed laws, enacted or purporting to be enacted by the Legislatures which have received the assent of Her Majesty in Council, or which have received the assent of the Governor of the said Colony, in the name and on behalf of Her Majesty, shall be, and be deemed to have, been valid and effectual from the date of such amount for all purposes whatever."
Now, with regard to the shipping of Newfoundlanders to form part of the This was crews of American vessels fishing within territorial waters. permitted by His Majesty's Government under the modus vivendi of 1906 in contravention of the Colonial law. The Colony has prohibited the engaging of Newfoundland labour. This course was rendered necessary because the United States Treasury Department has ruled that herrings taken by
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Newfoundland crews on board of American vessels may be landed free of Fifteenth Day.
The effect of duty just as though they had been taken by American crews.
14 May 1907. that ruling has been to give to the merchants of Gloucester, Massachusetts, what amounts to a monopoly of the United States herring market, independent NEWFOUNDLAND competition being impossible in the face of an import duty equivalent to 25 per cent. of the value which American traders are enabled to evade.
I would once again revert to the despatch of Governor Sir George Des Voeux to the Colonial Office, at the time that the Act under which this prohibition is enforced was before His Majesty's Government. You will please remember that this Act has been on the Statute Book for 20 years. Sir George Des Vœux said, in speaking for his Governinent :---
The people of Newfoundland, like those of Canada, desire to use the right to withhold a supply of beit as a means of inducing the American Government to remove the import duty on British fish. In a word, the principle that the Colonists desire to maintain is live and let live,' and they merely object to that of 'let others live by killing us.'
When the prohibitive import duty is removed, the restriction imposed by the Bait Act, 1887, will cease to be enforced; for Newfoundland is prepared to compete with the fishermen of the United States or of any country upon equal terms, but she objects to give free access to her unrivalled bait supplies to those who debar her from their markets by prohibitive tariffs worked in so unjust and evasive a manner as that set forth in the Treasury Order to which I have referred.
Just a few words more and I have done. I submit that there is nothing in the Treaty of 1818 which conveys a right to the United States to employ Colonial fisherman to fish for them. I have heard it argued that "what one does by another one does by himself." That is a maxim which applies entirely to the law of agency.
Under the Treaty of 1818, the privilege of a fishery in common with British subjects was granted to "the inhabitants of the United States," and the privilege was to "take" fish (not to buy or procure it in any other way.) The word "take" was used in its special and restricted meaning to distinguish the liberty from the rights which the British subjects enjoyed, namely, to use the land as well as the sca, and to buy, sell, trade, or deal in any way with the products of the fisheries. I submit that the United States can only "take
fish and can only take it in common, that is to say, by the same implements of capture as British subjects and subject to the same restrictions regulations, or laws that govern their conduct.
The permission to enter and fish cannot be construed as conferring upon the admitted foreigner a right, but only a liberty or a privilege.
In considering the Treaty of 1818, it is important to remember the class to whom the concession is given, namely, the American fishermen named in the article. (1) They must be inhabitants of the United States. (2) They must be American fishermen, and the liberty granted to them is to take, dry, and cure fish. The word shows the class privileged to whom the Treaty applies, and the vessels employed therefor, and the special Treaty privilege of fishing in the territorial waters of Newfoundland. There is no maxim of the law better known than that which affirms that the "express mention of one person or thing is the exclusion of another." It would, therefore, follow that inhabitants of the United States,' American fishermen,' the mention of “
But we are not left to ourselves to named in the Treaty, excludes all others. place the interpretation on this Treaty, as to the class to whom the privileges are granted. It has been so read by the inhabitants of the United States for the last hundred years, and no later than last July, Mr. A. P. Gardner, the
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FISHERY.
(Sir R. Bond.)
Fifteenth Day,
14 May 1907.
NEWFOUNDLAND FISHERY.
(Sir R. Bond.)