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PUBLIC RECORD OFFICE

Reference :-

C.O.885

16 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

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and that the doubt expressed by the Attorney-General would seem to make such proceedings impossible. But that you agreed with the Attorney-General of Newfoundland that there was nothing in the Convention of 1818 which entitled United States citizens to engage inhabitants of Newfoundland outside the Colonial jurisdiction and then to send such men ashore to fetch their own boats and gear from their own homes to fish, for them. That Newfoundlanders, whether engaged within or outside, the Colonial jurisdiction, who fished for United States citizens from their own boats and with their own gear, could clearly, you would suppose, be arrested if the local law covered the case, without raising any of the international questions to which the arrest of Newfoundlanders on board United States vessels or boats might give rise. →

That the questions involved were questions of considerable difficulty and import- ance, and that you would be glad to be favoured with any general observations which we might think fit to offer.

We were further honoured with Mr. Bertram Cox's note of the 20th instant, stating that with reference to that part of his letter of the 1st of November which related to the question of the liability of United States fishermen to comply with the Newfoundland regulation prohibiting the use of seines, he was directed by you to forward printed copies of the correspondence which took place with the United States Government between the years 1878-1883 respecting the occurrences at Fortune Bay, Newfoundland, in the year 1878.

That your attention had not been drawn to the attitude adopted in the course of that correspondence by the United States Government when the terms of the reference submitted to us were under consideration. That Mr. Bertram Cox was, however, to invite our special notice to the reports of our predecessors in 1880, dated the 15th of July and the 27th of September, 1880, respectively, and to the Memoranda by Lord Selborne (Lord Chancellor), dated the 21st of July, 1880, the 7th October, 1880, and the 21st of February, 1881, respectively.*

We have taken the matters above referred to into our consideration, and, in obedience to your commands, have the honour to

Report-

That (I.) with regard to the six propositions submitted in Mr. Root's despatch of 19th October, 1905, our opinion is as follows:-

Proposition 1. The privilege is conceded by the Treaty not to American vessels but to inhabitants of the United States and to American fishermen. We do not think it is necessary that the persons entitled to the benefits of this provision should be citizens of the United States. It is enough if they are permanently resident there as we think that the phrase "the American fishermen means fishermen who are inhabitants of the United States.

The question whether inhabitants of the United States would be entitled to fish from foreign vessels not belonging to the United States seems to be purely academic, and unlikely ever to arise in practice. We think it better that we should abstain from giving any final answer to a question of this kind. If it ever should arise in practice everything may depend on the special circumstances of the case, but it might with some force be contended that the employment of vessels other than American for this purpose would be an unreasonable exercise of the treaty rights. We think that British subjects or aliens not being inhabitants of the United States acting in the fishery on board of American vessels are not covered by the provisions of the treaty.

We do not think that foreigners not having treaty rights of their own could lawfully prosecute these fisheries by engaging American vessels, as it would not be within the terms of the Treaty that American vessels should be used by foreigners for these fisheries. This question, however, does not appear to be of a practical nature at present, and any particular case that occurs must be considered upon its special circumstances.

We are unable to agree with the propositions in Mr. Root's despatch if they are meant to assert any right of American vessels to prosecute these fisheries except when the fishing is carried on by inhabitants of the United States. The Treaty confers no rights on American vessels as such. It enures for the benefit only of inhabitants of the United States.

* Nos. 45, 55, 46, 77 and 105 in F.O. Confidential Paper, No. 4517.

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Proposition 2.--The Colonial Government could not legally require that American vessels seeking to exercise the treaty right should take out a licence from the Colonial Government. No licence is required for what is a matter of right.

Proposition 3.-We are of opinion that Section 22 of the Customs Act of 1898 applies to the case of vessels seeking to exercise the treaty right if they enter a port in Newfoundland and are anchored or moored there. The provisions of this Section apply equally in the case of British vessels; they are obviously necessary for the prevention of smuggling, and we can see nothing in the Treaty to exempt American vessels from their operation. These provisions, however, have no application to vessels which enter the port merely to fish without anchoring or mooring.

Propositions 4, 5, and 6.-These propositions appear to us to be vitiated by the assumption that the Treaty confers any rights on American vessels The assur- ance 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. We agree that the circumstance that the vessel is qualified to trade as well as to fish cannot be regarded as immaterial.

II. With regard to the questions put as to the Foreign Fishing Vessels Act, 1905:

(1.) We think that Section 3 of this Act is quite indefensible if it be applied to vessels exercising treaty rights. It is obvious that to say that the possession of fish or appliances for fishery is primâ facie evidence that an offence entailing forfeiture has been committed by purchase within the territorial waters of New- foundland is entirely inconsistent with the right under the Treaty to fish in the territorial waters as it makes what is incident to the exercise of the treaty right primâ facie evidence of an offence.

We do not think that the provisions of Section 3 are equally objectionable if applied only in the waters to which the treaty rights do not extend. The questions arising on this head are questions of policy.

Section 10 of the Canadian Act appears to us to be unsuitable for application in waters subject to the treaty rights, and the same observation applies to Secion 17 of the Bait Act, 1889. Otherwise we see nothing objectionable in these provisions.

(2.) As regards Section 1 of the Act of 1905, it appears to us that its provisions if applied to the waters to which the treaty rights extend are in conflict with those treaty rights, as no adequate precautions are taken to prevent the vexatious exercise of its powers. The status of the officers by whom its enactments are to be enforced does not appear to us to raise a question of principle although we think it very likely that grave difficulties may arise in practice from entrusting such extensive powers to officers of the rank of constable, but the whole scope of the provisions for boarding and bringing into port on mere suspicion of having purchased bait fishes or other supplies within the territorial waters of the island appears to us to be calculated to hamper American vessels in the exercise of their treaty rights.

The application of this clause in waters to which the treaty rights do not extend raises questions of policy only.

(3.) We think that the Imperial Order in Council applies to officials as well as to private persons, but the fact that the acts complained of were authorized by an Act of the local legislature would probably be an answer to any proceedings in respect of an infringement of the Order in Council. The provisions of the Order in Council are of so general a nature that we doubt whether the provisions of the local Act would be held void as repugnant to orders made under the authority of an Imperial Act of Parliament within 28 and 29 Viet. c. 63, Section 2.

(4.) It is extremely difficult to say what effect would be given by a Court of Justice to the provision of Section 7 of the Act of 1905, that nothing in the Act is to affect rights and privileges granted by treaty to subjects of another State. a possible view that this provision would prevent altogether the application of It is Sections 1 and 3 to vessels exercising treaty rights, and that the Act would, therefore, afford no justification to officials who had puf it in force in such cases. Act is so drawn that this cannot be considered as clear. In any case proceedings But the would lie against any official who used the Act for purposes of vexation.

(5.) The provision in Section 1 of the Act of 1905 that any vessel shall be forfeited if it has entered the territorial waters for any purpose not permitted by Treaty or Convention would not, in our opinion, be held to apply to vessels entering

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