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2. The engagement within British waters of persons to form part of the crew.
Although these Newfoundland statutes were declared not to "affect the rights and privileges granted by treaty to the subjects of any State in amity with Her Majesty," all American fishing vessels have conformed to their provisions, paid the licence fees, and taken out licences. No diplomatic complaint of these statutes was made until after 1905.
1902.-A convention, known as the Bond-Hay convention, was negotiated. It gave to the United States fishermen the right of purchasing bait, &c., in Newfoundland waters, on paying light, harbour, and customs dues, in return for other concessions. This convention has never been ratified by the United States. (App., p. 46.)
1905. The licence system embodied in the Newfoundland statutes above referred to came to an end in this year when an Act, 5 Ed. VII, c. 4, was passed by the Legislature of that Colony prohibiting altogether the sale of bait, ice, lines, seines, or other outfits or supplies to foreign fishing-vessels, and the engagement by them of crews within Newfoundland waters. (App., p. 757.)
1906. In 1906, the Act of 1905 was repealed and re-enacted with some amendments by the Foreign Fishing Vessels Act, 1906, but this latter statute has not been put into operation. Matters have gone on under a modus vivendi from year to year. Meantime correspondence has taken place which has led to the present reference to The Hague Tribunal. (App., p. 758.)
Reference has already been made to the correspondence which commenced between the two Governments in 1886 in regard to the position of American fishing vessels in Canadian ports. In that year the modus vivendi arranged on the termination of the treaty of Washington had itself come to an end, and the parties reverted to their rights under the treaty of 1818.
Canada proceeded to enforce her fishery laws, and American vessels were seized and proceeded against for infringement of those laws. The material portions of the correspondence which ensued are set out in the appendix, but it will be convenient to call attention to the more important documents. To a great extent they deal with the facts of particular cases which it is not necessary to examine before this Tribunal, but the general question is fully discussed in them.
On the 10th May, 1886, Mr. Bayard, writing to Sir L. S. S. West, the British Minister at Washington, contended that vessels engaged in deep sea fishing ought not to be prevented from buying bait in Canadian ports, and claimed for them the same cus
tomary rights and privilges as were accorded to trading-vessels; but the claim was based on considerations of friendliness and courtesy rather than on legal right. (App., p. 298.)
On the 24th May, Mr. Phelps, the United States Minister in London, called on Lord Rosebery, then Her Majesty's Secretary of State for Foreign Affairs, and the conversation between them is recorded by Lord Rosebery in a letter of the same date to Sir L. S. S. West (App., p. 304):
Mr. Phelps went on to argue the construction of the treaty of 1818, and said that though, at a first glance, its provisions might seem to justify the Canadian authorities in the course which they had taken, a general view of its whole scope contradicted that assumption, which, in any case, was inconsistent with the cordial relations existing between the two countries. In reply, I reminded Mr. Phelps that that treaty was concluded at a time when, after a war and a period of great bitterness, the relations between Great Britain and the United States were not so cordial as they are now.
As regarded the construction of the treaty, I could not presume to argue with so eminent a lawyer as himself; I could not, however, refrain from expressing the opinion that the plain English of the clause seemed to me entirely to support the Canadian view.
On the 29th May (1886) another interview took place between the same parties, and is recorded in a letter to Sir L. S. S. West (App., p. 310):
The American Minister called on me to-day. . .
He again discussed at some length the provisions of the treaty of 1818, and said that the newspapers which had reached him from America treated the matter as of little moment, because the British Government were sure not to support the action of the Canadian administration. He also alluded to a correspondence with Lord Kimberley in 1871, in which Lord Kimberley stated that the Imperial Government was the sole interpreter of the British view of Imperial treaties, and that they were not able to support the Canadian view of the bait clause. Mr. Phelps finally urged that the action of the Canadian Government should be suspended, which would then conduce to a friendly state of matters, which might enable negotiations to be resumed.
I replied to Mr. Phelps that, as regards the strict interpretation of the treaty of 1818, I was in the unfortunate position that there were not two opinions in this country on the matter, and that the Canadian view was held by all authorities to be legally correct. If we are now under the provisions of the treaty of 1818. it was by the action, not of Her Majesty's Government, or of the Canadian Government, but by the wish of the United States. I had offered to endeavour to procure the prolongation of the temporary arrangement of last year, in order to allow an opportunity for negotiating, and that had been refused. A joint commission had been refused, and, in fact, as any arrangement, either temporary or permanent, had been rejected by the United States, it was not a matter of option but a matter of course that we returned to the existing treaty. As to
Lord Kimberley's view I had had no explanation from him on that point, and of course I entirely concurred with his opinion that the British Government were the interpreters of the British view of Imperial treaties.
On the same day (29th May, 1886) Mr. Bayard wrote to protest against the Canadian statute of 1886. He described Canada's action as " arbitrary, unlawful, unwarranted, and unfriendly," and as " flagrantly violative of the reciprocal commercial privileges to which citizens of the United States are lawfully entitled under statutes of Great Britain, and the well-defined and publicly proclaimed authority of both countries, besides being in respect of the existing conventions between the two countries, an assumption of jurisdiction entirely unwarranted and which is wholly denied by the United States." (App., p. 311.)
On the 2nd June (1886) Mr. Phelps, in a letter to Lord Rosebery, discussed the treaty of 1818 at length. He said (App., p. 312):
Recurring, then, to the only real question in the case, whether the vessel is to be forfeited for purchasing bait of an inhabitant of Nova Scotia to be used in lawful fishing, it may be readily admitted that, if the language of the treaty of 1818 is to be interpreted literally, rather than according to its spirit and plain intent, a vessel engaged in fishing would be prohibited from entering a Canadian port" for any purpose whatever," except to obtain wood or water, to repair damages, or to seek shelter. Whether it would be liable to the extreme penalty of confiscation for a breach of this prohibition, in a trifling and harmless instance, might be quite another question.
Such a literal construction is best refuted by considering its preposterous consequences. If a vessel enters a port to post a letter, or send a telegram, or buy a newspaper, to obtain a physician in case of illness, or a surgeon in case of accident, to land or bring off a passenger, or even to lend assistance to the inhabitants in fire, flood, or pestilence, it would, upon this construction, be held to violate the treaty stipulations maintained between two enlightened, maritime, and most friendly nations, whose ports are freely open to each other in all other places and under all other circumstances. If a vessel is not engaged in fishing, she may enter all ports. But if employed in fishing, not denied to be lawful, she is excluded, though on the most innocent errand. She may buy water, but not food or medicine; wood, but not coal. She may repair rigging, but not purchase a new rope, though the inhabitants are desirous to sell it. If she even entered the port (having no other business) to report herself to the custom-house, as the vessel in question is now seized for not doing, she would be equally within the interdiction of the treaty. If it be said these are extreme instances of violation of the treaty, not likely to be insisted on, I reply that no one of them is more extreme than the one relied upon in this case.
It will be observed that this argument did not take into consideration the fact that in 1818 United States vessels had not the right to enter British ports or territory.
Mr. Bayard's letter of the 10th May (ante) was dealt with in a report of the Canadian Minister of Justice (May 1886) and by a Canadian Order-in-Council (14th June, 1886). (App., p. 305.) Mr. Phelps' letter of the 2nd June (ante) (App., p. 319) was the subject of a further report by the Canadian Minister of Justice (22nd July). (App., p. 330.) The attention of the Tribunal is invited to these documents.
The correspondence was continued during the remainder of 1886 and during 1887, but the main contentions are sufficiently stated in the letters and documents to which reference has been made.
MR. MANNING'S REPORT, 1887.
In the report by Mr. Daniel Manning, United States Secretary of the Treasury, to the Speaker of the House of Representatives (10th January, 1887) is the following (App., p. 373) :—
American fishing-vessels duly authenticated by this department, and having a permit "to touch and trade," should be permitted to visit Canadian ports and buy supplies, and enjoy ordinary commercial privileges, unless such a right is withheld in our ports from Canadian vessels. That right is denied by the Privy Council and the Governor-General of the Canadian Dominion upon the ground that it would be in effect a pro tanto abrogation of the treaty of 1818. That contention is an error, in the opinion of this department, because the treaty of 1818 has no application to the subject-matter.
UNITED STATES HOUSE OF REPRESENTATIVES, 1887.
To the same effect was the report of a committee of the House of Representatives (18th January, 1887) :
It is to be assumed that when this treaty of 1818 was signed, the British statutes of Charles II, in restraint of navigation, the rudiments of which are to be seen in 1650, and were aimed at Dutch trade with British sugar colonies, were, on the English side. rigorously enforced, so that no merchandise could be lawfully imported into Canadian ports excepting in English bottoms. The treaty of 1818 was concluded on the 20th October of that year, but ratifications were not exchanged till the 30th January, 1819. Cer tainly on our side there was then in force legislative restriction on navigation almost as severe as was the English enactment after the restoration of Charles II. America had not then emerged from the era of the embargo, Berlin and Milan decrees, and the influences of the war of 1812. On 18th April, 1818, the President approved a law closing our ports after the 30th September, 1818, against British vessels coming from a colony which, by the ordinary laws, is closed against American vessels. Touching at a port open to American vessels could not modify the restriction. Vessels and cargoes entering,
or attempting to enter, in violation of the law were forfeitable. And any English vessel that could lawfully enter our ports was compelled to give a bond, if laden outward with American products, not to land them in a British colony or territory from which American vessels were excluded. The presumption is, that quite independently of fishing rights and liberties, no American vessel was for long before, and after, 1818 permitted by English law to touch and trade in Canadian ports. (App., p. 378.)
It may be conceded that, apart from the right of American fishermen to take fish of all kinds within certain clearly defined British waters, American deep-sea fishermen have no greater rights, by treaty or public law, in British ports, than British fishermen have in American ports, so far as concerns revenue police, maritime tolls or taxes, pilotage, light-houses, quarantine, and all matters of ceremonial. (App., p. 382.)
The treaty of 1818 gave rights of fishing independent of general commercial rights, although it may be said that as to shelter, repairs, wood, and water, the treaty did give to fishermen certain commercial rights, or rather a few rights of humanity. The treaty did not restrain the granting or the exercising of commercial rights. The right, if it be a right, of an American to buy anything in Canada does not come of the inshore fishing treaty of 1818. (App., p. 382.)
UNITED STATES SENATE, 1887.
In a report dated the 19th January, 1887, the committee for foreign relations of the Senate, after referring to the article of the treaty of 1783, said (App., p. 387) :—
This article, it will be observed, recognised an existing right and practice in respect of American fishermen exercising their calling not only at sea on the banks of Newfoundland, but in all places in the sea within what would be strictly British waters. And it will be observed also that this treaty said nothing on the subject of commercial intercourse between the people of the United States and those of the British provinces. (App., p. 397.)
The treaties between the United States and Great Britain on the subject of intercommunication, and the rights of the citizens and subjects of the one in the ports and territories of the other have not included the British dominions of North America (with possibly certain exceptions as to intercourse by land), and such intercourse, strangely enough, still remains the subject of legislation merely in the two countries.
In the debate in the United States Senate of 24th January 1887 Senator Evarts said that
the settled opinion of the Government now is that the treaty of 1818 is nothing but a fishing treaty and not a commercial treaty at all. It is regulative of the fishing interest as there described as the subject