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caused by conflicting judicial decisions of 1870-1 as to whether the purchase of bait within British waters was "preparing to fish” 15 there. The new statute provided for seizure in case of foreign
fishing vessels having (App., p. 631) —
entered such waters for any purpose not permitted by treaty or convention of the United Kingdom or Canada for the time being in force.
UNITED STATES RETALIATORY STATUTE, 1887.
1887.-American fishermen having thus been prohibited from purchasing supplies in British waters, the United States passed retailatory legislation, authorising the President by proclamation (App., p. 793)
to deny vessels, their masters and crews, of the British dominions of North America, any entrance into the waters, ports, or places of, or within, the United States (with such exceptions in regard to vessels in distress, stress of weather, or needing supplies, as to the President shall seem proper), whether such vessels shall have come directly from said dominions on such destined voyage or by way of some port or place in such destined voyage elsewhere.
It will be observed that this statute was not confined (as was Canadian action) to fishing vessels, but applied to vessels of all kinds.
1887.-Newfoundland passed a statute, by which it was provided that no person should export, or catch for the purpose of exportation, any herring, caplin, squid, or other bait fishes without a licence. (App., p. 711.)
1888.-A convention was negotiated (known as the ChamberlainBayard convention). It dealt with the question of bays and commercial privileges. (App., p. 42.)
The United States Senate declined to ratify this convention, and it therefore never became operative.
The negotiators, however, had provided for a modus vivendi pending legislative action with regard to the treaty, which is still in operation in Canada.
1888.-Newfoundland passed a statute providing for the issue of licences to purchase bait, for bait purposes. (App., p. 712.)
1889.-Newfoundland passed a statute amending and consolidating the two previous statutes (1887 and 1888). This Act has been commonly known as the Bait Act. It prohibited (without licence) any dealing with bait fishes for the purpose of exporting them to be used either for consumption or as bait. (App., p. 713.)
BOND-BLAINE CONVENTION OF 1890.
1890.-A convention was arranged affecting the relations between the United States and Newfoundland (known as the Bond-Blaine convention), which, however, never became effective. (App., p. 45.)
1893.-Newfoundland passed a statute (known as the Foreign Fishing Vessels Act) having for its object the prohibition of the sale to foreigners, without license, of herring, caplin, squid, or other bait fishes, ice, lines, seines, or other outfit or supplies for the fishery, and the engagement within British waters of persons to form part of the crew. (App., p. 730.)
1902.-Another convention was arranged as between the United States and Newfoundland (known as the Bond-Hay convention). It provided for reciprocal freedom from customs duty of certain articles, and for permission to American fishermen to purchase bait and other supplies in Newfoundland. The United States Senate declined to ratify the convention. It has, therefore, never become
effective. (App., p. 46.)
1905.-Newfoundland repealed the provisions of the Foreign Fishing Vessels Act, and enacted a new statute which prohibited altogether the purchase of bait by foreign fishing vessels and the engagement by them of crews within Newfoundland waters. (App., p. 757.)
1906.-Newfoundland passed another statute repealing the Act of 1905, but re-enacting it with some amendments. This statute, however, did not come into force. (App., p. 758.)
1906.-Diplomatic correspondence resulted in a modus vivendi as to Newfoundland (App., pp. 504-6):
1. American fishermen were permitted to use purse seines.
2. American fishermen were permitted to hire Newfoundlanders outside the 3-mile limit.
3. American fishermen were to refrain from fishing on Sunday. 4. American fishermen were to pay light dues.
5. American fishermen were to make entries at custom-houses. 6. The Statute of 1906 was not to become effective, and parts of the statute of 1905 were not to be enforced against American fishermen.
1907.-A new modus vivendi as to Newfoundland was ar17 ranged. It was similar to that of the former year, except that American fishermen were not to use purse seines. (App.,
The above chronological survey will, it is hoped, be of use in the appreciation of the various parts of the arguments submitted in the Case on each of the questions on which the Tribunal is requested to decide.
RIGHT OF REGULATION.
To what extent are the following contentions or either of them justified?
It is contended on the part of Great Britain that the exercise of the liberty to take fish, referred to in the said article, which the inhabitants of the United States have for ever in common with the subjects of His Britannic Majesty, is subject, without the consent of the United States, to reasonable regulation by Great Britain, Canada, or Newfoundland in the form of municipal laws, ordinances, or rules, as, for example, to regulations in respect of
(1) the hours, days, or seasons when fish may be taken on the treaty coasts;
(2) the method, means, and implements to be used in the taking of fish or in the carrying on of fishing operations on such coasts;
(3) any other matters of a similar character relating to fishing; such regulations being reasonable, as being, for instance
(a.) Appropriate or necessary for the protection and preservation of such fisheries, and the exercise of the rights of British subjects therein and of the liberty which by the said article 1, the inhabitants of the United States have therein in common with British subjects; (b.) Desirable on grounds of public order and morals;
(c.) Equitable and fair as between local fishermen and the inhabitants of the United States exercising the said treaty liberty and not so framed as to give unfairly an advantage to the former over the latter class.
It is contended on the part of the United States that the exercise of such liberty is not subject to limitations or restraints by Great Britain, Canada, or Newfoundland in the form of municipal laws, ordinances, or regulations in respect of
(1) the hours, days, or seasons when the inhabitants of the United States may take fish on the treaty coasts; or
(2) the method, means, and implements used by them in taking fish or in carrying on fishing operations on such coasts, or
(3) any other limitations or restraints of similar character(a) Unless they are appropriate and necessary for the protection and preservation of the common rights in such fisheries and the exercise thereof; and
(b.) Unless they are reasonable in themselves and fair as between local fishermen and fishermen coming from the United States, and
not so framed as to give an advantage to the former over the latter class; and
(c.) Unless their appropriateness, necessity, reasonableness, and fairness be determined by the United States and Great Britain by common accord, and the United States concurs in their enforcement.
NATURE OF THE QUESTION.
Stated in general terms, the question is, whether certain nationals, with treaty liberty to enter alien territory and do certain acts there, are exempt from all the local laws, applicable to persons engaged in those acts, in force in that alien territory, unless their appropriateness, necessity, reasonableness, and fairness have been passed upon, and their enforcement concurred in by the Government of their own country.
FORMULATION OF UNITED STATES CLAIM IN 1878.
This exemption was first formally claimed by the United States in 1878, on grounds which are set out in a report made by Mr. Evarts (App., pp. 269–277), then United States Secretary of State, to the President of the United States of date the 17th May, 1880. (App., p. 280.)
The controversy in which this occurred did not, however, relate to the treaty now under consideration, but to a treaty made in 1871, by which the North American coast fisheries of both countries had been mutually thrown open.
The incident out of which the controversy arose and the controversy itself will be noticed elsewhere in this Case. It is sufficient for the present purpose to state that the incident was closed, and the particular controversy terminated, without any agreement upon, or determination of the question then formulated; the conclusion then reached having been without prejudice to the contentions and opinions of either party in respect of that question.
With the exception of this incident, nothing occurred during 21 the very considerable period that elapsed between 1818, the date of the treaty now under discussion, and 1905, to cast any doubt upon the principle now maintained by Great Britain, or upon its unqualified applicability to the rights and obligations arising out of that treaty. This will, hereafter, be more fully noticed and developed.
REFORMULATION IN 1906.
The question is now directly raised for decision. The doctrine has been reformulated on behalf of the United States, in the despatch from Mr. Root to the United States Ambassador in London of the 30th June, 1906. This despatch is printed in full in the Appendix.
For the present purpose it is sufficient to call attention to the following passages:
"The Government of the United States fails to find in the treaty any grant of right to the makers of colonial law to interfere at all, whether reasonably or unreasonably, with the exercise of the American rights of fishery, or any right to determine what would be a reasonable interference with the exercise of that American right if there could be any interference." (App., p. 499.)
"The treaty of 1818 either declared or granted a perpetual right to the inhabitants of the United States, which is beyond the sovereign power of England to destroy or change. It is conceded that this right is, and for ever must be, superior to any inconsistent exercise of sovereignty within that territory. The existence of this right is a qualification of British sovereignty within that territory. The limits of the right are not to be tested by referring to the general jurisdictional powers of Great Britain in that territory, but the limits of those powers are to be tested by reference to the right as defined in the instrument creating or declaring it. The Earl of Derby in a letter to the Governor of Newfoundland, dated the 12th June, 1884, said: The peculiar fisheries rights granted by treaties to the French in Newfoundland, invest those waters during the months of the year when fishing is carried on in them, both by English and French fishermen, with a character somewhat analogous to that of a common sea for the purpose of fishery.' And the same observation is applicable to the situation created by the existence of American fishing rights under the treaty of 1818. An appeal to the general jurisdiction of Great Britain over the territory is therefore a complete begging of the question, which always must be, not whether the jurisdiction of the Colony authorizes a law limiting the exercise of the treaty right, but whether the terms of the grant authorize it. p. 500.)
The claim now asserted that the Colony of Newfoundland is entitled at will to regulate the exercise of the American treaty 22 right is equivalent to a claim of power to completely destroy that right. This Government is far from desiring that the Newfoundland fisheries shall go unregulated. It is willing and ready now, as it has always been, to join with the Government of Great Britain in agreeing upon all reasonable and suitable regulations for the due control of the fishermen of both countries in the exercise of their rights, but this Government cannot permit the exercise of these rights to be subject to the will of the Colony of Newfoundland. The Government of the United States cannot recognize the authority of Great Britain or of its colony to determine whether American fishermen shall fish on Sunday. The Government of Newfoundland cannot be permitted to make entry and clearance at a Newfoundland Custom House and the payment of a tax for the support of Newfoundland lighthouses conditions to the exercise of the American right of fishing. If it be shown that these things are reasonable, the Government of the United States will agree to them, but it cannot submit to have them imposed upon it without its consent." (App., p. 500.)