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of any treaty rights, the proper course to pursue is not to ignore the law, but to obey it, and to refer the question of any alleged infringement of their treaty rights to be settled diplomatically between their Government and that of His Majesty.
Replying to this memorandum, Mr. Root said (App., p. 501) :— 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.
ENTRY AT CUSTOMS.
SITUATION PRIOR TO THE TREATIES
It is important that the situation prior to the American Revolution, and the treaties of 1783 and 1818, should be understood.
British navigation laws formerly excluded all foreign countries from any trade or intercourse with British plantations and colonies. The most important of these navigation laws was 12 Car. II, cap. 18, 1660. (App., p. 514.) It provided that no goods or commodities should be imported into, or exported out of any British possessions in Asia, Africa or America, in any vessels except such as belonged to the people of England, Ireland, or Wales, or the town of Berwick, and whereof the master and three-quarters of the mariners were English.
In 1696, the British statute 7 and 8 Wm. III, cap 22 (App., p. 520), made further provisions to prevent frauds, and to regulate abuses in His Majesty's customs in the plantation trade. By section 6 of that Act, it was provided that all ships coming into, or going out of, the plantations, and loading or unloading their commodities, should be subject and liable to the same rules, visitations, searches, penalties, and forfeitures as the commanders and masters of ships were subject and liable to in Great Britain under 14 Car. II, cap. 11.
In 1736, the British statute 9 Geo. II, cap 35 (App., p. 530), made still more effectual provisions for preventing frauds. It provided for the arrest and imprisonment of persons lurking within five miles of the coast suspected of assisting in carrying on a contraband trade; for the forfeiture of vessels found at anchor or hovering within two leagues of the shore, with tea and other prohibited articles on board; and for the forfeiture of vessels and goods, in case foreign goods were taken on board or discharged within four leagues of the coast without paying customs.
In 1763, the British statute 4 Geo. III, cap. 15, sec. 33, (App., p. 531) adopted somewhat similar measures for the colonies. It provided that any foreign ship found at anchor, or hovering within. two leagues of the shore of any of His Majesty's dominions, which
should not depart on her voyage within forty-eight hours after being required so to do by a customs officer, unless unavoidably detained, should with all the goods on board be forfeited.
1755. The provisions of the British statute 15 Geo. III, cap. 31, (App., p. 544) are important:
V. And it is hereby further enacted by the authority aforesaid That it shall and may be lawful for any of His Majesty's subjects residing in Ireland to ship and lade there, and to transport directly from thence to Newfoundland, or to any part of America where the fishery is now, or shall hereafter be, carried on, on board any ship or vessel which may lawfully trade or fish there, any provisions, and also any hooks, lines, netting, or other tools or implements necessary for and used in the fishery by the crews of the ships or vessels carrying out the same, and the craft belonging to and employed by such ships or vessels in the said fishery, such provisions, hooks, lines, netting, or other tools or implements being the product and manufacture of Great Britain or Ireland; and that it shall and may be lawful for any of His Majesty's subjects residing in the Isle of Man in like manner to export directly from thence any of the articles hereinbefore mentioned for the purpose aforesaid, such articles being the product or manufacture of Great Britain or the said Isle of Man, any law, custom, or usage to the contrary notwithstanding.
VI. Provided always, and it is hereby further enacted by the authority aforesaid, that the master or other person taking charge of such ship or vessel shall produce to the proper officer of the customs in the colony or plantation where he shall arrive, a certificate, under the hand and seal of the collector or other principal officer of 65 the customs in the port where he shall have fitted out, that oath hath been made before him by the shipper of such provisions, hooks, lines, netting, or other tools and implements, that the same are of the product and manufacture of Great Britain or Ireland or the Isle of Man, respectively, as the fact may be, and that the several articles before mentioned (except the provisions), specifying the quantities and particulars of each sort, are to be used in the fishery by the crews of the respective ship or vessel carrying out the same, and by the craft belonging to and to be employed by such ship or vessel in the said fishery, and for no other use or purpose whatsoever (which oath and certificate such collector or other officer is hereby authorised and required to administer and grant without fee or reward); and on failure of producing such certificate, or if any such hooks, lines, netting, tools and implements are used or disposed of for any other purpose, the same, and the ship or vessel having the same on board, shall be liable to be seized and forfeited in the same manner as they would have been subject and liable to if this Act had not been made, anything herein contained to the contrary notwithstanding.
VII. And it is hereby further enacted by the authority aforesaid that from and after the 1st day of January, 1776, all vessels fitted and cleared out as fishing-ships in pursuance of this Act, or of the before-mentioned Act, made in the tenth and eleventh years of the reign of the late King William III, and which shall be actually employed in the fishery there, or any boat or craft whatsoever employed in carrying coastwise, to be landed or put on board any ships
or vessels any fish, oil, salt, provisions, or other necessaries for the use and purpose of that fishery, shall not be liable to any restraint or regulation with respect to days or hours of working, nor to make any entry at the custom-house at Newfoundland, except a report to be made by the master on his first arrival there, and at his clearing out from thence; and that a fee not exceeding 2s. 6d. shall and may be taken by the officers of the customs at Newfoundland for each such report; and that no other fee shall be taken or demanded by any officer of the customs there upon any other pretence whatsoever relative to the said fishery, any law, custom, or usage to the contrary notwithstanding.
Provided always, and be it enacted, that in case any such fishing ship or vessel shall at her last clearing out from the said island of Newfoundland have on board, or export any goods or merchandise whatsoever except fish, or oil made of fish, such ship or vessel, and the goods thereon laden, shall be subject and liable to the same securities, restrictions, and regulations, in all respects, as they would have been subject and liable to if this Act had not been made, anything hereinbefore contained to the contrary notwithstanding.
UNITED STATES INDEPENDENCE, 1776.
1776.-Immediately prior to the date of the American declaration of independence, the situation therefore was that no foreign vessels could visit Newfoundland at all; that all British vessels were subject to British customs laws requiring entry at Newfoundland custom houses; and that the partial relief of fishing vessels, from the rigour of those laws and payment of certain fees, applied not to colonial vessels, but to those only which arrived from the British Islands.
By their declaration of independence the people of the thirteen American colonies abandoned all privileges which they previously had as British subjects, and the only question for discussion is whether when, afterwards, they were permitted to exercise certain privileges in British waters and on British territory, they were impliedly granted immunity from those safeguards against smuggling with which every nation finds it necessary to surround itself.
EFFECT OF UNITED STATES CONTENTION.
The effect of admitting the validity of the United States contention would be that, after the date of the treaty, American fishermen would not only have been in a very much better position as aliens than they had previously been in as British subjects, but that they would have been free from all the supervision which the British parliament thought was continuingly necessary in respect of British fishermen. They would have been exempt also from visitation under the hovering statutes which form part of the protective legislation of all maritime nations,
It is submitted that there is nothing in the treaties of 1783 or 1818 which has such effect.
Legislation which is common to every maritime country for the protection of its sea-coast, and is aimed at permitting foreign vessels to enter, rather than to exclude them from its bays, harbours, and coast waters, cannot be, in any sense, treated as unreasonable or as embarrassing to persons who have been expressly or impliedly granted the privilege of entering by treaty, statute, or otherwise.
The slightest consideration will indicate the great importance of such legislation in the present British American colonies. Their large extent of sea-coast, their thickly-wooded shores, their numerous bays and harbours, their scattered population, and the prevalence of fog, render it of the utmost importance, not only that there should be
customs laws, but that these laws should be capable of being simply but strictly enforced. This can be accomplished only by requiring the master of each vessel to enter or report at customs immediately on arrival, and by enforcing obedience to this regulation by penalties.
It is submitted on the part of Great Britain that the implied obligations cast upon Great Britain by the treaty with respect to American fishing vessels is fully met by affording to the inhabitants of the United States reasonable facilities for bringing and maintaining vessels in treaty waters, and that a fair line may be drawn, which, on the one hand, gives American fishermen all necessary rights and privileges to carry on their fishing operations, and, at the same time, affords the British colonies a fair measure of protection against such liberties being used for any improper or fraudulent purpose.
UNITED STATES LEGISLATION.
That customs laws, having somewhat similar provisions to those now in force in Canada, were reasonably within the contemplation of the treaty, is made clear by the legislation, on parallel lines, enacted by the United States between the treaties of 1783 and 1818. Some of the enactments then made were as follows:
1789, July 31, cap. 5.-The master of every vessel from a foreign port was required to deliver two signed manifests to the first United States officer coming on board, and to report at customs within fortyeight hours after arrival. (App., p. 777.)
1790, August 4, cap. 35.-The master of every vessel was required, within twenty-four hours after arrival in a port of the United States, to report to the chief officer of customs, and within forty-eight hours after arrival to make a further report in writing, unless all the required information had been given at the time of the first report. All collectors, naval officers, surveyors, inspectors, and the officers of
revenue cutters were authorised to board vessels in any port of the United States, or within four leagues of the coasts thereof, if bound to the United States, to demand manifests, examine the officers, and search the vessels. The master of every vessel bound for a foreign port was required to obtain a customs clearance before departure. (App., p. 779.)
1793, February 18, cap. 8.-The masters of licensed fishing vessels intending to touch and trade in any foreign port were required to obtain permission from the collector of customs before sailing, and they were obliged to deliver manifests and make entries both of the ship and vessel and of the goods on board within the same time and under the same penalty as if arriving from a foreign port. (App., p. 782.)
1799, March 2, cap. 22.-The master and person next in command of every vessel from a foreign port compelled by distress of weather or other necessity to put into any port of the United States were required to make protest upon oath of the cause or circumstance of such distress within twenty-four hours after arrival, and the master was required to report in writing to the collector of customs within the same time. (App., p. 782.)
The fishery clauses of the treaty of 1871 opened to British fishermen a certain part of the United States coast-fishing (App., p. 39), and the language of the concession is very much the same as that of the article of the 1818 treaty now under consideration. Those fishery clauses remained in force until 1885 (App., p. 788), and during all those years the following statute of the United States was operative:—
And be it further enacted that it shall be the duty of the master of any foreign vessel, laden or in ballast, arriving in the waters of the United States from any foreign territory adjacent to the northern, north-eastern, or north-western frontiers of the United States, to report at the office of any collector or deputy collector of the customs, which shall be nearest to the point at which such vessel may enter said waters; and such vessel shall not proceed further inland, either to unlade or take in cargo, without a special permit from such collector or deputy collector, issued under and in accordance with such general or special regulations as the Secretary of the Treasury may, in his discretion, from time to time, prescribe. And for any violation of this section such vessels shall be seized and forfeited.
It cannot be doubted that the provisions of this Act would have been applied in the case of any British or colonial fishermen availing themselves of the privilege conceded by treaty, to fish in American waters.
UNITED STATES ENDORSEMENT OF COLONIAL ACTION.
At a time of diplomatic tension-when the United States Congress was actively investigating and discussing the whole subject of colonial action, Mr. Daniel Manning, the United States Secretary of the