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dom from those laws, but did not, in the absence of express stipulation, bestow freedom from the conditions or obligations that resulted from entry. It gave no liberty to enter under exceptional conditions.
THE TREATY PROVISION.
American vessels entering harbours for shelter, repairs, wood, or water are given no special immunities, on the contrary, they are expressly subjected to
such restrictions as may be necessary to prevent their taking, drying, or curing fish therein, or in any other manner whatever abusing the privileges hereby reserved to them.
Under this provision American fishermen may be subjected to special restrictions in addition to those applied generally to the masters of all vessels. It cannot, however, be contended that the liability to these special powers of restriction confers any immunity from the usual conditions that attend entry into such bays, creeks, or harbours. One of the chief abuses to be guarded against is the carrying on of a contraband trade, and the regulation of first importance, to prevent smuggling, is that which requires all foreign vessels to report at customs. Such regulations are in force in both Canada and Newfoundland.
ABSENCE OF COMPLAINT.
No complaint was made against the enforcement of such statutes in Newfoundland waters prior to 1905. Protests have been made against the action of the Canadian customs authorities, but the ground of complaint has been that the regulations were enforced too strictly, not that they were invalid. Mr. Phelps, in his letter to the British Foreign Secretary, of the 26th January, 1887, put the matter thus (App., p. 399) :—
But what the United States Government complain of in these cases, is that existing Regulations have been construed with a technical strictness, and enforced with a severity, in cases of inadvertent and accidental violation where no harm was done, which is both unusual and unnecessary, whereby the voyages of vessels have been broken up, and heavy penalties incurred.
The Canadian Government has in certain Orders-in-Council justified the application of these customs requirements to vessels exercising the privilege of entering harbours for shelter. Two of these Orders-in-Council may be referred to:The first of them (28th October. 1886) dealt with the boarding of the schooner "Rattler" in Shelburne Harbour, and compelling the
master to report her. After questioning the accuracy of the claim that the vessel put into the harbour through stress of weather, and after indicating the exceptional measures taken by the Canadian officers to cause as little inconvenience as possible to the master of the vessel, the Order defined the Canadian position in such matters as follows (App., p. 351) :—
The Minister observes, that under section 25 of the Customs Act, every vessel entering a port in Canada is required to immediately report at the Customs, and the strict enforcement of this regulation, as regards United States' fishing vessels, has become a necessity in view of the illegal trade transactions carried on by United States' fishing vessels when entering Canadian ports under pretext of their treaty privileges.
That under these circumstances a compliance with the Customs Act, involving only the report of a vessel, can not be held to be a hardship or an unfriendly proceeding.
The second Order-in-Council, dated the 15th January, 1887, dealt with the seizure in 1886 of the "Everitt Steele " and "Pearl Nelson," for neglect to report at customs. The following extract gives the chief grounds on which Canada claimed that American vessels entering for shelter, repairs, wood or water should report at customs (App., p. 373):
Canada has a very large extent of sea coast with numerous ports into which foreign vessels are constantly entering for purposes of trade. It becomes necessary in the interests of legitimate commerce that stringent regulations should be made, by compulsory conformity to which illicit traffic should be prevented.
These customs regulations, all vessels of all countries are obliged to obey, and these they do obey without in any way considering it a hardship. United States' fishing vessels come directly from a foreign, and not distant country, and it is not in their interests of legitimate Canadian commerce that they should be allowed access to our ports without the same strict supervision as is exercise other foreign vessels. Otherwise there would be no guarantee against illicit traffic of large dimensions, to the injury of honest trade and the serious diminution of the Canadian revenue. United States' fishing vessels are cheerfully accorded the right to enter Canadian ports for the purposes of obtaining shelter, repairs, and procuring wood and water, but in exercising this right they are not, and cannot be, independent of the customs' laws.
They have the right to enter for the purposes set forth, but there is only one legal way in which to enter, and that is by conformity to the customs' regulations.
REGULATIONS ARE REASONABLE.
A requirement that vessels entering a port or harbour shall pay reasonable dues for the lighthouses and harbour improvements and facilities which it enjoys is, it is submitted, in itself reasonable, and not inconsistent with the terms of the article.
These lights and improvements are established and maintained for the safety of vessels. Reasonable dues levied on vessels coming into, and using a harbour to assist in supporting these aids to navigation are regarded as proper by all nations.
The argument may be concluded by a quotation from a report of a Committee of the United States' House of Representatives (January 18, 1887) (App., p. 382) :
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, lighthouses, quarantine, and all matters of ceremonial.
It is submitted that it is permissible, in the case dealt with in this question, to require the payment of light and other dues, entry and report at custom-houses, and to impose any similar conditions.
From where must be measured the "3 marine miles of any of the coasts, Lays, creeks, or harbours," referred to in the said article?
In considering this subject, it will be well, for convenience' sake, to speak of those portions of Canadian and Newfoundland coasts, in respect of which American fishermen have now certain treaty fishing liberties, as the "treaty-coasts;" and, of the other Canadian and Newfoundland coasts, as the "non-treaty" coasts.
The issue relates to the non-treaty coasts only; and the real question for determination is the meaning of the word "bays" in the following clause of article one of the convention of 1818:
the United States hereby renounce, for ever, any liberty heretofore. enjoyed or claimed by the inhabitants thereof, to take, dry, or cure fish on or within 3 marine miles of any of the coasts, bays, creeks, or harbours of His Britannic Majesty's dominions in America, not inIcluded within the above-mentioned limits.
His Majesty's Government contend that the negotiators of the treaty meant by "bays," all those waters which, at the time, everyone knew as bays. The United States contend that the word must be confined to coast indentations whose headlands are not more than 6 miles apart.
HISTORY OF THE QUESTION.
For a considerable period after the convention was entered into, no one seems to have doubted that that which everyone knew as a bay was a "bay," within the meaning of the treaty.
VARIATIONS IN UNITED STATES' CONTENTION.
But as the inshore mackerel fishing on the British coasts became more valuable, the United States at first advanced the argument that the 3-mile limit should be measured not from the bay (as the treaty in terms said), but from the shore of the bay.
This view, however, was not insisted on, and it would seem that
the British contention, with an exception in favour of the Bay of Fundy, was officially accepted by the United States Government, at least it was accepted by Mr. Everett, United States
Minister in London, and by Mr. Webster, United States Secretary of State.
At a later period, however, the present contention was formulated, and it was argued that the renunciation clause applied only to bays not more than 6 miles wide at their opening.
UNITED STATES VIEW, 1779-82.
1779-82.-The general position of the United States as to jurisdiction over territorial waters in the years preceding the treaty is material. It appears that in 1779 Congress was willing to concede to Great Britain jurisdiction over 3 leagues (9 miles) of the sea"; and a report (16th August, 1782) of a Committee of Congress showed the widely divergent opinions then entertained-some asserting 30 leagues, some 100 miles, some 60 miles, some 14 miles, and some, as far as could be seen from land on a fine day.
DELAWARE BAY, 1793.
1793. The French frigate "l'Embuscade" captured the British ship "Grange" in Delaware Bay at a distance, from the shore, of more than 3 miles. Declaring that the whole of the bay was within its jurisdiction, the United States required the restoration of the frigate. France complied. The bay has a headland width of 101 miles.
Having been requested by the French Government to state its view as to the limits of its jurisdiction in the ocean on unindented coasts, the United States, after pointing to the unsettled condition of opinion (ranging from 1 sea league to 20 miles), declined (App., p. 56)— to fix on the distance to which we may ultimately insist on the right of protection,
but gave instructions to its officers
to consider those heretofore given them as restrained for the present to the distance of 1 sea league.
The President of the United States further declared that, as to rivers and bays (App., p. 56)—
the laws of the several States are understood to have made provision, and they are, moreover, as being landlocked, within the body of the United States.
UNITED STATES CONTENTIONS, 1804.
1804.-The question of the extent of territorial waters became important in connection with the British assertion of the right of search for British seamen in United States ships on the high seas.
a See the Proceedings of Congress of July 22 and August 14, 1779, and January 8, 1782.