The British Statute of 1775 (15 Geo. III, cap. 31) is entitled (British Case, App., p. 543)—

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"An Act for the encouragement of the Fisheries carried on from Great Britain, Ireland and the British dominions in Europe, and for securing the return of the fishermen, sailors, and others employed in the said fisheries, to the ports thereof, at the end of the fishing season." After reciting that the fisheries carried on by His Majesty's subjects of Great Britain and of the British dominions in Europe, had been found to be the best nurseries for seamen, and that it was, therefore, of the highest national importance to give all due encouragement to them, the statute provided for the payment of certain bounties to fishing-vessels owned by British subjects residing in Great Britain, or Ireland, or the islands of Guernsey, Jersey, or Man, and fitted out as described in the Act and employed in the fishery on the banks of Newfoundland, and it further provided as follows (British Case, App., p. 545) :—

"And it is hereby further enacted by the authority aforesaid that from and after the first day of January, one thousand seven hundred and seventy-six, 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 the Third, 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 two shillings and six-pence 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.

"VIII. 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 herein before contained to the contrary notwithstanding."

It thus appears that in 1776, when the United States declared their independence, the masters of all vessels coming into or going out of any British colony or plantation, whether laden or in ballast, were required to report at customs. But the masters of fishing-vessels fron Great Britain, who would have to make frequent trips to New found92909°-S. Doc. 870, 61-3, vol 8- -22

land from the banks and would thereby be under heavy fees, under 5 Geo. III, c. 45, sec. 27, and whom it was desired to favour, were partially relieved, being required to report on their first arrival and on their last clearance only, and to pay 2s. 6d. on each report. (British Counter-Case, App., p. 219.)

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That being the state of matters it is difficult for His Majesty's Government to understand upon what argument it can successfully be contended that the inhabitants of the United States, upon being granted liberty to take fish and to land on shore to dry and cure their fish, became entitled to take vessels into British waters for the purpose of carrying on the fishery freed from the control exercised over all other vessels.

The requirement to enter or report at customs was only one feature of the laws then in force for the protection of trade and commerce. By the British Statute 4 Geo. III, cap. 15 (1763), any foreign ship or vessel found at anchor, or hovering within two leagues of the shore of any British-American colony, and failing to depart within 48 hours after notice, was liable to forfeiture. When the United States obtained their independence their vessels became foreign vessels, and would, under this clause of the Hovering Act applicable to the British Colonies, be prevented from anchoring or hovering within two leagues of British shores. While no express power was given by the treaty to American fishermen to bring and maintain their fishing-vessels within this limit, it is conceded that it was the intent of the treaty that they should be permitted to do so. Great Britain did not, however, abandon her right so to regulate and control these vessels, while carrying on their fishing operations, as to protect her trade and revenue, provided she did not unreasonably interfere with the exercise by the American fishermen of their treaty liberties. That the obligations imposed upon them by British and Colonial legislation since the date of the treaty of 1818, as to entry or report at Customs on the treaty shore, has not amounted to such an interference, is sufficiently established by the fact that no complaint was made prior to the diplomatic correspondence between Great Britain and the United States, which

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commenced in 1905. It seems clear, therefore, that legislation requiring American fishing-vessels to report at Customs would be a reasonable obligation to impose, even if there was no legislation to that effect in force at the date of the treaty. The fact that there was such legislation at that time puts the matter beyond question. (British Case, App., p. 532.)

In the United States Counter-Case (p. 58) it is asserted that the only port of entry in Newfoundland in 1775 was at St. John's, and that there were no custom-houses on the treaty coast when the treaty of 1818 was entered into. The only evidence offered in support of

this assertion is the British Statute 3 Geo. IV, cap. 44, in which a list of ports appears, at which entry under certain circumstances was permitted. The ports named in this list were "free ports" for the purposes mentioned in the Act. But there were many ports other than free ports, as the Statute clearly indicates, and it would be incorrect to infer that vessels could not be entered or reported at any port in Newfoundland except St. John's. (United States CounterCase, App., p. 71.)

LIGHT DUES.

Writers on international law are agreed that nations which establish and maintain light-houses, sea-marks, and other things necessary to the safety of mariners may levy a reasonable tax upon the vessels using them. And it has never been suggested that the assent of other nations is necessary to the validity of such exactions.

Grotius, writing in 1625 (De Jure Belli Ac Pacis), said:

"XIV. Neither is it contrary to the Law of Nature, or that of Nations, that those who shall take upon them the Burden and Charge of securing and assisting Navigation, either by erecting or maintaining Light-Houses, or by affixing Sea-Marks, to give Notice of Rocks and Sands, should impose a reasonable Tax upon those who sail that Way. Such was that which the Romans levied upon the Red Sea, to defray the Charge of a Fleet against the Excursions of Pirates; and that Duty which the Byzantines demanded in the Euxin Sea; and that which the Athenians long before imposed on the same Sea, when in Possession of Chrysoplis, both which are mentioned by Polybius. And that, which Demosthenes, in his Oration against Leptines, shews, the same Athenians required in the Hellespont; and which Procopius says, in his secret History, that the Roman Emperors exacted in his Time." a

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The application of this rule, so far as it is not affected by considerations of treaty rights or privileges, is so universally acknowledged by all nations that it is not anticipated that any question will arise with regard to it. The only question, therefore, is whether the vessels of the American fishermen, arriving in the treaty waters of Canada or Newfoundland to exercise their treaty liberty, are exempt from the operation of this general principle.

At the outset it is to be observed that the treaty is altogether silent upon the subject. It does not in terms confer on Great Britain any right to levy such dues on American fishing-vessels, nor, on the other hand, does it prohibit their imposition. Indeed, the treaty makes no reference whatever to the vessels from which American fishermen may operate, or to the rights or liabilities of American fishermen in respect of them. It is submitted, therefore, that the right of Great Britain to impose these dues is not affected by the treaty, beyond the

• English Edition of 1738, Book II, Chapter III,

implication that British requirements shall not be such as would amount to a practical denial of the privileges expressly granted by the treaty.

The imposition of certain dues on vessels to cover the expense of erecting and maintaining aids to navigation cannot be regarded as in any degree depriving the owners or masters of such vessels of any privileges conceded by the treaty. On the contrary it should be regarded as action properly taken by Great Britain with a view to providing facilities whereby the treaty liberty of the inhabitants of the United States may be safely enjoyed.

LEGISLATION.

Any suggestion that the right of Great Britain and her Colonies to levy light dues on American fishing vessels was annulled by the treaty of 1818 is completely answered by consideration of the course of events under the previous treaty of 1783, and the practice adopted by Great Britain and concurred in by the United States since that date.

It will be remembered that the treaty coast under the treaty of 1783 comprised the coasts of Nova Scotia and New Brunswick as well as of the other British North American colonies.

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Shortly after the making of that treaty Nova Scotia passed a statute 28 Geo. III, c. 3 (1787), whereby light dues were levied on every merchant vessel coming into, or going out of, Shelburne Harbour, other than coasters and fishing vessels belonging to the province (British Case, App., p. 591).

By a subsequent Act of 1793 (33 Geo. III, c. 16) Nova Scotia levied light dues on every vessel coming into (British Case, App., p. 594) —

any port, harbour, creek or river within this province not being to the north-eastward of Cape Canso and not owned by some person or persons belonging to the province.”

In 1810, New Brunswick, by statute 50 Geo. III, c. 5 (British Case, App., p. 603), provided for the erection of beacons or buoys in the bays and harbours of Miramichi, Buctouche, Richibucto and Cocagne, and imposed dues to defray the expense on all vessels entering the said bays and harbours.

From these statutes it will be seen that while the treaty of 1783 was in force Great Britain, through her colonial legislatures, imposed light dues on all foreign vessels, including American fishing vessels. The tariffs of fees taken by the customs officers in Nova Scotia and in Newfoundland at that time show that anchorage fees were also charged. Great Britain and the Colonies have ever since assumed the right to impose these and similar exactions on American fishing vessels (British Counter-Case, App., pp. 171, 173).

LEGISLATION SUBSEQUENT TO 1818.

No lighthouses appear to have been established in Newfoundland until about the year 1834 (British Case, App., pp. 694, 695). In that year an Act was passed (4 Wm. IV, c. 4) to provide for the maintenance of a lighthouse at St. John's, and in the following year another Act was passed (5 Wm. IV, c. 7) to provide for the maintenance of a lighthouse at Conception Bay.

In 1839, Newfoundland, by statute 3 Vict., c. 5, imposed light dues on vessels entering any port within the colony from Cape Ray to Cape John. Under that Act, and the subsequent statutes of 1852 (15 Vict., c. 3), and 1855 (18 & 19 Vict., c. 5), fishing vessels were required to pay light dues. This situation continued until 1899 (62 & 63 Vict., c. 19) when local fishing vessels, whilst not engaged otherwise than in that business, were relieved from these dues (British) Case, App., pp. 697, 699, 700, 754).

It will thus be seen that throughout the legislation of Newfoundland, light dues have always been levied on all foreign vessels, including American fishing vessels, entering treaty waters. No complaint was ever made by the United States against the imposition of these Newfoundland light dues until 1905, when the United States first contended that their fishing vessels should not, without the assent of the United States, be obliged to pay them.

In view of the action of Great Britain in imposing these light dues under both the treaty of 1783 and the treaty of 1818, and the long acquiescence in the payment of such dues on the part of the inhabitants of the United States, it seems difficult to understand upon what ground the United States now contend that such action on the part of Great Britain is in conflict with the liberty granted by the treaty.

It has been suggested that having regard to the manner in which light dues are now levied, they do not bear evenly on the American fishermen and the Newfoundland fishermen. But while the Newfoundland fishermen do not contribute light dues, they do contribute to the taxes out of which the lighthouses have been erected and are maintained, the light dues being entirely inadequate for that purpose. The United States contribute nothing towards the erection or maintenance of these lighthouses, unless their vessels are subject to light dues, and to exempt the American fishing vessels would, in reality, confer upon American fishermen an undue preference as compared with Newfoundland fishermen, who contribute to the taxation out of which the lighthouses are maintained.