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.

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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 Britisk 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.

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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 68 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

Treasury, in a report to the Speaker of the House of Representatives (10th January, 1887), while characterising some colonial con69 duct as actuated by " unworthy and petty spite," fully endorsed the British view as to the reasonableness of colonial customs

laws. He said (App., p. 372) :

The head of this department, having the responsibility of enforcing the collection of duties upon such a vast number of imported articles, under circumstances of so long a sea-coast and frontier line to be guarded against the devices of smugglers, should not be inclined to under-estimate the solicitude of the local officers of the Dominion of Canada to protect its own revenue from similar invasion. The laws for the collection of duties on imports in force in the United States and in the Dominion of Canada, respectively, will be found on comparison to be on many points similar in their objects and methods. They should naturally be similar, for both had, in the beginning, the same common origin. In the United States, Congress has divided the territory of each State by metes and bounds, usually by towns, cities, or counties into collection districts, for the purpose of collecting duties on imports, and in each collection district has established a port of entry and ports of delivery. In that manner all our seacoast frontier is sub-divided for revenue purposes. The object of our law is to place every vessel arriving from a foreign port in the custody of a customs officer immediately upon her arrival, in order that no merchandise may be unladen therefrom without the knowledge of the Government. The Canadian law is much the same as our own in that regard, and in comparison with our own does not seem to me [to] be unnecessarily severe in its general provisions. Our own law provides, for example (section 2774 Rev. Stat.) that:

Within twenty-four hours after the arrival of any vessel from any foreign port, at any port of the United States established by law, at which an officer of the customs resides, or within any harbour, inlet, or creek thereof, if the hours of the business of the office of the chief officer of customs will permit, or as soon thereafter as such hours will permit, the master shall report to such officer, and make report to the chief officer of the arrival of the vessel; and he shall within forty-eight hours after such arrival make a further report in writing to the collector of the district, which report shall be in the form, and shall contain all the particulars required to be inserted in and verified like the manifest. Every master who shall neglect or omit to make either of such reports or declaration, or to verify any such declaration as required, or shall not fully comply with the true intent and meaning of this section, shall, for each offence, be liable to a penalty of one thousand dollars.

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Condemnation does not, in the opinion of this Department justly rest upon the Dominion of Canada because she has upon her statute-books and enforces a law similar to the foregoing, but because she refuses to permit American deep sea fishing vessels, navigating and using the ocean, to enter her ports for the ordinary purposes of trade and commerce, even though they have never attempted to fish within the territorial limits of Canada, and intend obedience to every requirement of the customs laws, and of every other law of the port which such vessel seek to enter.

LIGHT AND HARBOUR DUES.

INTERNATIONAL RULE.

The general principles of the law of nations have always sanctioned the levying of a moderate tax on vessels to defray the expense of improving harbours, and establishing and maintaining lighthouses, sea marks, and other things necessary to the safety of mariners. The furnishing of these facilities to navigation has always been deemed a sufficient consideration for imposing and collecting reasonable dues on vessels using them.

It is not necessary to discuss the question whether foreign merchantvessels, merely passing through a nation's maritime belt, come under any obligation to pay light dues, as it does not arise in connection with a consideration of this question. The vessels used by American fishermen in their fishing operations do not merely pass through the maritime belt of the Colonies, they remain and carry on their business there. By merely passing through the territorial waters it might be argued that they do not come under British supremacy, but by remaining and carrying on fishing operations it must be conceded that they do. The only question, therefore, is are they, by reason of the treaty, exempt from any liability to contribute light dues when they come within treaty waters to exercise their treaty right, and from light dues and harbour dues when they enter and anchor in any port or place in the Colony.

Before discussing the question it is desirable to refer briefly to some of the legislation that has been in force in England, in the Colonies, and also in the United States.

LIGHT DUES IN ENGLAND.

The practice of levying light dues on vessels, home and foreign, was well established in England before the inhabitants of the United States repudiated British allegiance. Lighthouses, there, were not erected at the public expense, but under patents or leases, granted to certain individuals or corporations, the grantees being given the right to recompense themselves by levying tolls.

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Lighthouses, in England, are under the jurisdiction of Trinity House, an ancient corporation, brought into existence, no doubt, by the rise of maritime commerce, and the consequent necessity of supervision of navigation.

The first British statute dealing with lighthouses in England, was 8 Eliz., cap. 13 (1565). It empowered Trinity House to erect and maintain beacons, marks and signs for the sea. That the object of the legislation was the security of navigation and the saving of life and property is shown by the following recital to the Act:

by the destroying and taking away of certain steeples, woods, and other marks standing up on the main shores adjoining to the sea