who were not entitled to dry and cure the fish taken. The inhabitants of the United States, spoken of in the earlier part of the article, are obviously the same persons as those who are spoken of in the later part of the article as American fishermen.

TREATIES OF 1854 AND 1871.

6. The treaties of 1854 and 1871 speak of the liberty to take fish conferred in 1818 as a liberty to United States fishermen, that is, as is submitted, to inhabitants of the United States actually taking part in the fishing.

SITUATION IN 1818.

7. It is material to remember that in 1818 the question of the employment of foreign seamen had been the subject of recent discussion between Great Britain and the United States, and that the latter Power had decided to exclude British subjects from their commercial marine. A liberty confined to fishermen inhabiting America was consistent with this policy.

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EFFECTS OF UNITED STATES CONTENTION.

8. If the treaty were to be construed in the manner contended for by the United States, then there would practically be no limit to the amount of fish that could be taken under it from British territorial waters. A liberty to a specific class of persons to take fish themselves is necessarily restricted according to the number and ability of those persons; but there is no ascertainable limit to the amount of fish that may be taken if those persons can employ others to act for them. It cannot be assumed, in the absence of express words, that Great Britain conceded a right so indefinite in extent, and so greatly to the prejudice of British fishermen.

9. If the nationality of the ship or of the owner of it, and not the nationality of the fishermen actually engaged in fishing, be the test of the right to fish under the treaty, then fishermen of other countries can obtain access to these fisheries, subject to such restrictions as the law of the United States may from time to time impose. They may, by charter or arrangement, obtain control of an American vessel, or they may engage to serve on an American vessel. Once on board, their nationality, according to the contention of the United States, becomes of no importance; the moment they have entered British waters under the American flag they become entitled to the full rights conferred by the treaty. This is no fanciful objection. The British North American fisheries are of great value, and would be eagerly competed for by foreign fishermen if it became known that access could in any way be obtained to them.

• State Papers, vii, 184, 191, 204, 208, 218, et seq.

10. In the case of British fishing-vessels, Great Britain has power to control the extent to which foreigners can take part in her coast fisheries, but in the case of American vessels, if the contention of the United States were to succeed, she would have no such power. His Majesty's Government submit that the treaty ought not to be so construed as to enable the United States to extend, indefinitely, the number of the persons who can exercise the liberties conferred by it in British waters and on British soil.

11. For these reasons it is submitted that persons other than inhabitants of the United States cannot be regarded as within the terms of the treaty, and that the rights conferred by article one with regard to fishing, and the drying and curing of fish, are confined to American fishermen.

BRITISH CONTROL OVER BRITISH SUBJECTS.

12. But, apart from the general question as to the employment of foreigners, it is submitted that the right of the British and 59 Colonial legislatures to prevent the employment of British

subjects by Americans upon these fisheries is absolutely indisputable. The inhabitants of Newfoundland, or of any British colony, are subject to the legislation of that colony, and of the Imperial Parliament. It is within the competency of the legislature to which they are subject to forbid them to engage in any such industry. The treaty contains no expressions from which it can be inferred that His Majesty's Government parted with its control over its own subjects. The United States appear to contend that inhabitants of Newfoundland, for example, may disregard any enactments of the colonial legislature prohibiting their taking employment in American fishing-vessels, and that any such prohibition is a breach of the treaty. His Majesty's Government refrains at this stage from any detailed discussion of this contention. Although it has been advanced in the course of the correspondence to which reference has been made, it is difficult to anticipate on what grounds such contention can be supported, and His Majesty's Government therefore will reserve further discussion of the point until they are in possession of the case of the United States.

CONCLUSION.

For these reasons His Majesty's Government contends:

(1) That article one means what in terms it says, and that it confers the liberty to take fish on the inhabitants of the United States, and not on the inhabitants of other countries.

(2) That the colonial legislatures and the Imperial Parliament retain the power of prohibiting any of His Majesty's subjects from engaging as fishermen in American vessels, and that the exercise of this power is in no way inconsistent with the treaty.

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QUESTION THREE.

CUSTOMS ENTRIES AND LIGHT AND HARBOUR DUES IN TREATY WATERS.

Can the exercise by the inhabitants of the United States of the liberties referred to in the said article be subjected, without the consent of the United States, to the requirements of entry or report at custom-houses, or the payment of light, or harbour, or other dues, or to any other similar requirement, or condition, or exaction?

THE "LIBERTIES.”

The "liberties" referred to in this question are:-

1. Liberty to "take fish" on certain coasts, bays, harbours, and creeks; and

2. Liberty to "dry and cure fish" in certain unsettled bays, harbours, and creeks-that is, upon the shore.

3. In addition to these two liberties, the United States asserts that its fishermen are entitled to have, for their fishing vessels, the same commercial privileges as are accorded by agreement or otherwise to United States trading vessels generally.

THE QUESTION.

The question then seems to be whether United States fishing vessels are entitled to frequent British coasts, bays, creeks, and even harbours, to land upon British territory, and (if the United States' contention be correct) to exercise all the privileges accorded to trading vessels, and yet be exempt from the supervision which all nations exercise over all vessels (not only foreign but their own) coming into their harbours and discharging upon their territory; and exempt also from contribution to the up-keep of lights necessary to the navigation of the waters.

BRITISH CONTENTION.

The position assumed by His Majesty's Government was stated by Sir Edward Grey in his memorandum of the 2nd February, 1906, as follows (App., p. 496) :—

The United States Government would undoubtedly be entitled to complain if the fishery of inhabitants of the United States were seriously interfered with by a vexatious and arbitrary enforcement of the colonial customs laws, but it must be remembered that, in proceeding to the waters in which the winter fishery is 92909-S. Doc. 870, 61-3, vol 4- -5

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conducted, American vessels must pass in close proximity to several custom-houses, and that in order to reach or leave the grounds in the arms of the Bay of Islands, on which the fishery has been principally carried on during the past season, they have sailed by no less than three custom-houses on the shores of the bay itself. So that the obligation to report and clear need not in any way have interfered with a vessel's operations. It must also be remembered that a fishery conducted in the midst of practically the only centres of population on the west coast of the colony affords ample opportunities for illicit trade, and consequently calls for careful supervision in the interests of the colonial revenue.

The provisions in question are clearly necessary for the prevention of smuggling, and His Majesty's Government are of opinion that exception cannot be taken to their application to American vessels as an unreasonable interference with the American fishery, and they entertain the strong hope that the United States' Government will, on reconsideration, perceive the correctness of this view, and issue instructions accordingly for the future guidance of those in charge of American vessels.

It is, moreover, to the advantage of the American vessels engaged in the winter fishery in the Bay of Islands that they should report at a colonial customhouse. Owing to the extent and peculiar configuration of that bay, and owing to the prevalence of fogs, vessels that enter its inner waters may remain for days without the local officers becoming aware that they are on the coast unless they so report. In such circumstances it is difficult for the Colonial Government to ensure to American fishermen that protection against lawless interference for which Mr. Root calls in the concluding part of his note. His Majesty's Government desire further to invite the attention of the United States' Government to the fact that certain United States' vessels engaged in the fishery refused to pay light dues. This is the first time, His Majesty's Government are informed, that American vessels have refused to pay these dues, and it is presumed that the refusal is based on the denial by the Colonial Government of the trading privileges allowed in past years. His Majesty's Government, however, cannot admit that such denial entitles American vessels to exemption from light dues in the ports in which they fish. As already stated, American fishing-vessels engaged in the fishery under the convention of 1818 have no treaty status as such, and the only ground on which, in the opinion of His Majesty's Government, the application of any colonial law to such vessels can be objected to is that such application involves an unreasonable interference with the 63 exercise of the treaty rights of the American fishermen on board. The payment of light dues by a vessel on entering a port of the colony clearly involves no such interference. These dues are payable by all vessels of whatever description and nationality, other than coasting and fishing-vessels owned and registered in the colony (which are, on certain conditions, exempt either wholly or in part). His Majesty's Government trust that in these circumstances such directions will be issued as will prevent further refusals in the future, and they would point out generally that it is the duty of all foreigners sojourning in the limits of the British jurisdiction to obey that law, and that if it is considered that the local jurisdiction is being exercised in a manner not consistent with the enjoyment

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.

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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