fifteen years in anticipation of ratification of Trade Conventions of 1890 and 1902.† Government of Newfoundland has given indisputable proof of its earnest desire to cultivate and extend commercial relations with United States, and it is through no fault of theirs that the conduct of fisheries has been relegated to Convention of 1818. In view of rejection by United States' Senate of the foregoing fisheries arrangement, which was approved by late Secretaries of State, Messrs. Blaine and Hay, on behalf of Government of United States, it can hardly be regarded as unreasonable that Colony should insist on right secured to her by Treaty and withhold those privileges that were gratuitously extended during the past fifteen years. The granting of such claims as those now set up by United States' Government, namely, exemption from the laws of this Colony or from their enforcement by officers of this Government, and the use of fishing appliances such as seines, which are prohibited in the waters of this Colony, would involve in this consequences deprivation of people of valuable maritime enterprise, ultimate extinction of present source of wealth, and virtual transfer of sovereignty within certain territorial waters of the Colony to foreign Power. For more than a century this Treaty Coast was barred to British enterprise by anomalous and intolerable condition of affairs arising out of French claims. If Only within last two years has the Colony been relieved from that condition. the claims now set up by United States' Government are acquiesced in, the later condition of things will be worse than the first. Against any recognition of such claim Ministers respectfully and earnestly protest, and cannot consent to any relaxation of statute law of Colony in favour of American citizens. They would strongly deprecate any provisional arrangement such as suggested by His Majesty's Government in despatch under reference, which would relieve American citizens from proper recognition of statute laws. It is submitted that interests of Empire, and not those of Colony alone require that rightful sovereignty within its own dominions should be maintained inviolate, and Ministers cannot accept the view that any foreign Power has a statutory claim in matter of framing, adoption, or carrying out of laws for government any portion of this Colony. It is observed that the closing paragraph of Mr. Root's communication has reference to "Foreign Fishing Act, 1905." That Act was at instance of His Majesty's Government amended during the present year. Ministers advise that in order to avoid any misunderstanding as regards intention of Government and legislation of Colony and to prevent such a complaint as that contained in Mr. Phelps' despatch to Lord Rosebery of date 2nd June, 1886, a Proclamation do issue immediately bringing into operation Foreign Fishing Vessels' Act of 1906. The early issue of such a Proclamation will, they believe, operate as deterrent and prevent necessity of international interference by officers of this Government, which is apparently anticipated by United States' Government. No. 15. Governor Sir W. MacGregor to the Earl of Elgin. (Telegraphic.) [Received August 22, 1906. REFERRING to your telegram of the 19th August, Committee of Council again strongly urge issue of Proclamation to bring into force "Foreign Fishing-Vessels Act,‡ 1906," and deprecate any provisional arrangement with United States. Light dues may rest in abeyance. Ministers cannot acquiesce in evasion of customs and fishery laws. They declare interests of Newfoundland not identical with those of Canada and earnestly hope that the Newfoundland fishery question may be kept apart. Minute posted the 23rd August. No. 16. Governor Sir W. MacGregor to the Earl of Elgin.-(Received August 31.) My Lord, Government House, St. John's. Newfoundland, I HAVE the honour to transmit herewith a copy of a Minute of Council prepared by my Ministers after receipt of your telegram here of the 8th August. Your despatch See C. 6303, "North America. Correspondence relating to a proposed Convention to regulate questions of Commerce and Fishery between the United States and Newfoundland," Nos. 46 and 47. † Appendix No. 6. Appendix No. 11. of the 6th instant, covering copies of the letter of Mr. Root, dated the 30th June last, arrived while Ministers had the telegram referred to above under consideration, so that this Minute was prepared with a full knowledge of the situation as set forth in the papers mentioned above. 2. A résumé of this Minute was made by my Prime Minister for transmission to your Lordship by telegram, and this was telegraphed to you on the evening of the 19th instant. ·Minutes of the Committee of the Honourable the Executive Council, submitted for the approval of his Excellency the Governor. THE Committee of Council have had under consideration the telegram received by his Excellency the Governor from the Right Honourable the Secretary of State for the Colonies of date the 8th instant, together with his despatch, Confidential, of the 6th instant, and its inclosure. They observe the contention of the United States' Government and its request to His Majesty's Government "to prevent any interference upon any grounds by officers of the Newfoundland Government with American fishermen when they go to exercise their Treaty rights upon the Newfoundland coast during the approaching fishery season." Ministers feel that the contention and the request cannot but have been regarded by His Majesty's Government as entirely unreasonable, and such as neither His Majesty's Government nor the Government of this Colony can concur in. The contention "that the Convention of 1818 justifies no interference, reasonable or unreasonable, with the exercise by America of the fisheries" in the waters of Newfoundland, is equivalent to a Declaration that 700 miles of the territorial waters. of this Colony were by that instrument reserved from British jurisdiction, and set apart as an area within which American citizens were exempt from the operation of statute law, and free to use any fishing implements, no matter how injurious, in the conduct of the fishery. In "the exercise by America of the fisheries" in the waters of this Colony there have been in the past very grave violations of statute law, such as murder, assaults, robberies, and smuggling. The offenders were punished in accordance with the law relating to each particular offence, and this was a reasonable interference, to which the United States' Government now appear to take exception. If it be stated in explanation that the contention only had reference to the fishery Regulations now in force in this Colony, Ministers would observe that such Regulations are as much the statute law as the chapters under which the above-recited offences were dealt with, and that they apply to all persons, irrespective of nationality, who operate the fisheries within the territorial waters of the Colony. These fishery Regulations were adopted by the Legislature with a view to the preservation and continuance of the fisheries. Most of them have been in force for years, and their necessity is made evident by the fact that they have resulted from Petitions to the Legislature sent in by fishermen of the Colony, who were prepared to submit to restrictions and limitations being placed upon their own labour in order to secure a continuance of the industry upon which they solely depended for a livelihood. That such fishery Regulations or laws have heretofore been regarded by the United States' Government as not only reasonable but desirable will appear on perusal of a circular that issued from the Department of State, Washington, to the Collector of Customs at Boston, dated the 28th March, 1856, and which was quoted in full by Lord Salisbury in his despatch to Mr. Hoppin under date the 3rd April, 1880.* The United States' Government, as far back as that date (1856), ordered that it should be made known to the masters of fishing-vessels that, as there were certain "Acts of the Colonial Legislature, and also, perhaps, Executive Regulations, intended to prevent the wanton destruction of the fish which frequent the coasts of the Colonies and injuries to the fishing thereon, it is deemed reasonable and desirable that both United States' and British fishermen should pay a like respect to such laws and Regulations which are designed to preserve and increase the productiveness of the fisheries on these coasts. Such being the object of these laws and Regulations, the observation of them is enforced upon the citizens of the United States in a like manner as they are observed by British subjects. By granting the mutual use of the inshore fisheries neither party has yielded its right to civic jurisdiction over a marine league along its coast. Its laws are as obligatory upon the citizens or subjects of the other as upon its own." The Committee of Council would also have reference to the despatch* from Mr. Bayard, of the Department of State, Washington, to Sir Lionel West, bearing date 10th May, 1886, wherein Mr. Bayard stated: "Since 1818 certain important changes have taken place in fishing which have materially modified the conditions under which the business of inshore fishing is conducted, and it must have great weight in any present administration of the Treaty" "Everything will be done by the United States to cause its citizens engaged in fishing to conform to the obligations of the Treaty and prevent an infraction of the fishing laws of the British provinces." Again, in a despatch from Mr. Bayard to Sir Lionel West of date 20th May, 1886, that gentleman stated that he was desirous that due and full observance should be paid by citizens of the United States to local laws and commercial regulations of the ports of the British provinces. In view of the foregoing, and of the fact that the Government of the United States has long been aware of the necessity of reference to the Colonial Governments in matters affecting their inshore fisheries, the objection or the contention. now set up by the United States is somewhat remarkable. If the fishery Regulations or laws of this Colony had been so framed and executed as to make any discrimination in favour of British fishermen, or to impair the rights conveyed to the United States' fishermen by Treaty, then there would be sufficient justification for the position taken by the Government of the United States, the fishery granted to the United States under the Treaty of 1818 being a fishery "in common with His Majesty's subjects. It will not be disputed that British sovereignty on the Treaty Coast is limited in its scope to the extent implied by the words "in common;" but, on the other hand, it is submitted that if, as is the case, the fishery Regulations or laws of this Colony as framed and executed do not make any discrimination in favour of British fishermen, then the obligation on the part of United States' fishermen to observe them, in common with. His Majesty's subjects, attached from the date that the Treaty of 1818 came into force. It has to be remembered that by the signing of the Treaty of 1818 Great Britain was not the recipient of sovereignty to which attached conditions. She was the possessor of prior existing sovereignty, conveying to American fishermen a certain right of fishing in common with the subjects of His Majesty. It will hardly be disputed hat in point of law fundamental rights connected with the said Treaty are prior to and take precedence of derivative rights-in other words, that rights of property and sovereignty are superior to special rights granted from them. It would be an inversion of this well-recognized principle to suppose that His Majesty's Government in granting to American fishermen a fishery "in common " with British subjects conceded any other fishery, much less an exemption from the laws governing the territory in which the privileges conveyed were to be exercised. Even if the Treaty were of doubtful meaning in respect of matters in dispute, the recognized principles of international law would demand that the doubt should be resolved in favour of the Sovereign Power. But it is submitted that Article I of the Convention expressly recognizes the sovereign right of Great Britain to make and enforce laws in connection with the fishery that she bad granted to the citizens of the United States of America, in common with her own subjects. It would appear that the position now taken by the United States' Government is that the fishery and other laws passed by the Legislature of this Colony and enforced by its officers is not binding upon American fishermen exercising in the waters of the Colony their Treaty rights. This is the first time, so far as the Committee of Council is aware, that the right of the Newfoundland Legislature to legislate for the protection of its fisheries and its revenues, and the validity of such legislation as against the citizens of foreign countries, has been called in question, and they feel sure that His Majesty's Government will not fail to point out that such legislation, unless it is disallowed by His Majesty, becomes part of the law of the Empire. While it is the first time in the history of this Colony that this position has been set up, we have evidence that it was more than once advanced by the United States' Government in relation to Canada. In a Report by the late Sir John Thompson, Minister of Justice of Canada in 1886, it is stated as follows, namely: * See "United States No. 1 (1887)," No. 40. † Ibid., No. 148. "The efforts made on the part of the Government of the United States to deny and refute the validity of colonial statutes on this subject (fisheries) have been continued for many years, and in every instance have been set at naught by the Imperial authorities and by the Judicial Tribunals." (See Inclosure 3 in despatch of Mr. Bramston to Sir Julian Pauncefote, dated the 1st December, 1886.) The contention of the Government of the United States that the Convention of 1818 justifies no "unreasonable" interference with the exercise by Americans of the fisheries on the Treaty Coast is so self-evident that it was entirely unnecessary to advance it, unless it has been made to appear to the Government of the United States. that the Government of this Colony has exercised or attempted to exercise "unreasonable" interference. It would be a matter of profound regret to Ministers if any officer of the Newfoundland Government attempted any "unreasonable" interference with Americans exercising their rights of fishery on the Treaty Coast. Every possible precaution has been taken by the Government of this Colony to prevent such unreasonable interference, and during the last autumn fishery on the Treaty Coast, when public feeling ran exceedingly high on account of the unlawful procedure of American fishermen, which has formed the subject of previous Minutes of Council, dated the 26th and 27th October, 1905, no single case of "unreasonable interference by either the officers of this Government or the fishermen of the Colony was reported to the Government, or, so far as Committee of Council is aware, occurred throughout the whole season. They are aware that it was reported to the Department of the Secretary of State of the United States from some source unknown to them that there had been an "unreasonable" interference with the exercise by American citizens of their right of fishery, namely, that their nets had been destroyed by certain fishermen of this Colony, but on hearing of this alleged offence a rigid inquiry was instituted, which resulted in a complete refutation of the charge, seven captains of American fishing-vessels making affidavit before the Commissioner, J. O'Reilly, J.P., that no nets or gear belonging to American fishermen were destroyed by Newfoundlanders, and that if any such damage was committed it was done "by the crews of the American vessels against one another, and not by Newfoundlanders." The said affidavits further set forth that American fishermen were treated" in the best possible manner by the people of Newfoundland, and were not interfered with in any way by them." What is meant by the reference of the United States' Government to Lord Salisbury's note to the United States' Minister, dated the 3rd April, 1880, is not entirely clear, but if the United States' Government desires it to be inferred that the words of Lord Salisbury limited the operation of the municipal law to that which was at the date of the signature of the Treaty of Washington in force, the Committee of Council are of opinion that there is no justification for such an inference, for the words "in common? clearly meant that there was to be equal enjoyment of the fisheries, and there could not be equal enjoyment or fishing in common if American fishermen could prosecute the fishery on Sunday while British fishermen were prevented by municipal law from so doing. The presumption that light dues were not levied in 1818 is no doubt correct, for the very good reason that the Colony had not at that time, nor until a much more recent date, any system of marine lights on that coast. on that coast. Such lights have, however, been established out of the revenues of the Colony, and they have to be maintained from the same source. It is therefore difficult to imagine that a foreign nation, actuated by a desire for justice alone, would contend that, while British fishermen are under the necessity of submitting to taxation for the maintenance of lighthouses, foreigners should be permitted to participate in their benefits without contributing anything to the expense. The Committee of Council noticed the reference to 15 Geo. III, cap. 31, but they fail to observe in that Statute any justification whatever for the position taken by the United States' Government. Since that Statute was passed others have been enacted, approved, and enforced that rescinded the provisions referred to, and the latter enactments, the Committee of Council hold, are binding upon American citizens in common with the subjects of His Majesty, provided that it cannot be shown that any invidious distinction is drawn between the subjects of the two nations. The Revenue and Customs Laws were not adopted in order to increase the extent of the restrictions of the Treaty of 1818, neither were the Fishery Regulations framed to limit the privileges of American citizens. They were adopted by the local Legislature, and approved by His Majesty's Government, for the purpose of protecting the revenues of the Colony and the fisheries of the Colony. In enforcing these laws the Government were only acting within their constitutional rights, and doing what the Government of the Dominion of Canada have beer. and are still doing; and in view of the injury which would result to the revenue and fishery interests of the Colony if any facilities not expressly authorized by the Treaty of 1818 were conveyed to American fishermen, the Committee of Council deem it their duty, so long as the relations of Newfoundland with the United States are regulated by that Convention, to insist upon a strict observance of its provisions in this respect. The real source of the difficulty that has arisen is well understood; it is to be found in the irritation that has taken place among the fishermen of Gloucester on account of the termination by the Government of this Colony of the privilege of purchasing bait fishes-a privilege which was gratuitously permitted to them for the past fifteen years in anticipation of the ratification of a Trade Convention negotiated in 1890, then approved by the Government of the United States, and a second time approved in 1902.* This Government has given indisputable proof of its earnest desire to cultivate and extend commercial relations with the United States, and it is assuredly from no fault on the part of this Government that the conduct of the fisheries has now been relegated to the Convention of 1818. In view of the rejection by the United States' Senate of the fishery arrangement between this country and the United States, which was approved by the late Secretaries of State (Blaine and Hay) on behalf of the Government of the United States, it is not unreasonable that the Colony should insist upon the rights secured to her by Treaty, and withhold those privileges which were freely and gratuitously extended to United States' fishermen for the past fifteen years until that arrangement is confirmed. The exercise of such claims as those that are now set up by the United States' Government, namely 1. Exemption from the laws of this Colony or from their enforcement by officers of the Newfoundland Government; and 2. The use of fishing appliances, such as seines, which is prohibited in the waters of this Colony, would involve in their consequences the deprivation of the people of the Colony of a valuable maritime industry, the ultimate extinction of a present source of wealth to its people, and the virtual transfer of the sovereignty within certain territorial waters of the Colony to a foreign Power. For more than a century this Treaty Coast was barred to British enterprise by an anomalous and intolerable condition of affairs that arose out of French claims, and it was only within the last two years that the Colony was relieved from that condition. If the claims now set up by the United States' Government are acquiesced in, the latter condition of things will be worse than the first. Against any recognition of such claims the Committee of Council respectfully and earnestly protest, and they cannot be consenting parties to any relaxation of the Statute Laws of the Colony in favour of American citizens who come to the Treaty Coast to exercise in common with the subjects of His Majesty a right of fishery. They would strongly deprecate any provisional arrangement, such as is suggested by His Majesty's Government in the despatch under reference, which would relieve American citizens of a proper recognition of these Statute Laws. It is submitted that the interests of the Empire, and not those of Newfoundland alone, require that the right of sovereignty within its own dominion should be maintained inviolate, and the Committee of Council cannot accept the view that any foreign Power has a status or consultative claim in the matter of the framing, or adoption, or the carrying out, of laws for the government of any portion of this Colony. The quotation from the speech of the Premier of this Colony, contained in Mr. Root's communication to Mr. Whitelaw Reid, of date 30th June, 1906,† is wrongfully applied, and this will be immediately apparent to His Majesty's Government on a perusal of the said speech. Up to the date of the approval of the Bill therein referred to, American fishermen, by the courtesy of this Government, were permitted to freely purchase bait supplies all round the coast of this Colony. This was a privilege gratuitously extended to them for fifteen years, dating from the signing of what is known as the Blaine-Bond Convention of 1890. * Appendix No. 6. Appendix No. 8. |