communal property could have grown up. In order to purchase land so held, so as even to obtain such title as was known to native law, was far from easy. It involved the collective interests of a large group, not always easy to ascertain, and called for representation of interests by persons whose authority was not always clear. Hence before annexation purchases of land from the natives were the chief source of quarrels and disturbances. The first care of the government after annexation was to put an end to this cause of conflict by establishing a definite régime of private property under British law instead of the indefinite régime of customary, collective tribal rights of occupation or possession and of uncertain titles by purchase from chiefs and tribes.

Conveyances from the native chiefs could give Webster no higher or different title than that which existed by native customary law. As has been said, it is, at least, very doubtful how far the customary communal or collective title to land involved more than a claim to occupation by the tribe. Nor is it clearly shown that the natives understood any such thing as dominium over land, as it is understood in developed law, or understood the sort of title, with its implications, which Webster asserts was conveyed to him.

It is argued that the title of the British Crown is derived from the same source as Webster's title. We can not agree. All those who had any claim to represent the aboriginal natives, as politically organized, entered into a treaty ceding sovereignty to Great Britain. The treaty ceded sovereignty in Article I. In Article II, possession was guaranteed to the chiefs and tribes in all which they possessed individually or collectively. This is a clear declaration of the nature of native property as it existed at the time of the cession. It is far from recognizing the sort of proprietary system which Webster's claim presupposes. In addition an exclusive right of preemption of lands was given to the Crown. This was a matter of sovereignty. It was a legal regulation of alienation, not a conveyance of property.

It is said that in this respect the present case is governed by the decision of this Tribunal in one of the Fiji Land Claims, namely, the Claim of Rodney Burt, American-British Claims Arbitration, No. 44. But we think that case differs from the present case in three important respects. In the first place, in the Burt case there was a long period of transition from native customary law to the white-men's law, as a result of which conflicting theories as to power to convey and the effect of conveyance grew up. The British Government deliberately committed itself to one of these theories, and that theory was the basis of Burt's claim. Secondly, Burt, who had what, under the decision of the Land Commissioners in his case, was a full and complete native title, was deprived of all rights although he had been in actual (not constructive) possession prior to the cession. He was not allowed even what the native grant, at the very least, must have given him, nor was he 1 This JOURNAL, Vol. 18 (1924), p. 814.

allowed any equivalent therefor. Thirdly, the provisions of the cession as to titles were very different from those in the present case. In the Burt case, in addition to the cession of sovereignty, there was a declaration that "the absolute proprietorship of all lands, not shown to be now alienated, so as to have become bona fide the property of Europeans, or other foreigners," subject to certain exceptions, should be the property of the Crown. In other words, the cession assumes a preëxisting régime of "absolute proprietorship" in land and of alienations whereby European purchasers had acquired such property rights. In the present case the cession recognizes nothing more than a régime of possession by chiefs and tribes.

It is argued further that Webster's title has the same basis as the title of the British Crown because the native grants to him were taken as extinguishing the native title and the surplus over the grants made to Webster by the Colonial Government was held to revert to the Crown. But we interpret differently the proceedings by which these grants were made and can not accept this contention.

Our conclusion is that Webster acquired no more than a native customary title, the content and scope of which was very uncertain and can not be said to have extended to a full property or dominium as known to matured law. We do not think that these customary titles were "destroyed" by the local legislation, as contended by the United States. The Act of August 4, 1840, setting up the first commission, provides that native titles not "allowed" by the Crown, after investigation, shall be void. It then provides for grants and prescribes a maximum grant to any claimant. The Act of June 9, 1841, setting up the second commission, provides that all lands validly sold by the aboriginal natives shall be vested in the Crown. But this is evidently for the purpose of adopting the common-law view that all lands are held of the Crown, and thus laying the foundation for a modern property régime in place of the native customary tenure. For the Act then provides how any person who had acquired title prior to annexation may obtain a grant in lieu of his purchase fixing a scale for judging what he had paid and a maximum grant for any grantee. True, it was not till 1865 that an allowance of customary titles as such was provided for. But we think Webster was given an option of claiming his customary title and insisting it be allowed, for what it was worth, on the basis of international law, or of exchanging it for a crown grant in fee simple under the terms of the statute of 1841. Obviously there was great advantage in the latter in that the title under the latter was marketable, while, after annexation, the customary title was not. Webster agreed to submit his claims to the land commission and "take his chances along with the rest." We think this means that he agreed to exchange his customary title for a title derived from the Crown to such lands as should be awarded him. In fact the maximum was not applied in his case. He was awarded more than sixteen times that maximum. This feature of the case distinguishes it at once from the Burt case. After this

exchange and these grants, which seem to have been the result of very careful investigation and of a disposition on the part of the commissioners and of the Governor to do Webster justice and to be governed by equity rather than by the strict terms of the statute, we do not think Webster had any just claim for further grants in fee simple. He had exchanged his customary title to the surplus for a better title to what was granted him. It does not seem to us equitable that for his customary title he should receive a full title by British law to the whole of the large areas which he claims. Even less would it have been equitable to award him full title by British law to the fullest possible extent of the indefinite boundaries which his conveyances from the native chiefs called for. He could not have been in actual possession of all of these tracts, nor were the limits of such possessions as he had by any means clear. In these respects also the Burt case is very different.

As to one claim which Webster submitted to the Land Commission, it appeared that all the chiefs who should have joined were not parties to his conveyance. On this ground the commission rejected his title. It is contended that he should have been allowed an undivided interest corresponding to that of those who joined. But, as we understand it, these customary titles were collective. The chiefs were in no sense tenants in common. Such title as there was, was in the collectivity. If the collectivity, or its representatives acted, there was an alienation. If not, less than the collectivity had nothing to convey. Such seems to have been the view of the commission, and we see no reason to think that their view of native tenures

was erroneous.

It is said that the "threat" in the instructions of the British Government to Captain Hobson in 1839, and in the proclamation of Sir George Gipps, prior to annexation, that the Crown would not acknowledge as valid titles not derived from or confirmed by a grant from the Crown, destroyed the value of Webster's property. But the statutes after annexation did not go as far as these proclamations. The proclamations deprived him of nothing. If it is claimed that they injured the marketability of his property (which he had acquired as a speculation, not in order to settle thereon), the answer is that he must have known that, in order to be marketable, the title would ultimately need some kind of confirmation or establishment of some kind of transformation into the sort of title known to developed law. The titles obtained from native chiefs under customary law were not like those under consideration in United States v. Percheman, 7 Peters 51, 86-87. Those were titles to land in Florida under Spanish law. They were full and complete, giving a dominium, as well understood from Roman times in Continental Europe and in lands settled therefrom. In the present case, losses due to delay or uncertainty in confirming or establishing the titles, or to deductions in exchange for a full and marketable title under British law, were a risk of Webster's speculation.

We are, therefore, of opinion that this claim should be rejected, and we so decide.

Done at Washington, D. C., December 12, 1925.

The President of the Tribunal,
A. NERINCX.

FISHING CLAIMS-GROUP I

Cunningham & Thompson Company; Representatives of Fred L. Davis, deceased; Representative of William Parsons, deceased; Gorton-Pew Fisheries Company; Representative of William H. Jordan, deceased; Orlando Merchant; Representative of Jerome McDonald, deceased; John Pew & Son; Gorton-Pew Fisheries Company, successor to D. B. Smith & Company; Sylvanus Smith & Company, Inc.; Representative of John Chisholm, deceased; Carl C. Young, Hugh Parkhurst & Company; Almon D. Malloch; Thomas M. Nicholson; Lemuel E. Spinney; William H. Thomas; Frank H. Hall; M. Walen & Son, Inc.; Atlantic Maritime Co.; Waldo I. Wonson; Henry Atwood; Fred Thompson.

Award rendered at Washington, December 22, 1925

Claims for refund of light dues, customs duties, and other charges, levied upon American vessels engaged in herring fishing upon the treaty coast of Newfoundland.

The disposing of fishing outfit and gear to Newfoundland fishermen and in Newfoundland waters as a part of their compensation, such outfit and gear remaining their property after use in the employment and entering into the general stock of the country, was not a reasonably necessary mode or incident of exercising the fishing privilege and must be held to have been trading.

Agreed amount to be paid to the United States in each case awarded by the Tribunal.

These are claims for refund of light dues, customs duties, and other charges, levied upon vessels engaged, as claimed by the United States, in herring fishing at Bay of Islands and other places upon what, for convenience, may be called the Treaty Coast of Newfoundland. The answer of Great Britain sets up that the vessels in question were exercising commercial privileges by (a) purchasing herring, (b) hiring men in Newfoundland waters, and (c) "selling goods in Newfoundland to employees."

As to the first contention, there is a mass of conflicting evidence on the one hand as to the course pursued by particular American vessels which are claimants, and on the other hand as to the practice of American vessels generally in the herring fishery on the Treaty Coast. Partly the contention involves questions of fact and of the legal interpretation of the facts when found. In part it involves the questions of law raised by the second contention. There can be no doubt that purchase of herring from independent fishermen in Newfoundland waters could not be regarded as an exercise of the fishing privilege belonging to the United States under the Treaty of 1818. But, for reasons which will appear presently, we do not deem it necessary, with respect to each vessel in question, to determine as a fact whether it was fishing or was buying herring on each occasion for which claim is made.

We think the questions raised by the second contention are disposed of in the answers to the first and second questions in the Award of the Permanent Court of Arbitration at The Hague in the North Atlantic Coast Fisheries Arbitration.

It remains to consider the third contention.

Under the answer of the Permanent Court of Arbitration at The Hague to the seventh question in the North Atlantic Coast Fisheries Arbitration, an American vessel could not exercise fishing privileges and commercial privileges on the same voyage. As to any voyage there must be wholly and purely fishing activities or the vessel must be regarded as trading. Concession of the fishing privilege in the Treaty of 1818 carried with it tacitly (or by implication) the privilege of doing such things as are reasonably necessary to its exercise in view of the nature of the fishery to be carried on. It is contended, on behalf of the United States, that the privilege extends to all customary means and methods of carrying on the fishery. But in our opinion this is true only provided and to the extent that the customary means and methods are reasonably necessary to the exercise of the fishing privilege. We consider that the disposing of fishing outfit and gear to Newfoundland fishermen in Newfoundland waters as a part of their compensation, such outfit and gear remaining their property after use in the employment and entering into the general stock of the country, was not a reasonably necessary mode of or incident of exercising the fishing privilege and must be held to have been trading.

So far as appears, it was quite enough to have given out outfit and gear for the purpose of fishing while in the employ of the vessel, charging it might be for outfit and gear lost or destroyed. A payment or part payment in outfit and gear, so as to come into competition with the trade of Newfoundland in such articles, was not necessary nor was it reasonable. There is nothing to show that an arrangement, whereby the outfit and gear, so far as unconsumed, should remain the property of the vessel, was not perfectly feasible and reasonable. There is evidence that Newfoundland fishermen, who employed servants and fished independently, provided nets in this way. As all the American vessels pursuing the herring fishery on the Treaty Coast regularly disposed of gear and outfit to Newfoundland fishermen so as to leave such articles (if unconsumed) in Newfoundland, as the property of those fishermen, we must hold that all of the claimant vessels, at all the times in question, were to that extent engaged in trading and hence were not exclusively exercising fishing privileges.

It is assumed that the Agents of the respective parties will be able to agree upon the amounts recoverable in view of the foregoing findings. If not, the Tribunal will proceed to determine them.

Done at Washington, D. C., November 6, 1925.

The President of the Tribunal,
A. NERINCX.