OFFICIAL DOCUMENTS

NEWFOUNDLAND FISHERIES.

Diplomatic Correspondence between the United States and Great Britain leading up to the conclusion of the Modus Vivendi of October 6-8, 1906. (The Modus Vivendi of 1906 was published in the January Supplement, p. 27.) Modus Vivendi of September 4-6, 1907.

No. 336.]

The Secretary of State to the British Ambassador.

DEPARTMENT OF STATE,

WASHINGTON, October 19, 1965. EXCELLENCY: Mr. Gardner, the Representative in Congress of the Gloucester district, has placed in my hands a number of dispatches received by him from masters of American vessels now on the Newfoundland coast. These dispatches are answers to inquiries sent by him upon my request for the purpose of ascertaining definitely, if possible, what is the precise difficulty there.

These dispatches agree in the statement that vessels of American registry are forbidden to fish on the treaty coast. One captain says that he was informed that he could not fish by the inspector of the revenue protection service of Newfoundland, and several of them that they had been ordered not to take herring by the collector of customs at Bonne Bay, Newfoundland.

It would seem that the Newfoundland officials are making a distinction between two classes of American vessels. We have vessels which are registered and vessels which are licensed to fish and not registered. The license carries a narrow and restricted authority; the registry carries the broadest and most unrestricted authority. The vessel with a license can fish, but cannot trade; the registered vessels can lawfully both fish and trade. The distinction between the two classes in the action of the Newfoundland authorities would seem to have been implied in the dispatch from Senator Lodge which I quoted in my letter of the 12th, and the imputation of the prohibition to the Minister of Marine and Fisheries may, perhaps, have come from the port officers in conversation with the masters of American vessels, giving him as their authority for their prohibitions.

As the buying of herring and bait fish, which until recently has been permitted for a good many years in Newfoundland, is trading, the American fishing fleet have come very generally to take an American registry, instead of confining themselves to the narrower fishing license, and far the greater part of the fleet now in northern waters consists of registered vessels. The prohibition against fishing under an American register substantially bars the fleet from fishing. American vessels have also apparently been in the habit of entering at the Newfoundland custom-houses and applying for a Newfoundland license to buy or take bait, and I gather from all the information I have been able to get that both the American masters and the customs officials have failed to clearly appreciate the different conditions created by the practical withdrawal of all privileges on the part of Newfoundland, and the throwing of the American fishermen back upon the bare rights which belong to them under the Treaty of 1818.

I am confident that we can reach a clear understanding regarding those rights and the essential conditions of their exercise, and that a statement of this understanding to the Newfoundland Government for the guidance of its officials on the one hand, and to our American fisherman for their guidance on the other, will prevent causeless injury and possible disturbances such as have been cause for regret in the past history of the northeastern fisheries.

I will try to state our view upon the matters involved in the situation which now appears to exist upon the treaty coast. We consider that

1. Any American vessel is entitled to go into the waters of the treaty coast and take fish of any kind.

She derives this right from the treaty (or from the conditions existing prior to the treaty and recognized by it), and not from any permission or authority proceeding from the Government of Newfoundland.

2. An American vessel seeking to exercise the treaty right is not bound to obtain a license from the Government of Newfoundland, and, if she does not purpose to trade as well as fish, she is not bound to enter at any Newfoundland custom-house.

3. The only concern of the Government of Newfoundland with such a vessel is to call for proper evidence that she is an American vessel, and therefore entitled to exercise the treaty right, and to have her refrain from violating any laws of Newfoundland not inconsistent with the treaty.

4. The proper evidence that a vessel is an American vessel and entitled to exercise the treaty right is the production of the ship's papers of the

kind generally recognized in the maritime world as evidence of a vessel's national character.

5. When a vessel has produced papers showing that she is an American vessel, the officials of Newfoundland have no concern with the character or extent of the privileges accorded to such a vessel by the Government of the United States. No question as between a registry and license is a proper subject for their consideration. They are not charged with enforceing any laws or regulations of the United States. As to them, if the vessel is American she has the treaty right, and they are not at liberty to deny it.

6. If any such matter were a proper subject for the consideration of the officials of Newfoundland, the statement of this Department that vessels bearing an American registry are entitled to exercise the treaty right should be taken by such officials as conclusive.

If your Government sees no cause to dissent from these propositions, I am inclined to think a statement of them as agreed upon would resolve the immediate difficulty now existing on the treaty coast.

I have, however, to call your attention to a further subject, which I apprehend may lead to further misunderstanding in the near future if it is not dealt with now. That is, the purposes of the Government of Newfoundland in respect of the treatment of American fishing vessels, as exhibited in a law enacted during the past summer by the legislature of that colony under the title "An Act respecting foreign fishing vessels." This act appears to be designed for the enforcement of laws previously enacted by Newfoundland which prohibited the sale to foreign fishing vessels of herring, caplin, squid or other bait fishes, lines, seines, or other outfits or supplies for the fishery, or the shipment by a foreign fishing vessel of crews within the jurisdiction of Newfoundland.

The act of last summer respecting foreign fishing vessels provides:

SECTION 1. Any justice of the peace, subcollector, preventive officers, fishery warden, or constable may go on board any foreign fishing vessel being within any port on the coasts of this island or hovering in British waters within three marine miles of any of the coasts, bays, creeks, or harbors in this island and may bring such foreign fishing vessel into port, may search her cargo, and may examine the master upon oath touching the cargo and voyage, and the master or person in command shall answer truly such questions as shall be put to him under a penalty not exceeding five hundred dollars. And if such foreign fishing vessel has on board any herring, caplin, squid or other bait fishes, ice, lines, seines, or other outfits or supplies for the fishery purchased within any port on the coasts of this island or within the distance of three marine miles

from any of the coasts, bays, creeks, or harbors of this island, or if the master of the said vessel shall have engaged or attempted to engage any person to form part of the crew of the said vessel in any port or on any part of the coasts of this island or has entered such waters for any purpose not permitted by treaty or convention for the time being in force, such vessel and the tackle, rigging, apparel, furniture, stores, and cargo thereof shall be forfeited.

SEC. 3. In any prosecution under this act the presence on board any foreign fishing vessel in any port of this island or within British waters aforesaid of any caplin, squid, or other bait fishes, of ice, lines, seines or other outfits or supplies for the fishery shall be prima facie evidence of the purchase of the said bait fishes and supplies and outfits within such port or waters.

It seems plain that the provisions above quoted constitute a warrant to the officers named to interfere with and violate the rights of American fishing vessels under the Treaty of 1818.

The first section authorizes any of the officers named to stop an American vessel while fishing upon the treaty coast and compel it to leave the fishing grounds, to prevent it from going to the places where the fish may be, to prevent it from departing with the fish which it may have taken, and to detain it for an indefinite period during a search of the cargo and an examination of the master under oath under a heavy penalty. It is to be observed that this section does not require that the vessel shall have been charged with any violation of the laws of Newfoundland, or even that she shall have been suspected of having violated the laws of Newfoundland as a condition precedent to compelling it to desist from the exercise of its treaty rights, and virtually seizing it and taking it into port. In the consideration of this provision it is unnecessary to discuss any question as to the extent to which American vessels may be interfered with in the exercise of their treaty rights pursuant to judicial proceedings based upon a charge of violation of law, or even upon reasonable ground to believe that any law has been violated, for the authority for the acts authorized appears to be part of no such proceeding.

When we consider that the minor officials named in the act, invested with this extraordinary and summary power, are presumptively members of the fishing communities in competition with which American fishermen are following their calling, it is plain that in denying the right of the Government of Newfoundland to do what this section provides for we are not merely dealing with a theoretical question, but with the probability of serious injustice.

The third section of the act, above quoted in full, makes the presence

on board of an American vessel of the fish, gear

the implements necessary to the exercise of the treaty right — prima facie evidence of a criminal offense against the laws of Newfoundland, and it also makes the presence on board the vessel of the fish which the vessel has a right to take under the treaty prima facie evidence of a criminal offense under the laws of Newfoundland. This certainly cannot be justified. It is, in effect, providing that the exercise of the treaty right shall be prima facie evidence of a crime.

I need not argue with the Government of Great Britain that the first section of this act purports to authorize the very kind of official conduct which led to the establishment in England of the rule against unreasonable searches and seizures, now firmly imbedded in the jurisprudence of both nations. Nor need I argue that American vessels are of right entitled to have on them in the waters of the treaty coast both fish of every kind and the gear for the taking of fish, and that a law undertaking to make that possession prima facie proof of crime deprives them of that presumption of innocence to which all citizens of Great Britain and America are entitled. When the legislature of Newfoundland denies these rights to American fishing vessels, it imposes upon them a heavy penalty for the exercise of their rights under the treaty, and we may reasonably apprehend that this penalty will be so severe in its practical effect as to be an effectual bar to the exercise of the treaty right.

I feel bound to urge that the Government of Great Britain shall advise the Newfoundland Government that the provisions of law which I have quoted are inconsistent with the rights of the United States under the Treaty of 1818 and ought to be repealed, and that, in the meantime, and without any avoidable delay, the Governor in Council shall be requested by a proclamation, which he is authorized to issue under the eighth section of the act respecting foreign fishing vessels, to suspend the operation of the act.

There is still another phase of this subject to which I must ask your attention. I am advised that there is a very strong feeling among the Newfoundland fishermen on the treaty coast against the enforcement of the Newfoundland act prohibiting the sale of bait, and that at a recent mass meeting of fishermen at the "Bay of Islands" resolutions were adopted urging the repeal or suspension of that act, and containing the following clauses:

If our requests are not granted immediately we shall be compelled, in justice to ourselves and families, to seek other ways and means to engage with the Americans.