The Secretary of State to Ambassador Reid.

No. 239.]

Sir: The memorandum inclosed in the note of Sir Charles Hardinge to you of February 2, 1906, and transmitted by you on the 6th of February, has received careful consideration.

The letter which I had the honor to address to the British ambassador in Washington on the 19th of October last stated with greater detail the complaint in my letter to him of October 12, 1905, to the effect that the local officers of Newfoundland had attempted to treat American ships as such, without reference to the rights of their American owners and officers, refusing to allow such ships sailing under register to take part in the fishing on the treaty coast, although owned and commanded by Americans, and limiting the exercise of the right to fish to ships having a fishing license.

In my communications, the Government of the United States objected to this treatment of ships as such—that is, as trading vessels or fishing vessels—and laid down a series of propositions regarding the treatment due to American vessels on the treaty coast, based on the view that such treatment should depend, not upon the character of the ship as a registered or licensed vessel, but upon its being American—that is, owned and officered by Americans, and therefore entitled to exercise the rights assured by the treaty of 1818 to the inhabitants of the United States.

It is a cause of gratification to the Government of the United States that the prohibitions interposed by the local officials of Newfoundland were promptly withdrawn upon the communication of the facts to His Majesty’s Government, and that the memorandum now under consideration emphatically condemns the view upon which the action of the local officers was based, even to the extent of refusing assent to the ordinary forms of expression which ascribe to ships the rights and liabilities of owners and masters in respect of them.

It is true that the memorandum itself uses the same form of expression when asserting that American ships have committed breaches of the colonial customs law, and ascribing to them duties, obligations, omissions, and purposes which the memorandum describes. Yet we may agree that ships, strictly speaking, can have no rights or duties, and that whenever the memorandum or the letter upon which it comments speaks of a ship’s rights and duties it but uses a convenient and customary form of describing the owner’s or master’s rights and duties in respect of the ship. As this is conceded to be essentially “a ship fishing,” and as neither in 1818 nor since could there be an American ship not owned and officered by Americans, it is probably quite unimportant which form of expression is used.

[Page 686]

I find in the memorandum no substantial dissent from the first proposition of my note to Sir Mortimer Durand of October 19, 1905, that any American vessel is entitled to go into the waters of the treaty coast and take fish of any kind, and that she derives this right from the treaty and not from any authority proceeding from the government of Newfoundland.

Nor do I find any substantial dissent from the fourth, fifth, and sixth propositions, which relate to the method of establishing the nationality of the vessel entering the treaty waters for the purpose of fishing, unless it be intended, by the comments on those propositions, to assert that the British Government is entitled to claim that when an American goes with his vessel upon the treaty coast for the purpose of fishing, or with his vessel enters the bays or harbors of the coast for the purpose of shelter and of repairing damages therein, or of purchasing wood, or of obtaining water, he is bound to furnish evidence that all the members of his crew are inhabitants of the United States. We can not for a moment admit the existence of any such limitation upon our treaty rights. The liberty assured to us by the treaty plainly includes the right to use all the means customary or appropriate for fishing upon the sea, not only ships and nets and boats, but crews to handle the ships and the nets and the boats. No right to control or limit the means which Americans shall use in fishing can be admitted unless it is provided in the terms of the treaty, and no right to question the nationality of the crews employed is contained in the terms of the treaty. In 1818 and ever since it has been customary for the owners and masters of fishing vessels to employ crews of various nationalities. During all that period I am not able to discover that any suggestion has ever been made of a right to scrutinize the nationality of the crews employed in the vessels through which the treaty right has been exercised.

The language of the treaty of 1818 was taken from the third article of the treaty of 1783. The treaty made at the same time between Great Britain and France, the previous treaty of February 10, 1763, between Great Britain and France, and the treaty of Utrecht, or April 11, 1713, in like manner contained a general grant to “the subjects of France” to take fish on the treaty coast. During all that period no suggestion, so far as I can learn, was ever made that Great Britain had a right to inquire into the nationality of the members of the crew employed upon a French vessel.

Nearly two hundred years have passsed, during which the subjects of the French King and the inhabitants of the United States have exercised fishing rights under these grants made to them in these general terms, and during all that time there has been an almost continuous discussion, in which Great Britain and her colonies have endeavored to restrict the right to the narrowest possible limits, without a suggestion that the crews of vessels enjoying the right, or whose owners were enjoying the right, might not be employed in the customary way without regard to nationality. I can not suppose that it is now intended to raise such a question.

I observe with satisfaction that the memorandum assents to that part of my second proposition to the effect that “an American vessel seeking to exercise the treaty right is not bound to obtain a license from the government of Newfoundland,” and that His Majesty’s Government agree that “no law of Newfoundland should be enforced [Page 687] on American fishermen which is inconsistent with their rights under the convention.”

The views of His Majesty’s Government, however, as to what laws of the colony of Newfoundland would be inconsistent with the convention if applied to American fishermen differ radically from the view entertained by the Government of the United States. According to the memorandum, the inhabitants of the United States going in their vessels upon the treaty coast to exercise the treaty right of fishing are bound to enter and clear in the Newfoundland customhouses, to pay light dues, even the dues from which coasting and fishing vessels owned and registered in the colony are exempt, to refrain altogether from fishing except at the time and in the manner prescribed by the regulations of Newfoundland. The colonial prohibition of fishing on Sundays is mentioned by the memorandum as one of the regulations binding upon the American fishermen. We are told that His Majesty’s Government “hold that the only ground on which the application of any provisions of colonial law to American vessels engaged in the fishery can be objected to is that it unreasonably interferes with the American right of fishery.”

The Government of the United States fails to find in the treaty any grant of right to the makers of colonial law to interfere at all, whether reasonably or unreasonably, with the exercise of the American rights of fishery, or any right to determine what would be a reasonable interference with the exercise of that American right if there could be any interference. The argument upon which the memorandum claims that the colonial government is entitled to interfere with and limit the exercise of the American right of fishery, in accordance with its own ideas of what is reasonable, is based, first, upon the fact that under the terms of the treaty the right of the inhabitants of the United States to fish upon the treaty coast is possessed by them “in common with the sublets of His Britannic Majesty;” and, second, upon the proposition that “the inhabitants of the United States would not now be entitled to fish in British North American waters but for the fact that they were entitled to do so when they were British subjects,” and that “American fishermen can not, therefore, rightfully claim any other right to exercise the right of fishery under the treaty of 1818 than if they had never ceased to be British subjects.”

Upon neither of these grounds can the inferences of the memorandum be sustained. The qualification that the liberty assured to American fishermen by the treaty of 1818 they were to have “in common with the subjects of Great Britain” merely negatives an exclusive right. Under the treaties of Utrecht, of 1763 and 1783, between Great Britain and France, the French had constantly maintained that they enjoyed an exclusive right of fishery on that portion of the coast of Newfoundland between Cape St. John and Cape Raye, passing around by the north of the island. The British, on the other hand, had maintained that British subjects had a right to fish along with the French, so long as they did not interrupt them.

The dissension arising from these conflicting views had been serious and annoying, and the provision that the liberty of the inhabitants of the United States to take fish should be in common with the liberty of the subjects of His Britannic Majesty to take fish was precisely appropriate to exclude the French construction and leave [Page 688] no doubt that the British construction of such a general grant should apply under the new treaty. The words used have no greater or other effect. The provision is that the liberty to take fish shall be held in common, not that the exercise of that liberty by one people shall be the limit of the exercise of that liberty by the other. It is a matter of no concern to the American fishermen whether the people of Newfoundland choose to exercise their right or not, or to what extent they choose to exercise it. The statutes of Great Britain and its colonies limiting the exercise of the British right are mere voluntary and temporary self-denying ordinances. They may be repealed tomorrow. Whether they are repealed, or whether they stand, the British right remains the same and the American right remains the same. Neither right can be increased or diminished by the determination of the other nation that it will or will not exercise its right, or that it will exercise its right under any particular limitations of time or manner.

The proposition that “the inhabitants of the United States would not now be entitled to fish in British North American waters but for the fact that they were entitled to do so when they were British subjects” may be accepted as a correct statement of one of the series of facts which led to the making of the treaty of 1818. Were it not for that fact there would have been no fisheries article in the treaty of 1783, no controversy between Great Britain and the United States as to whether that article was terminated by the war of 1812, and no settlement of that controversy by the treaty of 1818. The memorandum, however, expressly excludes the supposition that the British Government now intends to concede that the present rights of American fishermen upon the treaty coast are a continuance of the right possessed by the inhabitants of the American colonies as British subjects, and declares that this present American right is a new grant by the treaty of 1818. How, then, can it be maintained that the limitations upon the former right continued, although the right did not, and are to be regarded as imposed upon the new grant, although not expressed in the instrument making the grant? On the contrary, the failure to express in the terms of the new treaty the former limitations, if any there had been, must be deemed to evidence an intent not to attach them to the newly created right.

Nor would the acceptance by Great Britain of the American view—that the treaty of 1783 was in the nature of a partition of empire, that the fishing rights formerly enjoyed by the people of the colonies and described in the instrument of partition continued notwithstanding the war of 1812, and were in part declared and in part abandoned by the treaty of 1818—lead to any different conclusion. It may be that under this view the rights thus allotted to the colonies in 1783 were subject to such regulations as Great Britain had already imposed upon their exercise before the partition, but the partition itself and the recognition of the independence of the colonies in the treaty of partition was a plain abandonment by Great Britain of the authority to further regulate the rights of the citizens of the new and independent nation.

The memorandum says: “The American fishermen can not rightly claim to exercise their right of fishery under the convention of 1818 on a footing different than if they had never ceased to be British subjects.” [Page 689] What, then, was the meaning of independence? What was it that continued the power of the British Crown over this particular right of Americans formerly exercised by them as British subjects, although the power of the British Crown over all other rights formerly exercised by them as British subjects was ended? No answer to this question is suggested by the memorandum.

In previous correspondence regarding the construction of the treaty of 1818, the Government of Great-Britain has asserted, and the memorandum under consideration perhaps implies, a claim of right to regulate the action of American fishermen in the treaty waters, upon the ground that those waters are within the territorial jurisdiction of the colony of Newfoundland. This Government is constrained to repeat emphatically its dissent from any such view. The treaty of 1818 either declared or granted a perpetual right to the inhabitants of the United States which is beyond the sovereign power of England to destroy or change. It is conceded that this right is, and forever must be, superior to any inconsistent exercise of sovereignty within that territory. The existence of this right is a qualification of British sovereignty within that territory. The limits of the right are not to be tested by referring to the general jurisdictional powers of Great Britain in that territory, but the limits of those powers are to be tested by reference to the right as defined in the instrument creating or declaring it. The Earl of Derby, in a letter to the governor of Newfoundland dated June 12, 1884, said: “The peculiar fisheries rights granted by treaties to the French in Newfoundland invest those waters during the months of the year when fishing is carried on in them, both by English and French fishermen, with a character somewhat analogous to that of a common sea for the purpose of fishery.” And the same observation is applicable to the situation created by the existence of American fishing rights under the treaty of 1818. An appeal to the general jurisdiction of Great Britain over the territory is, therefore, a complete begging of the question, which always must be, not whether the jurisdiction of the colony authorizes a law limiting the exercise of the treaty right, but whether the terms of the grant authorize it.

The distinguished writer just quoted observes in the same letter:

The Government of France each year during the fishing season employs ships of war to superintend the fishery exercised by their countrymen, and, in consequence of the divergent views entertained by the two Governments respectively as to the interpretation to be placed upon the treaties, questions of jurisdiction which might at any moment have become serious have repeatedly arisen.

The practice thus described, and which continued certainly until as late as the modification of the French fishing rights in the year 1904, might well have been followed by the United States, and probably would have been were it not that the desire to avoid such questions of jurisdiction as were frequently arising between the French and the English has made this government unwilling to have recourse to such a practice so long as the rights of its fishermen can be protected in any other way.

The Government of the United States regrets to find that His Majesty’s Government has now taken a much more extreme position than that taken in the last active correspondence upon the same question arising under the provisions of the treaty of Washington. In his [Page 690] letter of April 3, 1880, to the American minister in London, Lord Salisbury said:

In my note to Mr. Welsh, of the 7th of November, 1878, I stated “that British sovereignty, as regards these waters, is limited in its scope by the engagements of the treaty of Washington, which can not be modified or affected by any municipal legislation,” and Her Majesty’s Government fully admit that United States fishermen have the right of participation on the Newfoundland inshore fisheries, in common with British subjects, as specified in Article XVIII of that treaty. But it can not be claimed, consistently with this right of participation in common with the British fishermen, that the United States fishermen have any other, and still less that they have any greater, rights than the British fishermen had at the date of the treaty.

If, then, at the date of the signature of the treaty of Washington certain restraints were, by the municipal law, imposed upon the British fishermen, the United States fishermen were, by the express terms of the treaty, equally subjected to those restraints, and the obligation to observe in common with the British the then existing local laws and regulations, which is implied by the words “in common,” attached to the United States citizens as soon as they claim the benefit of the treaty.

Under the view thus forcibly expressed the British Government would be consistent in claiming that all regulations and limitations upon the exercise of the right of fishing upon the Newfoundland coast which were in existence at the time when the treaty of 1818 was made are now binding upon American fishermen. Further than this His Majesty’s Government can not consistently go, and further than this the Government of the United States can not go.

For the claim now asserted that the colony of Newfoundland is entitled at will to regulate the exercise of the American treaty right is equivalent to a claim of power to completely destroy that right. This Government is far from desiring that the Newfoundland fisheries shall go unregulated. It is willing and ready now, as it has always been, to join with the Government of Great Britain in agreeing upon all reasonable and suitable regulations for the due control of the fishermen of both countries in the exercise of their rights, but this Government can not permit the exercise of these rights to be subject to the will of the colony of Newfoundland. The Government of the United States can not recognize the authority of Great Britain or of its colony to determine whether American citizens shall fish on Sunday. The government of Newfoundland can not be permitted to make entry and clearance at a Newfoundland customhouse and the payment of a tax for the support of Newfoundland light-houses conditions to the exercise of the American right of fishing. If it be shown that these things are reasonable the Government of the United States will agree to them, but it can not submit to have them imposed upon it without its consent. This position is not a matter of theory. It is of vital and present importance, for the plain object of recent legislation of the colony of Newfoundland has been practically to destroy the value of American rights under the treaty of 1818. Those rights are exercised in competition with the fishermen and merchants of Newfoundland. The situations of the Newfoundland fishermen residing upon the shore and making the shore their base of operations and of the American fishermen coming long distances with expensive outfits, devoting long periods to the voyage to the fishing grounds and back to the market, obliged to fish rapidly in order to make up for that loss of time, and making ships their base of operations, are so different that it is easy to frame [Page 691] regulations which will offer slight inconvenience to the dwellers on shore and be practically prohibitory to the fishermen from the coasts of Maine and Massachusetts, and if the grant of this competitive right is to be subject to such laws as our competitors choose to make, it is a worthless right. The premier of Newfoundland, in his speech in the Newfoundland parliament, delivered on the 12th of April, 1905,a in support of the foreign fishing bill made the following declaration:

This bill is framed specially to prevent the American fishermen from coming into the bays, harbors, and creeks of the coast of Newfoundland for the purpose of obtaining herring, caplin, and squid for fishery purposes.

And this further declaration:

This communication is important evidence as to the value of the position we occupy as mistress of the northern seas so far as the fisheries are concerned. Herein was evidence that it is within the power of the legislature of this colony to make or mar our competitors to the North Atlantic fisheries. Here was evidence that by refusing or restricting the necessary bait supply we can bring our foreign competitors to realize their dependency upon us. One of the objects of this legislation is to bring the fishing interests of Gloucester and New England to a realization of their dependence upon the bait supplies of this colony. No measure could have been devised having more clearly for its object the conserving, safeguarding, and protecting of the interest of those concerned in the fisheries of the colony.

It will be observed that there is here the very frankest possible disavowal of any intention to so regulate the fisheries as to be fair to the American fishermen. The purpose is, under cover, of the exercise of the power of regulation, to exclude the American fishermen. The Government of the United States surely can not be expected to see with complacency the rights of its citizens subjected to this kind of regulation.

The Government of the United States finds assurance of the desire of His Majesty’s Government to give reasonable and friendly treatment to American fishing rights on the Newfoundland coast in the statement of the memorandum that the Newfoundland foreign fishing vessels act is not as clear and explicit as, in the circumstances, it is desirable that it should be, and in the expressed purpose of His Majesty’s Government to confer with the government of Newfoundland with the object of removing any doubts which the act in its present form may suggest as to the power of His Majesty to fulfill his obligation under the convention of 1818. It is hoped that upon this conference His Majesty’s Government will have come to the conclusion, not merely that the seventh section of the act, which seeks to preserve “the rights and privileges granted by treaty to the subjects of any State in amity with His Majesty,” amounts to a prohibition of any “vexatious interference” with the exercise of the treaty rights of American fishermen, but that this clause ought to receive the effect of entirely excluding American vessels from the operation of the first and third clauses of the act relating to searches and seizures and prima facie evidence. Such a construction by His Majesty’s Government would wholly meet the difficulty pointed out in my letter of October 19, as arising under the first and third sections of the act. A mere limitation, however, to interference which is not “vexatious,” leaving the question as to what is “vexatious interference” [Page 692] to be determined by the local officers of Newfoundland, would be very far from meeting the difficulty.

You will inform His Majesty’s Government of these views and ask for such action as shall prevent any interference upon any ground by the officers of the Newfoundland government with American fishermen when they go to exercise their treaty rights upon the Newfoundland coast during the approaching fishing season.

I am, etc.,

Elihu Root.
  1. See Appendix No. 8, p. 770.