Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 3, 1906, (In two parts), Part I

Mr. Root to Sir M. Durand.

Department of State,
Washington, October 19, 1905.
(Received at foreign office, October 27.)

No. 2.]

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 at 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 have 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 can not 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,^a and the imputation of the prohibition of 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.^a

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 fishermen 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 enforcing 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^a 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 officer, fishery warden, or constable, may go on board any foreign fishing vessel being within any port of the coasts of this island, or hovering within British waters within 3 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 $500. 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 coast of this island, or within the distance of 3 marine miles from any 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.
• “Section 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 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 of 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 the 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 treaty prima facie evidence of a criminal offense under the laws of Newfoundland. This certainly can not 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 embedded 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.

“We would also direct the attention of his excellency the governor in council to what took place in Fortune Bay a few years ago when Capt. Solomon Jacobs seined herring against the wishes of the people, and the result. If a similar occurrence should take place here, who will be responsible?”

This resolution indicates the existence of still another source from which, if not controlled, may come most unfortunate results when the American fishermen proceed to the exercise of their treaty rights; that is, the Newfoundland fishermen themselves acting independently of their government.

You are aware that for a considerable period American fishing vessels, instead of themselves taking herring, caplin, and squid upon the treaty coast, have been in the habit of buying those fish from the Newfoundland fishermen. For many of the Newfoundland fishermen this trade has been a principal means of support. That has been especially so in and about the Bay of Islands. It has been profitable to the local fishermen, and it has been for the Americans a satisfactory substitute for the exercise of their treaty right to catch the fish themselves. It is, indeed, not unnatural that these fishermen should struggle in every way open to them to prevent the loss of their means of support, and that if they can not control their own government so as to secure permission to sell herring and bait, they should seek to prevent the Americans from taking the bait, in the hope that as the result of that prevention, their profitable trade may be restored.

The resolution which I have quoted referring to the Fortune Bay case is a clear threat of violence to prevent the exercise of the treaty right. If the threat should be carried out it is too much to expect that some at least of the American fishermen will not refuse to yield to lawless force which seeks to deprive them of their rights and of their means of livelihood.

We shall do everything in our power to prevent such a collision, and we should indeed deeply deplore it, but the true and effective method of prevention plainly must be the exercise of proper control by the government of Newfoundland over the fishermen of Newfoundland, and it seems to me that the danger is sufficiently real and imminent to justify me in asking that the Government of Great Britain shall take speedy steps to bring about the exercise of such control.

I have, etc.,

(Signed)

Elihu Root.

1. No. 1.
2. Appendix No. 1, p. 750.
3. Appendix No. 9, p. 778.