Governor Sir W. MacGregor to the Earl of Elgin.
Referring to your telegram of the 17th August.
Résumé of minute as follows has been sent me by prime minister:
While observing the contention of United States Government and its request to His Majesty’s Government, ministers feel that both contention and request can not but be regarded as unreasonable and such as neither His Majesty’s Government nor the government of the colony can concur in. The contention that the convention of 1818 justifies no interference, reasonable or unreasonable, with the exercise by Americans of the fisheries in Newfoundland waters, is equivalent to declaration that 700 miles of territorial waters were by that instrument reserved from British jurisdiction and set apart as area within which American citizens were exempt from statute law and free to use any fishing implement, no matter how injurious. Fishery regulations were adopted by legislature with a view to preservation and continuance of fishery, and resulted from petitions sent in by fishermen of colony who, in order to secure continuance of industry upon which they solely depended for livelihood, were prepared to submit to restrictions and limitations on their own labor. Such regulations have heretofore been regarded by United States Government as not only reasonable but desirable, as will appear on perusal of circular issued by Department of State, Washington, to collector of customs, Boston, dated the 28th March, 1856, and quoted in full in Lord Salisbury’s dispatch to Mr. Hoppin, dated the 3d April, 1880;a also by [Page 722] reference to dispatches from Mr. Bayard, of Department of State, Washington, to Sir Lionel West, dated the 10tha and 20th May,b 1886.
If fishery regulations or laws of colony had been so framed and executed as to make any discrimination in favor of British fishermen or to impair rights conveyed to the United States by treaty, then there would be sufficient justification for position set up by United States Government, the fishery under treaty being a fishery in common with His Majesty’s subjects. It is not disputed that British sovereignty on treaty coast is limited in its scope to extent implied by words “in common,” but it is submitted, as regulations contain no discrimination in favor of British fishermen, the obligation on the part of the United States fishermen to observe them attached from the date the treaty came into force. Great Britain was not by the signing of the treaty of 1818 the recipient of sovereignty to which conditions were attached, but the possessor of prior existing sovereignty, conveying to American fishermen in common with subjects of His Majesty. Fundamental rights connected with said treaty are prior to and take precedence of derivative rights; in other words, rights of property and sovereignty are superior to special rights granted from them. It would be inversion of this well-recognized principle to suppose British Government, in granting American fishermen a fishery in common with British subjects, conveyed any other fishery, much less an exemption from laws governing the territory in which privileges conveyed were to be exercised.
Even if treaty were of doubtful meaning in respect to matters in dispute, well-recognized principles of international law would demand that doubt should be resolved in favor of sovereign power. This is first time that right of Newfoundland legislature to legislate for protection of its fisheries and revenues and validity of such legislation as against citizens of foreign countries has been called into question, and they feel that His Majesty’s Government will not fail to point out that such legislation, unless it is disallowed by His Majesty, becomes part of law of Empire. Sir John Thomson, minister of justice of Canada, 1886, in reportc declared that the efforts made by United States Government to deny and refute validity of colonial statutes in reference to fisheries have been continued for many years, and in every instance were set at naught by the imperial authorities and judicial tribunals. This Government has taken every precaution to prevent unreasonable interference with American fishermen, and during the last autumn herring fishery, when public feeling ran exceedingly high, because of unlawful proceedings of American fishermen, no single case of unreasonable interference by either officers of this Government or fishermen of colony was reported to Government. When American Government complained to His Majesty’s Government that the nets of the American fishermen had been interfered with, rigid inquiry was made, resulting in seven American captains making affidavit before commissioner emphatically denying that there had been any interference, and declaring that American fishermen were well treated in best possible manner [Page 723] by Newfoundlanders. The reference by United States Government to Lord Salisbury’s note dated the 3d April, 1880, is not entirely clear, but if United States Government desires it to be inferred that words of Lord Salisbury limited operation of municipal law to that which was at date of signing treaty in force, ministers are of opinion that there is no justification for such an inference; for the words “in common” clearly mean that there was to be equality of enjoyment of fisheries, which there would not be if the Americans could use fishing implements not permitted to British subjects, and could prosecute fishery on a Sunday, while British fishermen were prevented from so doing.
The presumption in reference to light dues is probably correct, for the reason that colony at that time had no system of marine lights on the coast. Lights have since then been established out of revenue of colony and maintained from same source. It is difficult to imagine that a foreign nation actuated by a desire for justice alone would contend that while British fishermen are under necessity of submitting to taxation for maintaining light-houses, foreigners should be permitted to enjoy benefits without contributing to expense of upkeep. Reference to 15 Geo. III, cap. 31, is noted, but ministers fail to observe that said statute justifies in any way position taken by United States Government. Since that passed others have been enacted, approved, and enforced that rescind provisions referred to, and later enactments, ministers hold, are binding on American citizens in common with subjects of His Majesty, provided that no invidious distinction is drawn between subjects of two nations. The real source of the difficulty that has arisen is well understood. It is found in irritation among fishermen of Gloucester, on account of the termination by this Government of privilege of purchasing bait fishes, which was gratuitously permitted to them for past fifteen years, in anticipation of ratification of trade conventions of 1890a and 1902.b 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 the 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 [Page 724] century this treaty coast was barred to British enterprise by anomalous and intolerable condition of affairs arising out of French claims.
Only within the last two years has the colony been relieved from that condition. If 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 can not consent to any relaxation of statute law of colony in favor of American citizens. They would strongly deprecate any provisional arrangement such as suggested by His Majesty’s Government in dispatch 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 can not 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’s dispatch to Lord Rosebery of date 2d 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.
- See “United States No. 1 (1880),” No. 8.↩
- See “United States No. 1 (1887),” No. 140.↩
- Ibid., No. 49.↩
- See “United States No. 1 (1887),” No. 148.↩
- 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.↩