« PreviousContinue »
It has already been demonstrated that the maritime territory of a State extends seawards to a distance of a cannon shot from its coasts, which distance is generally supposed to be three marine miles: over that maritime territory the right of sovereignty of the State possessing the coast is supreme: beyond that band of sea no State has rights of sovereignty—the ocean is res nullius, it is common property, and the United States never had any right to subject vessels at a distance of more than a cannon shot from their coasts to visitation and their masters to examination. And yet no complaint has been made of such usurpation, because other nations out of comity permitted the exercise of the rights claimed, conceiving them to be essential for the protection of the United States revenue.
The mere fact of a vessel hovering within three marine miles of any of the coasts, bays, creeks, or harbours of Canada, is a suspicious circumstance, and may justly engender suspicion of smuggling, even if not hovering on that portion of Canadian maritime territory not included in the limits specified in the Convention; if on the contrary the hovering be on the non-included portion, the intention to fish illegally is a presumption almost de jure—a fortiori if the preparations to fish therein are manifest.
In such cases, the practice of the United States Admiralty Courts, with respect to vessels sailing for legally blockaded ports of a belligerent is apposite.
According to the doctrine and practice of those Courts, the mere fact of a vessel sailing for a blockaded port, the master knowing it to be blockaded, is in itself an attempt to break the blockade, and an act sufficient to charge the party with a breach of the blockade without reference to the distance between the port of departure and the port invested, or to the extent of the voyage performed when the vessel was arrested/—)
It is a presumption almost dejure, that the neutral if found on the interdicted waters, goes there with an intention to break the blockade; and it would require very clear and satisfactory evidence to repel the presumption of a criminal intent. <-2S>
(22) Yeaton v. Fry 5 Cranch 335; The Nereide 9, Cranch 440, 446.
(23) Abdy's Kent, p. 369; The Neutralitat 6, Rob. 30 ; The Charlotte Christine, ib. 101; The Eute Erwarting, ib. 282; Bynk, Q. I. Pub. b. 1, c. 11; The Arthur 1 Edw. Rep. 202; Radcliff v. U. Ins. Co. 7, Johns 47; Fitzsummons v. Newport Ins. Co. 4 Cranch 185; The Josephine, 3 Wallace TJ. S. Sup. Ct. R., page 83; The Cheshire id. 231; The Admiral id. 603.
The clauses set out of the Canadian Statutes, it must be remarked do not apply solely to vessels belonging to the United States—the terms made use of are general, and all foreign and British vessels are subject to their provisions, with the exception, of course, that British vessels are not liable to forfeiture for fishing or preparing to fish.
It is intimated in the President's Message that the regulations and provisions contained in the clauses in question infringe the provisions of the Convention of 1818. A very cursory examination of Article 1, of that Convention cannot fail to show the groundless nature of the insinuation:
Art. I.—Whereas differences have arisen respecting the liberty claimed by the United States, for the inhabitants thereof, to take, dry and cure fish, on certain coasts, bays, harbours, and creek's, of His Britannic Majesty's Dominions in America, it is agreed between the high contracting parties, that the inhabitants of the said United States, shall have, forever, in common with the subjects of His Britannic Majesty, the liberty to take fish of every kind, on that part of the southern coast of Newfoundland, which extends from Cape Ray to the Rameau Islands, on the western and northern coast of Newfoundland, from the said Cape Ray to the Quirpon Islands, on the shores of the Magdalen Islands, and also on the coasts, bays, harbours and creeks, from Mount Joly, on the southern shore of Labrador to and through the Straits of Belleisle, and thence northwardly indefinitely along the coast, without prejudice, however, to any of the exclusive rights of the Hudson's Bay Company: and that the American fishermen shall also have liberty, forever, to dry and cure fish in any of the unsettled bays, harbours, and creeks, of the southern part of the coast of Newfoundland hereabove described, and of the coast of Labrador; but so soon as the same, or any portion thereof, shall be settled, it shall not be lawful for the said fishermen to dry or cure fish at such portion so settled, without previous agreement for such purpose, with the inhabitants, proprietors, or possessors of the ground. And the United States hereby renounce forever, any liberty heretofore enjoyed or claimed by the inhabitants thereof, to take, dry or cure fish on or within three marine miles of any of the coasts, bays, creeks, or harbours of His Britannic Majesty's Dominions in America, not included within the above mentioned limits; provided, however, that the American fishermen shall be admitted to enter such bays or harbours, for the purpose of shelter and of repairing damages therein, of purchasing wood, and of obtaining water, and for no other purpose whatever. But they shall be under such restrictions as may be necessary to prevent their taking, drying or curing fish therein, or in any other manner whatever abusing the privileges hereby reserved to them.
It may be proper here to notice the third charge contained in the President's Message; it is couched in the following words:
"It has been claimed by Her Majesty's officers that the fishing vessels of the United States have no right to enter the open ports ot the British possession in North America except for the purposes of shelter and repairing damages, of purchasing wood and obtaining water; that they have no right to enter at the British custom-houses or to trade except the purchase of wood and water; and that they must depart within twenty-four hours after notice to leave. It is not known that any seizure of a fishing vessel carrying the flag of the United States has been made under this claim. So far as the claim is founded on an alleged construction of the Convention of 1818, it cannot be acquiesced in by the United States. It is hoped that it will not be insisted on by Her Majesty's Government. During the conferences which preceded the Convention of 1818, the British commissioners proposed to expressly exclude the fishermen of the United States from the privilege of carrying on trade with any of His Britannic Majesty's subjects residing within the limits assigned for their use, and also that it should not be lawful for the vessels of the United States engaged in such fishery to have on board any goods, wares or merchandise whatever, except such as were necessary for the prosecution of their voyages to and from the said fishing grounds, and any vessel of the United States which should contravene this regulation to be seized, condemned and confiscated with her cargo. This proposition, which is identical with the construction now put upon the language of the Convention, was emphatically rejected by the American commissioners, and thereupon was abandoned by the British plenipotentiaries, and Article 1 as it stands in the Convention was substituted. If, however, it be said that this claim is founded on provincial or colonial statutes, and not upon the Convention, this Government cannot but regard them as unfriendly and in contravention of the spirit, if not the letter of the treaty, for the faithful execution of which the Imperial Government is alone responsible."
As a general principle it maybe laid down that a State has the exclusive right of regulating the importation of foreign goods into its territory, may prohibit such importation entirely, may admit goods on payment of duty, or may confine the entry of such goods to specified ports in its territory, No State has a right to interfere with the customs laws of another State. ®Q
Under the first part of the article of the Convention of 1818, within the limits therein specified the inhabitants of the United States have, in common with British subjects, solely the rights to
(24)| Lawrence's Wheaton, Ed. 1863, pp. 160, 161, 174.
take, dry, and cure fish in the maritime territory of British North America. It cannot be pretended with any show of reason that, by that article, American fishermen have any greater privilege than other foreigners coming into the limits specified, save and except the rights of fishing and drying and curing fish, as therein expressly agreed; the effect of that first part of the article is not to vest in the United States a right of property in the said limits, but merely a right to make use of them in common with British subjects for the purposes agreed upon; there is no contract by which American subjects are declared to be free from the obligations imposed on vessels coming into British waters by the customs laws; there is no stipulation by which American vessels are permitted to engage in trade, on the coast, without entry under the customs laws of their cargoes; and yet the pretensions put forward in the Message are virtually to the effect that the inhabitants of the United States having by article 1, of the Convention of 1818, secured forever the liberty of fishing and drying and curing fish within certain limits, have thereby also the right of setting at nought the customs laws of Canada and of carrying on trade throughout the maritime portion of British North America without being trammelled by the statutes regulating imports. The question raised by the President may then be put in these words:
Does article 1 of the Convention of 1818, by which it was agreed between Great Britain and the United States, that the inhabitants of the United States should forever have the right of fishing in common with British subjects within certain limits, of drying and curing fish within certain other limits, and by which permission was granted to American fishermen to enter hays, and harbours, not included within the specified limits for the purpose of shelter and repairing damages, purchasing wood and procuring water, and for no other purpose whatever, give to American fishermen the right of carrying on trade throughout the whole maritime territory of Canada, free from, and untrammelled by, the provisions of their customs laws?
The only answer which can be given by a lawyer to this question is a negative.
If there was any difficulty in the interpretation of the terms made use of in article 1 of the Convention of 1818, reference might perhaps be permitted to the negotiations preceding it to explain an ambiguity, but where the meaning of the words used is not susceptible of being misunderstood, the ordinary rules regulating contracts must be applied and the Convention alone must be looked to as the binding agreement between the high contracting parties. C25)
Moreover, upon that point the idea of United States commissioners overreaching themselves in negotiating a treaty 'with Great Britain is so novel and refreshing to Canadians, that no pains should be spared on our part to preserve a phenomenon of such excessively rare occurence.
For the sake of argument, however, placing the widest construction possible upon the first part of the article in question, it may be taken for granted that within those limits, the inhabitants of the United States have the same rights as British subjects. But British subjects have no right to bring into any portion of those limits foreign goods which have not paid duty to Canada, Prince Edward Island, or Newfoundland, as the case may be, and barter, trade away, or sell such goods within those limits. Consequently, citizens of the United States have no such right; they can purchase in Canada, Prince Edward Island, or Newfoundland, goods which have been regularly entered, and on which duty has been paid in any of those countries, and sell them in the maritime territory of the country wherein the duty was paid, if the second part of the article does not prohibit such trading; but as for importing foreign goods, they clearly must enter them at some British custom-house, and pay the duty, ere offering them for sale in British maritime or land territory.
But here again the latter portion of the article interposes a serious obstacle. By it, American fishermen can only enter bays or harbours not included within the specified limits, for the four purposes " of shelter and of repairing damages, of purchasing wood, and of obtaining water." Now, unfortunately for American fishermen, there is not a port of entry, belonging to Canada, within the limits specified in the article, save in the Magdalen Islands,—all the ports of entry, with that exception, being in that portion of Canada not included within the specific limits, so that the purpose of entering goods not being one of the four purposes for which alone American fishermen can enter Canadia ports or harbours, not included in the specified limits, they cannot enter a Canadian port of entry, save in the Magdalen Islands, for the purpose of entering goods.
(25) Powell on Ev. p. 354, 511-516; Taylor on Ev. §372.