QUESTION TWO. 47 



Mr. Root replied in a letter to Mr. Whitelaw Reid (the 30th June, 

 1906) (App., p. 498) 



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 

 right and duties in respect of the ship. As this is conceded to be 

 ( .-.-entially " 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. 



I find in the memorandum no substantial dissent from the first 

 proposition of my note to Sir Mortimer Durand on the 19th October, 

 1905, that any American vessel is entitled to go into 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. 



Xor 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 proposi- 

 tions, 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 

 harbours 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 cannot 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 sugges- 

 tion has ever been made of a right to scrutinise 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 3rd article 

 of the treaty of 1783. The treaty made at the same time between 

 Great Britain and France, the previous treaty of the 10th 

 54 February, 1763, between Great Britain and France, and the 

 Treaty of Utrecht of the llth April, 1713, in like manner con- 

 tained 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 has a right to inquire into 

 the nationality of the members of the crew employed upon a French 

 vessel. 



Nearly 200 years have passed during which the subjects of the 

 French King and the inhabitants of the United States have exercised 



