620 APPENDIX TO BRITISH CASE. 



to me, put beyond question by the fact that bounties were paid to 

 vessels engaged in American fisheries. 



In 1836, it was decided by Mr. Justice Story that when whales have 

 been caught, and oil has been therefrom produced, by the crew of an 

 American vessel, the oil is not the product of " foreign fishing " and 

 dutiable, even although owned by aliens when entered at our ports. 

 He said that the enquiry whether or not the oil was of " foreign fish- 

 ing : ' depended upon the nationality of the vessel when the whales 

 were caught and the oil extracted, and not upon any subsequent 

 events. 



In a series of comparatively recent decisions by this department, 

 copies of the text of which will be found in Appendix B, fisheries 

 have been defined as "American " within the meaning of our revenue 

 laws, although the taking of the fish be on the high seas, or within a 

 foreign jurisdiction. That should in part be so for other reasons 

 than were assigned in those decisions inasmuch as customs duties are, 

 in general, only imposed on articles when imported from a port, or 

 place, within the exclusive dominion of a foreign State, which could 

 not be said of fish, or their products, arriving from the ocean where 

 the fish were caught. 



The phrase " fisheries of the United States," is in the first 

 370 tariff laws enacted by the first Congress which sat under the 

 constitution, and the test of American fishing has, from that 

 day to this uniformly been the nationality of the vessel, regardless 

 of the place where the fish were taken. Even the treaty of Washing- 

 ton, which admitted free of duty into each country fish of all kinds 

 being the produce of the fisheries of either country, excepting fish of 

 the inland lakes, and of the rivers falling into them, left fish caught 

 therein by American vessels entitled to free entry in our ports as 

 formerly. Our Supreme Court declared in 1876, that, subject to 

 the paramount right of navigation (the power to regulate which is 

 in the Federal Government) each State owns the bed of the tide- 

 waters within its jurisdiction, and may appropriate them to be used 

 exclusively by its citizens as a common for cultivating and taking 

 fish if navigation be not impeded ; but the treaty of 1854 gave, never- 

 theless, to British subjects, in common with American citizens, the 

 liberty to fish on our coasts north of the 36th parallel of north 

 latitude, and the treaty of 1871 gave the liberty north of the 39th 

 parallel. Those treaties having fallen, and the fishing rights of 

 Massachusetts on her coasts having returned to her, she may permit 

 British vessels to fish on her coasts, but then it could not be said 

 that the fish, if entered at our ports, had been imported from a 

 foreign port. But apart from such an improbable incident to com- 

 plicate the proposition, it may be safely affirmed that all fishing- 

 grounds, whether on the high seas, or on the Canadian coasts secured 

 to us by treaty stipulations, are "American fisheries " if the fish are 

 caught by vessels regularly documented by the Treasury Department. 

 In that sense and to that end, the ocean and certain Canadian coasts 

 are (under the treaties of 1783 and 1818) our " fishing-grounds." 



WHAT VESSELS ARE AMERICAN VESSELS? 



In this relation, which concerns the freedom from taxation at our 

 ports of fish products taken in the sea, or on Canadian coasts, and also 



