PERIOD FROM 1905 TO 1909. 979 



the ship as a registered or licensed vessel, but upon its being Ameri- 

 can; that is, owned and officered by Americans, and, therefore, 

 entitled to exercise the rights assured by the Treaty of 1818 to the 

 inhabitants of the United States. 



It is a cause of gratification to the Government of the United 

 States that the prohibitions interposed by the local officials of New- 

 foundland were promptly withdrawn upon the communication of the 

 facts to His Majesty's Government, and that the Memorandum now 

 under consideration emphatically condemns the view upon which the 

 action of the local officers was based, even to the extent of refusing 

 assent to the ordinary forms of expression which ascribe to ships the 

 rights and liabilities of owners and masters in respect of them. 



It is true that the Memorandum itself uses the same form of expres- 

 sion when asserting that American ships have committed breaches of 

 the Colonial Customs Law, and ascribing to them duties, obligations, 

 omissions, and purposes which the Memorandum describes. 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 conven- 

 ient 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 essen- 

 tially "& ship fishing," and as neither in 1818 nor since could there be 

 an American ship not owned and officered by Americans, it is prob- 

 ably 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 of 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. 



Nor 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 propositions, 

 to assert that the British Government is entitled to claim that, when 

 an American goes with his vessel upon the Treaty coast for the pur- 

 pose 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 fish- 

 ing 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 con- 

 tained 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 suggestion has ever been made of a right 

 to scrutinize the nationality of the crews employed in the vessels 

 through which the Treaty right has been exercised. 



