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of American fishermen under the treaty. I further submit that when the sovereign power granted privileges to the United States under the convention of 1818 it retained its inherent rights of supremacy, such as the right to execute the treaty within its own dominion, and to make and enforce all laws not inconsistent with the treaty; that one of the inherent rights of sovereignty is to prevent smuggling and crimes of all kinds; that this government, by virtue of the constitution granted to them by His Majesty, is the paramount power within the 3-mile limit of the coasts of the colony, and that it is their inherent right to decide what measures shall be adopted to protect the revenues of the colony from smuggling. One of the measures which have been adopted is the obligation on all vessels to enter and clear at the custom-house. When United States vessels do not come within the territorial waters of the colony they, of course, are not required to enter, but immediately they come within our territorial jurisdiction I hold that they are subject to our customs and other laws. In voicing this opinion I voice the opinion of the government of this colony.
The correctness of this position was never questioned by United States citizens until the masters of the U. S. schooners H. J. Stanley, Senator Gardner, Tattler, and Marine refused to make a formal report to the subcollector at Bay of Islands a few months ago. Between January, 1900, and June, 1902, four United States schooners were fined for non reporting, and with these exceptions United States vessels have always entered and clea red. Under the customs acts, 1898, particularly section 22 (61 Vict., cap. 13), it is provided that, “the master of every vessel coming from any port or place within this colony, or coastwise, on entering any port in this colony, whether laden or in ballast, shall go without delay when such vessel is anchored or moored, to the custom-house for the port or place of entry where he arrives, and shall make a report in writing to the collector or other proper officer of the arrival and voyage of such vessel,” etc. United States vessels are not exempt, either by the treaty of 1818 or any other convention or arrangement. It will be observed that there is nothing contained in the bill now before the house to deal with this matter, for it would be entirely unnecessary and superfluous, inasmuch as provision is made in the statutes of the colony to which I have refe red. Again, the foreign fishing vessels act of 1905 stipulated that any attempt “to engage any person to form part of the crew of said vessel in any outport or on any part of the coasts of this island” would subject the vessel to forfeiture. The said act further provided that no foreign fishing vessel should enter the waters of this colony " for any purpose not permitted by treaty or convention for the time being in force." The employing, shipping, or hiring of the fishermen of this colony by United States fishing vessels last season was unquestionably aiding and abetting the subjects of His Majesty in this colony to violate those fishery laws to which they were amenable. The privileges granted under the treaty of 1818 were to the subjects of the United States alone. The people of this colony who proceeded outside the 3-mile limit and engaged or hired themselves to American vessels to catch herring, were not subjects of the l’nited States, and the mere entering into the service of American citizens did not and could not give them rights which were alone granted by treaty to the subjects of the United States. The United States Government have not disputed, so far as I am aware, the correctness of this position, but nevertheless the agents of the United States schooners at Bay of Islands unquestionably entered into an agreement with a large number of British residents of that place and induced them to proceed outside the 3-mile limit and engage themselves on board American vessels in violation of the spirit if not the letter of the foreign fishing vessels act and the bait act, which has been in force in this colony for a number of years. With a view to dealing with this condition of affairs provision is made in the bill now before the house that no British subject shall fish from or for foreign fishing vessels in the waters of this colony, and imposing a penalty upon the masters of such vessels that permit such fishing. It is further provided that no inhabitant of this colony shall leave the colony for the purpose of engaging on a foreign fishing vessel intending to fish in the waters of the colony, and that no inhabitant of the colony shall sell, let, or lend, or remove from the colony for the purpose of selling, letting, or lending, to the masters of any foreign fishing vessels, boats, nets, and gear, and prohibiting the purchase or borrowing by a foreign vessel within the territorial waters of the colony, such boats, nets, or gear from the inhabitants of the colony. The foreign fishing vessels act of last year was passed in the interests of the people of the colony, and especially in the interests of the people of the west coast, and it is to be regretted that it was deliberately
violated last year in order to render assistance to American fishermen in thwarting the operation of a policy that has been forced upon the government of the colony by the action of the fishing interests of Gloucester, Mass. In view of the attempt that was made last year to render void our laws which the legislature, in its wisdom, has found it necessary to pass, in the interests of the fisheries and trade and commerce of the colony, I feel confident that the house will recognize the justification for taking this further legislative power to deal with the transgressors. It will be observed that the fifteenth and eighteenth sections of the act now before the house provide that it shall come into operation on a day appointed for the purpose by proclamation of his excellency the governor. This has been inserted in order that reasonable public notice may be given to all parties who are interested in this measure, and that the governor in council may at any time by proclamation suspend or limit the operation of this act, or any part thereof, to the whole colony or any portion of it, as may be deemed expedient. It is to be hoped that the adoption of this measure will prevent a repetition of the vexatious circumstances to which I have but casually referred, and that the people, especially those of the west coast, recognizing that this act is framed with due regard to their material interests, will aid and assist the government by a ready acquiescence in its provisions. I beg to move the second reading of the bill.
Be it enacted by the governor, the legislative council, and house of assembly, in legislative session convened, as follows:
1. Any justice of the peace, subcollector, preventive officer, fishery warden, or constable may go on board any foreign fishing vessel, being within any port on the coasts of this colony, or hovering in British waters within 3 marine miles of any of the coasts, bays, creeks, or harbors in this colony, and may bring such foreign fishing vessel into port, may search her cargo, and may examine the master upon oath touching the cargo and voyage, and the master or person in command shall answer truly such questions as shall be put to him, under a penalty not exceeding $500.
2. If any foreign fishing vessel be found within any port on the coasts of this colony, or hovering in British waters within 3 marine miles of any of the coasts, bays, creeks, or harbors in this colony, and having on board any herring, caplin, squid, or other bait fishes, ice, lines, seines, or other outfits or supplies for the fishery, purchased within any port on the coasts of this colony, or within the distance of 3 marine miles from any of the coasts, bays, creeks, or harbors of this colony; or if the master, owner, or agent of the said vessel shall have engaged, or attempted to engage, any person to form part of the crew of the said vessel in any port, or on any part of the coasts, of this colony,
or has entered such waters for any purpose not permitted by treaty or convention for the time being in force, the master, owner, or agent shall be liable to a penalty not exceeding $100, or such vessel and the tackle, rigging, apparel, furniture, stores, and cargo thereof shall be forfeited, as the magistrate before whom the proceeding is taken shall determine.
3. All goods and vessels, and the tackle, rigging, apparel, furniture, stores, and cargo thereof, liable to forfeiture under this act, may be seized and secured by any officer or person mentioned in the first section hereof, and every person opposing any such officer or person in the execution of his duty under this act, or aiding or abetting any other person in such opposition, shall be deemed guilty of a misdemeanor and liable to a fine of $500.
4. In any prosecution under this act the presence on board any foreign fishing vessel in any port of this colony, or within British waters aforesaid, of any caplin, squid, or other bait fishes, of ice, lines, seines, or other outfit or supplies for the fishery shall be prima facie evidence of the purchase of the said bait fishes and supplies and outfits within such port or waters.
5. No alien, not so entitled by treaty or convention for the time being in force, shall fish in the waters of this colony; and the master, owner, or agent of any fishing vessel who permits any alien not so entitled to fish in, from, or for such vessel shall be liable to a penalty not exceeding $100, or to the forfeiture of such vessel, as the magistrate shall determine.
6. No person, being a British subject, shall fish in, from, or for a foreign fishing vessel in the waters of this colony, and the master, owner, or agent of any foreign fishing vessel who permits any such British subject to fish in, for, or from such vessel shall be liable to a penalty not exceeding $100, or to the forfeiture of such vessel, as the magistrate shall determine.
7. No person, being a resident of this colony, shall leave this colony for the purpose of engaging in foreign fishing vessels which are fishing or intending to fish in the waters of this colony, under a penalty not exceeding $100.
8. No person, being a resident of this colony, shall sell, let, hire, lend, or remove from this colony for the purpose of selling, letting, hiring, or lending to a master, owner, or agent of any foreign fishing vessel any boats, nets, or gear, under a penalty not exceeding $100; nor shall the master, owner, or agent of any foreign fishing vessel buy, hire, or borrow, in any port or place in this colony, or in the waters of this colony, any boats, nets, or fishing gear, from any person resident in this colony, under a penalty for each offense not exceeding $100.
9. The master of any vessel who conveys any person resident in the colony outside the waters of this colony for the purpose of enabling such person to be engaged on boa rd any foreign fishing vessel shall be liable to a penalty not exceeding $100.
10. All offenders against the provisions of this act may be prosecuted and convicted, and all fines, forfeitures, penalties, and other punishments imposed, recovered, and made in a summary manner before a stipendiary magistrate; and any vessel, and the tackle, rigging, apparel, furniture, stores, and cargo thereof, liable to forfeiture under the provisions of this act, may be sued for, prosecuted, recovered, and condemned in a summary manner before a stipendiary magistrate in a proceeding against the master or other person in charge of such vessel. For the purposes of this act all stipendiary magistrates shall be deemed to be stipendiary magistrates for the colony, and may exercise the jurisdiction given by this act in any part of the colony.
11. If any person convicted under this act shall feel himself aggrieved by such conviction, he may appeal therefrom to the then next sitting of His Majesty's supreme court holden in or nearest the place where such conviction shall have been had, or on St. John's, provided notice of such appeal and of the cause and matter thereof be given to the convicting magistrate in writing within seven days next after such conviction; and the party desiring to appeal shall also, within fourteen days after such notice, give and enter into recognizance, with two approved sureties, before the convicting magistrate, conditioned for the appearance of the person convicted at such next sitting of the supreme court, on the first day of such sitting, for the prosecution of the appeal with effect and without delay, to abide the judgment of the court thereon, and for the delivery and surrender of any vessel or other property ordered to be confiscated, and to pay such costs as the court may award.
12. No proceeding or conviction by, nor order of, any magistrate or other officer under this act shall be quashed or set aside for any informality, provided
the same shall be substantially in accordance with the intent and meaning of this act.
13. All foreign fishing vessels exercising rights under any treaty or conrention shall be amenable to all the laws of the colony not inconsistent with any such rights under treaty or convention.
14. Nothing in this act shall affect the rights and privileges granted by treaty to the subjects of any State in amity with His Majesty; and sections i and 1 hereof shall not be held to apply to any foreign fishing vessels resorting to the waters of this colony for the exercise of treaty rights.
15. The governor in council may at any time by proclamation suspend or limit the operation of this act, as to the whole act or any part thereof, and in relation to the whole colony, or any district or parts hereof, and as to all or any class of persons, and for any period as shall be expedient, and as may be declared in such proclamation.
16. In this act the word vessel shall include any boat or ship, registered or not registered, jack, skiff, punt, or launch whether propelled by sails, oars, or steam.
17. The act 5 Ed. VII, cap. 4, entitled "An act respecting foreign fishing vessels,” is hereby repealed.
18. This act shall come into operation upon a day to be appointed for that purpose by proclamation of the governor to the effect that the same has been approved and confirmed by His Majesty in council.
IMPRISONMENT FOR A NONEXTRADITABLE OFFENSE OF A
FUGITIVE SURRENDERED BY GREAT BRITAIN.
I'ashington, May 24, 1906. In May, 1905, an application was made to His Majesty's Government, and granted by them, for the extradition of one Authur McIntire, on the charge of larceny (constituting the crime of embezzlement according to the law of the State of Missouri).
It appears that previous to his arrival in England McIntire was involved in a case of using the United States mails in a scheme to defraud; that he was convicted under this charge in the United States district court of St. Louis on May 21, 1904, and had appealed from the verdict and was out on bond pending the hearing of his appeal. It further appears that he jumped his bond and fled to England. His offense being one for which his extradition could not be demanded, his bondsmen, in order to recover their bond, charged McIntire with embezzlement, and his extradition was applied for and granted on this count.
McIntire states that on his arrival at St. Louis he was informed that the charge of embezzlement would not be pressed against him on the condition that he consented to stand his trial for violation of section 5480 of the Revised Statutes of the United States. He came up for trial on the charge of embezzlement and the case was dismissed. He was then brought before the federal authorities and was committed to jail on the original sentence of May 21, 1904, to eighteen months' imprisonment for violation of section 5480. In explanation of his consenting to surrender himself, McIntire states that pressure was brought to bear on him and that as he was worn out by fatigue and penniless, he considered this course preferable to waiting to be tried on the charge of embezzlement.
McIntire is now undergoing imprisonment for a nonextraditable offense after he had been extradited to this country for an extraditable offense, which it would appear from the evidence in the possession of His Majesty's embassy it was never intended to press seriously against him.
DEPARTMENT OF STATE,
Washington, June 4, 1906. The Department of State is in receipt of a memorandum, dated the 24th ultimo, from the British embassy, in regard to the case of Arthur McIntire, who has been sentenced to imprisonment in the United States for a nonextraditable offense after he had been brought back to this country on the charge of embezzlement.
While all the details of this case are not before the department, it appears that the prisoner, although surrendered for one offense, voluntarily submitted to be tried for another. In a case involving this principle which arose in 1895 the department informed the German embassya that this Government could not undertake to guarantee that a fugitive so surrendered would not waive his privilege of exemption from trial, or that the courts, should he so submit, would refuse to try or punish him.
The question, however, being of a judicial nature, the appropriate remedy to pursue would appear to be for the prisoner to apply for a writ of habeas corpus whereby his rights could be judicially determined. The particular principle involved in this case seems never to have been authoritatively settled by the courts of this country, although it is authoritatively settled by the Supreme Court of the United States in extradition cases that a prisoner indicted for one offense can not legally be held or tried for an offense other than that for which he was extradited. An attempt to try a prisoner for another offense could be regarded solely as an abuse of extradition process. In this instance, however, it appears that the prisoner voluntarily appeared in court, and that by so doing he waived the right to the protection of the treaty of extradition. The question, however, is one of first impression, and is a matter for the courts, not for the executive department, to determine.
In respect to the charge of mala fides in procuring the extradition, the department hardly needs to assure the embassy of its emphatic condemnation of any and all such subterfuges as it is alleged were practiced by the bondsmen in this case. Close scrutiny is given by The department to all applications for extradition before their presentation to a foreign government, in order to detect, wherever possible, any abuse of extradition process; but, if such abuse occurs, the remedy in a proper case would appear to be a judicial and not an executive function.
In order to prevent as far as possible a recurrence of abuses of extradition process, the department has prepared and sent to the governors of the various States and to the Attorney-General a circular, copy of which is inclosed herewith.
a Foreign Relations, 1895, pp. 488–494. 59605-FR 1906 --50