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Treasury, in a report to the Speaker of the House of Representatives (10th January, 1887), while characterising some colonial con69 duct as actuated by " unworthy and petty spite," fully endorsed the British view as to the reasonableness of colonial customs laws. He said (App., p. 372):
The head of this department, having the responsibility of enforcing the collection of duties upon such a vast number of imported articles, under circumstances of so long a sea-coast and frontier line to be guarded against the devices of smugglers, should not be inclined to under-estimate the solicitude of the local officers of the Dominion of Canada to protect its own revenue from similar invasion. The laws for the collection of duties on imports in force in the United States and in the Dominion of Canada, respectively, will be found on comparison to be on many points similar in their objects and methods. They should naturally be similar, for both had, in the beginning, the same common origin. In the United States, Congress has divided the territory of each State by metes and bounds, usually by towns, cities, or counties into collection districts, for the purpose of collecting duties on imports, and in each collection district has established a port of entry and ports of delivery. In that manner all our seacoast frontier is sub-divided for revenue purposes. The object of our law is to place every vessel arriving from a foreign port in the custody of a customs officer immediately upon her arrival, in order that no merchandise may be unladen therefrom without the knowledge of the Government. The Canadian law is much the same as our own in that regard, and in comparison with our own does not seem to me [to] be unnecessarily severe in its general provisions. Our own law provides, for example (section 2774 Rev. Stat.) that:
Within twenty-four hours after the arrival of any vessel from any foreign port, at any port of the United States established by law, at which an officer of the customs resides, or within any harbour, inlet, or creek thereof, if the hours of the business of the office of the chief officer of customs will permit, or as soon thereafter as such hours will permit, the master shall report to such officer, and make report to the chief officer of the arrival of the vessel; and he shall within forty-eight hours after such arrival make a further report in writing to the collector of the district, which report shall be in the form, and shall contain all the particulars required to be inserted in and verified like the manifest. Every master who shall neglect or omit to make either of such reports or declaration, or to verify any such declaration as required, or shall not fully comply with the true intent and meaning of this section, shall, for each offence, be liable to a penalty of one thousand dollars.
Condemnation does not, in the opinion of this Department justly rest upon the Dominion of Canada because she has upon her statute-books and enforces a law similar to the foregoing, but because she refuses to permit American deep sea fishing vessels, navigating and using the ocean, to enter her ports for the ordinary purposes of trade and commerce, even though they have never attempted to fish within the territorial limits of Canada, and intend obedience to every requirement of the customs laws, and of every other law of the port which such vessel seek to enter.
LIGHT AND HARBOUR DUES.
The general principles of the law of nations have always sanctioned the levying of a moderate tax on vessels to defray the expense of improving harbours, and establishing and maintaining lighthouses, sea marks, and other things necessary to the safety of mariners. The furnishing of these facilities to navigation has always been deemed a sufficient consideration for imposing and collecting reasonable dues on vessels using them.
It is not necessary to discuss the question whether foreign merchantvessels, merely passing through a nation's maritime belt, come under any obligation to pay light dues, as it does not arise in connection with a consideration of this question. The vessels used by American fishermen in their fishing operations do not merely pass through the maritime belt of the Colonies, they remain and carry on their business there. By merely passing through the territorial waters it might be argued that they do not come under British supremacy, but by remaining and carrying on fishing operations it must be conceded that they do. The only question, therefore, is are they, by reason of the treaty, exempt from any liability to contribute light dues when they come within treaty waters to exercise their treaty right, and from light dues and harbour dues when they enter and anchor in any port or place in the Colony.
Before discussing the question it is desirable to refer briefly to some of the legislation that has been in force in England, in the Colonies, and also in the United States.
LIGHT DUES IN ENGLAND.
The practice of levying light dues on vessels, home and foreign, was well established in England before the inhabitants of the United States repudiated British allegiance. Lighthouses, there, were not erected at the public expense, but under patents or leases, granted to certain individuals or corporations, the grantees being given the right to recompense themselves by levying tolls.
Lighthouses, in England, are under the jurisdiction of Trinity House, an ancient corporation, brought into existence, no doubt, by the rise of maritime commerce, and the consequent necessity of supervision of navigation.
The first British statute dealing with lighthouses in England, was 8 Eliz., cap. 13 (1565). It empowered Trinity House to erect and maintain beacons, marks and signs for the sea. That the object of the legislation was the security of navigation and the saving of life and property is shown by the following recital to the Act:
by the destroying and taking away of certain steeples, woods, and other marks standing up on the main shores adjoining to the sea
coasts of this realm of England and Wales, being as beacons and marks of ancient time accustomed for sea-faring men, to save and keep them and the ships in their charge from sundry dangers thereto incident: divers ships with their goods and merchandises, in sailing from foreign parts towards this realm of England and Wales, and especially to the port and river of Thames, have, by the lack of such marks, of late years been miscarried, perished and lost in the sea, to the great detriment and hurt of the common weal, and the perishing of no small number of people.
The power to levy light dues was not given to Trinity House under this Act. It was granted chiefly by Crown patents, and partly by Acts of Parliament, including, 4 Anne, cap. 20 (1705) (App., p. 528); 8 Anne, cap. 17 (1709); and 18 Geo. III, cap. 42 (1778) (App.. p. 552). At that time, many lighthouses were in the hands of private individuals under patents or leases from the Crown or from Trinity House, these individuals paying a rent and being entitled to collect tolls. Some of these were ratified by certain Acts, including 3 Geo. II, c. 36 (1730); 6 Geo. III, c. 31 (1766); 12 Geo. III, cap. 29 (1772); and 42 Geo. III, cap. xliii (local and personal). In 1822, Trinity House by statute, 3 Geo. IV, cap. cxi (local and personal), received power to purchase private interests in lighthouses. In 1836 (6 and 7 Wm. IV, cap. 79), the Crown conveyed its rights in certain lighthouses to Trinity House, and granted further powers to that corporation to purchase the interests of private individuals, and from that time the rights of private parties were practically ended.
In England, prior to the Merchant Shipping (Mercantile Marine Fund) Act, 1898, the light dues were levied in respect of each light which the vessel passed on her journey, that is, each light from which the vessel might derive benefit. But that system proved to be cumbersome and unsatisfactory, and the dues are now levied in respect of the voyage, irrespective of the number of lights passed.
LIGHT DUES IN COLONIES PRIOR TO 1783.
Prior to the treaty of 1783, lighthouses were erected on the coasts of Massachusetts Bay and Nova Scotia, and by various statutes, certain tolls were authorised to be collected for the maintenance thereof. Under some of these, fishing vessels were exempt, and under others, fees were charged, but at a lower rate than in the case of ordinary merchant vessels.
1715-16, Massachusetts Bay (cap. 4).—A statute of the colony recited that the want of a lighthouse at Boston Harbour had, by the loss of life and property, discouraged navigation, and for remedy thereof
provided that a lighthouse should be erected at the expense of the province, and that after (App., p. 773)
kindling a light in it, useful for shipping coming into or going out of the harbor of Boston, or any other harbour within the Massachusetts Bay, there shall be paid to the receiver of impost, by the master of all ships and vessels, except coasters, the duty of one penny per ton, inwards, and also one penny per ton, outwards.
"Coasters" meant such vessels as imported provisions, tar, pitch. turpentine, or lumber, and whose owners belonged to Massachusetts Bay, Rhode Island, Connecticut, New York, Jerseys, Pennsylvania, Maryland, Virginia, North Carolina, or Nova Scotia. They were to pay 28. each time they cleared out. All
fishing vessels, wood-sloops, &c., employed in bringing of fish, wood, stones, sand, lime or lumber, from any of the parts within this province,
were to pay 58. yearly at their first coming in or going out. Certificates of payment were to be supplied at a charge of 6d., and vessels were not to be cleared until the certificate was presented to the naval officer. The ship and the master were charged with the duty till paid.
1751-52, Massachusetts Bay (cap 2).-The lighthouse at Boston Harbour having been damaged by fire, and (App., p. 774)
it being reasonable that the charge of such repairs should be borne by those who receive the immediate benefit thereof,
all vessels clearing out from a port within, to a port without, the province, within two years, were required to pay additional dues (28., 38., or 48., according to tonnage), to be applied to the uses aforesaid.
1759-Nova Scotia passed a statute (23 Geo. II., cap. 2) for regulating and maintaining a lighthouse on Sambro Island, at Halifax Harbour. Light dues were levied at the rate of 6d. per ton on merchant vessels coming into or going out of the harbour; but if the vessel wholly belonged to a freeholder or inhabitant of the province, only 4d. a-ton was charged. Vessels wholly employed in fishing were exempt, and coasters wholly employed within the province were charged 208. per annum in lieu of dues. (App., p. 587.) 1770-71.-A statute of Massachusetts (cap. 35) provided for the erection of a lighthouse either at Thatcher's Island or on the mainland of Cape Ann, and the masters of all vessels belonging to, or entering any of the harbours in the province, to whom the said light should be useful, were required to pay the like duty, or light money, as was payable under the Act respecting the lighthouse at Boston Harbour (1715-16, cap. 4). If any vessels, belonging to any of the harbours referred to, arrived at Boston and paid light money there,
it was not to be demanded again. Payment was to be made before the vessel was cleared, and the vessel and the master both stood charged with the duty till paid. (App., p. 774.)
1774.-An Act of Massachusetts Bay (cap. 2) for maintaining a lighthouse upon Brant Point, at the entrance of the harbour of Nantucket, contained the following recital (App., p. 775) :—
Whereas the inhabitants of the island of Nantucket, at their own cost and charge, have, at different times, erected three lighthouses upon Brant Point, at the entrance of the harbour of Nantucket, the first of which was destroyed by fire and the second by a violent gust of wind; the third is now standing, and is absolutely necessary for all vessels coming in and going out of said harbour, but the inhabitants of said island have hitherto borne all the charge of erecting and maintaining the said lighthouse, which burthen ought, in equity, to be borne by all vessels receiving advantage from that light, belonging to strangers as well as to the said inhabitants who have humbly petitioned this court for relief.
Each vessel of 15 tons burthen and upwards was required to pay 68. yearly on its first coming in or going out, the proceeds to be used for the support of the lighthouse. Vessels were not to be entered or cleared till the dues were paid.
LEGISLATION BETWEEN 1783 AND 1818.
Between the treaty of 1783 and the treaty of 1818, further legislation was passed by the United States and by Nova Scotia and New Brunswick authorizing the collection of additional light dues.
1787.-Nova Scotia Statute, 28 Geo. III, cap. 3, was passed to regulate and maintain a lighthouse on McNutt's Island at the entrance to Shelburne harbour. Dues were levied on merchant vessels, other than coasters and fishing vessels belonging to the province, of 4d. a ton, or 3d. if wholly belonging to any freeholder or inhabitant of the province. No vessel was to be deemed a fishing-vessel unless wholly employed in that business. (App., p. 591.)
1793.-Nova Scotia passed an Act (33 Geo. III, c. 16) to amend the Acts relating to Sambro and Shelburne lighthouses. It recited that the previous laws for maintaining these lighthouses had proved ineffectual for that purpose, and, that many ships and vessels which derived great benefits were not, by the said Act, compelled to pay. It enacted that (App., p. 594)
all registered vessels owned by any person or persons within this Province, and not wholly employed in the fisheries thereof,
which did not come into the harbour at Halifax or Shelburne, and pay dues there, should pay 4d. per ton in the port to which they belonged, and that
every ship or vessel, His Majesty's ships of war, and such transports or other vessels employed in His Majesty's service, as shall by their charter party be exempted from paying port charges excepted, which