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' .i ' A-" ' rc3 L >^»***— 'iiMi t u ■■ I- ^ '^m^a Hi !■ Ill I III 1 I * THE FISHEEIES DISPUTE AND ANNEXATION OF CANADA BY J. H. DE RICCI -'^(*%. i LONDON SAMPSON LOW, MARSTON, SEARLE, & RIVINGTON Limited Fetter Lane, Fleet Street, E.G. 1888 [All riff his reserved^ -^■i^ ^^ LIMITS UNDER FISJIKH J818 AND 188 GULF OF S T. LJS.WREN as \ereau. P^ ltrch.P^ Ifa^dalen C.Hay Y TMKATI KS. H. NEWF0UN1)LAT|J»UNDLAND f^ Karo«a-l?.<^ ^^^ innicfri ^d ■■■ 50" SO" Toqo .ftel. ckfOTdl. ^ NEW libumichi Hay B II U JV S W I C K^ TaMzintac Quify Jjo/Bav^e, Bank. 65" Division of Chart Construction, Charles Laird, Lievt., U.S. Navy. l/lix^dAlMax r \ /■• Sojnii ro Banks Sable IsltvrtcL BcluI. { v. s. _ ^ J. 60' PvMished Apr. 1888 at the Hydrographic Office, Navy i This Map was laid before Congress by the Government of the Un New unratified Treaty. — J. H. --'ifl.: Connaiqr* h-r \ ■»• . MUlUtflUIL If v.^- tSf Pierre, [rtitnoTt SanA- - ) / / "^ i U j ( \ kiiii I* TV /;.s;u*/v.,m of the Uniled. States Imve Oie right OIL the coasts colored I— J C^S 77^ aZ«« 7,^/*'^ ihe right to djy arut cure hsfv in „n,} nveJfS of ttij coasts colored Wu^ (rty l^e^t L ri^kL to tnk^ fisU .0 ^ Hay. f (he l/nitfil States fuxve the right to taJiP fish of every kind. vLuivcL J. II. d I the riaht to iby and aire fish, in tlie luiaeltled. hays , harbors \v coasts colored \imtSd \- rifflxjL to tuk» fish irv ttu* JiayS rnarhed/ - ,1, , 5M irtment, U.S. A. ,d States as illustrating the effect or tne le R. 3 55' 'ating the effect ot tne I 4 ,x""*'».. / / \ / -N ) G R H A T N. BANK of eveiy hind hays , hojiors JAl.ih'H) \ It.-)"! r 50'' Vravm by A. C. Roberts v.?. ■:■■:•■/. ■ V I 1 .Is It r INTEODUCTION. " Peace hath her victories no less renowned than war." Milton. The cardinal diflSculty of conveying information to the electorate, on complex questions of internal policy and diplomatic foreign affairs, 'n such manner that all may be in a position to arrive at an impartial judgment, must ever be one of the most interesting problems of Representative Government. If the actual Presidential campaign in the United States has palpably demon- strated that this art has not yet attained a sufficient perfection, in one of the most highly educated countries in the world, it must then be self-evident, notwith- standing our marvellously organized and conscientious Press, notwithstanding the praiseworthy efforts made in recent years in the supreme cause of education, that the enlightenment of those who exercise the franchise in the Uuif.ed Kingdom should unceasingly occupy the close and unbiassed attention of all who are possessed of the necessary leisure and means to devote themselves to the loyal service of their fellow- countrymen. At the Cutlers' Feast at Sheffield, on September 281<.-3i ^mm VI hitrodiiction. 6th, replying to the toast of '' The Colonies and Dependencies of the British Crown/' proposed by Col. Howard Vincent^ M.P., Sir Charles Tupper, in the course of his speech, said : — " I feel that as I had the great honour of being one of her Majesty's Plenipotentiaries at the Treaty of Washington on a recent occasion, you will expect a few words from me before I sit down touching the somewhat extraordinary message which the President of the United States has recently sent to the Senate. I am the more anxious to make reference to the subject because I find a great want of information in a considerable portion of the press of this great country in regard to that treaty." This lack of information, in a popular form, ac- cordingly must be deemed the raison d'etre of this work, in which an endeavour shall be made to throw some light on the burning question now agitating two kindred and mighty peoples. J. H. DE EICCI. 60, Cornwall Gardens, London, S.W., 2Sth September, 1888. I CONTENTS. CHAPTER I. Treaty Clauses PARE 1 CHAPTER II. Friendli' Overtures 17 CHAPTER III. The Struggle for the Markets 25 CHAPTER IV. Annexatiox • • 30 Some Burning Issues CHAPTER Y. CHAPTER VI. Rktaliatiox • • 34 43 CHAPTER VII. Electioneering ! 62 :i • • * Vlll Cojilents. APPENDIX. The United States* Case PAGK 61 The Canadian Cask 147 Retaliation . 27-i Further Correspondence respecting North American Fisheries, 1887-88, with Despatch inclosing Treaty signed at Washington, February 15, 1888 . . 288 FA6R 61 147 27-i ,! THE FISHEEIES DISPUTE AND ANNEXATION OF CANADA. 288 ^' CHAPTER I. TREATY CLAUSES. " Yet lives the blond of England in our veins ! * * # # Yet still from either beach, The voice of blood shall reach, More audible than speech, ' We are one ! ' " WAsniNGTox Allston. In order to a just compreliension of tlie entire question, a rapid glance over some of the principal Treaty Clauses, upon which the main issue depends, will be primarily necessary. The 8rd Article of the Treaty of Peace of 1783, which ended the war between Great Britain and the United States, provided that the people of the last- mentioned country P* shall continue to enjoy un- molested the right to take fish of every kind on the Grand Bank, and on all the other banks of Newfound^ land; also in the Gulf of St. Lawrence, and at all B ^ \i 2 . Tke Fisheries Disptite, other places in the soa where the inhabitants of both countries used at any time heretofore to fish. And also that the inhabitants of the United States shall have liberty to take fish of every kind on such part of the coast of Newfoundland as British fishermen shall use, but not to dry or cure the same on that island, and also on the coasts, bays, and creeks of all other of His Britannic Majesty's dominions in America ; and that the American fishermen shall have liberty to dry and cure fish in any of the unsettled bays, harbours, and creeks of Nova Scotia, Magdalen Islands, and Labrador, so long as the same shall remain unsettled ; but so soon as the same, or either of them, shall be settled, it shall not be lawful for the said fishermen to dry or cure fish at such settlement, without a previous agreement for that purpose with the inhabitants, proprietors, or possessors of the ground/^ i This Article having only provided for the rights of fishing, in the year 1794 a further Treaty was signed, regulating commercial intercourse between the United States and Canada, and. His Majesty's islands and ports in the West Indies and British territories in the East Indies, and Article 13 provided that there should be between the dominions of His Majesty (George III.) in Europe, and the territories of the United States, a reciprocal and perfect liberty of commerce and navigation. These were the chief features of the commercial Treaty arrangements between Great Britain and the United States, until the outbreak of the second war a7id Annexation of Canada. by s between the two countries in 1812. During the nego- tiation of the Treaty of Peace of 1814; the British representatives expressly declared that their Govern- ment '' did not intend to grant to the United States gratuitously the privileges formerly granted by Treaty to them of fishing within the limits of the British sove- reignty,and of using the shores of the British territories for purposes connected with the British fisheries/' Further, they contended that not only had what- ever " right " and '^ liberty " recognized or granted under the Convention of 1783, become abrogated by the declaration of war by the United States against England in 1812, but that such concessions could not be revived unless for an equivalent. The Treaty of Ghent having been signed, it was followed by another Treaty in 1815, which again declared that there should be reciprocal liberty of commerce between all the territories of His Britannic Majesty in Europe and the territories of the United States, and likewise provided that each party should remain in complete possession of its commercial rights and intercourse, between the United States and His Majesty's posses- sions in the West Indies and North America. Next in chronological order comes the Treaty of 1818, which, besides regulating all fishing liberties, rights, or interests whatever of United States' citizens in the territorial waters of the British dominions in North Anierica, also contains the very essence of the. whole dispute within its first Article, which runs in these words : — «, (^Whereas difiereiices have arisen respecting the B 2 ** I 4 The Fisheries Dispute^ liberty claimed by the United States for the inhabi- tants thereof to take, dry, and cure fish on certain coasts, bays, harbours, and creeks of His Britannic Majesty's domiuions in America, it is agreed between the High Contracting Parties, that tlie inhabitants of the said United States shall have, for ever, in common with the subjects of His Britannic Majesty, the liberty to take fish of every kind on that part of the southern coast of Newfoundland which extends from Cape Ray to the Rameau Islands, on the western and northern coast of Newfoundland, fr'^^m the said Capo Ray to the Quirpon Islands, on the shores of the Magdalen Islands, and also on the coasts, bays, harbours, and creeks from Mount Joly, on the southern coast of Labrador, to and through the Straits of Belle Isle, and thence northwardly inde- finitely along the coast, without prejudice, however, to any of the exclusive rights of the Hudson's Bay Company; and that the American fishermen shall also have liberty, for ever, to dry and cure fish in any of the unsettled bays, harbours, and creeks of the southern part of the coast of Newfoundland, here- above described, and of the coast of Labrador ; but so soon as the same, or any portion thereof, shall be settled, it shall not be lawful for the said fishermen to dry or cure fish at such portion so settled without previous agreement for such purpose with the inhabitants, proprietors, or possessors of the ground. " And the United States hereby renounce for ever any liberty heretofore enjoyed or claimed by the in- habitants thereof to take, dry, or cure fish on or and Aimcxaiion of Canada. 5 witliin three maiino miles of any of tlie coasts, bays, creeks, or harbours of ILis Britannic Majesty's domi- nions in America, not inchidccl witliin tlie above- mentioned limits ; provided, however, that the Ameri- can fishermen shall be admitted to enter such bays or harbours, for the purpose of shelter and repairing of damages therein, of purchasing wood and of obtaining water, and for no other purpose whatever. But they shall be under such restrictions as may be necessary to prevent their taking, drying, or curing fish therein, or in any other manner whatever abasing the privi- leges hereby reserved to them."/ The various misunderstandings which have cropped up from time to time under this article, resulted in the '* Eeciprocity Treaty," signed respectively by Lord Elgin and Mr. Marcy for Great Britain and the United States in 1854. These were the principal stipulations : — J^^ Article I. — It is agreed by the High Contracting Parties that in addition to the liberty secured to the United States' fishermen by the above-mentioned Convention of the 20th October, 1818, of taking, curing, and drying fish on certain coasts of British North American Colonies therein defined, the inhabi- tants of the United States shall have, in common with the subjects of Her Britannic Majesty, the liberty to take fish of every kind, except shell-fish, on the sea-coasts and shores, and in the bays, harbours, and creeks of Canada, New Brunswick, Nova Scotia, Prince Edward Island, and of the several islands thereunto adjacent (and, by another Article, New .aiMai-iiB i . ' j || ii,»JUi' that although the island of Cuba happened at that time to be particularly engaging the attentions of the great Transatlantic Eepublic, the President did not hesitate, at whatever cost, to strenuously and honourably uphold the cause of Municipal Law. But under the Laws and Regulations before- mentioned, this vital distinction was made on the part of Canada, and it is here dwelt upon, inasmuch as nearly all tbe unhappy differences which have arisen may be traced, more or less, to signal misapprehension of this phase of the question, that, " any foreign vessel, ' not manned nor equipped nor in any way prepared for taking fish,' has full liberty of commercial intercourse in Canadian ports upon the same conditions as are applicable to regularly registered foreign merchant-vessels ; nor is any restriction imposed upon any foreign vessel dealing in fish of any kind different from those imposed upon foreign merchant-vessels dealing in other commercial commodities." Again : " The Regulations under which foreign vessels may trade at Canadian ports are contained in the Customs Law of Canada ''..." and which render it necessary, among other things, that upon arrival at any Canadian port a vessel must at once enter inward at the custom-house, and upon the completion of her loading clear outwards for her port of destination ^> 5 I Thus the necessity was insisted upon of placing on 5 Mde United States, British Parlt. Blue Book, p. 22, K'o. 2 of 1887, luclosure iu Xo. 27. and Annexation of Canada. 41 an indubitable and different footing fishing-vessels seeking to utilize tlie Canadian literal, as a base of operations for competition in a valuable industry with Canadian fishermen, in contradistinction to commer- cial vef;sels, pure and simple, resorting to the bays and harbours of the Dominion ''in the ordinary course of business." Although neither the Convention of 1818, nor the Treaty of Washiugfcon conferred any right or privi- lege of trading on American fishermen, it must be remembered that by sufferance they had nevertheless enjoyed most important advantages of traffic, including the purchase of bait, ice, and other supplies ; and the cuttiug off of that which had come to be looked upon in the liglit of a privilege, and as of right, could not fail to b(^come a sore grievance, and stepping-stone to discontent. But with an extended sea-coast of some thousands of miles, with numberless ports, harbours, bays, and inlets^, Canada had no other option than to ^ equire a rigorous conformity to such laws and regulations as may be requisite for guarding against contraband traffic, and the protection, not only of her fishing in- dustry, but her revenue. On the other hand, the terms of Article I. of the Convention of 1818, were the unhappy outcome of an embittered, fratricidal war, and are admittedly, in their conception and strin- gency, no longer altogether in harmony with more fortunately accepted and cheerfully recognized latter- day facts. Nevertheless, we cannot avoid the con- clusion that, although such considerations as these (and 42 The Fisheries Dispute, many others urged 'witli such pre-eminent ability by Mr. Bayard and Mr. Phelps) may, and do undoubtedly afford a fair basis for the negotiation of a new and per- manent understanding between the two countries, they appear in no sense to warrant on any ground, whether of law or fact, the misinterpretation or straining of actual International Treaty obligations.^ " For the various other points raised by both sides, vide Appendix. and Annexation of Canada. 43 CHAPTER VI. ' EETALIATION. " There never was a good war or a bal peace.'' Benjamin Franklin. What with loose rumour, exaggerated statement, misrepresentation, sensational assertion, and a very general misconception of the new order of things, the position became more and more strained ; so that the narrative of events occurring subsequently to Mr. Bayard's communication in July, 1886, may be summed up in the lively diplomatic exchanges, and the several Protectionist Resolutions and so-called Retaliation Bills that were either laid before, or passed by Congress during that year, and in the early part of 1887.' The pronounced spirit of retaliation shown in these measures was, however, agreeably tempered by an ad interim arrangement proposed by the Secretary of State of America, and transmitted to the Britisli Government on the 3rd of December, 1886. This wel- come proposal, although never carried into execution, nevertheless bore excellent fruit in the New Treaty signed at Washington on the 15th of February, 1888.- ' T'iWe Appendix, - Vide Appendix. 11 44 The Fisheries Dispute^ Notwithstanding this Treaty has not been ratified, and that the immediate solution of the question ap- pears for the moment somewhat complicated by President Cleveland's recent message to Congress, no one who has closely followed the tyrannical exigencies of the Presidential campaign now proceeding can doubt that, apart from the self-evident under-play accompanying that periodic cataclysm, there exists a widespread acceptation among moderate and thought- ful men of both nations, that the question of the North-American Fisheries dispute shall not long re- main an open one ; that recent mutual concessions have been both honourable and reasonable ; that a great historic precedent redounding equally to \\\q credit and glor" of Great Britain and America has been firmly established ; and that the arduous and distinguished labours of the plenipotentiaries have not been in vain. We have now reachad President Cleveland's mes- saofe to Compress on the 23rd of August, 1888. He said : — '' I fully believe the Treaty just rejected by the Senate was well suited to the exigency. Its provi- sions were adequate for our security in the future from vexatious incidents, and for the promotion of friendly neighbourhood and intimacy, without sacri- ficing in the least our national pride or dignity. I am quite conscious that neither my opinion of the. value of the rejected Treaty, nor the motives which prompted its negotiation, are of importance in the light of the judgment of the Senate thereupon. But \ and Annexation of Canada. 45 bliG. it" is of importance to note that this Treaty has been rejected without any apparent disposition on the part of the Senate to alter or amend its provisions, and with the evident intention, not wanting expression, that no negotiation should at present be concluded touching the matter at issue. I recommend immediate legislative action conferring upon the Executive power to suspend by proclamation the operation of all laws and regulations permitting the transit of goods, wares, and merchandise in bond across or over the territory of the United States to or from Canada. There need be no hesitation in suspending these laws, arising from the supposition that their continuation is secured by Treaty obligations ; for it seems quite plain that Article XXIX of the Treaty of 1871, which was the only Article incorporating such laws, terminated on the 1st of July, 1885.'' The immediate gist of this manifesto is to be found in its last words ; for unless Article XXIX. of the Treaty of 1871 wore terminated, any such legislation would be a violation and breach of the Treaty. Bearing this in mind, the following precis of Senator Morgan's speech on the Senate Manager's Report on the former Retaliatory Bills is not without interest. Its point appears unblunted by the efflux of time, and will doubtless be regarded by many as apposite as ever : — " Senator Morgan said that the only difficulty in coming to a final arrangement was the apprehension of the Senate Conferees that the proposition sub- mitted by the House would lead to a belligerent 46 TJie Fisheries Dispute, % conflict with «in existing Treaty between Great Britain and the United States. There wasnoagrcementbetween the two countries in respect to commercial rights, except under statute and legislation, and in one par- ticular under Article XXIX. of the Treaty of Wash- ington, and it was clearly the duty of the Senate to consider the question whether the proposition of the House was a violation of that Treaty, or whether it might be considered as a threat of the violation of it." Animadverting on retaliation, he continued : — " The Committee cannot sanction the proposition. " It is said that the Administration is in favour of it, but he could scarcely think that, in view of the power conferred on the President by the Senate Bill, the Administration sought also the power to prohibit in- tercourse between the United States and the people of Canada. He could not, he said, conceive any act of legislation, or any act of diplomacy that can be named which is as n'ear the border-line of belligerency as that of prohibiting intercourse and communication between the people of two countries. " Proclaim non-intercourse between father and son, families, friends, merchants, traders, railroad officers, betw en the United States and Canada, as a measure of retaliation, because of injury done to the fisheries, or anything else, and how long can a position so strenuous, so dangerous, and so belligerent be sus- tained ? A greater power could not be put in the hands of Great Britain than merely to make a pro- clamation in this country that the best means to prevent aggression on the fishing interests would and Anjiexation of Canada. 47 -J be absolute non-intercourse, personal uon-iutercourso between the people of Canada and the United States. It could not be sustained for three months, perhaps not for throe weeks, in the absence of actual hostilities. " He then proceeded to say that as far as the House of Representatives was concerned as claiming for themselves that they are the more immediate repre- sentatives of the people than the Senate, he denied it. They are not so in heart or in sentiment. They are not so in any other respect. '* The Senate had done all that was necessary under the circumstances, and the Bill they had passed was sufficient, and gave sufficient power to the President. But the power which is demanded as the one supreme thing to be insisted upon is the power to proceed to the very last line of friendly action towards Great Britain, the power next to which only can come the loading of guns and the array of men under arms." ' Mr. Hitt also attacked the Secretary of State on the Canadian Non-Intercoure Bill. . . . He said : — " Retaliatory measures had become necessary, but he strongly objected to the clause in the Bill pro- viding for stopping locomotives and cars from coming from Canada, which, he said, had a hidden purpose, namely, to defy a Treaty and violate national faith. Under the XXIXth Article of the Treaty of 1871 with Great Britain, goods in transit have a right to go either way through the United States to Canada from American seaports, or through Canada ' Vide Inclosure No- 63 in No. 2 of 1867, British Parlt. Blue Book. iim«M« MM 1 48 T/ie Fisheries Dispute. to the Uuitcd k?tates from Canadian seaports, or tlio reverse. "Goods in transit are therefore allowed to go through by the Treaty, and the only way it can be done away with is to give i\^o years' notice for its termination. One party to it cannot be held to grant the privilege or right when the other denies it. It expires when violated. But it is intended to reach it by this clause, which adroitly includes cars and locomotives among the things that may be stopped, though tluy are loaded with goods in transit under Treaty through the United States. The goods may go, but the cars which carry them must not. "Now," said Mr. Hitt, "if such a proposition as that were presented by some crafty savage chief in making a Treaty he would be laughed at, and yet it is deliberately proposed to the American Congress in order to evade and set at naught, not to violate squarely, a Treaty which is admitted to be in force. " He then proceeded to point out the inconvenience and delay which would be caused by adopting this clause which the Senate had almost unanimously re- jected in their Bill, and would probably reject again when sent up to them by the House. A Conference must then ensue, the outcome of which was doubtful." (Extract from precis of debate on the Canadian Non- intercourse Bill, vide Inclosure 2, in No. 59, No. 2 of 1887.)* But a vote of the Lower House of Congress, on the 23rd of February, 1887, even farther elucidates this < United States, British Parlt. Blue Book. • and Anncxatioft of Canada. 49 point; on that date, by a majority of 2o2 to 1, tlio Houso of Ropi-esentatives passed a Retaliation Bill, in which will be found a virtual recognition that Article XXIX. was then still in force. It is thus apparent that, oven in the United States some considerable authority may be cited ngainst the contention that Article XXIX. of the Treaty of 1871 (" Washington "), terminated on the 1st of July, 1885. Neither in England, nor in Canada does any doubt at all obtain in the matter. Article XXIX. is most unquestionably in full force, and so far from having terminated on the 1st of July, 1885, the fact is, that in the proclamation issued on that very date by Pre- sident Arthur for putting an end to the Fishery Clauses of the Treaty of Washington, no mention whatever is m ide of Article XXIX. Exprtisslo unius eat cxdw^lo alterius. Indeed, it is clear that scienter it has be( n omitted ; we have, moreover, the conclusive knowledge that both countries have recognized this, inasmuch as they have acted continuously on it ever since I * 5 "Article XXIX. "It is agi'eed that for the term of years mentioned in Article XXX. of this Treaty, goods, wares, or merchandise arriving at the ports of New York, Boston, and Portland, and any other ports in the United States, which have been or may from time to time be specially designated by the President of the United States, and destined for Her Britannic Majesty's possessions in North America, may be entered at the proper custom-house and conveyed in transit, without the payment of duties, through the territory of the United States, under such rules, regulations, and conditions for the protection of the revenue, as the Government of the United States may from time to time prescribe ; and, under like rules, regulations, 50 The Fisheries Dispute^ What the iimnediato result of the iiiessago may be remains to be estimated; but, so far as concerua the KeLahation or Non-Intercourse Bill that it recom- mouds, we know, that, having passed the Lower House and comlitionH, goods, wares, or merchandise may be conveyed in transit, without the payment of duties, from such posses- sions through the territory of the United States for export from the said ports of the United States. It is further agreed that for the like period goods, wares, or merchandise arriving ut any of the ports of Her Britannic Majesty's possessions in North America, and destined for the United States, may be entered at the proper customs-house and conveyed in transit without the payment of duties through the said possessions, under such rules and regulations and conditions for the pro- tection of the revenue, as the Grovernments of the said posses- sions may from time to time prescribe, and under like rules, regulations, and conditions, goods, wares, or merchandise may l)e conveyed in transit, without payment of duties, from the United States through the said possessions to other places in the United States, or for export from ports in the said possessions." " Article XXXIII. " The foregoing Articles XVIII. to XXV. inclusive, and Arti- cle XXX. of this Treaty, shall take effect as soon as the laws required to carry them into operation shall have been passed by the Imperial Parliament of Great Britain, by the Parliament of Canada, and by the Legislature of Prince Edward's Island on the one hand, and by the Congress of the United States on the other. Such assent having been given, the said Articles shall remain in force for the period of ten years from the date at which they may come into operation, and, further, until the expiration of two years after either of the High Contracting Parties shall have given notice to the other of its wish to ter- minate the same, each of the High Contracting Parties being at liberty to give such notice to the other at the end of the said period of ten years, or at any time afterward." f and Annexation of Canada. 51 of Congress, by a vote of 1 74 to 4, it lias at the present time been referred by the Foreign Committee of tho Senate to a Sub-Committee, and it is confidently believed that there it will remain for some time. In these circumstances it would be idle to speculate upon the ultimate elfect of what, after all, may prove to be a still-born measure ! by \ E 2 52 The Fisheries Dispute^ % : CHAPTER VII. i;lectioneeking ! "And are you free ? behold your barter'd polls ! Wisdom is silent — while intrigue cajoles." W. L. Pierce. rl } \ But it may not unreasonably be asked why were not these stirring controversies, and apparently aimless differences, avoided ah initio by a substantial Con- vention being entered into immediately on the ex- piration of the I'sherios Clauses of the Treaty of Washington in July, 1885 ? The answer is that there was some alleged discontent felt at the result of the "Halifax award,'' made under Articles XXII., XXIII., XXIV., and XXV. of that Treaty, and which required a payment of five millions and a half of dollars by the United States to Great Britain; but, inasmuch as it has been authoritatively suggested, and never denied that, there was an estimated surplus of British money in tlie United States' Treasury, at least sufficient to discharge this award, after the Alabama claims were satisfied, it cannot gravely be contended that this was a serious grievance. The real truth, however, was that a Presidential Campaign was in full Hiug, and everything accordingly ■ and Annexation of Canada. 53 1 was necessarily made subservient to thai all-absorbing function. A makeshift Agreement therefore took the place of the deKnitive Convention, which it was hoped and believed there would be a much better chance of negotiating with the now Governiuent. That is actually the position at the present time, saving that we do not even possess a makeshift Agree- ment — an untoward circumstance that cannot be contemplated without the liveliest apprehension. Only on the 21st of August last, Mr. Morgan (Alabama), made a speech in favour of the Treaty. After declaring that its rejection puts the country into a category where war was one of the dismal prospects of the near future in the contemplation of many men, he continued as follows: — '^ The Senate places the people of the United States in rough and immediate contact with the most dan- gerous question that can possibly be st.ated, and does 60 under the influence and shadow of the report of the Foreign Relations Committee, which is intended and well calculated to prevent Great Britain from doing anything more in the way of negotiations with us except merely to learn what we mean. If the British Parliament had acted in a similar manner as the Senate has now done in reference to a Treaty which we had approved or were willing to approve, we should accept that as a challenge to war. How the British will accept the rejection I know not, but I trust that God will avert the calamities which seem to be before us under such an aggravated character, 54 The Fisheries Disputey w m W 11 as to force these two great and magnificent peoples into a collision about so small a matter as the duty on salt fish." History repeats itself ! At the commencement of this century (1812), the outbreak of the second war. took place between England and America ; and although the party opposed to it in the United States called it '' Madison's War/' there can be little doubt that discernment and fact are on the side of those who ascribe it to the policy of Jefferson, his predecessor. The abortive negotiations which had preceded the beginning of hostilities, though founded on grievances not purely imaginary, were, nevertheless, not wholly dissimilar from those presently in view. The British Government had suggested that if, on the one hand the President would issue a " Proclamation for the renewal of the intercourse with Great Britain," his Majesty George III. would be " willing to withdraw his Orders in Council," and also to send an Envoy Ex- traordinary " invested with full powers to conclude a Treaty on all the points of the relations between the two countries." This chief distinction, however, remains to be drawn : whereas it is the United States that now refuses to ratify the Treaty recently assented to by the Plenipo- tentiaries of both nations, then the nominal provocation of the crisis proceeded from the refusal of Great Britain to ratify the agreement of Erskine, the British Minister at Washington. The great grievance of the United States, apart from the Leopard and Chesa- 2')calie incident, was the English Navigation Laws ^ and and Annexation of Can.ida. 55 on tliG failure of the further negotiations, conducted on the recall of Erskine by Francis, James Jackson, it is a remarkable circumstance that, even then, as at the present time, a policy of retaliation was recommended by the President and adopted by Congress. To further point the parallel! In 1811 a presi- dential election was also pending, and it was ingenu- ously asserted that the political ascendancy of the Democratic Party, and the re-election of Madison de- pended in no small degree '' on the hostile spirit that they can keep alive towards Great Britain." Therefore — while the ears of the sovereign people were remorselessly tickled by the naval encounter between the United States PrestcZe7ii 44, and H.M.S. Little Belt, and the chance shot at the British man- of-war from the United States 44, flying the pennant of Commodore Decatur — President Madison did not fail to keep up the necessary " spirit," by vehemently declaiming against the unfriendliness of the communi- cations from British ministers. In his message, early in November, 1811, Madison said, " Congress will feel the duty of putting the United States into an armour and an attitude de- manded by the crisis." Thus, briefly, did the then Democratic President, amidst the resounding din of " Free Trade and Sailors' Rights," secure his re-election for a second term of office, and lead up to his war message to Congress on the 1st June, 1812. And, after all, the supreme question of the present hour, as we have seen, agitating the minds of some SBBEBS 56 The Fisheries Dispute, statesmen, is not the ^' duty on salt-fish ;*' it is the annexation of Canada ! ' But while attaching no undue importance to this Utopian development of the Monroe doctrine, we can afford not to forget, that on the 13th of April, 1846, President Polk gave his approval to a War Bill, which resulted in an area scarcely less than that of the entire Union, as constituted by the Treaty of Versailles in 1783, being incorporated in the United States. And so it was that that Democratic President, supported by a Party, hoping to stand well with the people at the next elections, sent forth hisj^ti^ for the annexation cf California and New Mexico. Having said po much, we may also add, there can be no question, that whatever Government, either in England or Canada, ventured to shilly-shally for one moment with the annexation of the great North- American Dominion and the United States — its existence would not be worth a weeVs purchase. Let those who incontinently vapour, and with inflated bunkum, talk of twisting the lion's tail, not forget : — " A power which has dotted over the surface of the whole globe with her possessions and militaiy posts, whose morning-drum-beat, following the sun, and keeping company with the hours, circles the earth with one continuous and unbroken strain of the martial airs of England ! '' These words of Daniel Webster, perhaps the most famous, eloquent, and patriotic of American statesmen, yet hold good. No doubt times have fortunately ^ Vale Senator SliermaiS's speech. an.i Annexatio7i of Canada. 57 changed, and at the present day enh'ghtened men of all countries, would rather indulge their prowess, in the gentle and cultured arts of peace than in recalling — '' War that since o'er ocean came," ^ or " Vigil on the field/' ^ But, be it conceded, there is a certain limit to all things — even to tail-twisting ! " While we shall at all times be prepared to vin- dicate the national honour, our most earnest desire will be to maintain an unbroken peace." Heartily endorsing this lofty and patriotic sentiment, spoken by President John Tyler, in his address to the people of the Union, on the 9th of April, 18 11, it only remains for us to respectfully dedicate these pages to the citizens of Great Britain on both sides of the Atlantic, and our kinsmen of the United States. * John rierpoint. 3 Walt Whitman. HH I I THE UNITED STATES' CASE. No. I ^/iSS;.^ Inclosuro in No. T9, Mr. Bayard to Sir L. West. Department of State, Washington, December 11, 188G. Sir, — I have the honour to acknowledge your note of the 7th instant, with which you communicate, hy the direction of the Earl of Iddesleigh, a copy of the Keport of a Committee of the Privy Council of Canada, approved the 26th October last, wherein the regret of the Canadian Government is ex- pressed for the action of Captain Quigley, of the Canadian Government cruiser Terror, in lowering the flag of the United States' fishing-schooner Marlon Grimes, whilst under detention by the Customs authorities in the harbour of Shclburne, Nova Scotia, on the 11th October last. Before receiving this communication, I had instructed the United States' Minister at London to make representation of this regrettable occurrence to her Majesty's Minister for Foreign Affairs ; and desire now to express my satisfaction at this voluntary action of the Canadian authorities, whicli, it seems, was taken in October last, but of wliich I had no intimation until your note of the 7th instant was received. I have, &c. (Signed) T. F. Bayard. * Vide United States, British Parliamentary Blue Book. 62 Appendix. Xo. 40. Sir L. West to the Earl of Rosebkut. (Received May 24.) Washington, May 11, 1886. ^Iy Lord, — I have the honour to inclose to your Lordship 1 lore with copy of a note which I have received from the Secretary of State, commenting on the action of the ])ominion Government in seizing certain American fishing- vessels under the restrictive provisions of the Treaty of 1818, and inviting a frank expression of the views of her Majesty's Government upon the subjectj believing that, should any difference of opinion or disagreement as to facts exist, they will be found to be so minimized that an accord can bo established for the full protection of the inshore fishing of the British provinces, without obstructing the open sea- fishing operations of the citizens of the United States, or disturbing the Trade Regulations now subsisting between the countries. I have communicated copy of this note to the Marquis of Lansdowne. I have, &c. (Signed) L. S. Sackville West. Inclosure in No. 40. Mr. Bayard to Sir L. West. Department of State, Washington, May 10, 1886. Sir, — On the 6th instant I received from the Consul- General of the United States at Halifax a statement of the seizure of an American schooner, the Joseph Story, of The United States' Case. 63 Cllducestor, Mass., by tlic authorities at Baddeck, Capt; ]ireton, and her discharge, after a detention of twenty- four hours. On Saturday, the 8tli instant, I received a telegram from the same official, annoancing the seizure of the American schooner David J. Adams, of Gloucester, Mass., in the Annapolis Basin, Nova Scotia, and that the vessel had been placed in the custody of an officer of the Canadian steamer Lansduwne^ and sent to St. John, New Brunswick, for trial. As both of these seizures took place in closely land- locked harbours, no invasion of the territorial waters of British provinces with the view of fishing there could well be imagined. And yet the arrests appear to have been based upon the act or intent of fishing within waters as to which, under the provision of the Treaty of 1818 between Great Britairi and the United States of America, the liberty of the inhabitants of the United States to fish has been renounced. It would be superfluous for me to dwell upon the dosing which, I am sure, controls those respectively charged with the administration of the Governments of Great Britain and of the United States to prevent occurrences tending to create exasperation and unneighbourly feeling or collision between the inhabitants of the two countries ; but, animatetl with this sentiment, the time seems opportune for me to submit some views for your consideration, which I con- fidently hope will lead to such administration of the laAvs regulating the commercial interests and the mercantile marine of the two countries as may promote good feeling and mutual advantage, and prevent hostility to commerce under the guise of protection to inshore fisheries. The treaty of 1818 is between two nations, the United States of America and Great Britain, who, as the Contract- m ^ 'k^ ■v*. ^- '• ** > IMAGE EVALUATION TEST TARGET (MT-3) V / O A O V' ^ //,, m C/j fA 1.0 I.I 1.25 ilM IIM ill I 36 2.2 2.0 1.8 1.4 11.6 . A A c^ .>; .> /S« Photographic Sciences Corporation 33 WEST MAIN STREET WEBSTER, N.Y. 14S80 (716) 872-4503 ^ ^ 64 Appendix. ing Parties, can alone apply authoritative interpretation thereto, or enforce its provisions Ity appropriate legislation. The discussion prior to the conclusion of the Treaty of Washington in 1871 was productive of a substantial agree- ment between the two countries as to the existence and limit of the three marine miles within the line of which, upon the regions defined in the Treaty of 1818, it should not be lawful for American fishermen to take, dry, or cure fish. There is no hesitancy upon the part of the Government of the United States to proclaim such inhibition and warn their citizens against the infraction of the Treaty in that regard, so that such inshore fishing cannot lawfully be enjoyed by an American vessel being within three marine miles of the land. But since the date of the Treaty of 1818 a series of Laws and Regulations importantly affecting the trade between the North American provinces of Great Britain and the United States have been respecUvely adopted by the two countries, and have led to amicable and mutually beneficial relations between their respective inhabitants. This independent and yet concurrent action by the two Governments has eiTected a gradual extension, from time to time, of the provisions of Article I. of the Convention of the 3rd July, 1818, providing for reciprocal liberty of commerce between the United States and the territories of Great Britain in Europe, so as gradually to include the colonial possessions of Great Britain in Korth Amcricr and the West Indies within the results of that Treaty. President Jackson's Proclamation of the 5th October, 1830, created a reciprocal commercial intercourse, on terms of perfect equality of flag, between this country and the British American dependencies, by repealing the Navi- gation Acts of the 18th April, 1818, 15th May, 1820, and 1st March, 1823, and admitting British vessels and their I t The United States' Case, 6^ cargoes " to an entry in the ports of the United States, from the islands, ])rovinces, and Colonies of '(Jreat Britain on or near the American continent, and north or east of the United States." These commercial privileges have since received a large extension in the interests of })ropinquity, anil in some cases favours have been granted by the United States without equivalent concession. Of the latter class is the exemption granted by the iShi})ping Act of the 26th June, ISSi, amounting to one-half of the regular tonnage dues on all vessels from the British North American and West Indian possessions entering ports of the United States ; of the reciprocal class are the arrangements for transit of goods, and the remission by I'roclamation, as to certain British ports and })laces, of the remainder of the tonnage tax» on evidence of equal treatment being shown to our vessels. On the other side, British and colonial legislation, as notably in the case of the Imperial Shipping and Navigation Act of the 26th June, 1819, has contributed its share toward build- ing up an intimate intercourse and beneficial traffic between the two countries, founded on mutiud interest andconvenience. These arrangements, so far as the United States are con- cerned, depend upon municipal statute and upon the discre- tionary powers of the Executive thereunder. The seizure of the vessels I have mentioned, and certaii! published "warnings" purporting to have been issued by the Colonial autlutrities, w^uld apjiear to have been made under a supposed delegation of jurisdiction by the Imperial Government of (rreat I>riiaiii, and to be intendetl to include authority to interpret and enforce the ])rovisions of the Treaty of 1818, to which, as I have remarked, the United States and Great Britain are the Contracting Parties, who can alone deal responsilily with (juestions arising there- under. The eifect of this colonial legislation and executive inter- 66 Appendix. ' \ l»rctatioii, if executed according' to the letter, would he not only to expand the restrictions and renunciations of tlio Treaty of 1818, wliich related solely to inshore fishing within the three-mile limit, so as to affect the deep-sea fisheries, tlie right to which remained un(juestioned and unimpaired for the enjoyment of the citizens of the Unitnl States, but further to diminish and practically destroy the privileges expressly secured to American fishing-vessels to visit those inshore waters for the ohjucts of slieltcr, repair of damages, and purchasing Avood and obtaining water. Since 1818 certain important changes have taken place in fishing in the regions in (piestion, wliich have materially modified the conditions under which the business of inshore fishing is conducted, and which must have great weight in any present administration of the Treaty. Drying and curing fish, for which a use of the adjacent shores was at one time requisite, is now no longer followed, and modern invention of processes of artificial fn.'ezing, and the employment of vessels of a larger size, permit the catch and direct transportation of fish to the markets of the United States without recourse to the shores contiguous to the fishing-grounds. The mode of taking fish inshore has also been wdiolly changed, and from the highest authority on such subjects I learn that bait is no longer needed for such fishing, that purse-seines have been substituted for the other methods of taking mackerel, and that by their emj)loyment these fish are now readily caught in deeper waters entirely exterior to the three-mile line. As it is admitted that the deep-sea fishing was not under consideration in the negotiation of the Treaty of 1818, nor was affected therel^y, and as the use of bait for inshore fishing has passed wholly into disuse, the reasons which may have formerly existed for refusing to permit American fisher- The United States Case. 67 mnn to catcli or procure bait within the line of a marine leaj,aic from tlie shore, lest they should also use it in the same inhibited waters for the purpose of catching other fish, no longer exist. For it will, I believe, be conceded as a fact that bait is no / longer needed to catch herring or mackerel, which are the objects of inshore lishing, but is used, and only used, in deep-sea fishing, and, therefore, to prevent the purchase of bait or any other supply needed in deep-sea fishing, under colour of executing the provisions of the Treaty of 181 S, would be to expand that Convention to objects wholly beyond its jjurview, scope, and intent, and give to it an effect never contemplated by either party, and accompanied by results unjust and injurious to the citizens of the United States. As, therefore, there is no longer any inducement for American fishermen to " dry and cure " fish on the inter- dicted coasts of the Canadian provinces, and as bait is no longer used or needed by them (for the prosecution of inshore fishing) in order to " take " fisii in the inshore waters to which the Treaty of 1818 alone relates, I ask youtoconsiderthe results of excluding American vessels, duly possessed of permits from their own Government to touch and trade at Canadian j)orts as well as to engage in deep-sea fishing, from exercising freely the same customary and reasonable rights and privi- leges of trade in the ports of the British Colonies as are freely allowed to British vessels in all the ports of the United States under the Laws and liegulations to which I have adverted. Among these customary rights and privi- / leges may be enumerated the purchase of ship-supplies of every nature, making repairs, the shipment of crews in whole or part, and the purchase of ice and bait for use in deep-sea fishing. Concurrently, these usual rational and convenient .F 2 68 Appendix. privileges are freely extended to, and are fvdly enjoyed by, the Canadian merchant marine of all occupations, including fishermen, in the ports of the United States. The (}uestion, therefore, arises whether such a construction is admissible as would convert the Treaty of 1818 from being an instrumentality for the protection of the inshore fisheries along the described parts of the British American coast into a pretext or means of obstructing the business of deep-sea fishing by citizens of the United States, and of interrupting and destroying the commercial intercourse that, since the Treaty of 1818, and independent of any Treaty whatever, has grown up, and now exists, under the concurrent and friendly Laws and mercantile liegulations of the respective countries. I may recall to your attention the fact that a proposition to exclude the vessels of the United States engaged in fishing from carrying also merchandise was made by the British negotiators of the Treaty of 1818, but, being resisted by the American negotiators, was abandoned. This fact would seem clearly to indicate that the business of fishing did no*; then and does not now disqualify a vessel from also trading in the regular ports of entry. I have been led to ofi'er these considerations by the recent seizures of American vessels to which I have adverted, and by indications of a local spirit of interpretation in the provinces, affecting friendly intercourse, which is, I firmly believe, not warranted by the terms ol the stipulations on which it professes to rest. It is not my purpose to prejudge the facts of the cases, nor have I any desiie to shield any American vessel from the consequences of violation of iiiternational obligation. The views I advanced may prove not to be applicable in every feature to. these particular cases, and I should be glad if no case whatever were to arise calling in question the good understanding of the two \ I The United States' Case, 69 countrios in this n^j^ard, in onler to be free from the grave nj)])r('hensions which otherwise I am unable to dismiss. It would bo most unfortunate, antl, I cannot refrain from saying, most unworthy, if the two nations who contracted the Treaty of 1818 should permit any questions of mutual right and duty under that Convention to become obscured by partisan advocacy or distorted by the heat of lo(!al interests. Tt cannot but be the common aim to conduct all discussion in this regard with dignity and in a self-respecting spirit, that will show itself intent upon securing equal justice rather than unequal advantage. Comity, courtesy, and justice cannot, I am sure, fail to be the ruling motives and ol)jects of discussion. I shall be most happy to come to a distinct and friendly understai (ling with you as the Kepresentativc of her Britnnnic ^NFajesty's Government, which will result in such a definition of the rights of American fishing-vessels under the Treaty of 1818 as shall eirectnally prevent any encroachments ])y them upon the territorial waters of the ]>ritisli provinces for the purpose of fishing within those waters, or trespassing in any way upon the littoral or marine rights of the in- habitants, and, at the same time, prevent that Convention from being improperly expanded into an instrument of discord by affecting interests and accomplishing results wholly outside of and contrary to its object and intent, by allowing it to become an agency to interfere with and perhaps destroy those recipro(;al conimercial privi](>ges and facilities between neighbouring communities which contribute so importantly to their peace and hai)piness. It is obviously essential that the administration of tlie Laws regulating the Canadian inshore fishing should not be conducted in a punitive and hostile spirit, which can only tend to induce acts of a retaliate nature. Everything will be done by thv United States to cause w I 70 Appendix, their citizons engaged in fishing to conform to the ohligations of the Treaty, and prevent an infraction of the FisliingT.aws of tlie Britisli provinces ; bnt it ia equally necessary that ordinary commercial intercourse should not he interrupted by harsh measures and unfriendly administration. I have the honour, therefore, to invi!^ a frank expression of your views upon the subject, l)elieving that should any diflerences of o^jinion or disagreement as to facts exist, they A\ill be found to bo so minimized that an accord can be established for the full protection of the inshore fishing of the llritish provinces, without obstructing the open-sea fishing operations of the citizens of the United States, or disturb- ing the Trade Regulations now subsisting between the countries. I have, &c. (Signed) T. F. Bayakd. No. 48. The Eari; of Roskbery to Sir L. "West. Foreign Ofiice, AFay 29, 188G. Sir, — The American Minister called on me to-day and read me a telegram from Mr. Bayard, of which I inclose a copy. lie again discussed at some length the provisions of the Treaty of 1818, and said that the newspapers which had reached him from America treated the matter as of little moment, because the British Government were sure not to support the action of the Canadian Administration. He also alluded to a corresjiondence with Lonl Kimberley in 1871, in which Lord Kimberley stated that the Imperial The United States Case. , fioveniniciit was tho sole intcrpretiT of the British view of Imjx'iial Tioiities, and tliat thoy were not ahlc to suiipoit the Canadian vit!W of tlie ]5ait Clause. Mr. I'liclps finally urged that the action of the Canadian (lovernnient should be suspended, which would then conduces to a friendly slate of matters, which nii,^ht enable nei,'otiations to be resumed. I replied to ]\Ir. ]*helps that, as re^'irds the strict iiiter- j'retation of the Treaty of 1S18, I was in the, unfortunate position that there were not two opinions in this country on the matter, and that the Canailian view was held by all authorities to be le^'ally correct. If we aie now under the provisions of the Treaty of 1818, it was by the action, not of lier Maje.-ty's (Jovernnu'nt, or of the Canadian (lovernment, but by the wish of the United States. I had offered to endeavour to procure the prolouj^'ation of the temporary arrangement of last year, in order to allow an opportunity for negotiating, and that had been refused. A Joint Com- mission had been refused, and, in fact, any arr.ingement, cither temjjorary or permanent, had been rejected by the United States ; it was not a matter of o})tion Imt a matter of course that we returned to the existing Treaty. As to Lord Kimberley's view, I had had no explanation from him on that point, and, of course, I cntircdy concurred with liis o])iniou that the Ilritish Government were the interpreters of the Ihitish view of Imperial Treaties. As regarded the wish expresseil by Mr. I'helps that the present action should be sus])ende(l, when possibly an op})ortunity might arrive for negotiation, I said that that amounted to an absolute conces- sion of the Canadian position with no leturn whatever, and 1 feared that the refusal of the United States to negotiate, for so I could not help interpreting Mr. Bayard's silence in answer to my proposition, would produce a bad ellect, rnd certaiidy would not assist the Imperial Government in their ; 1 «=sBrrrtn l| i! 72 Appendix. efforts to (leal with this (lucstion. In the meantime, how- ever, I l)ef:fge(l him simply to assure Mr. IJayanl that I had received his coinmmiication, and tliat we wore still awaiting the Canadian Case and the details of the other seizures ; that when we had received these, for which we had telegraphed, T hoped to be in a better position for .giving an answer. Mr. Phelps also touched on the seizures of these ships, and I said that the legality of that Avould be decided in a Court of Law, and Mr. Phelps olyected that it Avould be a Dominion Court! of Law and not an Imperial Court. I replied that an n])peal would lie to the Courts in this country, and ^Fr. Plielps ))ointed out that that procedure would be expensive ; but I re- minded him again that it was not our fault that we had })een thrown on the provisions of the Treaty of 1818. I am, 1^0. (Signed) Rosebery. Inclosure in Xo. 49. ^[r. Bayard to Sir L. West. Department of State, Washington, May 20, 1886. Sir, — Although without reply to the note I had the honour to address to you on the 10th instant in relation to the Canadian fisheries, and the interpretation of the Treaty of 1818, l)etween the United States and Great Britain, as to the rights and duties of the American citizens engaged in maritime trade and intercoarse with the provinces of l^ritish North America, in view of the unrestrained and, as it appears to me, unwarranted, irregular, and severe action of Canadian officials towards American vessels in those waters, yet I feel it to be my duty to biing impressively to your attention in- % The United States* Case. \\ formation more rocontly rocoivc*! 1>y nic^ from tlio Uiiitcil States' Coiisul.(Jononil at Halifax, Xovii Scotia, in n-lation to the seizure and eontiniied d>'tention of the American schooner David J. Adams, already nferred to in my pre- vious note, and the a])pareiit disposition of the local otlicials to use the most extreme and technical reasons for interfer- ence with vesscds not engaged in, or intended for, inshore fishing on that coast. The Keport received hy me yesterday evening alleges such action in relation to the vessel mentiond as renders it diUicult to imagine it to he that orderly |)roceeding ami due " process of law " so well known and customarilv exercised in Great Ih'itain and the United States, and which dignities the two Governments, and gives to private rights of property and the liberty of the individual their essential safeguards. By the information thus derived it would aj)pear that after four several and distinct visitations hy boats' crews from the iMJisdoinir in Annapolis Basin, Nova Scotia, the D.iiud J. Adams was summarily taken into custody by the Canadian steamer Larnidmnp', and carried out of the Province of Nova Scotia across the Bay of Funigby, in Nova Scotia. That in Digby the paper alleged to be the legal prccei)t for the capture and detention of the vessel was nailed to her mast in such manner as to prevent its con- tents being rea!t the manifest danger of in- trusting the execution of powers so important, and involving so high and delicate a discretion, to any but wise and re- sponsible officials, whose prudence and care should be com- mensurate witii the magnitude and national importance of the interest involved, and I should fail in my duty if I do not endeavour to impress you with my sense of the absolute and instant necessity that now exists for a restriction of the seizure of American vessels charged with violations of the Treaty of 1818 to the conditions announced by Sir Edward Thornton. to his Government in June 1870. The charges of violating the local Laws and Commercial Regulations of the ports of the British provinces (to which I am desirous that due and full observance should be paid by citizens of the United States) I do not consider in this note ; and I will only take this occasion to ask you to give me full information of the official action of the Canadian authorities in this regard, and what Laws and Regulations, having the force of law, in relation to the protection of their inshore fisheries and preventing encroachments thereon, are now held by them to be in fcrce. But I trust that you will join with me in realizing the urgent and essential importance of restricting all arrests of American fishing-vessels for supposed or alleged violations of the Convention of 1818 within the limitations and conditions laid down by the authorities of Great Britain in 1870, to wit : that no vessel shall be seized unless it is evident, and can be clearly proved, that ^he offence of fishing has been committed, and the vessel itself captured, within three miles of land. In regard to the necessity for the instant imposition of The United States* Case. 77 such restrictions uj)on the arrest of vessels, yon will, I helieve, agree with me, and I will therefore ask you to procure such steps to be taken as shall cause such orders to be fortlnvith put in force under the authority of her Majesty's Government. I have, &c. (Signed) T. F. Bayard. No. Gl. Mr. Phelps to the Earl of Rosebery. (Received June 7.) Legation of the United States, London, June 2, 1886. My Lord, — Since the conversation I had the honour to hold with your Lordship on the morning of the 29lh ultimo, I have received from my Government a copy of the Report of the Consul-General of the L'^nited States at Halifax, giving full details and de{)Ositions relative to the seizure of the Darid J. Adams, and the coires}K)ndence between the Consul-General and th(; Colonial authorities in reference thereto. The Report of the Consul-General, a)id the evidence annexed to it, appear fully to sustain the points I submitted to your Lordship in the interview above referred to, touching the seizure of this vessel ])y the Canadian officials. I do not understand it to be claimed by tfie Canadian authorities tluit the vessel seized had been engaged, or was intending to engage, in fishing within any limit i)rohibited by the Treaty of 1818. The occupation of the vessel was exclusively deep sea fishing, a business in which it had a perfect right to be employed. The ground upon which tL > capture was made was that the master of the vessel hud 78 Appendix. purchased of an inhabitant of Nova Scotia, near the port of Digby in that province a day or two before, a small quantity of bait to be used in fishing in tlie deep sea outside the three- mile limit. The question presented is whether under the terms of the Treaty, and the construction placed upon tliem in practice for many years by tlio British Government, and in view of the existing relations l)etwecn the United States and Great Britain, that transaction afibrds a sufficiant reason for making such a seizure, and for proceeding under it to the confiscation of the vessel and its contents. I am not unaware that the Canadian authorities, conscious, apparently, that the alHrmative of this proposition could not easily be maintained, deemed it advisable to supplement it ■with a charge against the vessel of a violation of the Canadian Customs Act of 1883, in not reporting her arrival at Digby to the Customs officer. jJut this charge is not the one on which the vessel was seized, or which must now be principally relied on for its condemnation, and standing alone could hardly, even if well founded, be the source of any serious controversy. It would be at most, under the circumstances, only an accidental and purely technical breach of a Custom-house Regulation, by which no harm was in* tended, and from which no harm came, and would, in ordinary cases, be easily condoned by nn apology, and perhaps the payment of costs. But trivial as it is, this charge does not appear to be well founded in point of fact. Digby is a small fishing settle- ment, and its harbour not defined. The vessel had moved about and anchored in the outer part of the harbour, having no business at or communication with Digby, and no reason for reporting to the officer of Customs. It appears by the Report of the Consul-General to be conceded by the Customs authorities there that fishing- TJic United States' Case. 79 vessels have for forty years been accustomed to go in and out of the bay at pleasure, and liave never been rei^uired to id report wlien they had no business with the send ashore port, and made no landing, and that no seizure Jiad ever before been made or claimed against them for so doing. Can it be reasonably insisted under these circumstances that by the sudden adoption, without notice, of a new rule, a vessel of a friendly nation should be seized and forfeited for doing what all similar vessels had for so long a period been allowed to do without question 1 It is sufficiently evident that the claim of a violation of the Customs Act was an afterthouglit brought forward to give whatever added strength it migiit to the principal claim on which the seizure had been made. Recurring, then, to the only real question in the case, whether the vessel is to be forfeited for purchasing bait of an inhabitiint of Nova Scotia to be used in lawful lishing, it may be readily admitted that, if the language of the Treaty of 1818 is to be interpreted literally, rather than according to its spirit and plain intent, a vessel engaged in lishing would bo prohibited from entering a Canadian port " for any l)urpose whatever," except to obtain wood or water, to repair damages, or to seek shelter. Whether it would be liable to the extreme penalty of confiscation for a breach of this prohibition, in a trilling and harmless instance, might be quite another question. Such a literal construction is best refuted by considering its preposterous consequences. If a vessel enters a port to post a letter, or send a telegram, or buy a newspaper, to obtain a physician in case of illness, or a surgeon in case of accident, to land or bring olf a passenger, or even to lend assistance to the inhabitants in fire, flood, or pestilence, it would, upon this construction, be held to violate the Treaty stipulations maintained between two enlightened, maritime, 8o Appendix. and most friendly nations, whose ports are freely open to each other in all other })lace3 and under all other circum- stances. If a vessel is not engaged in fishinjf, she may enter all ports. But if employed in fishing not denied to be lawful, she is excluded, thougli on the most innocent errand. She may buy water, but not food or niediciie; wood, but not coal. She may repair rigging, but not purchase a new rope, thougli the inhabitants are desirous to sell it. If she even entered the port (having no other business) to report herself to the Custom-house, as the vessel in question is now seized for not doing, she would be equally within the interdiction of the Treaty. If it be said these are extreme instances of violation of the Treaty, not likely to be insisted on, I reply that no one of them is more extreme than the one relied upon in this case. I am persuaded that your Lordship will, upon reflection, concur with me that an intention so narrow, and in its results so unreasonable and so unfair, is not to be attributed to tlie High Contracting Parties who entered into this Treaty. It seems to me clear that the Treaty must be construed in accordance with those ordinary and well-settled rules api)Iica- ble to all written instruments, wliich, without such salutary assistance, must constantly fail of their purpose. By these rules the letter often gives way to the intent, or, rather, is only used to ascertain the intent. The whole document will be taken together, and will be considered in connection with the attendant circumstances, the situation of the parties, and the object in view. And thus the literal meaning of an iso- lated clause is often shown not to be the meaning really under- stood or intended. Upon these principles of construction, the meaning of the clause in question does not seem doubtful. It is a Treaty of friendship, and not of hostility. Its object was to define and 15 The United States' Case. 8i protect the relative rii^hts of the people of the two countries in these fislierios, not to establish a system of non-intercoiu'se, or the means of mutual and unnecessary annoyance. It should be judged in view of the general rules of international comity, and of maritime intercourse and usage, and its re- strictions considered in the light of the purposes they were designed to serve. Thus regarded, it appears to me clear that the words, " for no other pur))ose whatever," as employed in the Treaty, mean no other purposes inconsistent with the provisions <^f the Treaty, or prejudicial to the interests of the provinces or their inhabitants, and were not intended to prevent the entry of American Hsliing-vessels into Canadian ports for innocent and mutually beneficial purposes, or unnecessarily to restrict the free and friendly intercourse customary between all civilized maritime nations, and especially between the United States and Great Biitain. Such, I can- not but believe, is the construction that v/ould be placed upon this Treaty by any enlightened Court of Justice. But even were it conceded that if the Treaty was a private contract instead of an international one, a Court, in dealing with an action upon it. might find itself hampered by the letter from giving effect to the intent, that would not be decisive of the present case. The interpretation of Treaties between nations in their intercourse with each other proceeds upon broader and higher considerations. The question is not what is the technical effect of the words, but what is the construction most consonant to the dignity, the just interests, and the friendly relations of the sovereign Powers. I submit to your Lordship *hat a construction so harsh, so unfriendly, so un- necessary, and so irritating as that set up by the Canadian authorities is not such as her Majesty's Government has been accustomed either to accord or to submit to. It would. . !| ■ I lll »»p l i» , 82 Appc7idix find no precclent in tlic history of British diplomacy, and no provocation in any action or assertion of the Government of the United States. These views (U^rive great if not conclusive force from the action of tlie British Parliament on the subject, adopted very soon after the Treaty of 1818 took elFect, and continued without change to the present time. An Act of Parliament (59 Geo. III., cap. 38) was passed on the 14th Juno, 1819, to provide for carrying into effect the provisions of tlie Treaty. After reciting the terms of the Treaty, it enacts (in substance) that it shall be lawful for his Majesty, by Orders in Council, to make such Regulations and to give such direc- tions, orders, and instructions to the Governor of Newfound- land, or to any officer or officers in that station, or to any other persons, "as shall or may be from time to time deemed proper and necessary for the carrying into effect the purposes of said Convention 'mtli relation to the taking, dryinrf, and curing of fish hy inhabitants of the United States of America, in common with British subjects, within the limits set forth in the aforesaid Convention." It further enacts that any foreign vessel engaged in fishing, or preparing to fish, within three marine miles of the coast (not authorized to do so by Treaty) shall be seized or for- feited upon prosecution in the proper Court. It further provides as follows : — " That it shall and may be lawful for any fisherman of the said United States to enter into any such bays or harbours of his Britannic Majesty's dominions in America as are last mentioned, for the purpose of shelter and repairing damages therein, and of purchasing wood and of obtaining water, and for no other purpose whatever ; subject, nevertheless, to such restrictions as may be necessary to prevent such fishermen of the said United States from taking, drying, or curing fish in the said bays or harbours, or in any other manner whatever ,• The United States^ Case, 83 abusing the said privileges by the said Tvpaty and this Act reserved to them, and as shall for that purpose be imposed by any Order or Orders to be from time to time made by his Majesty in Council under the authority of this Act ; and by any Regulations -which sliall be issued by the Governor^ or pei.-ion exercising the office of Governor, in any such parts of his ^Miijesty's dominions in America, under or in pursuance of any such Order in Council as aforesaid." It i'urther enacts as follows : — ''That if any person or persons, upon recjuisition made by the Governor of Newfoundl?nd, or the person exercising the office of Governor, or by any Governor or person exercising the office of Governor in any other parts of his Majesty's do- minions in America as aforesaid, or by any officer or officers acting under such Governor or person exercising the office of Governor, in the execution of any orders or instructions from his Majesty in Council, shall refuse to depart from such bays or harl^ours ; or if any person or jjcrsons shall refuse or neglect to conform to any Regulations or directions which shall be made or given for the execution of any of the purposes of this Act ; every such person so refusing, or other- wise offending against this Act, shall forfeit the sum of 200/., to be recovered," &c. It will be perceived from these extracts, and still more clearly from a perusal of the entire Act, that while reciting the language of the Treaty in respect to the purposes for which American fishermen may enter British ports, it pro- vides no forfeiture or penalty for any such entry, unless accompanied either (1) by fishing, or preparing to fish, within the prohibited limits ; or (2) by the infringement of restric- tions that may be imposed by Orders in Council to prevent such fishing, or the drying or curing of fish, or the abuse of privileges reserved by the Treaty ; or (3) by a refusal to depart from the bays or harbours upon proper requisition. G 2 •r-rravJTam UUL-J-H1.. 84 Appcnaix, W It thus plainly appears that it was not tho intention of Parliament, nor its unaerstan(lin<,' of the Treaty, that any other entry by an American fishing-vessel into a British port should be regarded as an infraction of its provisions, or as affording the basis of proceeding against it. No other Act of Parliament for the carrying out of this Treaty has ever been passed. It is unnecessary to point out that it is not in the power of the Canadian Parliament to enlarge or alter the provisions of the Act of the Imperial Parliament, or to give to tho Treaty eitlier a construction or a legal effect not warranted by that Act. But until the effort which I am informed is now in pro- gress in the Canadian Parliament for the passage of a new Act on this subject, introduced since the seizAires under con- sideration, I do not understand that any Statute has ever been enacted in that Parliament which attempts to give any different construction or effect to the Treaty from that given by the Act cf 69 Geo. III. The only Provincial Statutes which, in the proceedings against the David J. Adams, that vessel has thus far been charged with infringing are the Colonial Acts of 1868, 1870, and 1883. It is therefore fair to presume that there are no other Colonial Acts applicable to the case, and I know of none. The Act of 1868, among other provisions not material to this discussion, provides for a forfeiture of foreign vessels '' found fishing, or preparing to fish, or to have been fishing in British waters within three murine miles of the coast ; " and also provides a penalty of 400 dollars against a master of a foreign vessel within the harbour who shall fail to answer questions put in an examination by the authorities. No other act is by this Statute declared to be illegal, and no other penalty or forfeiture is provided for. The very extraordinary provisions in this Statute for facili- tating forfeitures and embarrassing defence against or appeal The United States Case. from them not material to the present case would, on u proper occasion, deserve very serious attention. The Act of 1870 is an araendirent of the Act just referred to, and adds nothinf:; to it affecting the {)res&nt ca«o, The Act of 1883 has no application to the case, except upon the point of the omission of the vessel to report to tlu^ Customs officer, already considered. It results, therefore, that, at the time of the seizure of the David J. Adams and other vessels, there was no Act what- ever, either of the British or Colonial Parliaments, which made the purchase of hait by those vessels illegal, or pro- vided for any forfeiture, penalty, or proceedings against them for such a transaction ; and even if such purchase could be regarded as a violation of that clause of the Treaty which is relied on, no Law existed under which the seizure could be justified. It will not be contended that Custom-house authorities or Colonial Courts can seize and condemn vessels for a breach of the stipulations of a Treaty when no legis- lation exists which authorizes them to take cognizance of the subject, or invests them with any jurisdiction in the premises. Of this obvious conclusion the Canadian authorities seem to be quite aware. I am informed that since the seizures they have presstd, or are pressing, thr(jugh the Canadian Parliament in much baste an Act which is designed, for the first time in the history of the legislation under this Treaty, to make the facts upon which the American vessels have been seized illegal, and to authorize proceedings against them therefor. What the effect of such an Act will be in enlarging the provisions of an existing Treaty between the United States and Great Britain need not be considered here. The question under, discussion depends upon the Treaty, and upon such legislation, warranted by the Treaty, as existed when the seizures took place. ■cmana "W" lies. On the hearing before the Halifax Fisheries Commission in 1877-78 this question was discussed, and no case could be produced of any such condemnation. Vessels shown to have been condemned were in all cases adjudged guilty either of fishing, or prepar- ing to fishj within the prohibited limit. And in the case of the White Faum, tried in the Admiralty Court at New Brunswick before Judge Hazen in 1870, I understand it to have been distinctly held that the purchase of bait, unless proved to have been in preparation for illegal fishing, was not a violation of the Treaty nor of any existing law, and afforded no ground for proceedings against the vessel. IJut even were it possilMf' to justify on the part of the Canadian authorities the adoption of a construction of the Treaty entirely different from that which has always hereto- H The United States Case. 89 fore pi'cvnil(t(l, and to dccliirc thoHc acts criminal wliicli liavo liitluiito b(M>n r('^'aril(!(l as innocent, upon obvious grounds of reason and justic(^, and ii|i()n conmion principles of comity to the United States' (ioveinnu nt, previous notice should have been given to it or to the American tishermt n of the new and stringent restrictions it Avas intended to enforce. If it was the intenticm of In^r Afajisty's (Jovernment to recall the instructions which I have shown had been previously and 80 explicitly given relative to interferciu'c with American vessels, surely notice shouhl have been given accordingly. The United States have just reason to complain, even if these restrictions could be justilied by the Treaty, or by the Acts of Parliament passed to carry it into eflect, that they should be enforced in so harsh and unfriendly a manner, without notice to the Government of the change of policy, or to the fishermen of the new danger to which they were thus exposed. In any view, therefore, which it seems to me can ])c taken of this question, I feel justified in pronouncing the actii>n of the Canadian authorities in seizing and still retaining the David J. Adams to be not only unfriendly and discourteous, but altogether unwarrantable. The seizure was much aggravated by the manner in Avhich it was carried into effect. It appears that four several visitations and searches of the vessel were made by boats from the Canadian steamer Lansdowne in Annapolis Basin, Nova Scotia. The Adams was finally taken into custody, and carried out of the Province of Nova Scotia across the Bay of Fundy and into the port of St. John's, New Brunswick ; and, without explanation or hearing, on the following Monday, the 10th May, taken back by an armed crew to Digby, in Nova Scotia. That, in Digby, the ])aper alleged to be the legal precept for the capture and detention of the ■ H I liiiMi H a* 90 Appendix. vessel Avas nailed to her mast in such manner as to prevent its contents being read, and the re(;[uest of the ca[)tain of the David J. Adams, and of the United States' Consul- Goneral, to be allowed to detach the writ from the mast, for the purpose of learning its contents, was positively refused by the Provincial otlicial in charge. Nor was tlie United States' Consul-General able to learn from the Connnandcr of the Lansdoirne the nature of the complaint against the vessel, and his respectful application to that effect was fruitless. From all the circumstances attending this case, and other recent cases like it, it seems to nu^ very Apparent that the seizure was not made for the purpose of enforcing any right or redressing any wrong As I have before remarked, it is not pretended that the vessel had be.ui engaged in fishing, or was intending to fish, in the proliibi^ed waters, or that it had done, or Avas intending to do, any other injurious act. It Avas proceeding upon its regular and lawful business of fishing iu the deep sea. It had received no reipiest, and, of course, could have disregarded no re(pu>st, to depart, and Avas, in fact, departing Avhen seized ; nor had its nuister refused to ansAver any questions put by the authorities. It had violated no existing LaAV, and had incurred no penalty Shat any knoAvn Statute imposed. It seems to me im})ossibl'5 to escape the conclusion that this and other similar seizures Avere made by the Canadian authorities for the deliberate purpose of harassing and em- barrassing the American fisliing-vesselsin the pursuit of their LiAvful employment, and the injury, which Avould have been a serious one if committed umler a mistake, is very much aggravated by the motiA^es v.hiih appear to have prompted it. I am instructed by my Government earnestly to protest against these proceedings as Avholly uuAvarranted by the Tlie United States Case. 91 Treaty of 1818, and altogetlior iuconsistoiit witli tlic friendly relations liitherto existing between the United .States and her ^lajesty's Government ; to reqnest that the Barid J- Adams and tlie other Anu'rican ii.-hing- vessels now under seizure in Canadian ports bo immediately released ; and that jiroper orders may bo issued to prevent similar pi'oceedings in the future ; and I am also instructed to inform you that the United vStates will hold her Majesty's Government re- sponsible for all losses which may l>e sustained by American citizens in the disj)ossession of tlieir propcu'ty growing out of the search, seizure, detention, or sale of their vessels lawfully within the territorial waters of liritish North Anun-iea. The real source of the dilhculty that has arisen is well understood. It is to be found in the irritation that has taken place among a portion of the Canadian peoi)le on account of the termination, by the United States' Government, of the Treaty of Washington on tlu; 1st July last, whereby fish im- I)orted from Canada into the United States, ami which, so long as that Treaty remained in force, was admitted free, is now liable to the import duty i)rovided by the General Revenue Laws. And the oj union appears to have gained ground in Canada that the United States may be driven, by harassing and annoying their lishermen, into the adoption of a new Treaty by Avhieh Canadian tish shall be admitted free. It is not necessary to say that this scheme is likely to prove as mistaken in policy as it is indefensible in principle. In terminating the Treaty of "Washington the United States were simjjly exercising a riglit expressly reserved to botli parties by the Treaty itself, and of the exercise of which by either party neither can complain. They willnot be coerced by wanton injury into the making of a new one. Nor woidd a negotiation that had its origin in mutual irritation bo jtro- mising of success. Ihe question now is no' what fresh A\ ' ■m ■i^rw I'liiw I'lrinuMMBMJwifcj^iit JJUJJ i i^ I 92 Appeniix. Troaty may or might be desirable, but what is the true aud just construction, as between the two nations, of the Treaty that ah'oady exists. The Government of the United States, approaching? this question in the most friendly spirit, cannot doubt that it will be met by her Majesty's Government in the same spirit, and feels every conlidence that the action of her Majesty's Government in the uremises will be such as to maintain the cordial relatione between the two countries that have so long happily prevailed. I have, &c. (Signed) E. J. Phelps. No. 63. Sir L. West to the Earl of Rosebery. (Received June 1 1.) Wasliington, May 30, 1886. My Lord, — I have the honour to inclose to your Lordship herewith co])y of a note M'hich I have received from the Secretary of State, protesting against the provisions of the Bill in the Canadian Parliament as an assumption of juris- diction unwarranted by existing Conventions between Great P>ritain and the United States, and informing nu^. that the United States' Minister in London has been instructed in this sense. At an interview which I had yesterday with !Mr. Bayard, he again alluded to the right of the Dominion Government to interpret a Treaty between Great Britain and the United States, but he was not at the time aware of the proceedings in the Canadian Parliament, and only sought for information as to the relation of the Legislatures of Great Britain and Canada. It was only aftei- I left him that he received the mm The L ^nited States' Case, 93 copy of the Bill in question, upon which he addressed tu nie the note, copy of which accompanies this despateli. I have forwanled a copy of Mr. Bayard's note to tlie Marquis of Lansdowne for his Excellency's information. I have, <&c. (Signed) L. 8. ISackville AVest. ^ Inclosure in No. 63. Mr. Bayard to Sir L. West. Department of State, Washington, May 29, 188G. Sir, — I have just received an official imprint of House of Commons Bill Xo. 136, now pending in the Canadian Parliament, entitled, " An Act further to amend the Act respecting Fishing by Foreign Vessels," and am informed that it has passed the House, and is now pending in the Senate. This Bill proposes the forcible search, seizure, and for- feiture of any foreign vessel within any harbour in Canada, or hovering within three marine miles of any of the coasts, hays, creeks, or harbours in Canada, where such vessel has entered such waters for any purpose not permitted by the laws of nations, or by Treaty or Convention, or by any law of the United Kingdom or of Canada now in force. I hasten to call your attention to the wholly unwarranted proposition of the Canadian autborities, through their local agents, arbitrarily to enforce according to their own con- struction the provisions of any Convention between the United States and Great Britain, and, by the interpolation of language not found in any such Treaty, and by inter- pretation not claimed or conceded by either party to such Treaty, to invade and destroy the commercial rights and privileges of citizens of the United States under antl by |;r -» *M ii . HB« ■mmmSS mmm 94 Appendix, .\ virtue of Treaty stipulations with Great Britain, and Statutes in that behalf made and provid(;d. I have also been furnished with a copy of Circular Xo. 371, purporting to be from the Customs Department at Ottawa, dated the 7th May, 188G, and to be signed by J. Johnson, Commissioner of Customs, assuming to execute the provisions of the Treaty between the United States and Great Britain concluded the 20th October, 1818; and printed copies of a " Warning " purporting to be issued by George E. Foster, Minister of Marine and Fisheries, dated Ottawa, the 5th March, 188G, of a similar tenour, although capable of unequal results in its execution. Such proceedings I conceive to be flagrantly violative of the reciprocal commercial privileges to which citizens of the United States are lawfully entitled under Statutes of Great Britain and the well-defined and publicly proclaimed authority of both countries, besides being in respect of the existing Conventions between the two countries an assump- tion of jurisdiction entirely unwarranted, and which is wholly denied by the United States. In the interest of the maintenance of peaceful and friendly relations I give you my earliest information on the subject, adding that I have telegraphed Mr. Phelps, our Minister at London, to make earnest protest to her Majesty's Govern- ment ' against such arbitrary, unlawful, unwarranted, and unfriendly action on the part of the Canadian Government and its officials, and have instructed Mr. Phelps to give notice that the Government of Great Britain will be held liable for all losses and injuries to citizens of the United States and their property caused by the unauthorized and unfriendly action of the Canadian officials to which I have referred. I have, &c. (Signed) T. F. Bayard. The United States^ Case, 95 No. 71. Siu L. "West to the Eart. of Eosebeuy. (Keceived Juiiu 28.) "Washington, June 15, 1886. My Lord, — I have the lionour to inclose to your Lord- ship liorewith copy of a note which I have received from the Secretary of State requesting the attention of her Majesty's Government to certain warnings aHeged to have been given to American tishing-vessels by tlie Canadian authorities to keep outside imaginary lines drawn fnjni headlands to headlands, which he characterizes as wholly unwarranted pretensions of extra-territorial authority, and usurpations of jurisdiction. I have, <^"c. (Signed) L. S. Sackville "West. . Liclosure in No. 71. Mr. Bayard to Sir L. "West. Department of State, Washington, June 14, 1886. Sir, — The Consul-G-eneral of the United States at Halifax communicates to me the information derived by him from the Collector of Customs at that port, to the effect that American fishing- vessels will not be permitted to land fish at that port o entry for trans})ortation in bond across the province. I have also to inform you that the masters of the four American fishing-vessels of Gloucester, Massachusetts — Martha A. Bradly, Rattler, Elim Boynton, and Fioneer — have severally reported to the Consul-General 96 Appendix, at Halifax that the Siib-Colluctor of Customs at Canso had warned thcni to keep outside an ima^'inary line drawn from a point tliree miles outside Canso Head to a point tliree miles outside St. Esprit, on the Cape Breton coast, a distance of forty miles. This line, for nearly its entire continuance, is distant twelve to twenty-tive miles from the coast. The same masters also report that they were warned against going inside an imaginary line drawn from a point three miles outside North Cape, on Prince Edward Island, to a point three miles outside of East Point, on the same island, a distance of over 100 nnles, and that this last-named line was for nearly that entire distance about thirty miles from the shore. The same authority informed the masters of the vessels referred to that they would not be permitted to enter Bay Chaleur. Such warnings are, as you must be well aware, wholly unwarranted pretensions of extra-territorial authority, and usurpations of jurisdiction by the Provincial officials. It becomes my duty, in bringing this information to your notice, to request that if any such orders for inter, feronce with the unquestionable rights of the American fishermen to pursue their business without molestation at any point not within three marine miles of the shores, and within the defined limits as to which renunciation of the liberty to fish Avas expressed in the Treaty of 1818, may have been issued, the same may at once be revoked as violative of the rights of citizens of the United States under Convention with Great Britain. I will ask you to bring this subject to the immediate attention of her Britannic Majesty's Government, to the end that proper remedial orders may be forthwith issued. It seems most unfortunate and regrettable that questions which have been long since settled between the United The United States Case. 97 t States and Great Britain sliouM now 1)0 nought to be revived. I have, &c. (Sig .ed) T. F. Bayard. No. 108. Mr. Phelps to the Earl of Iodesleigh. (Received September 13.) Legation of the United States, London, S;ptcnil)er 11, 188G. My Loud, — I have tlie honour to acknowledge tlie receipt of your note of the 1st September on the subject nf the Canadian fisheries. I received also on tlie IGth August last from Loid Kusc- bery, then Foreign Secretary, a copy ot a note on the saiiit' subject, dated the 23rd July, 1886, addressed by his Lordshi]>, through the British Minister at Washington, to Mr. Bayaid, the Secretary of State of tlie United States, in reply to a note from Mr. Bayard to the British Minister of the 10th May, and also to mine addressed to Lord Kosebery under date of the 2nd June. The retirement of Lord Kosebery from office immediately after I received his note prevented a continuance of the discussion with him. And in resuming the subject with your Lordship, it may be })roper to refer both to Lord Kosebery's note and to your own. In doing so I repeat in substance consideratiuns expressed to you orally in recent interviews. My note to Lord Rosebery was confined to the discussion of the case of the David J, Adams, the only seizure in reference to which the details had then been fully made known to me. The points presented in my note, and the arguments in support of them, need not be repeated. H ..-..-.^u l Um 98 Appendix. I No answer is attempted in Lord RoseLery's re.ply. Ifo declines to discuss the questions involved, on the ground that they are *' now occupyijig the attention of the Courts of Law in the Dominion, and may possibly form the subject of an appeal to the Judicial Committee of her Majesty's Privy Council in England." Ho adds : — ^' It is believed that the Courts in Canada will deliver Judgment in the above eases very s-hortly ; and until the legal proceediuf's now pending have been brought to a conclusion, her Majesty's Government do not feel justified in expressing an opinion upon them, either as to facts or the legality of the action taken by the Colonial authori- ties." And your Lordship remarks, in your note of the 24 Lh August, " It is clearly right, according to practice and pre- cedent, that such diplomatic action should be suspended pending the completion of the judicial incjuiry." This is a proposition to which the United States' Govern- ment is unable to accede. The seizures complained of are not the acts of individuals claiming private rights which can be dealt with only by judicial determination, or which depend upon facts that need to be ascertained by judicial inquiry. They are the acts of the authorities of Canada, who profess to l)e acting, and in legal effect are acting, under the authority of her Majesty's Government. In the Keport of the Canadian ^Minister of Marine and Fisheries, which is annexed to and adopted as a part of Lord Rosebery's note, it is said : — ^' The Colonial Statutes have received the sanction of the British Sovereign, who, and not the nation, is actually the party with whom the United States made the Convention. The officers who are engaged in enforcing the Acts of Canada, or the laws of the Empire, are her Majesty's TJie United States' Case. 99 officers, wliotlier tlieir authuiity eiiumatcs diroctly fiuiu the Queen or from lier Kcpreseutativc the Governor-General." The ground U[ion Avhich tlie seizures eoinplainetl of are principally justitied is the allegation, that the vessels in question were violating the stipulati(»ns of the Treaty between the United States and Great Britain. This is denied by the United States' Government. The facts of the transaction are not seriously in dispute, and if they were, could be easily ascertained by both Governments, without the aid of the judicial tribunals of either. And the ques- tion to be determined is the true interpretation of the Treaty, as understood and to be a ministered between the High Contracting Parties. The proposition of her Majesty's Government amounts to this : that before the United States can obtain considerati<'n of their complaint, that the Canadian authorities, without justilication, have seized, and are proceeding to conf Locate, American vessels, the result of the proceedings in the Canadian Courts, instituted by the cai>tors as the means of the seizures, must be awaited, and the decision of that tri- bunal on the international questions involved obtained. The interpretation of a Treaty when it becomes the subject of discussion between two Governments is not, 1 res])cctfully insist, to be settled by the judicial tribunals of either. Tiut would be placing its construction in the hands of one of the parties to it. It can only be interpreted fur such a purpose by the mutual consideration and agreement which were neces- sary to make it. Questions between individuals arising upon the terms of a Treaty may be for the Courts to which they resort to adjust. Questions between nations as to national rights secured hy Treaty are of a veiy dillerent character, and must be solved in another M'ay. The United States' Government is no party to the pro- ceedings instituted by the British authorities in Canada, nur H 2 W 100 Appendix, 'i( ! 1 i I (;;iii it Consult to become a party. The proc('e(lillL^s tlicni- solves are what tlie United States comphiin of, as unau- thorized, as w(dl as unfriendly. It would be inconsistent with the dignity of a Sovereign Power to become a party to such 'proceedings, or to seek redress in any way in the C'turl.s of another country for what it elainis to be the, violiition of Treaty stipidation.s ])y the authorities of that country. Still less could it consent to be made indirectly a party to the suits by being re([uired to await the result of such de- fence as tlie individuals whose property is im})licated may be able and may think proper to set up. Litigation of that sort may be indefinitely prolonged. Meanwhile, fresh seizures of AnuM'ican vessels ujtou similar grounds arc to be expected lor Aviiich redress would in like manner await the decisions of the local tri])unals, whose jurisdiction the captors invoke and the United States' Government denies. Nor need it be ngain pointed out how dillerent may bi; the (question involved between the Governments from that which these proceedings raise in the Canadian Courts. Courts in such cases do not administer Treaties. They administer (udy the Statutes that are passed in pursuance of Treaties If a Statute contravenes the i)rovisions of a Treaty, British Courts are nevertheless, bound by the Statute. And if", on the other hand, there is a Treaty stipulation which no Statute gives the means of enforcing, the Court cann(.)l enforce it. Although the United States' Government insists that there is no British or Colonial Act authorizing the seizures com- plained of, if the British Courts should, nevertheless, find such authority in any existing Statute, the question M'hether the Statute itself, or the construction given it, is warranted by the Treaty, would still remain ; and also the still higlier 'luestion, whether, if the strict technical reading of the ■A The United States Case. lOI \ Treaty mij^ht 1)0 thoiiglit to warrant sncli a result, it is one whic'li ought to 1)C enforciMl hotweeu Sovereign un three-niilo limit fixed ])y the Treaty has ))een announced, so as to include M'itliin it portions of tlie hi;^'h sea, such as the I>ay of Fiindy, the ]>ay of Clialcur, and other similar waters, and American fishermen have been preventtul from fisliin;^ in those places by threats of seizure. I do not propose, at tliis time, to dis- cuss the (piestion of the exact location of that line, ])ut only to protest aijaiiist its extensiun in the manner attempted by the provincial authorities. To two recent instances of interference by Canadian oflicers with American fishermen, of a somewhat different character, I am specially instructed by my (Jovernment to ask your Lordship's attention — those of the schooners Thomas /•'. Baijard and Mascot. These vessels were projiosing to fish in waters in which the ri'^ht to fish is exjiressly secured to Americans, by the terms of the Treaty of 1 8 1 8 ; the former in IJonne Bay, on the north-west coast of Newfoundland, and the latter near the shores of the Magdalene Islands. For this purpose the Bayard attempted to purchase bait in the port of Bonne Bay, having reported at the Custom-house and announced its object. The Mascot made a similar attempt at Port Anihers*", in the Magdalene Islands, and also desired to take on board a i»ilot. Both vessels were refused permission by the authorities to purchase bait, and the Afascot to take a pilot, and were notified to leave the port within twenty-four hours on penalty of seizure. They were therefore compelled to depart, to break up their voyages, and to return home, to their very great loss. I append copies of the affidavits ctf the masters of these vessels stating the facts. Your Lordship will observe upon reference to the Tieaty \y I04 Appc7idix. not only that tlie liglit to fish in these waters isconferretl by it, l)nt that the clause prohi1)iting entry by American fisher- men into Canadian ports^ except for certain specified purposes, which is relied on by the Canadian Government in the cases of the Adajns and of some other vessels, has no appli- cation whatever to the ports from which *.he Bayard and the Alascot were excluded. The only prohibition in the Treaty having reference to those ports is against curing and drying fish there, without leave of the inha])itants, which the vessels excluded had no intention of doing. The conduct of the provincial oflficers toward these vessels was therefore not merely unfriendly and injurious, but in clear and plain violation of the terms of the Treaty. And I am instructed to say that reparation for the losses sustained by it to the owners of the vessels will be claimed by the United States' (Jovernment on their behalf as soon as the amount can be accurately ascertained. It will be observed that interference Avith American fishing-vessels by Canadian authorities is becoming more and more frequent, and more and more flagrant in its disregard of Treaty obligations and of the principles of comity and friendly intercourse. The forbearance and moderation of the United States' Government in respect to them appear to have been misunderstood, and to have been taken advantage of by the Provincial Government. The course of the United States has Ijeen dictated not only l)y an anxious desire to presm've friendly relations, but by the full confidence that the interposition of her ^Majesty's Government would be such as to put a stop to the trans- actions complained of, and to afford reparation for Avhat lose has already taken place. The subject has become one of grave importance, and I earnestly solicit the immediate attention of your Lordship to the questions it involves, and \ MMi««« '•viravM The United States' Case. lOi \ to the views prosentml in my former note, and in ihosc of the Secretary of State. The proposal in your Lted the Americun Ihig- Captain Quigley, who, representing, as appeared, not the Revenue, but the Marine Department of the Canadian Administration, was, with his " cruiser," keeping guard uver the vessel, ordered tlie flag to be hauled down. This order was oljeyed, but about an hour afterwards the flag was again hoisted, whereupon Captain Quigley boarded the vessel with an armed crew and lowered the flag himself,' The vessel was finally released under orders of the Customs Department, being compelled to pay eight dollars costs in addition to the deposit of 400 dollars above specified. The seriousness of the damage inflicted on Captain Landry and those interested in his venture will be understood when it is considered that he had a crew of twelve men, with full supplies of bait, which his detention spoiled. You will at .once see that the grievances I have narrated fall under two distinct heads. The first concerns the board- ing by Captain Quigley of the Marion Grimes on the morning of the 8th October, and compelling her to go to the town of Shelburne, there subjecting her to a fine of 400 dollars for visiting the port without reporting, and detaining * Apology was made for lowering flag. Vide p. 61, aiife. I 114 Appcn.iix. lior there arhitrarily four days, a portion of which time was after a deposit to meet tlie fine had hecn made. This particular wrong I now proceed to consiih^r with none the less gravity, because other outrages of the same class have been pei-i)etrated by Captain Quigley. On the 18th August last I had occasion, as you will see by the annexed papers, to bring to the notice of the British Minister at this capital several instances of aggression on the part of Captain Quigley on our fishing- vessels. On the 19th October, 1886, I had also to bring to the British Minister's notice the fact that Captain Quigley had, on the 10th Sep- tember, arbitrarily arrested the Everett Steele, a United States' fishing-vessel, at the outer port of Shelburne. To these notes I have received no reply. Copies are transmitted, with the accompanying papers, to you, in connection with the present instruction, so that the cases, as part of a class, can be presented by you to her Majesty's Government. "Were there no Treaty relations wliatcver between the Tnited States and Great Britain, — were the United States' fishermen without any other right to visit those coasts than are possessed by the fishing-craft of any foreign country simply as such, the arrest and boarding of the Grimes, as al)0ve detailed, followed by forcing her into the port of Shelburne, there subjecting her to fine for not reporting, and detaining her until her bait and ice were spoiled, are wrongs which I am sure her Majesty's Government will be prompt to redress. No Governments have been more earnest and resolute in insisting that vessels driven by stress of weather into foreign harbours should not be subject to port exactions than the Governments of Great Britain and the United States. So far has this solicitude been carried that both Govern- ments, from motives of humanity, as well as of interest as leading Maritime Powers, have adopted many measures by which foreigners as well as citizens or subjects arriving 1 The United States^ Case, 115 ■within their territorial w.-itcrs may l)o proteclctl from the perils of the sea. For this purpose not merely liglit-l)ou.ses anil light-ships are placed by us at points of danger, but an elaborate life-saving service, well ecjuipped with men, boats, and appliances for relief, studs our seal)oard in order to render aid to vessels in ilistress, without regard to their nationality. Otlier benevolent organizations are sanctioned by Govern- ment whicli bestow rewards on those who hazard their lives in the protection of life and property in vessels seeking in our waters refuge from storms. Acting in this spirit, the Government of the United States has been zealous, not merely in opening its ports freely, without charges to vessels seeking them in storm, but in insisting that its own vessels, seeking foreign ports under such circumstances, and exclusively for such shelter, are not under tlie law of nations subject to Custom-house exactions. "In cases of vessels carried into British ports by violence or stress of weather," said Mr. Webster in instructions to Mr. Everett, the 28th June, 1842, " we insist that there shall be no interference from the land with the relation or personal condition of those on board, according to the laws of their own country ; that vessels under such circumstances shall enjoy the common laws of hospitality, subjected to no force, entitled to have their immediate wants and necessities relieved, and to pursue their voyage without molestation," In this case, that of the Creole, Mr. Wheaton, in the •• Revue rran9aise et l^trangere" (IX., 345), and M. Legare (4 Op. At. Gen., 98), both eminent publicists, gave opinions that a vessel carried by stress of weather or forced into a foreign port is not subject to the law of such port ; and this was sustained by Mr. Bates, the Umpire of the Commission, to whom the claim was referred (Rep. Com. of 1853; 244, 245): "The municipal law of Enghmd [so he aaid] cannot authorize a Magistrate to violate the law of I 2 !B , ii6 Appc7iiix. iiati<»n.s ]jy invadinj^ with nn aiinoil fono the vessel of a fneudly nation tliat lias comniitted no ofTcMice, and forcihly dissolving' the relations which, hy the laws of his country, tlie captain is hound to preserve and enforce on hoard. Theso rights, sanctioned hy the law of nations, viz., tlie right to navigate the ocean and to seek shelter in case of distress or other unavoidahle circumstances, and to retain over the ship, her cargo, and passengers, the law of her country, must be respected by all nations, for no independent nation would submit to their violation." It is proper to state that Lord Ashburton, who conducted the controversy in its diplomatic stage; on the British side, did not deny, as a general rule, the propositions of Mr. W(!bster. lie merely (piestioned the applicability of the rule to the case of the Creole. Nor has the piinciple ever been doubted by either her Majesty's Government or the Government of the United States ; while, in cases of vessels driven by storm on inhospital)le coasts, both Governments have asserted it^ sometimes by extreme measures of redress» to secure indemnity for vessels suffering nnder such circum- stances from port exactions, or from injuries inflicted from the shore. It would be hard to conceive of anything more in conflict with the humane policy of Great Britain in this respect, as well as with the law of nations, than Avas the conduct of Captain Quigley toAvards the vessel in question on the morn- ing of the 8th October. In such coasts, at early dawn, after a stormy night, it is not unusual for boats, on errands of relief, to visit vessels which liave been struggling with storm during the night. But in no such errand of mercy was Captain Quigley engaged. The Marion Grimes, having found shelter during the night's storm, was about to depart on her voyage, losing no time while her bait was fresh and her ice lasted, when i* The United States^ Case. 117 sho was boarJed by an armed crew, forced to go seven miles out of her way to tlio port, and was there under pressure of Captain Quigley, against thi; opinion originally expressed of the Collector, sul)jected to a fine of 400 ihiliars with costs, and detained there, as I shall notiei; luireafter, uniil hur voyage Wiis substantially lirokcm up. I am eonliilent her Majesty's (iovernniont will (concur with me in the opinion tliat, as a (piestiou of international law, aside from Treaty and other rights, \\n\ arrest and detention under the circum stances of Captain Landry and of his vessel were in violation of the law of nations as well as the law of humanity, anv incurred. It is not irrelevant, on such an issue as the present, to incpiiro into the olficial position of Captain Quighiv, " of the Canadian cruiser 7Vnv>r." He was, as tht term "Canadian cruiser " used by him enables us to conclude, not an ofhctirin her Majesty's distinctive service. He was not the Conmiander of a Re\ enue cutter, for the Head of the Customs Service of Canada dis- avowed him. Yet he was arresting and boarding, in defuince of law, a vessel there seeking shelter, over-in fluencing the Collector of the port into the imposition of a fine, hauling down with his own hand the flag of the United States, which was displayed over the vessel, and enforcing arl)itrarily an additional period of detention after the deposit had been made, simply because the captain of the vessel refused to obey him by executing an order insulting to the flag which the vessel bore. If armed cruisers are employed in seizing, harassing, and humiliating storm-bound vessels of the United States on Canadian Coasts, breaking up their voyages and mulcting them with fines and costs, it is important, for reasons presently to be specified, that this Government should be advised of the fact. 1. msmen^'^Bt^imiim^t I ii8 Appendix, From her Majesty's Government redress is asked. And that redress, as I sliall liave occasion to say hereafter, is, not merely tlie indemnification of the parties suffering hy Captain Quigley's actions, but his withdrawal from the waters ■where the outrages I represent to you have been committed. I have already said that the claims thus presented could be abundantly sustahied by the law of nations, aside from Treaty and other rights. But I am not willing to rest the case on the law of nations. It is essential that the issue between United States' fishing-vessels and the '' cruiser Terror " should be examined in all its bearings, and settled in regard not merely to the general law of nations, but to the particular rights of the parties aggrieved. It is a fact that the fishing-vessel Marion Grimes had as much right, under the special relations of Great Britain and the United States, to enter the harbour of Shelburne, as had the Canadian cruiser. The fact that the Grimes was liable to penalties for the abuse of such right of entrance does not disprove its existence. Captain Quigley is certainly liable to penalties for his misconduct on the occasion referred to. Captain Landry Avas not guilty of misconduct in entering and seeking to leave that harbour, and had abused no privilege. But whether liable or no for subsequent abuse of the rights, I maintain that the right of free entrance into that port, to obtain shelter, and whatever is incident thereto, belonged as much to the American fishing- vessel as to the Canadian cruiser. The basis of this right is thus declared by an eminent jurist and statesman, Mr. R. K. Livingston, the first Secretary of State appointed by the Continental Congress in instructions issued on the 7th January, 1782, to Dr. Franklin, then at Paris, entrusted l)y the United States with the negotiation of Articles of Peace with Great Britain : — "The arguments on whi(;h the people of America found ■i n The United Slates Case. 119 W their claim to fish on the banks of Newfoundland ariso^ first, from their having once formed a part of the British Empire^ in which state they always enjoyc.-d, as fully as the people of Britain themselves, the riglit of Hshing on those banks. They have shared in all the wars for the extension of that right, and Britain could with no more justice hav(! excluded them froni the enjoyment of it (even supposing that one nation could possess it to the exclusion of another) while they formed a part of that Empire, than they could exclude the people of London or Bristol. If so, the only inquiry is, how have'we lost this right? If we were tenants in common with Great Britain while united with her, we still continue so, unless by our own act we have relinquished our title. Had we parted with mutual consent, we should doubtless have made partition of our common rights by Treaty. But the oppressions of Great Britain forced us to a separation (which must be admitted, or we have no right to be independent) ; and it cannot certainly be contended that those oppressions abridged our rights, or gave new ones to Britain. Our rights, then, are not invalidated by this separation, more particularly as we have kept up our claim from the commencement of the war, and assigned tin' attempt of Great Britain to excludL' us from the fisheries, as one of the causes of our recurring to arms." As I had occasion to show in my note to the Briti h Minister in the case of the Everett Steele, of which a copy is hereto annexed, this " tenancy in common," held l)y citizens of the United States in the fisheries, tiiey were to " continue to enjoy " under the Preliminary Articles of 178'" as well as under the Treaty of Peace of 1783; and this right, as a right of entrance in those waters, wa> reserved to them, though with certain limitations in its use by the Treaty of 1818. I might here content myself with, noticing that the Treaty of 1818, herein reciting a principle H '-S wm I 20 Appcniix. of the law of nations as well as ratifying a riglit previously I'ossessed by (ishernien of the United States, expressly recognizes the right of these fishermen to enter the " hays or harhours" of her Majesty's Canadian dominions, "for tlie purpose of shelter and of repairing damages thereir " The extent of other recognitions of rights in the same clause need not here be discussed. At present it is sullicicut to say that the placing an armed cruiser at the mouth of a liarbour in which United States' hshing-vessels are accus- tomed and are entitled to seek shelter on their voyages, such cruiser being authorized to arrest and board our fishing- vessels seeking such shelter, is an infraction not merely of the law of nations, but of a solemn Treaty stipulation. Tliat, so far as concerns the fisliermen so aiFected, its con- sei^uences are far-reaching and destructive, it is nob necessary here to argue. Fishing-vessels only carry provisions enough for each particular voyage ; if they ai'e detained several days on their way to the fishing-banks, thy Mr. Fish on tliat occasion. In language immediately following that quoted by Lord Iddesleigh, he remarks as follows (italics being mine) : — "The present embarrassment is, tliat while we have reports of several seizures npon grounds, as stated hij the interested imrtiesy which seem to he in contravention of international law and special Treaties relating to the fisheries, these alleijcd causes of seizure are regarded as pretensions of over-zealous officers of the British navy and the colonial vessels, which will, as vo hope and are bound in courtesy to expect, be repudiated by the Courts before which our vessels are to be brought for adjudication," But in the present case, the facts constituting the alleged infraction by the vessel seized are not in dispute, except some circumstances of alleged aggravation not material to the validity of the seizure. Tiui original ground of the seizure was the purchase by the master of the vessel of a small quantity of bait, from an inhabitant of Nova Scotia, to be used in lawful fishing. This purchase is not denied by the owners of the vessel. And the United States' Government insists, first, tliat such an act is not in violation of the Treaty of 1818; oxiCi, second, iWat no then existing Statute in Great Britain or Canada authorized any pro- ceedings against the vessel for such an act, even if it could be regarded as in violation of the terms of the Treaty. And no such Statute has been as yet produced. In respect to the charge subsequently brought against the Adams, and upon which many other vessels have been seized, that of a technical violation of the Customs Act in omitting to report at the Customdiouse, though having no business at the port I ^m i^o Appendix. (and in some instances whore the V(!SRo1 seized was not within several miles of tlu! landing'), the United States' Gov(!rninent claim, while not admitting,' that the omission to report was even a tt'clmical transj^'iession of the Act, — that even if it were, no harm having heen done or intended, the proceedings against the vessels iox an inadvertence of that kind were in a higli degree harsh, unreasonable, and unfriendly. Especially as for many years no such effect has been given to the Act in respect to fishing-vessels, and no previous notice of a change in its construction had heen promulgated. It seems apparent, therefore, that the cases in question, as they are to he considered hetween tiie two Governments, present no points ui)on which the decisions of the Courts of Nova Scotia i ■ 'd ho awaited or would 1)(; material. Nor is it my longer open to the United States' Govern- ment to anticipate that the acts complained of will (as said by ^Ir. Fish in the despatch ahovo quoted) be repudiated as " the pretensions of over-zealous officers of tlio . . . colonial vessels." •■ Because they have heen so many times repeated as to constitute a regular system of procedure, have heen directed and approved by the Canadian Government, and liave been in nowise disapproved or restrained by her Miijesty's Government, though repeatedly and earnestly protested against on the part of the United States. It is therefore to her Majesty's Government alone that the United States' Government can look for consideration and redress. It cannot consent to become directly or in- directly a party to the proceedings complained of, nor to await their termination before the questions involved between the two Governments shall be dealt with. Tliose questions appear to the United States' Government to stand upon higher grounds, and to be determined, in large part at least, upon very different considerations from those upon which The United Sitatcs' Ca^e. Ui the Courts of Nova Scotia must proceed in the peutling liti^'iition. Lord Idileslci^'h, in tlio note above referred to, proceeds to express re^M-ct tliut no reply lia.s yet been received from the United States' (rovernment to tlie arguments on all the points in controversy contained in the licport of the Canadian Minister of ^fiirine and Fisheries, of which Lord liosebery had sent me a copy. Inasmuch as Lord Iddesloigh, and his predecessor, Lord Rosebery, have declined altogether, on the part of her !Majesty's Government, to discuss those questions, until the cases in which they arise sliall have been judicially decided, and as the very elaborate arguments on the subject pn^viously submitted by the United States* Government remain there- fore without reply, it is not easy to jierceivo why further discussion of it on the part of the United States shoulil b(! expected. So soon as licr ^Iaj(!sty's Government consent to enter npon the consideration of the points involved, any suggestions it may advance will receive immediate and respectful attention on the part of the L^nited States. Till then, further argument on that side would seem to be neither consistent nor proi)er. Still less can the United States' Government consent to be drawn, at any time, into a discussion of the subject with the Colonial Government of Canada. The Treaty in ques- tion, and all the international relations arising out of it, exist only between the Governments of the United States and of Great Britain, and between those Governments only can they be dealt with. If in entering upon that considera- tion of the subject which the United States have insisted upon, the arguments contained in the Report of the Canadian Minister should be advanced by her Majesty's Government, I do not conceive that they will be found difficult to answer. K \ : i 2 .b ■Pi" mm mm mm M .. 132 Appendix. Two suggestions contained in that Report are, lioweV(>r, pecially noticed hy Lord Iddcsleigh, as being "in reply" to tlie arguments contained in my note. In quoting the snbstanco of the contention of tlie Canadian Minister on the particular points referred to, T do Tiot understand his Lordship to depart from the conclusion of her ^fajcjsty's Government he had previously announced, declining to enter u])on the discussion of the cases in which the ques- tions arise. He presents the observations of the TJeport only as those of the Canadian Minister, made in the argument of points upon which her i\Iajesty's Government decline at present to enter. I do not therefore fend called npon to make any answer to these suggestions. And more especially, as it seems obvious that the subject cannot use- fully be discussed upon one or two suggestions appertaining to it, and considered by themselves alone. vVhile those mentioned by Lord Iddesleigh have undoubtedly their place in the general argument, it Avill bo seen that they leave quite untouched most of the propositions and reasoning set forth in my note to Lord Rosebery above mentioned. It appears to me that the questions cannot be satisfactorily treated aside from the cases in which they arise. And that when discussed, the whole subject must be gone into in its entirety. The United States' Government is not able to concur in the favourable view taken by Lord Iddesleigh of the ellorts of the Canadian Government '' to promote a friendly nego- tiation." That the conduct of that Government has been directed to obtaining a revision of the existing Treaty is not to be doubted. But its ellorts have been of such a character as to preclude the [irospect of a successful negotia- tion so long as they continue, and seriously to endanger the friendly relations between the United States and Great Eritain. \ The I ^nited States Case. T -» 't ^00 A.'udc from tlio ([upstion as to the rit;ht of Amovican vessels to ])urc']iiwe bait in Civnadiau ports, such a construc- tion has been given to tht' Treaty between the United States and Great Britain as anio'ints virtually to a declaration of almost comiilcte non-intercourse Avith American vessels. The usual comity between friendly natiims has been refused in their case, and in one instmce, at least, the ordinary offices of humanity. The Treaty of Friendship and Amity which, in return for very important concessions by the United States to Great Britain, reserved to the American vessels certain specified ])rivile<,'es, has been construed to exclude them from all other intercourse common to civilized life, and to universal maritime usage among nations not at war, as well as from the right to touch and trade accorded to all other vessels. And quite aside from any question arising upon construc- tion of the Treaty, the jirovisions of the Customsdiouse Acts and Regulatioris have been systematically enforeed against American ships for alleged petty and technical violations of legal requirements, in a nuniner so unreasonable, unfriendly, and unjust, as to render the privileges accorded by the Treaty practically nugatory. It is not for a moment contended by the Ignited States* Government that American vessels should be exempt from those reasonable port and Customdiouse Begulations which are in force in countries which such vessels have occasion to visit. If they choose to violate such re([uirements, tlicir Government will not attempt to screen them from th(> just legal consiMjuences. But what the United States' Government complain of in these cases, is that existing regulations have been construed with a technical strictness, and enforced with a severity, in cases of inadvertent and accidental violation wliere no harm Avas done, M'liich is both unusual and unnecessary, whereby 11 < ' ■ 1 ii ■ne Tv^^-MmnJ^^SSPi^^^ mmmsm ■ p 134 Appendix, the voyages of vessels have been broken up, and heavy penalties incurred. That the liberal and reasonable con- struction of these laws that had prevailed for many years, and to which the fishermen had become accustomed, was changed without any notice given. And that every oppor- tunity of unnecessary interference with American fishing- vessels, to the prejudice and destruction of their business has been availed 'of. Whether, in any of these cases, a technical violation of some re(iuirement of law had, upon close and severe construction, taken place, it is not easy to determine. But if such rules were generally enforced in such a manner in the ports of the world, no vessel could sail in safety without carrying a solicitor, versed in the intricacies of revenue and port regulations. It is unnecessary to specify the various cases referred to> as the facts in niiiny of them have been already laid before her Majesty's Government. Since the receipt of Lord Iddesleigh's note, the United States' Government has learned with grave regret that her Majesty's assent has been given to the Act of the Parliament of Canada, passed at its late Session, entitled, "An Act further to amend the Act respecting fishing by foreign vessels," which has been the subject of observation in the previous correspondence on tlio subject, between the Governments of the United States and of Great Britain. B>y the provisions of this Act, any foreign ship, vessel, or boat (whether engaged in fishing or not) found within any harbour in Canada, or within three maiine miles of '' any of the coasts, bays, or creeks of Canada," may be brought into port by any of the officers or persons mentioned in the Act^ her cargo searched, and her master examined upon oath, touching the cargo and voyage, under a heavy penalty if the questions asked are not truly answered : and if such ship has entered such waters ^^ for any inirpose not permitted by { " I '< The United States' Case, JO Treaty or Convention, or by liuv of tlie United Kingdom or of Canada for tlio time bem^- in force^ such sliip, vessel, or Ijoat, and the tackle, rigging, apparel, furniture, stores and cargo thereof shall be forfeited." It has heen pointed out in my note to Lord Iddesleigh above mentioned, that the three-mile limit referred to in this Act is claimed by the Canadian Government to include considerable portions of the high seas, such as the Bay of Fundy, the IJay of Chaleur, and similar waters, by drawing the line from headland to headland. And that American fishermen have been excluded from those waters accord- ingly- It has been seen also that the term " any purpose not permitted by Treaty "is held by that Government to com- prehend every possible act of human intercourse, except only the four purposes named in the Treaty : shelter, repairs, wood, and water. Under the provisions of the recent Act therefore, and tne Canadian interpretation of the Treaty, any American fishing- vessel that may venture into a Canadian harbour, or may have occasion to pass through the very extensive waters thus comprehended, may be seized at the discretion of any one of numerous subordinate officers, carried into port, subjected to search, and the examination of her master upon oath, her voyage broken up, and the vessel and cargo con- fiscated, if it shall be determined by the local authorities that she has ever even posted or received a letter, or landed a passenger in any port of her Majesty's dominions in America. And it is publicly announced in Canada that a larger fleet of cruisers is being prepared by the authorities, and that greater vigilance will be exerted on their part in the next fishing season than in the last. It is in the Act to which the one above referred to is an amendment that is found the provision to Avhich I drew 11 136 Appendix. attention in a note to Lord Iddesleigh of the 2n(l December, 1886, by whicli it is enacted that in case a dispute arises as to whether any seizure has or has not been legally made, the burden of proving the illegality of the seizure shall be upon the owner or claimant. In his reply to that note, of the 11th January, 1887, his Lordship intimates that this provision is intended only to impose upon a person claiming a licence the burden of proving it. But a reference to the Act shows that such is by no means the restriction of the enactment. It refers in the broadest and clearest terms to ar^y seizure that is made under the provisions of the Act, which covers the whole subject of protection against illegal fishing. And apj)lies not only to the proof of a licence to fish, but to all questions of fact whatever necessary to a determination as to the legality of a seizure, or the authority of the person making it. It is quite unnecessary to point out what grave embarrass- ments may arise in th<' relations between the L^nited States and Great Britain, under such administration as is reasonably to be expected of the exti-aordinary provisions of this Act and its amentlmcnt, upon which it is not important at this time further to comment. It will be for her Majesty's Government to determine how far its sanction and support will be given to further proceedings such as the United States' Government have now repeatedly comphiined of, and have just ground to apprehend may be continued by the Canadian authorities. !■ was with the earnest desire of obviating the impending difficulty, and of preventing collisions and dispute until such time as a permanent understanding between the two Governments could be reached, that I suggested on the part of the L'^nited States, in my note to Lord Iddesleigh of the 11th September, 1880, that an ad interim construction of the terms of the Treaty might be agreed on, to be carried 1 I The United States' Case, ' out by instnictions to l)c given on both si lO. Jj. Mr. Phelps to thi!; Earl of Iddesleigh. (Received December 4.) Legation of the United States, London, December 3, 1886. My Lord, — I have the honour to acknowledge the receipt of your note of the 30th of November, on the subject of the Canadian fisheries, and to say that I shall at an early day submit to your Loidship some considerations in reply. Meanwhile, I have the honour to transmit, in pursuance of the desire expressed by your Lordship in conversation on the 30th of November, a copy of an outline for a proposed ad interim arrangement * between the two Governments on * Tin's ad interim arrangemeut, not having been adopted, is omitted. The Umtcd States Case. MI this subject, ^vhicll lias Ix-cn ])reparo(l by the Secrolary nf State of the United States. Ami T likewise transinit, in connection Avitli if, a copy of the instruction from the Secretary of State which accom- panii^fl it, and which I am authorized to submit to your Lordship I have, (^f', (Signed) E. J. I'iielps. Inclosure 2 in No, 2. AIh. Bayard to Mr. Phelps. Department of State, Washington, November 15, 1886. Sir, — The season for taking mackerel has now closed, and I understand the marine police force of the territorial waters in British North America has been withdrawn, so that no further occasion for the administration of a strained and vexatious construction of the Convention of 1818, between the United States and Great Britain, is likely for several months at least. During this period of comparative serenity, I earnestly hope that such measures will be adopted by those charged with the administration of the respective Governments as will prevent the renewal of the proceedings witnessed during the past fishing season in the ports and harl)ours of Nova Scotia, and at other points in the maritime i)rovinces of the Dominion, by which citizens of the United States engaged in open-sea fishing were subjected to much unjust and un- friendly treatment by the local authorities in those regions, and thereby not only suffered serious loss in their legitimate pursuit, ))ut, by the fear of annoyance, which was conveyed to others likewise employed, the general business of open-sea t I 142 Appendix. fishitif; by citizens of the Uiiitud States was importantly injured. My instructions to you during tho period of these occur- rences have from time to time set forth their regrettable cluiracter, and they have also been brought promi)tly to the notice of the Representative of her Majesty's Government at this capital. These representations, candidly and fully made, have not produced those results of checking tlie unwarranted interfer- ence (frecpiently accompanied by rudeness and an unnecessary demonstration of force) with the rights of our fishermen guaranteed by express Treaty stipulations, and secured to them — as I conlith-ntly believe — by tho public Commercial Laws and Regulations of the two countries, and which are demanded by the laws of hospitality to which all fi'iendly civilized nations owe allegiance. Again I beg that you will invite her ]\tajesty's Counsellors gravely to consider the necessity of preventing the repetition of conduct on the part of the Canadian otiicials which may endanger the peace of two kindi'ed and friendly nations. To this end, and to insure to the inhabitants of the Dominion the efficient protection of the exclusive rights to their inshore fisheries, as provided by the Convention of 1818, as well as to ])revent nny abuse of the privileges reserved and guaranteed by that instrument for ever to the citizens of the United States engaged in fishing, and responding to the suggestion made to you by the Earl of Iddesleigh in the month of Sej)tember last that a modus vivendi should be agreed upon between the two countries to prevent encroach- ment by American fishermen upon the Canadian inshore fisheries, and equally to secure them from all molestation when exercising only their just and ancient rights, I now inclose the draft of a ISIemorandum which you may propose to Lord Iddesleigh, and which, I trust, will bo found to con- The United States Case. M3 c tain a satisfuotory Liisis for tlie solution of existiii<,' dillicul- ties, and assist in seciirin,Lj an assured, just, lionouraldo, and tliereforo, mutually sutisfactory sottlomont of the loug-vexeil question of the North Atlantic lisheries. I am cncourn^'od in the expectation that the propositions eml)odied in the Memorandum referred to will he acceptahle to her INfajesty's (loverninent, hecaust^, in the month of April 1866, ^Ir. Seward, tluni Secretary of State, sent forward to Mr. Adams, at that time United States' ^[inister in London, the draft of a Protocol which in sul»stance coin- cides with the first Article of the proposal now sent to you, as you will see by reference to vol. i. of the United States' Diplomatic Correspondence for 1866, p. 98 et seq. I find that in a pul dished instruction to Sir F. Bruce, then her Majesty's Minister in the United States, under date of the 11th i\lay, 1866, the Earl of Clarendon, at that time her Majesty's Secretary of State for Foreign Allairs, ap- proved them, but declined to accept the final proposition of Mr. Seward's Protocol, which is not contained in the Memorandum now forwarded. Your attention is drawn to the great value of these three propositions as containing a well-defined and practical inter- pretation of Article I. of the Convention of 1818, the en- forcement of which co-operatively by the two Governments, it may reasonably be hoped, will efficiently remove those causes of irritation of which variant constructions hitherto have been so unhappily fruitful. In proposing the adoption of a width of ten miles at the mouth as a proper definition of the bays in which, except on certain specified coasts, the fishermen of the United States are not to take fish, I have followed the example furnished by France and Great Britain in their Convention signed at Paris on the 2nd of August, 1839. This definition was referred to and approved by ^Ir. Bates, the Umpire of hi H4 Appendix. i tho Commission iuuIlt Llio Tiuaty of 1853, in the ciiso of tlio United Stat(!s' lisliin<,'-sclioon('r Wasliiiit/ftm, and has since been notaldy approved and adopted in the Convention si;^'ned at the Hague in 1882, and snbse(piently ratilied in relation to tishing in tlie North Sea between Cerniany, llel^'ium, iJenmark, France, (Ireat Ihitain, and the Netherhinds. The present Memorandum also contains [)rovi8ions for tho usual commercial facilities allowed everywhere fur the pro- motion of legitimate trade, and nowhere more freely than in British ports and under the- commercial policies of that nation. Such facilities cannot •with any show uf reason be denied to American lishing-vessels when plying their voca- tion in deep-sea fishing-grounds in the localities open to them equally with other nationalities. The Convention of 1818 inhil)it8 the '• taking, drying, or cui'ing lish " by American fislu'rmen in certain waters and on certain coasts, and wlien these objects arc eti'ected, the inhi])itory features are ex- liausted. Everything that may presumably guard against an infraction of these provisions will be recognized and obeyed by the Government of the United States, but should not be pressed beyond its natural force. By its very terms and necessary intendment the same Treaty recognizes the continuance permanently of the accus- tomed rights of American tishermen in those places not embraced in the renunciation of the Treaty to prosecute the business as freely as did their forefathers. No construction of the Convention of 1818 that strikes at or impedes the open-sea fishing l)y citizens of the United States can be accei)ted, nor should a Treaty of Friendship be tortured into a means of such offence, nor should such an end be accomplished by indirection. Therefore, by causing the same Port Kegulations and commercial rights to be applied to vessels engaged therein as are enforced relative to other trading craft, we propose to prevent a ban from being The I ^niicd Slates Case. M5 ]iut \\\>u\\ the lawful and rcgula:* busim-srs of oiuMi-si-a lisliiiip;. Arrauf^onieiits now exist b'.'twccn tlio (lovcrniiiouts of Great iJiitaiii and Franco and Groat Britain iiml Gcrniaiiy for tlio sul)niissiun in the first instance of all cases of seizun' to the joint examination and decision of two discroot and able coninianding olHcers of the navy of the respective countiii^a whose vessels are to be sent on duty to cruise in the waters to bo guanled aj,Minst encroaehinent. Copies of these Agreements are herewitli enclosed for reference. The addi- tional feature of an Umpire, in case of a difference in oj)inioii, is borrowed from the terms of Article I. of the Treaty of the 5th June, 1854, between the United States and Great Britain. This same Treaty of 185-1: contains in its first Article pro- vision for a Joint Commission for marking the fishing limits, and is therefore a jn'ocedent for the present proposition. The season of 188G for inshore fishing on the Canadian coasts has come to an end, and assuredly no lack of vigilance or jn'omj^titude in making s(!izures can be ascribed to the vessels of the marine police of the Dominion. The record of their operations discloses but a single American vessel found violating the inhibitions of the Convention of 1818 by fishing M'ithin three marine miles of the coast. The numerous seizures made have been of vessels qinetiy at anchor in esta- blished ports of entry, under chaiges which, up to this day, have not been particularizedsufliciently toallowof an intelligent defence. Not one has been condemned after trial and hear- ing, but many have been fined without hearing or judgment for technical violations of alleged Commercial Regulations, although all commercial privileges have been simultaneously denied to them. In no instance has any resistance been offered to Canadian autliority, even when exercised with useless and irritating provocation. ,l-.iBB^"K,!iH mm mm w 146 Appendix. It is trusted that the Agreeiuent now proposed may be readily accepted by her Majesty's Ministry. Should the Earl of Iddesleigh express a desire to possess the text of this despatch, in view of its intimate relation to the subject-matter of the Mcnnorandum, and as evidencing the sincere and cordial disposition which prompts this pro- posal, you will give his Lordship a -copy. I am, &c. (Slgn(Hl) T. F. Bayard. 1 THE CANADIAN CASE. No. I ^7/1887. Inclosure 3 in Xo. 37. KErOUT OF A Ct)MMITTEE OF THE HONOURABLE THE PrIVY Council for Canada, ArrRovEi) by his Excellency THE Governor-General in Council on the Gth April,. 1886. The Cominittoe of the Privy Council have had under con- s^'deratioii a despatch, dated the 29th March, 1886, from her Majesty's ^linister at AVashington, informing your ExoeUency that the United States' Consul-General at Ualifax was re- ported to have argued that there is nothing in the Convention of 1818 to prevent Americans, having caught lisli in deep water and cured them, from landing them in a marketable condition at any Canadian port and transhipping tliem in bond to the United States either by rail or vessel, and that any refusal to permit such transhipment would be a violation of the general bonding arrangement between the two coun- tries. The Sub-Committee to ^\ horn the despat(.'h in question was .af erred report that if the contention of the United States' C''.nsul at Halifax is made in relation to American lishing- vessels; it is inconsistent with the Convention of 1818. L 2 148 Appendix. 1 ' That they arc of opinion, from tlic; lanoiiago of tliat Con- vention — " Provided, hoM'ever, that the American fisliermen shall be permitted to enter such bays or harbours for the purposes of shelter and of repairing damages therein, of pur- chasing Avood, and of obtaining water, and for no other purpose whatever " — that, under the terms of the Convention, United States' fishermen may properly be precluded from entering any harbour of the Dominion for the purpose of transhipping cargoes, and that it is not material to the question that such fish(;rmen may have l)een engaged in fishing outside of the " three-mile limit " exclusively, or that the fish which they may desire to have transhipped have been taken outside of such limit. That to deny the right of transhipment would not be a violation of the general bonding arrangement between the two countries. That no lionding arrangpment has been made Avhich, to any extent, limits the operation of the Convention of 1818, and, inasmuch as the right to have access to the ports of what is now the Dominion of Canada for all other purposes than those named, is explicitly renounced by the Convention, it cannot with propriety be contended that the enforcement of the stipulation above cited is contrary to the general pro- visions upon which intercourse is conducted between the two countries. Such exclusion could not, of course, be enforced against United States' vessels not engaged in fishing. The Sub-Committee in stating this opinion are not unmind- ful of the fact, that the responsibility of determining what is the true interpretation of a Treaty or Convention made by her Majesty must remain with her ^Majesty's Government, but in view of the necessity of protecting to the fullest extent the inshore fisheries of the Dominion according to the strict terms of the Convention of 1818, and in view of the failure i I The Canadian Case. 149 of the United States' Government to accede to any arrangc- nients for tlie nuitual use of the inshore fisheries, the Suh- Coniniittec recommend that the claim which is reported to liave been set up by the United States' Consul-General at ]Ialifax be resisted. Tiie Committee concur in the fon^going Report and recom- mendation, and they respectfully submit the same for your Excellency's approval. (Signed) Joiix J. ]\[cGee, Clerk, Privy Council for Canada. i if No. 38. Sir L. AVest to the Earl of Rosebery. (Received Ajjril 2G.) Washington, April U, 1886. My Lord, — I have the honour to inclose to your Lordship herewith the report of the debate in tlie Senate on the Reso- lution against the appointment of a Commission for the settlement of the Fisheries (|Uestion as recommended by the President in his jMessage to Congress. The Resolution was adopted by a vote of 35 to 10. I have, &c. (Signed) L. S. Sackville West. No. 39. Mr. Bramston to Sir P. Currie. (Keceived April 30.) Downing Street, April 30, 188G. Sir, — "With reference t', j.vev'ous correspondence respecting the North Amerii an Eisher.'es cj[uestion, I am directed by ll I50 Appendix. Earl Granville to transmit to you, to be laid before the Ear of Kosebery, a copy of a further despatch, witli its iuclosures, from the Governor-General of Canada on the subject. I am, &c. (Signed) John Bramstok. Inclosure 1 in Xo. 39. The Marquis op Lansdowxe to Eael Granville. Government ITouso, Ottawa, April G, 188G. My Lord, — I have the honour to inclose herewith a copy of an approved Report of a Committee of tlie Privy Council upon a despatch which I received on the 2nd instant from her Majesty's ]\Iinister at Washington (and of which a copy is herewith inclosed), informing me that the United States' Consul-General at Halifax was reported to liave argued that, under the Convention of 1818, it was open to American fishermen to land — cured and in a marketable condition — fish which had been caught outside the three-mile limit at any Canadian port, and to transhi]) the same in l^ond to the United States by rail or vessel, and that any refusal to permit such transhipment would be a violation of the general bond- ing arrangement between the two countries. It does not appear from Sir Lionel West's despatch that this statement was made officially, or that it has been supported by the Government of the United States. As, however, the matter is one to whicli furtlier reference may be made, it is desirable that the views of my Government in regard to it should be placed on record. 2. The Report of the Privy Council contains an explana- tion of the reasons for which it is believed that, under the m The Canadian Case. I =;i terms of tlio Convention, American fishermen are absolutely excluded from admission to Canadian l)ays or harbours, excej»t for the purposes of shelter and repairing damages therein, or of purchasing wood and obtaining water. The arrangements in force between the two countries for the transhipment of goods in bond — arrangements which depend in the main upon the Customs Laws of the two countries — cannot, therefore, bo regarded as in any sense restricting the operation of the Convention. It should, moreov(ir, be re- mom])ered that these bonding arrangements are the same as those which obtained between the two countries after the expiration of the Reciprocity Treaty of 1854, and I am not aware that between that date and the date of the Treaty of 1871 any claims such as those now made by the Consul- General at Halifax were preferred on the part of the United States' Government. 3. Your Lordship will, however, clearly understand that, although it is thought necessary to enforce strictly against American fishing-vessels a restriction which was framed with the express purpose of affording protection to the fisheries of the British Colonies, that restriction! would not be applica- ble to vessels not themselves engaged in fishing, but visiting Canadian ports in the ordinary course of trade. I have, &c. (Signed) Lansdowxe. \\ Xo. 52. Mr. Phelps to the Earl of Rosebery. (Received June 1.) Legation of the United States, Loiulon, June 1, 1H8G. Vi\ Lord, — I have tLi honour to inclose, for your perusal, I M2 Appendix. ii ( opy of the translation of a cyi)hcr telegram which I have just received from the Secretary of State of the Uuitcil States, and respectfully to ask your early attention to tho su])ject it refers to. I shall have the honour to suhmit to your Lordshii) in writing, in behalf of my Government, within two or three days, some observations on the questions involved. I have, &c. (Signed) E. J. Phelps. In closure in No. 52. Mr. Bayard to Mr. Phelpb. (Telegraphic.) . :\ray 30, 1S8G. Call attention of Lord Roschery immediately to Bill No. 136 now i)endiug in the Parliament of Canada, assuming to execute Treaty of 1818; also Circular No. 371, by Johnson, Commissioner of Customs, ordering seizure of vessels for violation of Treaty. Both are arbitrary and unwarranted assumptions of power against Avhicli you are instructed earnestly to protest^ and state that the United States will hold Government of Great Britain responsiljle for all losses which may be sustained by American citizens in the dispossession of their property growing out of the search, seizure, detention, or sale of their vessels lawfully within territorial waters of British North America. No. 54. The Earl of Rosehehy to Sir L. West. Foreign Office, June 2, 1886. Sir, — The American Minister informed me to-day, in the 1 r The Caiuuh'ini Case. ^5?^ course of conversation, tliat ho was at this moment propariiig a Statement of the American contenti(jn with rcj^'anl to the recent seizures under the terms of the Convention of 1818. He entered into a h;»ni? argument to sliow tluit seizure was not provided for by ]aw jis a penaUy for the infraction of this clause; that what was ])rovided for M'as a ])uuishn)ent for American vessels fishing witliin the forl)i(hh.'n limits, lie said that his (Government could not admit the iuti-rprctation whicli apparently was accepted l)y the Canadian Government, and he mentioned the fact that in any case the American lishcrmen had no notice of the action that Avas going to he taken. As to the latter point, I replied that that Avas not the fault of her Majesty's Government. On the 18th March I had telegraphed to you to ask you to reipiest the Secretary of State to issue a Notice such as we were ahout to issue to Canadian fishermen, and he had declined to do so. ]\lr. Phelps Avas not aAvare of this. I went on to say that the vieAV of the American Government ajipeared to he this : '^ You are to accept our interpretation of the Treaty, Avhether it be yours or not, and in any case Ave Avill not negotiate with you." I said that that Avas not a tenahle ])ropositiou. ^Ir. Phelps said that it Avas quite true that his Government, oAving to circumstances of Avhich I Avas aAvare, had not been able to negotiate, but, as regarded the Treaty, he felt sure that he Avould be able to convince mo tltat the American interpretation was correct, I said that, as regards the cir- cumstances to AA'hich he had alluded, Ave had only to look to the United States' Government, and could not look beyond it. He Avould remember that at almost our first inter vie av on my accession to office I had })roposed to him to endeavour to procure the continuation of the recent arrangement for a year, although that arrangement Avas disadvantageous to Canada in that it gave the United States .11 it Avanted, and gave Canada nothing in return. Wo hud also pressed on the fl I imr~ r ^S4 Appendix, United States' Government the inline of a Joint Commission to investigate the matter, aiul tliat had also been refused Furtlier, on the 24th May, I made a proposal, ])ersonally indeed, hut with all the weight ■\vhieh my official charaeter could give, that Canadian action should he susj)cn(U'd, and negotiations should commence, and to this I had received no reply. In tliese circumstances, I could not feel that her Majesty's Government had been wanting in methods of con- ciliation, and I begged him to send me his Statement of his case as quickly as possible, for in the meantime there was such unanimity among our Legal Advisers as to tlio inter- pretation of the Treaty of 1818 that I had nothing to submit to them. As regards the cases themselves, I had as yet no details, nor was I in possession of the Bill or of the Circular to which Mr. Bayard's recent telegram referred. I anij &c. (Signed) Rosebery. I No. 55. Mb. Bramston to Sir J. Pauncefote. (Received June 2.) (Extract.) Downing Street, June 2, 1886. With reference to previous correspondence respecting the North American Fisheries question, I am directed by Earl Granville to transmit to you, to be laid before the Earl of Rosebery, a copy of a despatch from the Governor-General of Canada, forwarding a copy of a Bill recently introduced into the Dominion House of Commons for the purpose of amending the Act 31 Yict., cap. 61, respecting fishing by foreign vessels in the territorial waters of the Dominion. IJie Canadian Case. 155 No. 78. TiiK Earl of Roserehy to Sir L. Wkst. Foi-ii-n OIVk'o, July 23, 1886. Sir, — I liave received yourdespntcli of the lltli jVIay last, inclosiiif,' a coj>y of a note addressed to you by Mr. Jiayard, ill "which, whilst expressly referring to tlic seizure hy the Canadian authorities of the American fishing- vessels Jotscjth Story and Ddhifl J. Adamt^, he discusses at length the present position of the North American Fisheries ques- tion. I have abo received a communication upon the same subject from the United States' ]\Iinister at tliis Court, dated tlie 2iid June last, "which, allhough advancing arguments of a somewhat dilf(>rent character, is substantially addressed to the considcT-ation of the same question. I think it therefore desirable to rejtly to tlu^se two com- mmiications together in the ]>resent despatch, of which I shall hand a copy to Mr. Piielps. The matter is one involving the gravest interests of Canada ; and upon receipt of the communications above mentioned, I lost no time in requesting the Secretary of State for the Colonies to obtain from the Government of the Dominion an expression of their views thereon. I now inclose a copy of an approved Report of the Canadian l^rivy Council, in which the case of Canada is so fully set forth that I think it would be desirable, as a preliminary step to the further discussion of the questions involved in this contro- versy, to communicate a copy of it to !Mr. Bayard, as repre- senting the views of the Dominion Government ; and I have to request that, in so doing, you will state that her Majesty's Government will be glad to be favoured with any observations which Mr. L ayard may desire to make thereon. % I "t*,"""" 1^6 Appendix. \\ In rof,'ar(l lo iliosc portions of Mr. Tliclps' note of tlio 2n(l Jnnc, in whicli lio calls in qu(;stion the conipotoncc of the Ciinadian authorities undijr existing Statutes, whether luiperial or Colonial, to ell'ect seizures of United States' lishing-vessels nnder circunistanees such as those Avhicli ai)pear to liave led to the capture of the Darid J. Adams, I liave to observe that her Majesty's (Jovcrnment do not feel themselves at present in a position to diseuss that ([uestion, wliich is now occupying the attention of the Courts of Law in the Dominion, and wliicli may possihiy form the subject of an appeal to the Judicial Committee of her ^Lijesty's Privy Council in England. It is believed that the Courts in Canada will deliver Judgment in the above cases very shortly ; and until the legal proceedings now pending have been Ijrought tt) a conclusion, her Majesty's Government do nut feel justiiied in expressing an opinion upon them, either as to the facts or the legality of the action taken l)y the Colonial authori- ties. I do not, therefore, conceive it to be at present necessary to make any specific reply to jNFr. Biiyard's further notes of the 11th and 12th May and 1st, 2nd, and 7th June last. lUit with regard to his note of the 20th May relative to the seizure of the United States' fishing-vessel Jennie and Jidia, I inclose, for communication to Mr. Bayard, a copy of a Report from the Canadian Minister of Marino and Fisheries, dealing with this case. I cannot, however, close this despatch without adding that her Majesty's Government entirely concur in, that passage of the Report of the Canadian Privy Council, in which it is observed that " if the provisions of the Conven- tion of 1818 have become incon /enient to either Contracting Party, the utmost that good-will and fair dealing can su'firest is that the terms shall be reconsidered." , I < The Canadian Case. 15; . It is assuredly fiom no fault on the piirt of lior Miijrsty's CiovorniTKMit that tlio (incstioii lias now Ixmu rclc^'atml to tliu terms of tlio Convention of ISIS. They have not ceased to express their anxiety to conmieneu nenotiations, and they arc now prepared to enter upon a fiank and friendly consideration of the whole question with the nu»t earliest desire to arrive at a settlement consonant alike with the rights and interests of Canada and of the United States. AVhere, as in the; i)resent case, conllicting interests are brought int(j antagonism hy Treaty stii)ulations the strict interpretation of which has searcdy been called in (question, the matter appears to her Majesty's Government to bo pre- eminently (.)iie for friendly negotiation. I am, i^'c. (Signed) Koheuery. Inclosure 1 in No. 78. Keport of a Committki-: of the iroxouRAur.E the Privy Council for Canada, approved nv iiis Excellen'CY THE Governor-General on the 1 Ith -Iune, 188G. The Committee of the Privy Council have liad under consideration a Pepoit from the Minister of ^Marine and Fisheries upon the communications datetl 10th and 20th May last from the Hon. Vlx. Bayard, Secretary of State of the United States, to her ]\lajesty's Minister at Washington, in reference to the seizure of the American lishing-vessd David J. Adams. The Committee concur in the annexed Keport, and they advise that your Excellency Ije moved to transmit a co])y thereof to the Plight Hon. the Secretary of State for the Colonies. n u m %. A^ ^» IMAGE EVALUATION TEST TARGET (MT-3) y A {/ y ^ % ^ my. 1.0 I.I 1.25 *~ IIIIIM IIIM ■r 'IK iiiii5 !- m 1 2.0 III— 14 i 1.6 V] <^ /^ c*. fil 'V /. o m 7 /A Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, NY. 14580 (716) 872-4503 ii^ w- &><. ^^^ ;\ 1 I 1.8 Appoidix. All of which is respectfully submitted for your Excel- lency's approval. (Siguetl) John J. MuGee, Clerk, Privy Council, Canada. The undersigned having hud his attention called by your Excelhaicy to a communication from Mr. Bayard, Secretary of State of the United States, dated the 10th May, and addressed to her Majesty's Minister at Washington, and to a further communicatiun from Mr. Bayard, dated the 20th !May instant, in reference to the seizure of the American tisliing-vessel Darid J. Adams, begs leave to subuat the following observations thereon : — Your Excellency's Government fully appreciates and reciprocates Mr. Bayard's desire that the Administration of the laws regulating the commercial interests and the mer- cantile marine of the two countries might be such as to promote good feeling and mutual advantage. Canada has given many indisputable proofs of an earnest desire to cultivate and extend her commercial relations with the United States, and it may not be without advantage to recapitulate some of those proufs. For many years before lh5-4 the ^larltirae Provinces of British North America had complained to her ^lajesty's Government o^ the continuous invasion of their inshore fisheries (so)uetimes accompanied, it was alleged, with violence) by American fishermen and fishing-vessels. Much irritation naturally ensued, and it was felt to bo expedient by both Governments to .put an end to this unseemly state of things by Treaty, and at the same time to arrange for enlarged trade relations between the United States and the British North American Colonies. The Reciprocity Treaty of 185-i was the result, by which were The Canadian Case. 159 not only our insliore fisheries opened to the Americans, but provision was made for the free iiiterehiuigo of tlie princii)al natural products of both countries, including those of the sea. Peace -was preserved on our waters, and the vidunie of international trade steadily increased during the existence of this Treaty, and until it was terminated in 18GG, not by Great Britain, but by the United vStates. In the following year Canada (then become a Dominion and united to Nova Scotia and New Brunswick) was thrown back on the Convention of 1818, and obliged to fit out a Marine Police to enforce the laws and defend her rights, still desiring, however, to cultivate friendly relations with her great neighbour, and not too suddenly to deprive the American fishermen of their accustomed fishing-grounds and means of livelihood. She readily ac(|uiesced in the proposal of her Majesty's Government for the temporary issue of annual licences to fish, on payment of a moderate fee. Your Excellency is aware of the failure of that scheme. A few licences were issued at first, but the a[)plications for them soon ceased, and th(^ American fishermen persistt;d in forcing themselves into our waters, " without leave or licence." Then came the recurrence, in an aggravateil form, of all the troubles which had occurred anterior to the Reciprocity Treaty. There were invasions of our waters, personal confiicts between our fishermen and American crews, the destruction of nets, the seizure and condetnnatian of vessels, and intense consequent irritation on both sides. This was happily put an end to by the "Washington Treaty of 1871. In the interval between the termination of the first Treaty and the ratification of that by which it was eventually replaced, Canada on several occasions pressed, without success, through the British Minister at Washington, fcjr a renewal of the Keciprocity Treaty, or for the negotiation of another on a still wider basis. 9B i6o Appcndi.x Whon ill 1874 SirEdwanl Thornton, tlum r)ritisli ^^illistor iit Wasliiii^fton, and tlie late Hon. (iroor^fo Brown, of Toronto, were appointed joint rit'iiipotcntiai'ios for tlie purpose of ne- gotiating' and coneliidinn a Treaty relating to fisheries, com- ineTce, and navigation, a Provisional Treaty was arranged liy them with tlie UnitiMl States' Government, but the Senate deci(h,'d that it was not expedient to ratify it, anil the nego- tiation fell to the groun(h The Treaty of Wasliington, while it failed to restore the provisions of the Treaty of 1854, fur reeiitrocal free trade (exeei)t in fish), at least kept the peace, and there was traiKpiillity along our shores until July 1885, when it w'as terminated again by the United States' Government and not by Great Britain. With a desire to show that she wished to be a good neigh- bour, and in order to prevent loss and disa])j)ointnient on the part of the United States' fishermen by their suihlen exclusion from her waters in the middle of the fishing season, Canada continued to allow them for six months all the advantages which the rescinded Fishery Clauses had previously given them, although her j)eople received from the United States none of the corresponding advantages which the Treaty of 1871 liaritain or the United Kingdom of (Jreat Britain and Ireland, provided that nothing contained in this Act shall apply or bo con- strued to apply to the ships or .■id)jects of any Prince, Power, or State in amity with his Majesty who are entitled by Treaty with his Majesty to any privileges of taking, drying, or curing fish on the coasts, bays, creeks, or harbours, or within the limits in this vVct described. Provideil always, that it shall and may ]>e lawful for any {ish(>rmen of the said United States to enter into such bays or harbours of his Britannic Majesty's dominions in America as are last men- tioned, for the purpose of shelter and repairing damages therein, of purchasing wood, and of obtaining water, and for no other purpose whatever, subject nevertheless to such re- strictions as may be necessary to prevent such fishermen of the said United States from taking, drying, or curing lish in the said bays or harljours, or in any other manner whatever, abusing the said privileges by the said Treaty, and this Act reserved to them, and as shall, for that purpose, be imposed by any order or orders to be from time to time niade by his ^lajesty in Council under the authority of this Act, and by any Kegulations which shall be issued by the Governor or jjcrson exercising the oIKce of Governor in any such parts of his Majesty's donunions in America, under or in pursuance of any such order in Council as aforesaid. And that if any person or persons upon requisition made by the Governor of Newfoundland, or the person exercising the office of Governor, or ])y any Governor in person exercis- ing the office of Governor in any other parts of his Majesty's dominions in America, as aforesaid, or by any officer or officers acting under such Governor or persdn exercising the M 2 ' II mmmm W 164 Appendix. office of Governor, in tlio execution of any orders or instructions from his ;^^ajosty in Council, shall refuse to de- part from such bays or harhours, or if any person or persons shall refuse, or ne<,dect to conft)rm to any Regulations or directi'>ns which shall be made or given for the execution of any of the purposes of this Act, every such person so refusing or otherwise olfending against this Act shall forfeit the sum of two hundred pounds, to be recovered in the Superior Court of Judicature of the Island of Newfoundland, or in the Superior Court of Judicature of the Colony or Settlement within or near to which such offence shall be committed, or by bill, plaint, or information in any of his Majesty's Courts of Record at W'estminstor, one moiety of such penalty to belong to his Majesty, his heirs, and successors, and the other moiety to such person or persons as shall sue or pro- secute for the same," The Acts ])assed by the provinces now forming Canada, and also by the Parliament of Canada (now noted in the margin) * are to the same eifect, and may be said to be merely declara- tory of the law as established by the Imperial Statute. 3. The authority of the Legislatures of the provinces, and after confederation the authority of the Parliament of Canada, to make enactments to enforce the provisions of the Convention, as well as the authority of Canadian officers to enforce those Acts, rests on well-known Constitutional prin- ciples. Those Legislatures existed, and the Parliament of Canada now exists, by the authority of the Parliament of the United Kingdom of Great Ihitain and Ireland, which is one of the nations referred to by Mr. Bayard as the *' Contracting 1 Dominion Acts, 31 Vict., cap. 6 ; 33 Vict., cap. 16. now incor- porated in Revised Statutes of 1886, cap. 90. Nova Scotia Acts, lievised Statutes, 3rd scries, cap. 94, 29 Vict. (1866), cap. 35. New Brunswick Acts, 16 Vict. (1853), cap. 69. Prince Edward Island Act, 6 Vict. (1843), cap. 14. J The Canadian Case. 1 6; Parties." The Culonial Statutes liavc received the sanction of the J'ritish Sovereign, who, and not the nation, is actually the party with whom the United States made the Conven- tion. The officers who are engaged in enforcing tlie Acts of Canada or tlie hiws of the Empire, are her ^[ajesty's ofRcers, whether their authority emanates directly from the l^)ueen, or from her Representative, the (Jovernor-Creneral. The juris- diction thus exercised cannot therefore he properly described in the language used by Mr. Bayard as a supposed and there- fore questionable delegation of juristliction l)y the Imperial Government of Great Uritain. Her jNfajesty governs in Canada as well as in Great Britain ; the officers of Canada are her officers j the Statutes of Canada are her Statutes, passed on the advice of her Parliament sitting in Canada. It is, therefore, an error to conceive that because the United States and Great Britain were, in the first instance, the Con- tracting Parties to the Treaty of 1818, no ([uestion arising under that Treaty can be " responsibly dealt with," either by the Parliament, or l)y the authorities of the Dominion. The raising of this objection now is the more remarkable, as the Government of the United States has long been aware of the necessity of reference to the Colonial Legislatures in matters affecting their interests. The Treaties of 1854 and 1871 expressly provide that, so far as they concerned the fisheries or trade relations with the provinces, they should be subject to ratification by their several Legislatures ; and seizures of American vessels and goods, followed by condemnation for breach of the I'rovincial Customs Laws, have been made for forty years without protest or objection on the part of the L^nited States' Government. The Undersigned, with regard to this contention of Mr, Bayard, has further to observe that in the proceedings which have recently been taken for the protection of the fisheries, 1 1 66 Appendix, no attempt has been made to put any special or novel inter- pretation on the Convention of 1818. The seizures of tlie fishing- vessels have Iwen made in order to enforce the explicit provisions of that Treaty, the clear and long-established provisions of the Imperial SUitute and of the Statutes of Canada expresseil in almost the same language. The proceedings which have been taken to carry out the law of the Empire in the present case are the same as those which have been taken from time to time during the period in which the Convention has been iii force, and the seizures of vessels have been made under process of the Imperial Court of Vice-Admiralty established in the provinces of Canada. Mr. Bayard further observes that since the Treaty of 1818, " a series of Laws and Regulations alFecting the trade between the North American provinces and the United States have been respectively adopted by the two countries, and have led to amicable and mutuallv beneficial relations between their respective inhabitants," and that " the independent and yet concurrent action of the two Govern- ments has effected a gradual extension from time to time of the provisions of Article I, of the Convention of the 3rd July, 1815, providing for reciprocal liberty of commerce between the United States and the territories of Great Britain in Europe, so as gradually to include the colonial possessions of Great Britain in North America and the West Indies within the limits of that Treaty." The Undersigned has not been able to discover, in the instances given by ^Ir. Bayard, any evidence that the Laws and Regulations affecting the trade between the British North American provinces and the United States, or that " the independent and yet concurrent action of the two Governments " have either extended or restricted the terms of the Convention of 1818, or atlected in any way the right J The Canadian Case, 167 to enforce its provisions according to the plain moaning of the Articles of tlie Treaty ; on the contrary, a reference to the XVIlIth Article of the "Washington Treaty will show that the Contracting Parties made the Convention the basis of the further privileges grantetl by the Treaty, and it does not allege that its provisions are in any way extended <»r affected by subsequent legislation or Arts of Administration. Mr. Bayard has referred to the Proclamation of Pre- sident Jackson in 1830, creating *' reciprocal commercial intercourse on terms of perfect equality of flag" between the United States and the British American dei)endencies, and has suggested that these " commercial privileges have since received a large extension, and that in some cases * favours ' have been granted by the United States without equivalent 'concession,' such as the exemption granted by the Shipping Act of the 26th June, 1884, amounting to one-half of the regular tonnage dues on all vessels from British North America and West Indies entering ports of the United States." He has also mentioned under this head " the arrangement for the transit of goods, and the remission by Proclamation as to certain British ports and places of the remainder of the tonnage tax on evidence of equal treatment being shown " to United States' vessels. The Proclamation of President Jackson in 1830 had no relation to the subject of the fisheries, and merely had the effect of opening United States' ports to British vessels on terms similar to those which had already been granted in British ports to vessels of the United States. The object of these *' Laws and Regulations " mentioned by Mr. Bayard was purely of a commercial character, while the sole purpose of the Convention of 1818 was to establish and define the rights of the citizens of the two countries in relation to the fisheries on the British North American coast. Bearing this distinction in mind however, it may be con- 11 r 1 68 App€7idi.\\ ceded tliat fiulistnntial assisUn ce has Leen given to thu develoimient of coiunu'icial iiiteicourse between tlie two countries. But legislation in that direction ha« not been confined to the Government of the United States, as indeed Mr. liayard has admitted in referring to the case of the Imperial Shipping and Navigation Act of 1819. For upwards of forty years, as has already been stated, Canada has continued to evince her desire fur a free exchange of tho chief jiroducts of the two countries. She has re- peatedly urged the desirability of tho fuller reciprocity of trade which was established during the period in which tho Treatv of 1854 was in force. The laws of Canada with regard to the registry of vessels, tonnage dues, and shi|)ping generally, are more liberal than those of the United States. The ports of Canada in inland waters are free to vessels of the United States, which are admitted to the use of her canals on equal terms with Canadian vessels. Canada allows free registry to ships built in the United States and purchased l)y British citizens, charges no tonnage or light-dues on United States' shipping, and extends a standing invitation for a large measure of reciprocity in trade by her tariff legislation. Whatever relevancy, therefore, tho argument may have to the subject under consideration, the Undersigned submits that the concessions which Mr. Bayard refers to as " favours " granted by the United States can hardly be said not to have bf en met by equivalent concessions on the part of the Dominion, and inasmuch as the disposition of Canada continues to be the same, as was evinced in the friendly legislation just referred to, it would seem that Mr. Bayard's charges of show- ing " hostility to commerce under the guise of protection to inshore fisheries," or of interrupting ordinary commercial I % The Canadian Case. 169 intercourse hy harsh mensuros and uiif rieiully ailininistration, is hardly juslif'u'd. Tho (iuostions wliich wi>ro in controversy botweon flreat Britain and tho United States prior to 1^18 related not to fihippinf^ and comnicrcc, hut to the claims of United States' fishermen to fish in waters adjacent to tho British ^'urtii ±^. u;rican provinces. Those questions were definitely settled hy the Convention of that year, and althouf,'h the terms of that Convention have since been twice suspended, first by tho Treaty of 1854, and sul)se(piently by that of 1871, aflti the lapse of each of these two Treaties the ])ro\ision made in 1818 came a<,'ain into oi)eration, and were carrieil out by the Imperial and colonial authorities without the slightest doubt being raised as to their being in full force and vigour. Mr. Bayard's contention that the effect of the legislation which has taken place under the Convention of 1818, and of Executive action thereunder, would l)e ''to expand the re- strictions and renunciations of that Treat} wliicli related solely to tlie insliore fishing within the three-mile limit, so as to affect the deep-sea fisheries," and "" to diminish and practically destroy the privileges expressly secured to American fishing- vessels to visit these inshore waters for the objects of shelter and repair of damages, and purchasing wood and obtaining water," appears to the Undersigned to be unfounded. Tho legislation referred to in no way affects those privileges, nor has the Government of Canada taken any action towards their restriction. In the cases of the recent seizures, which are the immediate subject of !Mr. Bayard's letter, the vessels seized had not resorted to Canadian waters for any one of the purposes specified in the Convention of 1818 as lawful. They were United States' fishing-vessels, and, against the plain terms of the Convention, had entered Canadian harbours. In doing so the Dacid J. Adams M'as not even ,:;! % mm 170 4ppe7idix. |; f ; possessed of a permit " to touch and trade," even if such a document could be supposed to divest her of the character of a fisliing- vessel. The Undersigned is of opinion that while, for the reasons Avhich he has advanced, there is no evidence to show that the Government of Canada has sought to expand the scope of the Convention of 1818 or to increase the extent of its restrictions, it would not be dilHculfc to prove that the con- struction which the United States ^eeks to place on that Convention would have the effect of extending very largely the privileges which their citizens enjoy under its terms. The contention that the changes which may from time to time occur in the habits of the lisii taken oif our coasts, or in the methods of taking them, should be regarded as justifying a periodical revision of the terms of the Treaty, or a new interpretation of its provisions, cannot be acceded to. Such changes may from time to time render the conditions of the contract inconvenient to one party or the other, but the validity of the agreement can hardly be said to depend on the convenience or inconvenience which it imposes from time to time on one or otlier of the Contracting Parties. When the operation of its provisions can be shown to have become manifestly inequitable, the utmost that good-will and fair dealing can suggest is that the terms should be re- considered and a new arrangement entered into ; but this the Government of the United States does not appear to have considered desirable. It is not, however, the case that the Convention of 1818 affected only the inshore fisheries of the British provinces ; it was framed with the object of affording a complete and exclusive definition of the rights and liberties which the fishermen of the United States were thenceforward to enjoy in following their vocation, so far as those rights could be affected by facilities for access to the shores or waters of the ' The Canadian Case, i/i Britisli provinces, or for intercourse -with their people. It is therefore no undue expansion of the scope of that Convention to interjjret strictly those of its provisions hy which such access is denied, except to vessels requiring it for the purposes specifically described. Such an uudue expansion would, upon the other hand, certainly take place, if, under cover of its provisions, or of any agreements relating to general cuniinercial intercourse which may have since been inade, permission were accorded to United States' lishermen to resort halntually to the harbours of the Dominion, not for the sake uf seeking safety for their vessels or of avoiding risk "to human life, but in order to use those harl)Ours as a general base of operations from which to prosecute and organize with greater advantage to themselves the industiy in which they are engaged. It was in order to guard against such an abuse of the provisions of the Treaty that amongst them was included the stipulation that not only should the inshore fisheries be reserved to Britisli fishermen, but that the United States should renounce the right of their fishermen to enter the bays or harbours excepting for the four specified purposes, which do not include the purchase of bait or other appliances, Avhether intended for the deep-sea fisheries or not. The Undersigned, therefore, cannot concur in Mr. Bayard's contention that " to prevent the purchase of bait, or any other supply needed for deep-sea fishing, would be to expand the Convention to objects wholly beyond the purview, scope, and intent of the Treaty, and to give to it an effect never contemplated." Mr. Bayard suggests that the possession by a fishing- vessel of a permit to " touch and trade " should give her a right to enter Canadian ports for other than the purposes named in the Treaty, or, in other words, should give her ■P IP 172 Appendix. perfect immunity from its provisions. This would amount to a practical repeal of the Treaty, because it would enable a United States' Collector of Customs, by issuing a licence, originally only intended for purposes of domestic Custoraa regulation, to give exemption from the Treaty to every United States' fishing-vessel. The observation that similar vessels under the British flag have the right to enter the ports of the United States for the purchase of supplies loses its force when it is remembered that the Convention of 1818 contained no restrictions on British vessels, and no renunciation of any privileges in regard to them. Mr. Bayard states that in the proceedings prior to the Treaty of 1818 the British Commissioners proposed that United States' fishing- vessels should be excluded " from carrying also merchandise," but that this proposition, '^ being resisted by the American negotiators, was abandoned," and goes on to say, " this fact would seem clearly to indicate that the business of fishing did not then, and does not now, disqualify vessels from also trading in the regular ports of entry." A reference to the proceedings alluded to will sliow that the proposition mentioned related only to United States' vessels visiting those portions of the coast of Labrador and ^Newfoundland on Avhich the United States' fishermen had been granted the right to fisli, and to land for drying and curing fish, and the rejection of the proposal can, at the utmost, be supposed only to indicate that the liberty to carry merchandise might exist without objection in relation to those coasts, and is no ground for supposing that the right extends to the regular ports of entry, against the express words of the Treaty. , The proposition of the British negotiators was to append to Article I. the following Avords : " It is, therefore, well understood that the liberty of taking, drying, and curing fish, granted in the preceding part of this Article, shall not TJie Canadian Case. 173 be construed to extend to any privilege of carrying on trade with any of Lis Britannic ^lajesty's subject? residing witliin the limits hereinbefore assigned for the use of the fishermen of the United States." . It was also proposed to limit them to having on board such goods as might " be necessary for the prosecution of the fishery or the support of the fishermen while engaged therein, or in the prosecution of their voyages to and from the fishing-grounds." To this the American negotiators objected on the ground that the search for contraband goods, and the liability to seizure for having them in possession, would expose the fishermen to endless vexation, and, in consequence, the proposal was abandoned. It is apparent, therefore, that this proviso in no way referred to the bays or harbours outside of the limits assigned to the American fishermen, from which bays and harbours it was agreed, both before and after this projiosition was discussed, that United States' fishing-vessels were to be excluded for all purposes other than for shelter and repairs, and purchasing wood and obtaining water. If, however, weight is to be given to Mr. Bayard's argument that the rejection of a proposition advanced by either side during the course of the negotiations should bo held to necessitate an interpretation adverse to the tenor of such proposition, that argument may certainly be used to prove that American fishing-vessels were not intended to have the right to enter Canadian waters for bait to be used even in the prosecution of the deep-sea fisheries. The United States' negotiators in 1818 made the proposition that the words "and bait" be added to the enumeration of the objects for which these fishermen might be allowed to enter, and the proviso as first submitted had read " provided, however, that American fishermen shall be permitted to ll !i j ! 1/4 Appeiidix. w ) 1 !l enter such bays and harbours for the purpose only of obtaining shelter, wood, water, and bait." The addition of the two last work was, however, resisted by the British rierupotentiaries, and their omission acquiesced in by their American colleagues. It is, moreover, to be observed that this proposition could only have had reference to the deep-sea fishing, because the inshore fisheries had already been speci- fically renounced by the Representatives of the United States. In addition to this evidence, it must be remembered that the United States* Government admitted, in the case submitted by them bu-fore the Halifax Commission in 1877, that neither the Convention of 1818 nor the Treaty of "Washington conferred any right or privilege of trading on American fishermen. The British case claimed compensa- tion for the privilege which had been given since the ratification of the latter Treaty to United States' fishing- vessels " to transfer cargoes, to outfit vessels, buy supplies, obtain ice, engage sailors, procure bait, and traffic generally in British ports and harbours." This claim was, however, successfully resisted, and in the United States' case it is maintained "that the various incidental and reciprocal advantages of the Treaty, such as the privileges of traffic, purchasing bait and other supplies, are not the subject of compensation, because the Treaty of Washington confers no such rights on the inhabitants of the United States, who now enjoy them merely by sufferance, and who can at any time be deprived of them by the enforcement of existing laws or the re-enactment of former oppressive Statutes. Moreover, the Treaty does not provide for any possible compensation for such privileges." Now, the existing laws referred to in this extract are the various Statutes passed by the Imperial and Colonial Legislatures to give effect to the Treaty of 1818, which, it is admitted in the said case, could at any time have The Canadia7i Case. J 75 been enforced (even during the existence of the Washington Treaty), if the Canadian authorities had chosen to do so. Mr. Bayard on more than one occasion intimates that the interpretation of the Treaty and its enforcement are dictated by local and hostile feelings, and that the main question is being " obscured by partizan advocacy and distorted by the heat of local interests," and, in conclusion, expresses a hope that " ordinary commercial intercourse shall not be inter- rupted by harsh measures and unfriendly administration." The Undersigned desires emphatically to state that it is not the wish of the Government or the people of Canada to interrupt for a moment the most friendly and free commercial intercourse with the neiglibouring Republic. The mercantile vessels and the commerce of the United States have at present exactly the same freedom that they have for years past enjoyed in Canada, and the disposition of the Canadian Government is to extend reciprocal trade with the United States beyond its present limits, nor can it be admitted that the charge of local prejudice or hostile feeling is justified by the calm enforcement, through the legal tribunals of the country, of the plain terms of a Treaty between Great Britain and the United States, and of the Statutes which have been in operation for'nearly seventy years, excepting in intervals during which (until put an end to by the United States' Government) special and more liberal provisions existed in relation to the commerce and fisheries of the two countries. The Undersigned has further to call attention to the letter of Mr. Bayard of the 20th May, relating also to the seizure of the David J. Adams in the Port of Digby, Nova Scotia. That vessel was seized, as has been explained on a previous occasion, by the Commander of the Canadian steamer TMnsdotme under the following circumstances : — She was a United States' fishing-vessel, and entered the ! iJ /!'.■ % 176 Appendix, harbour of Digby for purposes other than those for -which entry is permitted by the Treaty and by the Imperial and Canadian Statutes. As soon as practicable, legal process was obtained from the Vice-Admiralty Court at Halifax, and the vessel -was delivered to the Officer of that Court. The paper referred to in Mr. Bayard's letter as having lieen nailed to her mast, was doubtless a copy of the warrant which commanded the Marshal or his deputy to make the arrest. The Undersigned is informed that there was no intention whatever of so adjusting the paper that its contents could not be read, but it is doubtless coiiect that the officer of the Court in charge declined to allow the document tobe removed. Both the United States' Consul-General and the Captain of the David J. Adams were made acquainted with the reasons for the seizure, and the only ground for the statement that a respectful application to ascertain the nature of the complaint was fruitless, was, that the Commander of the JJansdoivne, after the nature of the complaint had been stated to those concerned and was published, and had become notorious to the people of both countries, declined to give the United States' Consul-General a specific and precise state- ment of the charges upon which the vessel would be proceeded against, but referred him to his superior. Such conduct on the part of the officer of the Lansdowne can hardly be said to have been extraordinary under the present circumstances. The legal proceedings had at that time been commenced in the Court of Vice- Admiralty at Halifax, where the United States* Consul-General resides, and the officer at Digby could not have stated with precision, as he was called upon to do, the grounds on which the intervention of the Court had been claimed in the proceedings therein. There was not, in this instance, the slightest difficulty in 1 \ The Canadian Case, ^77 \ '• / • the United States' Coiisul-General ami those interested in the vessel obtaining the fullest information, and no informa- tion which conld have been given by those to whom ihey ai)plied was withheld. Apart from the general knowledge of tlin ofiences which it was claimed the master had committed, and which Mas furnished at the time of the seizure, the most technical and precise details were readily obtainable at the R(>gistry of the Court, and from the Solicitors of the Crown, and would have been furnished immediately on api)]ication to the authority to whom the Commander of the Lansdoirne requested the United States' Consnl-Genoral to apply. No such informa- tion could have been obtained from the j)apor attached to the vessel's mast. Instructions have, however, been given to the Commander of the Lansdo/cne, and other officers of the ^Larino Police, that, in the event of any further seizures, a statement in writing shall be given to the master of the seized vessel of the offences for which the vessel may be detained, and that a copy thereof shall be sent to the United States' Consul- Gcneral at Halifax, and to the nearest I'^nited States' Consular Agent, and there can be no objection to tlie Solicitor for the Crown being instructed likewise to furnish the Consul-General with a co[)y of the legal process in eacli case, if it can be supposed that any fuller information will thereby be given. IMr. Bayard is correct in his statement of the reasons for which the David J. Adams was seized and is now held. It is claimed that that vessel violated the Treaty of 1818, and, consequently, the Statutes which exist for the enforcement of that Treatv, and it is also claimed that she violated the Customs Laws of Canada of 1883. The Undersigned recommends that coi)ies of those Statutes be furnished for the information of Mr. Bayard. N m 178 Appendix. Mr. Bayard has, in the same despatch, recalled tlie attention of her Majesty's Minister to the correspondence and action which took place in the year 1870, when the Fishery question was under consideration, and especially to the instructions from the Lords of the Admiralty to Vice-Admiral Wellosley, in which that officer was directed to observe great caution in the arrest of American fishermen, and to conhne his action to one class of offences against the Treaty. ISIr. Bayard, however, appears to have attached unwarranted importance to the correspondence and instructioas of 1870, when he refers to them as implying " an understiuiding between the two Governments," an understanding which should, in his opinion, at other times, and under other circumstances, govern the conduct of the authf)rities, whether Imperial or Colonifil, to whom under the laws of the Empire is committed the duty of enforcing the Treaty in question. When, therefore, Mr. Bayard points out the '' absolute and instant necessity that now exists for a restriction of the seizure of American vessels charged with violations of the Treaty of 1818" to the conditions specified laider those instructions, it is necessary to recall the fact that in the year 1870 the principal cause of complaint on the part of Canadian fishermen was that the American vessels were trespassing on the inshore fishing-grounds and interfering with the catch of mackerel in Canadian waters, the purchase of bait being then a matter of secondary imp'ortance. It is probable, too, that the action of the Imperial Government was influenced very largely by the prospect which then existed of an arrangement such as was accom- plished in the following year by the Treaty of Washington, and that it may be inferred, in view of this disposition made apparent on both sides to arrive at such an understanding, that the Imperial authorities, without any surrender of Imperial or Colonial rights, and without acquiescing in any t The Canadian Case. 179 limited construction of the Treaty, instructed the Vice- Adniiral to confine his seizures to the more open and injurious class of ollences which were especially likely to bo brought within the cognizance of the naval officers .of the Imperial Service. The Canadian Government, as has been already stated, for six months left its fishing-grounds open to American fisher- men, without any corresponding advantage in return, in order to prevent loss to those fishermen, and to afford time for the action of Congress, on the President's recommendation that a Joint Commission should be appointed to consider the whole question relating to the fisheries. That recommendation has been rejected by Congress. Canadian fish is by prohibitory duties excluded from the United States' market The American fishermen clamour against the removal of those duties, and, in order to maintain a monopoly of the trade, continue against all law to force themselves into our waters and harbours, and make our shores their base for supplies, especially for l)ait, which is necessary to the successful prosecution of their business. They hope by this course to snpply the demand for their home market, and thus to make Canada indirectly the moans of injuring her own trade. It is surely, therefore, not unreasonable that Cana-la should insist on the rights secured to her by Treaty. She \a simply acting on the defensive, and no trouble can arise between the two countries if American fishermen will only recognize the provisions of the Conven:ion of 1818 as obligatory upon them, and until a new arrangement is made, abstain both from fishing in her waters and from visiting her bays and harbours for any purposes save those specified in the Treaty. In conclusion, the Undersigned would express the hope that the discussion which has arisen on this question may N 2 IK ' n iSo Appendix, lead to renewed ncf^otiations iK'tween Great Britain and the United States, and may have tlio result of establlshin<^' extended trade relations between tlie Kepul)lic and Canada, and of removing all Hources of irritation between the two countries. (Signed) George E. Fosteu, Minister of Marine and Fisheries. Inclosure 2 in No. 78, Report. With reference to a despatch from the British Minister at Washington, to his Excellency the Governor-General, dated the 21st May last, and inclosing a letter from Mr. Secretary Bayard, regarding the refusal of the Collector of Customs at Digby, Nova Scotia, to allow the United States' schooner Jennie and Julia the right of exercising commercial privileges at the said port, the Undersigned has the honour to make the following observations : — It appears the Jennie and Julia is a vessel of about fourteen tons register, that she was to all intents and purposes a tishing- vessel, and, at the time of her entry into the Port of Digby, had fishing gear and apparatus on board, and that the Collector fully satisfied himself of these facts. Accord- ing to the master's declaration, she was there to purchase fresh herring only, and wished to get them direct from tlie weir fishermen. The Collector acted upon his conviction that she was a fishing-vessel, and as such, debarred by the Treaty of 1818 from entering Canadian ports for the purposes of trade. He, therefore, in the exercise of his plain duty, warned her off. The Treaty of 1818 is explicit in its terms, and The Canadian Case. iSi ^y it United States* fishing-vossols are allowed to enter Canadian ports for shelter, rejmirs, wood, and water, and " for no otiier pnrposo whutever." The Undersigned is of tho opinion that it cannot 1>f successt'idly contended that a honn fide fishing-vessel can,hy simply declaring her intention of purchasing fresh fish for other than baiting purposes, evade tho provisions of the Treaty of 1818 and obtain ])rivileges not contemplated there- by. If that were admitted, the provision of tho Treaty which excludes l^^nited States' fishing-vessels for all purposes out the four above mentioned, would bo rendered null nnd void, and tho whole United States' fishing fleet be at once lifted out of tho category of fishing-vessels, and allowed the free use of Canadian ports for baiting, ol)taining supplies, nnd transhipping cargoes. It appears to the Undersigned that the question as to whether a vessel is a fishing-vessel or a legitimate trader or merchant-vessel, is one of fact and to be decided by the character of the vessel and the nature of her outfit^ and thnt the class to which she belongs is not to be determined by the simple declaration of her master that he is iiol at any given time acting in the character of a fisher- man. At tho same time, the Undersigned begs again to observe that Canada has no desire to interrui)t the long-established and legitimate commercial intercourse with the United States, but rather to encourage and maintain it, and that Canadian ports are at present open to the whole merchant navy of the United States on the same liberal conditions as heretofore accorded. The whole respectfully submitted, (Signed) George E. Foster, Minister of ^Farine and Fisheries. Ottawa, June 5, 1886. h ^i^^pesB^^eF^ll i 182 Appendix. No. 79. The Earl of Rosebeuy to Sir L. West. Foreign OlRce, July 23, 188G. Sir, — I have to acknowlodgo tlio receipt of your despatch of the 30th May hist, inclosing a copy of a noto from Mr. liayard, in which he protests against the ])r<)visions of a ]]ill recently introduced into the Canadian Parliament for tho purpose of regulating fishing operations by foreign vessels in Canadian waters. In reply I inclose an extract of a despatch from the CTOvernor-General of Canada, containing observations on the sul)ject. I have to add that her ^lajesty's Government entirely concur in the views expressed by the Marquis of Lansdowno in this extract, of which you will communicate a copy to Mr. Bayard, together with a copy of tho present despatch. With regard to Mr. Bayard's observations in the same note respecting a Customs Circular and a Warning issued by the Canadian anthorities, and dated respectively the 7tli May and the 5th March last, I have to acquaint you that these documents have now been amended so as to bring them into exact accordance with Treaty stipulations ; and I inclose for communication to the United States' Government, printed copies of these documents as amended. I am, &c. (Signed) Rosebery. Inclosure 1 in No. 79. The ]\rARQUis of Lansdowne to Earl Granville. (Extract.) Citadel, Quebec, June, 1886. Her Majesty's Minister at Washington has been good i f T/ic Cauaiiian Case. ^^i enough to conuuunicato to mo, for my information, cojiy of a note received by liim from the Socretiiry of State of the United States, in whicli the ]>ill is criticized, not so nuuli on account of its policy, or because its introduction is regarth'd as inopportune and inconvenient, as upon the ground that any legislation by the Parliament of the Dominion for the purpose of interpreting and giving efl'cct to a contract entered into ])y the Imperial Government is beyond the competence of that ParliauiCnt, and " an assumji- tion of jurisdiction entirely unwarranted," and therefore "wholly denied by the United States." Your Lordship is no doubt aware that legislation of this kind has been frequently resorted to by the Parliament of the Dominion, for the purpose of enforcing Treaties or Con- ventions entered into by the Imperial Govcrnmei-t. In the present case the legislation proposed was introduced, not with the objet of making a change in tho terms of the Con^'cntion of 1818, nor with tha intention of representing as breaches of the Convention any acts which are not now punishable as breaches of it. What the framers of tho Pill sought was merely to amend the procedure by which the Convention is enforced, and to do this by attaching a particular penalty to a particnilar breach of tho Convention after that breach hail been proved before a competent tribunal. It must be remembered that the Convention itself is silent as to the pro- cedure to be taken in enforcing it, and that effect has accord- ingly been given to its provisions at different times, both through the means of Acts passed, on the one side, by Congress, and on tho other, by the Imperial Parliament, as ■well as by the Legislatures of the British North American provinces previous to confederation, and since confederation by the Parliament of the Dominion. The right of tiie Dominion Parliament to legislate for these purposes, and the validity of such legislation as against the citizens of a 91^ ff!S! ^msmt^^mmmmmtm 184 4ppC7ldix. I \\ 1 fori^ign country has, as far as I am aware, not "been seriously called in question. Such legislation, unless it is disallowed "by the Imperial Government, becomes part of the law of the Empire. The Crovernmcnt of the United States has lonj^ l»een aware of the necessity of reference to the Dominion Parlia- ment in matters allecting Canadian interests, and has, I believe, never raised any objection to such rcsference. The Treaties of 1854 and 1871, so far as they relat d to the fisheries or to the commercial relations of the Dominion, were made subject to ratification hy her Legislature. In the same w^ay the Treaty under which fugitive criminals from the United States into Canada are surrendereil, is carried iuto effect hy means of a Canadian Statute. If a foreigner conmiits a murder in Canada he is tried, convicted, and exeont(Ml l)y virtue of a Canadian, and not of an Imperial Act of Parliament. SiM'znres of wods and vessels for hre;\ches of the local Customs law have in like manner heen made for many years past without any protest, on the ground that such laws involved an usurpation of power by the colony. Mr. Bayard's statement that the Dominion Government is seeking by its action in this matter to " invade and destroy the commercial rights and ju-ivileges secured to citizens of the United States under and ])y virtue of Treaty stipula- tions Avith Great Pritnin," is not warranted by the facts of the case. No attempt has been made either by the authori- ties intrusted with the enforcement of the existing law, or by the Parliament of the Dominion to interfere with vessels engaged in hond fide commercial transactions upon the coast of the Dominion. The two vessels which have been seized are both of them, beyond all question, fishing-vessels and not traders, and therefore liable, subject to the finding of the Courts, to any penalties imposed by law for the enforcement i 4 The Canadian Case. ■ ss of the Convention of 1818 on parties violating the terms of that Convention. When, tlierefore, IMr. Bayanl protests a,c,'ainst all such proceeaings as being " flagrantly violative of reciprocal com- mercial privileges to which citizens of the United States are Lawfully entitled under Statutes of Great Britain, and the well defined and puhlicly proclaimed authority of both countries," and when he denies the competence of the Fishery Department to issue, under tlie Convention of 1818, such a paper as the " Warning," dated the r)th ^Nlarch, 188G, of which a copy has been supplied to your Lordshij), ho is in effect denying to the Dominion the right of taking any steps for the protection of its own rights secured under the Con- vention referred to. < I Inclosure 2 in Xo. 79. WAaNlXG. To all whom it may concern. The Government of tlie United States having by notice terminated Articles XYIII. to XX"\\, both inclusive, aiul Article XXX., known as tlie Fishery Articles of the Wash- ington Treaty, attention is called to the fiillowing provision of the Convention betAveen tlie United States and Great Britain, signed at London on the 20th October, 1818: — " Article I. Whereas differences have arisen respecting the liberty claimed by the United States, for the inhabitants thereof, to take, dry, and cure fish, on certain coasts, bays, harbours, ar'l creeks of his Britannic Majesty's dominions in America, it lo agreed between the High Contracting Parties, that the inhabitants of the said United States sliall have for ever, in common with the subjects of his Britannic ^rajesty, the liberty to take fish of every kind on that part of the southern coast of Newfoundland which extends from Capo ip 1 86 Appendix. Ray to thf R imoau Islands, on the western and nortliern coast of N''Mf(nindland, from tlie said Cape Ray to the Quirpon Islands, on the shores of the Magdalen Islands, and also on the coasts, bays, haibours, and creeks from Mount Joly, on the southern coast of Labrador, to and through the Straits of Belle Isle, and thence northwardly indefinitely along the coast, "without prejudice, however, to any of the exclusive rights of the Hudson's Bay Company ; and that the American fishermen shall also have liljerty for over to dry and cure fish in any of the unsettled bays, harbours, and creeks of the southern part of the coast of Newfoundland hereabove described, and of the coast of Labrador ; but so soon as the same, or any portion thereof, shall be settled, it shall not be lawful for the said fishermen to dry or cure fish at such portion so settled, without previous agreement, for such purpose, with the inhabitants, proprietors, or possessors of the ground. " And the United States hereby renounce for ever any liberty heretofore enjoyed or claimed by the inhabitants thereof, to take, diy or cure fish on or within three marine miles of any of the coasts, bays, creeks, or harbours of his Britannic Majesty's dominions in America not included within the above-mentioned limits ; provided, however, that the American fishermen shall be admitted to enter such bays or haibours for the i)ur[)ose of shelter, and of repairing damages therein, of purchasing wood, and of obtaining water, and for no other purpose whatever. But they shall be under such restrictions as may bo necessary to prevent their taking, drying, or curing fish therein, or in any manner whatever abusing the privileges hereby reserved to them." Attention is called to the following provisions of the Act of Parliament of Canada, cap. Gl of the Acts of 1808, intituled " An Act respecting fishing by foreign vessels." \ k I TJic Canadian Case. 187 " 2. Any commissioned officer of lier Miyesly's navy, serving on Loanl of any vessels of her Majesty's navy cruising and being in tlio M'aters of Canada for purpose of aflording pro- tection to her Majesty's subjects engaged in the fisheries, or any commissioned othcer of her ^lajesty's navy, Fishery Oflicer, or Stipendiary ^Magistrate on board of any vessel belonging to or in the service of the (Jovernment of Canada, and employed in the i^ rvice of protecting the fisheries, or any officer of tlie Cust s of Canada, Sheriff, ^Magistrate, or other person duly commissioned for that purpose, may go on board of any ship, vessel, or boat within any harbour in Canada, or hovering (in ]hitish "waters) -vvithin three marine miles of any of the coasts, bays, creeks, or harbours in Canada, and stay on board so long as she may remain within such place or distance. " 3. If such ship, vessel, or boat be bound elsewhere, and shall continue within such harl)our, or so hovering for twenty- four hours after the master shall have been retpiired to de- part, any one of such officers or persons as are above men- tioned may bring such ship, vessel, or boat into port and search her cargo, and may also examine, the master ui)on oath touching the cargo and voyage ; and if the master or person in command shall not truly answer the questions put to him in such examination, he shall forfeit 400 dollars ; and if such ship, vesstil, or boat l)e foreign, or not navigated accord- ing to the laws of the United Kingdom or of Canada, and have been found fishing or preparing to fish, or to hav»} been fishing (in British waters) within three marine miles of any of the coasts, bays, creeks, or harbours of Canada, not included within the above-mentioned limits, without a licence, or after the expiration of the period named in the last licence granted to such ship, vessel, or boat under the 1st section of this Act, such ship, vessel, or boat, and the tackle, rigging, ap- parel, furniture, stores, and cargo thereof shall be forfeited. \A i88 Appendix. "4. All gnols, phips, vessels, and hoats, and the tackle rif^'j^'ing, apparel, furniture, stores and cargo liable to for- feiture under this Act, may be seized and secured by any officers or persons mentioned in the 2nd section of this Act ; and every person opposing any officer or person in the execution of his duty under this Act, or aiding or abetting any other person in any opposition, shall forfeit 800 dollars, and shall be guilty of a misdemeanour, and, upon conviction, be liable to imprisonment for a term not exceeding two years." Of all of which you will take notice, and govern yourself accordingly. (Signed) George E. Foster. Minister of Marine and Fisheries. Department of Fisheries, Ottawa, March 5, 188G. ' Inclosure 3 in No. 70. Circulnr No. 371. Customs Department, Ottaw\a, May 7, 188G. Sir, — The Government of the United States having by notice terminated Articles XVIII. to XXV., both inclusive, and Article XXX., known as the Fishery Articles of the Washington Treaty, attention is called to the following provision of the Convention between the United States and Great liritain, signed at London on the 20tli October, 1818 :— "Article I. "Whereas differences have arisen respecting the liberty claimed by the United States for the inhabitants thereof to take, dry, and cure fish on certain coasts, bays, harbours and creeks of his Britannic Majesty's dominions in TJie Canadian Case, 189 America, it is agreed between the High Contracting Partiis that the inhabitants of the said United States shall have for ever, in common with the snbjects of his Uritannic ^lajesty, the liberty to' take fish of every kind on that part of the southern coast of Newfoundland which extends from Cape Hay to Raraeau Islands, on the western and northern coast of Newfoundland, from the said Ca})e Kay to the Quirpon Islands, on the shores of the ^Fagdalen Islands, and also on the coasts, bays, harbours, and creeks from Mount Joly, on the southern coast of Labrador, to and through the Straits of Bellcisle, and thence northwardly indefinitely along the coast, without prejudice, however, to any of the exclusive rights of the Hudson's I)ay Company; anil that the American fishermen shall also have liberty, for ever, to dry and cure fish in any of the unsettled bays, harbours, and creeks of the southern i)art of the coast of Newfoundland, hereabove described, and of the coast of Labrador ; Init so soon as the same or any portion thereof shall be settled, it shall not be lawful for the said fishermen to dry or cure lish at such portion so settled without previous agreement for such purpose, with the inhabitants, proprietors, or possessors of the ground. **And the United States hereby renounce for ever any liberty heretofore enjoyed or claimed by the inhabitants thereof to take, dry or cure fish on or within throe marine miles of any of the coasts, bays, creeks, or harbours of his Britannic Majesty's dominions in America, not included within the above-mentioned limits \ i)rovided, however, that the American fishermen shall be admitted to enter such bays or harbours for the purpose of shelter, and of repairing damages therein, of purchasing wood, and of obtaining water, and for no other purpose whatever. But they shall be under such restrictions as may be necessary to prevent their taking, drying, or curing fish therein, or in any manner whatever abusing the privileges hereby reserved to them. IQO Appendix, I " Attention is also called to the following provisions of the Act of the Parliameiit of Canada, cap. Gl, of the Acts of 18G8, intituled, ' An Act respecting fishing by foreign vessels.' • " II. Any commissioned officer of her Majesty's navy, serving on Ijoard of any vessel of her ^fajesty's navy, cruising and being in the waters of Canada for purpose of affording protection to her Majesty's subjects engaged in the fisheries, or any commisioned officer of her Majesty's navy. Fishery Officer, or Stipendiary Magistrate, on board of any vessel belonging to or in the service of the Government of Canada, and employed in the service of protecting the fisheries, or any officer of the Customs of Canada, SherilF, Magistrate, or other person duly commissioned for that purpose, may go on board of any ship, vessel, or boat, within any harbour in Canada, or hovering (in British waters) within three marine miles of any of the coasts, bays, creeks, or harbours in Canada, and stay on board so long as she may remain within such place or distance. " III. If such ship, vessel, or boat be bound elsewhere, and shall continue within such harbour, or so hovering for twenty-four hours after the master shall have been required to depart, any one of such officers or persons as are above mentioned may bring such ship, vessel, or boat into port and search her cargo, and may also examine the master upon oath touching the cargo and voyage, and if the master or person in command shall not truly answer the questions put to him in such examination, he shall forfeit 400 dollars ; and if such ship, vessel, or boat be foreign, or not navigated accord- ing to the laws of the United Kingdom or Canada, and have been found fishing, or preparing to fish, or to have been fish- ing (in British waters) within three marine miles of any of the coasts, bays, creeks, or harbours of Canada, not included within the above-mentioned limits, without a licence, or The Canadian Case. 191 after the expiration of the period named in tlie last liccneo granted to such ship, vessel, or boat under the 1st section of this Act, such shiji, vessel, or boat, and the tackle, rii^^^dn^', apparel, furniture, stores, and cargo thereof shall he forfeited. " IV". All goods, ships, vessels, and boats, and the tackle, rigging, apparel, furniture, stores, and cargo liable to forfeiture under this Act, may be seized and secured by any officers or persons mentioned in the 2nd section of this Act ; and every person opposing any officer or person in the execution of his duty under this Act, or aiding or abetting any other person in any opposition, shall forfeit 800 dollars, and shall be guilty of a misdemeanour, and upon conviction be lialjle to imprisonment for a term not exceeding two years." Having reference to the above, you are reipiestedto furnish any foreign fishing-vessels, boats, or fishermen found within three marine miles of the shore, within your district, with a printed copy of the warning inclosed herewith. If any fishing-vessel or boat of the United States is found fishing, or to have been fishing, or preparing to fish, or if hovering within the three-mile limit, does not depart within twenty-four hours after receiving su(.'li warning, you will please place an officer on board of such vessel, and at once telegraph the facts to the Fisheries Department at Ottawa, and await instructions. (Signed) J. Johnson, Commissioner of Customs. To the Collector of Customs at No. 80. The Earl of Rosebery to Sir L. West. Foreign Office, July 23, 188G. Sir,— I have received your despatch of the 15th ultimo, in il i.} 192 Appendix. mi wliicli you inclose a copy of a note from Mr. BayarJ, protcst- injf against a warning alleged to have been given to United States' fishing-vessels by a Canadian Customs official, with the view to i)revent them from fishing within lines drav"i from headland to headland from Cape Canso to St. Ksprit, and from North Cape to East Point of Prince Edward Island. In reply, I have to r(!quest you to acijuaint Mr. I'ayard that her Majesty's Government have ascertained that no instructions to this effect have been issvied ])y the Canadian Government, but that a further Report is expected upon the subject. It appears that the Collector at Canso, in conversation with the master of a fishing-vessel, expressed the opinion that the headland line ran from Cranberry Island to St. Esprit, but this was wholly unauthorized. I am, &c. (Signed) Eosebeuy. No. 81. The Earl of Rosehery to Mil Phelps. Eoroign Office, July 23, 188G. Sir, — I have the honour to acknowledge the receipt of your note of the IGth instant, inclosing a copy of a telegram from Mr. Bayard, in which he calls upon her Majesty's Government to put a stop to the action of Canadian authorities towards United States' fishermen, which he characterizes as unjust, arbitrary, and vexatious. Mr. Bayard further states that the readiness of the United Stat''s' Government to endeavour to come to a just and fair joint interpretation of Treaty rights and commercial privileges is ill met by persistent and unfriendly action of the Canadian authorities, which is rapidly producing a most injurious and exasperating efiect. The Canadian Case, 193 T cannot help regretting that tlie tono of this coninuini(.'ii- tion alioiihl not have more corresponded with the conciliatory disposition of her Majesty's Government, for the expressions which r liave cited can hardly tend to facilitate a settlement of the difficult questions involved. I beg, however, to stati! that the view3 of the Canadian Government upon tiie whole matter will very shortly he communicated to the United States' Government in a despatch whicli I have addressed to her ^fajesty's [Minister fit AVashington, in rej^ly to tlio various communi- cations which he has received from ^Ir. Uayard. I shall have the honour to place a copy of the despatch in question in your hands. As regards the disposition expressed by Mr. Tjayard to come to a just and fair joint interpretation of Treaty rights, her Majesty's Government have already displayed tlieir full readiness to negotiate on move than one occasion, and their view of Treaty rights has been explained both in my con- versations with yourself and in despatches. I trust, therefore, that this exj)ression of the wishes of your Government, corresponding as it does so entirely with our own desire, indicates the willingness of tlie United States to enter as speedily as possiljlo into definite arrangements which may lead to negotiations on a practical basis for the settlement of this question. I have, &c. (Signed) KosEBERV. No. 82. The Earl of Roseheky to Mr. Phelps. Foreign Office, July 23, 188G. Sir, — In reply to your note of the 2nd ultimo relative to the North x\merican Fisheries question, I have the honour o 194 Appendix. to inuisinit to you a co])y of a (l('Sj)iitch, with inelosuivs, Avliich I have adJresscid to lior Maje.sty's !A[inister at AVashington, and which contains a full statement of the views entertained by the Canadian Government on this matter. The points dealt Avith in the scn'eral communications re- cently received hy Sir L. West from Mr. ]»ayard are practically the same as tlio:;e discussed in your note, iind I have therefore thought that the most convenient uiode of replying to it would be to communicate to you a copy of the despatch which I have addressed to her Majesty's ^Minister at Washingt(-)n. I need not reiterate the regret that her INIajesty's Government f(>cl at being forced back by circumstances on the provisions of the Treaty of 1818, for I have earnestly and frequently expressed it in conversation with you. Nor need I repeat how anxious her Majesty's Government are that by formal and friendly negotiation the questions between the two Governments with regard to Canadian fisheries should be put on a mutually satisfactoiy footing, I have, &c. (Signed) Rosebery. Xo. 83. Mr. Bramston to Siii J. Pauncefote. (Received July 27.) Downing Street, July 26, 1886. Sir,— With reference to your letter of the 17th instant, I am directed by Earl Granville to transmit to you, to be laid before the Eari of Rosebery, a copy of a telegraphic correspondence with the Governor-General of Canada The Canadian Case, 195 roliitive to the detention by the Dominion authorities of the American schooner CV/// Point. I am, &c. (Signed) John Buamstox. Inclosuro 1 in No. 109. Loud A. Russell to Mk. Stanhope. Halifax, Nova Scotia, August 21, 1886. Sir, — "With reference to Earl Granville's despatch of tlio 15th July last, addressed to the Ma^iuis of Lansdowne, re- questing a Report from my Government on the subject of an inclosed note from the Secretary of State of the Unit('(l States to her ^lajesty's Minister at Washington, relating to certain warnings alleged to have been given to United States' fishing-vessels by the Collector of Customs at Canso, I have tlie hono\ir to fofvard herewith a copy of an approved Report of a Committee of the Privy Council, embodying a Report by my Minister of Marino and Fisheries on the subject. I have, &c. (Signed) A. G. Ruhsell, General. Inclosure 2 in No. 109. Report of a Committee of the Honourable the Privy Council, approved by his Excellency the Adminis- trator OF the Government in Council on the 16th August, 1886. The Committee of the Privy Council have had under con- sideration a despatch dated the 15th July, 1886, from the o 2 196 Appendix. Secretary of State for tlie Colonics, in which he asks for a Koi)ort from the Canaayard states: — " 1. That the masters of the four American fishing-vessels of Gloucester, Mass., Martha C. Bnidhi/, Naff/cr, Eliza lioynton, and riottrt-r, have severally reported to the Consul- (Icneral at Halifax that the Sub-Coll(;ctor of Customs at Canso had warned them to keep outside an imaginary lino drawn from a jxtint three miles outside Canso Head to a point three miles outside St. Esprit, on the Cape Breton coast. *' 2. That the same masters also report that they were warned against going inside an imaginary line drawn from a point three miles outside North Cape in Prince Edward Island to a point three miles outside East Point on the same island. *' 3. That the same authority informed the masters of the vessels ref(!rred to that they would not be permitted to enter Bay Chaleur." The ^Minister of Marine and Fisheries, to whom the despatch and inclosures were referred, observes that the instructions issued to Collectors of Customs authorized them, in certain cases, to furnish United States' fishing- vessels with a copy of the Circular hereto attached, and which con- stitutes the only official " warning " Collectors of Customs are empowered to give. It was to be presumed that the Sub-Collector of Customs at Canso, as all other Collectors, would carefully follow out the instructions as received, and that therefore no case such as that alleged by Mr. Secretary Bayard would be likely to arise. The Canadian Case. tq; Tho Ministor stutea, liowovcir, so soon an tlio ilrspatch al)OVo rofcTi'ed to was received lie sent to the Siib-Collector at CaiiHo a copy of the allegalions, and requested an imme- diate reply thcrt'to. The Snb-CoUeetor, in answer, emphatically denies that he has ordertjd any American vessel out of any harhour in his district or elsewhere, or that he did aiiythin;^' in the way (if waniin*,' except to deliver copies of the otlicial Cireidar above alluiled to, and states that he hoarded no United Stat(!s' vessel other than tln^ Anni'' Jortfan and the Jl'reirard, and tliat neither the Martha C. Biwl/cj/, Rattler, or Piimror of Ghtucester have, daring the season, reported at liis port of entry. lie with equal clearness denies that he has warned any United States' fishing-vessels to keep outside the line from Capo North to East Point, alluded to by Mr. Secretary Bayard, or that they would not be permitted to enter Bay des Chaleurs. The Minister lias every reason to believe the statements made by tho Sub- Collector at Canso, ami, taking into con- sideration all the circumstanc«.'s of the case, is of the opinion that the information which has reached the Secretary of State does not rest upon a trustworthy l)asis. With reference to the concluding portion of Mr Bayard's note, which is as follows : — *' Such warnings are, as you must be well aware, wholly unwarranted pretensions of extra-territorial autliority, and usurpations of jurisdiction by the provincial ofBcials. " It becomes my duty, in bringing this information to your notice, to request that if any such orders for interference with the unquestionable rights of the American fisliermen to pursue their business without molestation at any i)oint not within three marine miles of the shores, and within the defined limits, as to which renunciation of the liberty to fish 'I mmmM. i,i«ui..j_ii| 198 Appendix. was expressed in the Treaty of 1818, may have been issued, the same may at once be revoked as violative of the rights of citizens of the United States under Convention with Great Britain. it. " I will ask you to bring this subject to the immediate attention of her Britannic Majesty's Government, to the end that proper remedial orders may be forthwith issued. " It seems most unfortunate and regrettable that questions which have been long since settled between the United States and Great ]>ritain should now be sought to be revived." in The Minister further observes that, in his opinion, the occo,sion of the present despatch, wiiich has to deal mainly with questions of fact, does not render it necessary for him to enter upon any lengthened discussion of the question of headland limits. He cannot, however, do otherwise than place upon record the earnest expression of his entire dissent from the interpre- tation therein sought to be placed upon the Treaty of 1818 by the United States' Secretary of State. The Committee concur in the foregoing Report of the Minister of Marine and Fisheries, and advise that your Excellency be moved to transmit a copy thereof to her Majesty's Secretary of State for the Colonies. (Signed) John J. McGee, Clerk, Privy Council, Gmcda. Inclosure 2 in No. 110. Report of a Committee of the Honourable the Privy Council for Canada, approved by his Excellency THE Administrator of the Government in Council, ON THE 20th August, 188G. The Committee of the Privy Council have had under t The CiDiadian Case. 199 consideration the despatch, dated the 29th July last, from her Majesty's Secretary of State for the Colonies, inclosing two notes from Mr. Secretary Bayard to the British Minister at Washington, and asking that her Majesty's Government be furnished with a Report upon the cases therein referred to. The Committee respectfully submit the annexed Report from the Minister of Marine and Fisheries, to whom the said despatch and its inclosures were submitted, and they advise that your Excellency be moved to transmit a copy thereof, if approved, to her Majesty's Principal Secretary of State for the Colonies. (Signed) John J. McGee, Clerli; Piinj Council , Canada. Inclosure 3 in No. 110. Report. Department of Fisheries, Ottawa, August 14, 1886. The Undersigned has the honour to submit the following in answer to a despatch from Lord Granville to the Governor- General under date of the 29th July last, inclosing two notes from Mr. Secretary Bayard to the British Minister at "Washington, and asking that her Majesty's Government be furnished with a Report upon the cases therein referred to. In his first communication, dated the 10th July, Mr. Bayard says: — " I have the honour to inform you that I am in recoipt of a Report from the Consul-General of the United States at Halifax, accompanied by swoni testimony stating that the i 200 Appendix. % Novelty^ a duly registered merchant steam-vessel of tlio United States, has been denied the right to take in steam coal, or purchase ice or tranship fish in bond to the United States at Pictou, Nova Scotia. "It appears that having reached that port on the 1st instant, and finding the Customs-Office closed on account of a holiday, the master of the Novelty telegraphed to the Minister of Marine and Fisheries at Ottawa, asking if he would be permitted to do any of the three things mentioned above ; that he received in reply a telegram reciting with certain inaccurate and extended application and language of Article I. of the Treaty of 1818 the limitations upon the significance of which are in pending discussion between the Government of the United States and that of her Britannic Majesty; tliat on entering and clearing the Novelty on the following day at the Customs-house, the Collector stated that his instructions were contained in the telegram the master had received, and that the privilege of coaling being denied, the Novelty was compelled to leave Pictou without being allowed to obtain fuel necessary for her lawful voyage and a dangerous coa^t. "Against this treatment I make instant and formal protest as an unwarranted interpretation and application of the Treaty by the officers of the Dominion of Canada and the Province of Nova Scotia, as an infraction of the laws of commercial and maritime intercourse existing between the two countries, and as a violation of hospitality, and for any loss or injury resulting therefrom, the Government of her Britannic Majesty would be held liable." With reference to this the Undersigned begs to observe that Mr. Bayard's statement appears to need modification in several important particulars. In the first place, the Novelty was not a vessel regularly trading between certain ports in the United States and t'TTSPrr J ^ " T/ie Canadian Case. 201 Canada, but was a fishing-vessel, whose purpose was to curry on the mackerel seining business in tlie waters of the Gulf of St. Liiwrence, around the coast of Prince Edward Island and Nova Scotia ; that she had on hoard a full equipment of seines and fishing apparatus, and men ; that she was a steam-vessel and needed coal not for purposes of cooking or warming, but to produce motive power for the vessel, and that she wished to pursue her business of fishing in the above-named waters, and to send her fares home over Canadian territory to the end that she might the more un- interruptedly and profitably carry on her business of fishing. That she was a fishing-vessel and not a merchant- vessel is l)roved, not only by the facts above mentioned, but also from a telegram over the signature of H. B. Joyce, the captain of the vessel, a copy of which is appended. In his telegram, Captain Joyce indicates the character of his vessel by using the words "American fishing-steamer," and he signs himself " H. B. Joyce, master of fishing-steamer Novelty." There seems no doubt, tlierefore, that the Novdiy was, in character and in purpose, a fishing-vessel, and as such comes under the provision of the Treaty of 1818, Avhich alloAvs United States' fishing- vessels to enter Canadian ports "for the purpose of shelter and repairing damages therein, and of purchasing wood and of obtaining water, and for no other purpose whatever." The object of the captain was to obtain supplies for the prosecution of his fishing, and to tranship his cargoes of fish at a Canadian port, both of which are contrary to the letter and spirit of the Convention of 1S18. To Mr. Bayard's statt^ncnt that, in reply to Captain Joyce's inquiry of the Minister of IVIarine and Fisheries, " he received, in reply, a telegram reciting certain inaccurate und extended application of the language of Article I. of the m» ' 202 Appendix. Treaty of 1818," the Undersigned considers it a sufficient answer to adduce the telegrams themselves. 1. Inquiry by the captain of the Noveltij : — "From Pictou, Nova Scotia. "Ottawa, July 1, 1886. "Will the American fishing-steamer now at Pictou be permitted to purchase coal or ice, or to tranship fresh fish in bond to United States' markets 1 Please answer. (Signed) " H. B. Joyce, " Master of fishing-steamer Norelfi/. " Hon Geo, E. Foster, " Minister of Marine and Fisheries." 2. Reply of the Minister of Marine and Fisheries there- to : — "Ottawa, July 1, 1886. *' By terms of Treaty 1818, United States' fishing- vessels are permitted to enter Canadian ports for shelter, repairs, wood, and water, and for no other purpose whatever. That Treaty is now in force. (Signed) " Geo. E. Foster, " Minister of Marine and Fisheries. " To H. B. Joyce, " Master American steamer Novelty, Pictou, N.S." The Undersigned fails to observe wherein any " inaccurate or extended application " of the language of the Treaty can be found in the above answer, inasmuch as it consists of a de facto citation from the Treaty itself, with the added statement, for the information of the captain, that said Treaty was at that time in force. As to the " unwarranted interpret: it ion and application of the Treaty," of which Mr. Bayard speaks, the Undersigned has already discussed that phase of the question in his Memorandum of the 14th June, 1 The Canadian Case. 203 Avhich was adopted by Council, and has been forwarded to her Miijesty's Government. Mr. Bayard's second note is as follows : — " On the 2nd June last I had the honour to inform you that despatches from Eastport, in Elaine, had })oen received, reporting threats by the Customs officials of the Dominion to seize American boats coming into those waters to purchase herriUji; from the Canadian weirs, for the purpose of canning the same as sardines, which would be a manifest infraction of the right of purchase and sale of herring caught and sold by Canadians in their own waters in the pursuance of legitimate trade." " To this note I have not had tlie honour of a reply." To-day Mr. C, A. Boutelle, M C, from Elaine, informs me that "American bopts visiting St. Andrew's, New Brunswick, for the purpose of there purchasing herring from the Canadian weirs for canning, had been driven away by the Dominion cruiser Middleton. " Such inhibition of usual and legitimate commercial contracts and intercourse is assuredly without warrant of law, and I draw your attention to it in order that the commercial rights of the citizens of the United States may not be thus invaded and subjected to unfriendly discrimina- tion." With reference to the above, the Undersigned observes that, so far as his information goes, no Collectors of Customs or captains of cruisers have threatened to *' seize American boats coming into Canadian waters to purchase herring from her Canadian weirs, for the purpose of canning them as sardines.'' Collectors of Customs have, however, in pursuance of their duties under the Customs Law of Canada, compelled Ameri- can vessels coming to purchase herring to enter and clear in conformity to Customs Law. 1 ifiwiawii. T^ mmmmm mmimn 204 Appendix. With reference to the action of tlie Dominion cruiser Middlcion, the Umlersi^^ned cannot do better than (juote from the official Report of the Captain of that vessel as to the facts of the case referred to. In his report, of date the 9th July, 1886, Captain McLean, of the General Middleton, says : — "At 9 a.m. made sail, and drifted with the tide towards the bay. Seeing a large number of boats of various sizes hovering around the fishing weirs, I ordered the boat in waiting, and sent Officer Kent in charge, giving him instructions to row among the boats and see if there were any Americans purchasing fish. On the return of the boat, Chief Officer Kent reported the boats mentioned were Americans, there for the purpose of getting herring. I immediately directed the Chief Officer to return, and order the American boats to at once report themselves to the Col- lector of the Port and get permits to load fish, or leave with- out further delay. One of the boatmen complied with the request, and obtained a permit to load fish for Eastport ; the others were very much disturbed on receiving the above instructions, and sailed away towards the American side of the river and commenced blowing their fog-horns, showing their contempt. Other boats at a [greater distance, seeing our boat approaching, did not wai. her arrival, but up sail and left for the American shore." The above extract from the Report of the Chief Officer of the General Middleton goes to show that it was not his object to prevent American boats from trading in sardines, but rather to prevent them from trading without having first con- lornied to the Customs Law of Canada. The whole respectfully submitted. (Signed) George E. Foster, Minister of Marine and Fisheries. { I The Canadian Case. 205 Inelosure 1 in No. 123. Administrator Lord A. G. Russell to Mr. Stanhope. Halifax, Nova Scotia, September 21, 188G, Sir, — I have the honour to enclose herewith a certified copy of a Minute of my Privy Council, embodying a Report of the Minister of Customs for the Dominion, in relation to the alleged improper treatment of the United States' lishing- schooner BaltUr in being required to report to the Collector of Customs at Shelburne, Nova Scotia, when seeking that harbour for shelter. 2. The reply of the Collector to the inquiries addressed to him in respect to this matter is appended to the Minister's Report, and in it the facts of the case as set forth in my telegram of the 14th instant are given. 3. I have communicated your despatch of the 1st instant, forwarding Mr. Bayard's protest concerning this case, to my Ministers, and requested to be furnished with a Report thereon, which I shall forward, for your information, as soon as it has been received. I have, Szc. (Signed) A. G. Russell, General. Inelosure 2 in No. 123. Report op a Committee of the Honourable the Privy Council for Canada, approved by his Excellency the Administrator of the Government in Council on the 16th September, 1886. The Committee of Council have had before them a cable- gram from the Right Honourable the Secretary of State for the Colonies, dated the 1st September, 1886, as follows: — f 2o6 Appendix. r * I " Report should be made as to treatment United Slates' fishing-hoat Battler alleged compelled report Customs wheii seeking Shelburne Harbour. Despatch follows by mail." The Minister of Customs, to whom the cablegram was referred for immediate report, caused a telegram to be forwarded to the Collector of Customs at Shelburne, to the effect that it was '' stated that United States' fishing-boat Rattler compelled report Customs -when set king Shelburne Harbour : what were circumstances ? Answer by telegram, and report in full by mail ;" and he submits the report, dated the 6th September instant, from Mr. Attwood, the Collector of Customs at Shelburne. The Committee advise that your Excellency be moved to cable a copy of the Keport above mentioned, for the infor- mation of the Right Honourable the Secretary of State for the Colonies. (Signed) John J. McGee, Clerk, Frivy Cuuncil, Inclosure 3 in jN"o. 123. Mr. Attwood to the Commissioner of Customs, Ottawa. Custom-house, Shelburne, September 6th, 1886. Sir, — I have to acknowledge receipt of your telegram of the 4th instant relative to schooner Rattler, and I wired an answer this morning as requested. On the morning of the 4th ultimo Chief Officer of Teiror, accompanied by Captain A. F. Cunningham, called at this office. Captain Cunningham reported his vessel inwards as follows, viz. : — " Schooner Battler, of Gloucester, ninety-three tons re- gister, sixteen men from fisliing-bank, with 465 barrels mackerel, came in for shelter." / • . The Canadian Case. 207 I was aftonv.irds infoiincd by the officer of ciittor tluit they found tlio schooner the cveninf^ before at anclior otV Sandy Point, five miles down the harbour. Two men from cutter were put on board, and the master required to report at Customs in the morninf,'. I was also informed that the master, Captain Cunningham, made an attempt to put to sea in the night by hoisting sails, weighing anchor. &c., but was stopped by officers from cuttir, I am, &c. (Signed) W. W. Attwood, CoUector. No 124 Mr. Bramston to Sir J. Pauncefote. (Received October 20.) Downing Street, October 19, 1886. Sir, — I am directed by Mr. Secretary Stanhope to trans- mit to you, for the information of the Earl of Iddesleigh, a copy of a despatch from the Officer administrating the Government of Canada, forwarding a copy of a Customs Circular in relation to the coasting-trade of the Dominion. I am &c. (Signed) John Bramston. Inclosure 2 in No. 124. Circular. Customs Department, Ottawa, August U, 1886. Sir, — Numerous seizures have been recently made by 20S Appendix. !» if officers of tlio Special Agent's Branch of this Department, whicli, willi other evidence in the possession of tlie Depart- ment, goes to show that griuit hixity exists on the part of Collectors and other Customs odicers in connection with traffic going on in small open l)oats and fishing-vessels between Canadian and foreign ports. I am directed by the Honourable the Minister of Customs to call your attention to certain requirements of the Customs Law and Regulations bearing upon this subject, and to enjoin upon you the necessity for greater vigilance, and a stricter enforcing of the law than you have apparently been in the habit of insisting upon. Section 38 of the Customs Act declares tliat it shall not be lawful, unless otherwise authorized by the Governor in Council, to import goods, wares, or merchandize from any port or place out of Canada in any vessel which has not been duly registered and has not a certificate of regij;try on board. Sections 141 to 150, relating to the exportation of goofls, require that any vessel outward-bound shall deliver to the Collector a proper entry and report of all goods on board, and prohibits officers giving clearances until such report and entry has been made, and fixes penalties for non-observance of these requirements. Section 37 gives authority to the Governor in Council to make regulations respecting coasting voyages. These regu- lations you will find embodied in an Order in Council bear- ing date the 17th April, 1883 : they declare what shall be considered a coasting trade, and what vessels only can be allowed to conduct such trade, viz., only British registered vessels and boats wholly owned by British subjects, and such other boats and vessels as may be owned by the subjects of countries included in any Treaty with Great Britain, by which the coasting trade is mutually conceded. As there is no reciprocal coasting trade existing between The Canadian Case. 209 / flreat Britain and the United States, United States* vessels cannot be allowed to in any manner participate in such trade. Coasters are not permitted to go on a foreign voyage with- out reporting in the same manner as would be required from all vessels not coasters. Foreign vessels or boats must not be allowed to go from place to i)lace in Canadian waters for the jmrpose of making up or seeking a cargo, as such a course would be in violation of the Coasting Regulations. The Collector of a port may assign to such vessels a landing berth at any one place within the limits of his jurisdiction, but must not allow vessels to go from place to place in order to fill up or take in her cargo. No permits are to be given under any circumstances by Customs officers, under cover of which, or under pretext of which, any law or regulation can be evaded. Stringent means must be taken to confine all small or unregistered vessels within the strict limits allowed by law and regulations. Vessels or boats of any kind or class, although of Canadian build, or owned by Canadians, which have been entered as personal property or otherwise, and on which duty has been paid in any foreign port, must be considered strictly as foreign boats, and excluded from any rights that might attach to them had they not been so entered, as such entry changes their nationality, as much so as if they had been form all V registered, ]n order to insuie the better protection of the revenue, it is absolutely necessary that these instructions receive your closest attention, and that all vessels, irrespective of their nationality, be required to observe the same. (Signed) W. G. PAfiMELEE, Assidant CommUsioiwi', Collector of Customs, Port of y. \r 2 lO Appendix, No. 127. Mr. Bramston to Sir J. Paunoefote. (Received Octol)or 20.) Downing Street, October 25, 1886. Sir, — With reference to your letter of the 2nd August last, inclosing copy of a despatch from \wx Majesty's Charge d'Affaires at Washington, with a note from Mr. Bayard, protesting against the alleged action of Captain Kent, of the Dominion cruiser General Middletun, in refusing Stephen A. Balkam permission to buy fish from Canadians, I am directed l)y Mr. Secretary Stanhope to transmit to you, to be laid before the Earl of Iddesleigh, a copy of a despatch from the Officer administering the Government of Canada, with its inclosure upon the subject. I am, &c. (Signed) John Bramston. Inclosure 2 in No. 127. Keport of a Committee of the Honourable the Privy Council for Canada, approved by his Excellency the Administrator of the Government in Council ON THE 21 ST September, 1886. The Committee of the Privy Council have had under their consideration a despatch dated the 5th August, 1886, from the Right Honourable the Secretary of State for the Colonies, transmitting a copy of a letter from the Foreign Office with a copy of a note from Mr. Bayard, and protesting against the action of Captain Kent, of the Dominion cruiser General Middleton, in refusing Stephen A. Balkam permis- sion to buy fish from Canadians. The Minister of Marine and Fisheries, to whom the despatch . The Canadian Case. 21 I / and inclosures woro referred, submits the following Report from the first officer of the (ieneval Middlefon : — "Halifax, August 25, 188G. "I have the honour to state that wlieu hoarding several boats in St. Andrew's Bay I asked StepluMi K. IJalkani if the boat he was in was American 1 He repHtid that ho thought she was. I informed him tliat if she was American he could not take fish from the weirs on the English side without a permit from the Collector of Customs at St. Andrew's or West Isles. " He asked permission to take the fish from the weirs in Kelly's Cove without a permit. I declined to accede to liis request. " Mr. Balkan! went around the point in his boat, and after accosting several othei-s, I met him again evidently trying to evade my instructions. I told him that he must not take the fish without permission from the Customs. He left foi' the American sliore, and I returned to the Middlefon. " Mr. Stephen R. Balkam I have known for some years. He formerly belonged to St. Andrew's, but is now living in Eastport. His business is to carry sardines from the Englisli eide to Eastport for canning purposes." The Minister is of opinion, in view of the above, tliat in warning Mr. Balkam that if his boat belonged to the United States he could not take herring from the weirs without first having reported at the custom-house, ]\Ir. Kent acted witiiin the scope of the law and his instructions. The Committee respectfully advise that your Excellency be moved to transmit a copy of this Minute to the Right Honourable the Secretary of Stiite for the Colonies, as requested in his despatch of the 5th August last. (Signed) John J. McGeb, Clerk, Privy Council, Canada. • p 2 2 I 2 Appendix. % \'i\ |ti! ill No. ' 46. The Eahl of Iddesleich to Mr. Pheli's. Foreign Oftlce, Nov. 30tli, 1886. Sir, — I have given my careful consideration of the contents of the note of the 11th September last, which you Avere good enough to address to me in reply to mine of the 1st of the same month on the subject of the North American Fisheries. The question, as you are aware, has for .some time past engaged the serious attention of her Majesty's Government, and the notes which have been addressed to you in relation to it both by my predecessor and by myself have amply evinced the earnest desire of her Majesty's Government to arrive at some equitable settlement of the controversy. It is, therefore, with feelings of disappointment that they do not find in your note under reply, any indication ol a wish on the part of your Government to enter upon negotiations based on the principle of mutual concessions, but rather a suggestion that some ad interim construction of the terms of the existing Treaty should, if possible, be reached, which might for the present remove the chance of disputes ; in fact, that her Majesty's Government, in order to allay the differ- ences which have arisen, should temporarily abandon the exercise of the Treaty rights which they cLiini, and which tliey conceive to be indisputable. For her Majesty's Government are unable to perceive any aml)iguity in the terms of Article I. of the Convention of 1818 ; nor have they as yet been informed in what respects the construction placed upon that instrument by the Government of the United States differs from their own. They would, therefore, be glad to learn, in the first place, whether the Government of the United States contest that, by Article I. of the Convention, United States' lishermen are prohibited from entering British North American bays or liarbours on those parts of the coast The Canadian Case. 213 referred to in the second part of the Article in question for any purposes save i\\o^Qoi slidinr, repairing damagei^, pnr- cha-^itig v'ood, and oJdainincj icafer. Before proceedin*^ to make some observations upon the other points dealt v/ith in your note, T have the honour to state that I do not propose in the present communication to refer to the cases of the schooners Thomas F. Baijaid ancl Mdscoffe, to which you alhule. The privih'ges manifestly secured to United States' fishrr- nien by the Convention of 1818 in iXewfoundland, Lal)rador, and the Magdalen Islands are not contested by her ^lajesty's ( lovernment, who, whilst determined to uphold the rights of her iMajesty's North American subjects as detined in the Convention are no less anxious and resolved to maintain in their full integrity the facilities for prosecuting the iishing industry on certain limited portions of the coast which are expressly granted to citizens of the United States. The communications on the subject of these two schooners whicli I have requested her Majesty's Minister at Washington to address to Mr. Bayard cannot, I think, have failed to atford to your Government satisfactory assurances in this respect. Reverting now to your note under reply, I beg to offer the following observations on its contents. In the first place, you take exception to my predecessor having declined to discuss the case of the David J. Adams^ on the ground that it was ctill sub jiidice, and you state that your Government are unable to accede to the proposition contained in my note of the 1st September last, to the elfect that " it is clearly right, according to practice and pre- cedent, that such dii)Ionuitic action should be suspended pending the completion of the judicial incjuiry." In regard to this point, it is to be remembered that there are three questions calling for investigation in the case of the David J. Adams. — 214 Appendix. 1. What were the acts committed which led to the ^^eizure of the vessel 1 2. Was her seizure for such acts warranted by any existing laws ] 3. If so, are those laws in derogation of the Treaty rights of the United States ? It is evident that the first two questions must be the subject of inquiry before tlie third can be profitably dis- cussed, and that those two questions can only be satisfactorily disposed of by a judicial inquiry. Far from claiming that the United States' Government would be bound by the construction which the British tribunals might place on the Treaty, I stated in my note of the 1st September that if that decision should be adverse to the views of your Government, it would not preclude farther discussion between the two Governments and the adjustment of the question by diplo- matic action. I may further remark that the very proposition advanced in my note of the 1st September last, and to which ex- ception is taken in your reply, has, on a previous occasion, been distinctly asserted by the Government of the United States under precisely similar circumstances, that is to say, in 1870, in relation to the seizure of American fishin;^- vessels in Canadian waters, for alleged violation of the Convention of 1818. In a despatch of the 29th October, 1870, to Mr. W. A. Dart, United States' Consul-General at Montreal, (which is ])rinted at p. 431 of the volume for that year of the Foreign Kelations of tlie United States, and which form part of the correspondence referred to by Mr. Bayard in his note to Sir L. West of the 20th May last), Mr. Fish expressed him- self as follows : — " It is the duty of the owners of the vessels to defend their interests before the Courts at thoir own expense, and with- 1 lie Canadian Case. 21 out special assistance from the Government at this stage of aiitiirs. It is for those Tribunals to construe the Statutes under which they act. If the construction they adopt shall appear to be in contravention of our Treaties with Great I]ritain, or to be (which cannot be anticipated) plainly erroneous in a case admittinfj of no reasonable doubt, it will then become the duty of the Governm(;nt — a duty which it will not be slow to discharj^'e — to avail itself of all necessary means for obtaining redress." Her Majesty's Government, therefore, still adhere to their view, that any diplomatic discussion as to the legality of the seizure of the Duvid J. Adams M'ould be premature until the case has been judicially decided. It is further stated in your note that ** the absence of any Statute authorizing proceedings or providing a penalty against American lisbing-vessels for purchasing bait or supplies in a Canadian port to l)e used in lawful fishing " affords " the most satisfactory evidence that up to the time of the present controversy no such construction has been given to the Treaty by the British or by the Colonial Parliament as is fiOW sought to be maintained." Her Majesty's Government are quite unable to accede to this view, and I must express my regret that no reply has yet been received from your Government vo the arguments on this and all the ether ])oints in controversy which are con- tained in the able and elaborate Report (as you courteously roposal was rejected by the British negotiators, thus showing that there could be no doubt in the minds of either party at the time that the *' procuring of bait " was prohibited by the terms of tlie Article. The Report, moreover, recalls the important fact that the United States" Government admitted, in the case submitted by them before the Halifax Commission in 1877, tliat neither the Convention of 1818 nor the Treaty of AVasliing- ton conferred any right or privilege of trading on American fishermen ; that the " various incidental and reciprocal ad- vantages of the Tieaty, such as the privileges of traffic, purchasing bait, and other supplies are not the subject of compensation, because the Treaty of Washington confers no such rights on the inhabitants of the United States, who now enjoy them merely by sufferance, and who can at any time be deprived of them." This view was confirmed by the ruling of the Com- missioners. Whilst I have felt myself bound to place the preceding observations before you^ in reply to the arguments contained in your note, 1 beg leave to say that her ^Majesty's Govern- ment would willingly have left such points of technical detail and construction for the consideration of a Commission properly constituted to examine them, as well as to suggest a means for either modifying their application, or substituting The Canadian Case. 217 i fur tliem some new arrangement of a mutually satisfactory nature. I gather, however, from your note that, in the opinion of your Government, although a revision of Treaty stipulations on the basis of mutual concessions was desired by the United States before the present disputes arose, yet tlie present time is inopportune for various reasons, among which you mention the irritation created in the United States by the belief that the action of the Canadian Govenunent has had for its object to force a new Treaty on your Government. Her Majesty's Government learn with much regret that such an impression should prevail, for every effort has been made by the Canadian Government to promote a friendly negotiation, and to obviate the dilferences which have now arisen. Indeed, it is hardly necessary to remind you that, for six months following the denunciation by your Govern- ment of the Fishery Articles of the Treaty of Washington, the North American fisheries were thrown open to citizens of the United States without any equivalent, in the expectation that the American Government would show their willingness to treat the question in a similar spirit of amity and good-will. Her Majesty's Government cannot but express a hope that the whole correspondence may be laid immediately Ijefore Congress, as they believe that its perusal would influence public opinion in the United States in favour of negotiating, before the commencement of the next fishing season, an arrangement based on mutual concessions, and which would therefore (to use the language of your note) " consist with the dignity, the interests, and the friendly relations of the two countries." Her Majesty's Government cannot conceive that negotia- tions commenced with such an object and in such a sjjirit eould fail to be successful ; and they trust, therefore, that V, 2l8 Appendix. your Govcrnmcnl" will endeavour to o1)tain from Congress, which is ahout to assemble, the necessary powers to enable them to make to her Majesty's Government some definite pro- posals for the negotiation of a mutually advantageous arrange- ment. I have, &c. (Signed) Iddesleigh. Inclosure 2 in No. 148. TtEPORT OF A Committee of the Honourable the Privy Council for Canada, approved by his Excellency THE Administrator of the Government in Council on the 2nd November, 1880. The Committee of the Privy Council have had under con- sideration a despatch dated 24th June, 1886, from the Right Honourable the Secretary of State for the Colonies, respect- ing the Fisheries (question, and inclosing copies of letters on the subject from the Foreign Office to the Colonial Office, and of one from Mr. Phelps to the Secretary of State for Foreign Affairs. The Minister of Justice, to whom tiie despatch and in- closures Avere referred, sul)mits a Peport thereon herewith. The Committee concur in the said Report, and advise that j'our Excellency be moved to transmit a copy thereof, if ap- proved, to the Right Honourable the Secretary of State for the Colonies. All which is submitted for your Excellency's approval. (Signed) John J. McGee, Clerk^ Pvinj Council, Canada. The Canadian Case. 219 Inclosiiro, 3 in Xo. 148. Report. To his Excellency the Administrator of the Government in Council. Department of Justice, Ottawa, July 22, 188G. "With reference to the despatch of the 24th June last from the Secretary of State for the Colonies to your Excellency respecting the Fisheries (juestion, and inclosing co])ies of letters on the suhject from tlie Foreign OflBce to the Colonial Office, and of one from Mr. Phelps to the Secretary of State for Foreign Affairs, the Undersigned has the honour to report as follows : — The letter of ^\x. Phelps seems designed to present to Earl Rosebery the case of the David J. Adams, the fishing- vessel seized a short time ago near Dighy, in the Province of Nova Scotia. Mr. Phelps intimates that he has received from his Government a copy of the Report of the Consul-General of the United States at Halifax, giving full details and deposi- tions relating to the seizure, and that that Report and the evidence annexed to it appear fully to sustain the points which he had suhmitted to Earl Rosehery at an interview M'hieh he had had a short time Lefore the date of his letter. The Report of the Consul-General, and the depositions referred to. seem not to liave been presented to F2ail Rose- bery, and their contents can only be inferred from the state- ments made in ^Ir. Phel[)s' letter. These statements appear to be based on the assei'tions made by the persons interested in the vessel by way of defence against the complaint under which she was seized, but can- not be regarded as presenting a full or accurate representation I 220 Appendix, of the case. The Umlevsir^Micd submits the facts in rof^ard to this vessel as thi^y arc alle^'ed by those on whoso testimony the Government of Canada can rely to sustain the seizure and detontion. The Offence {as to ihe Troaftj and Fishery Lairs). The David J. Adams was a United States' fishing- vessel. Whether, as alleged in her behalf, her occupaiion was deep- | sea fishing or not, and whether, as suggested, she had not been engaged, nor was intended to be engaged, in fishing in any limit prescribed by the Treaty of 1818 or not, are questions which do not, in the opinion of the Undersigned, affect the validity of the seiznre and of the proceedings sub- sequent thereto, for reasons wliich will be hereafter stated ; but in so far as they may be deemed material to the defence they are questions of fact, which remain to be proved in the Yice-Admiralty Court at Halifax, in which the proceedings for the vessel's condemnation are pending, and in respect of which proof is now being taken ; and inasmuch as the trial has not been concluded (much less a decision reached), it is perhaps premature for Mr. Phelps to claim the restora- tion of the vessel, and to assert a v' dit to damages for her detention, on the assumption of ; supposed facts before referred to. It is alleged in the evidence on hehali of the prosecution that the David J. Adams, being a United States' fishing- vessel, on the morning of the 5th May, 1886, was in what is called the "Annapolis Basin," which is a harbour on the north- west coast of Nova Scotia. She was several miles within the Basin, and the excuse suggested (that the captain and crew may have been there through a misapprehension as to the locality) by the words of Mr. Phelps' hitter, " Digby is a small fishing settlement, and its harbour not defined," is unworthy of much consideration. 1 ..II. I ■■ ■IIBlt^ i, The Canadian Case. 221 Digby is not a fishing scttloniont, altlioiigli sonic of tlie l^eople on the neighbo\ning shuirs cngigc in lisliing. It ia a town witli a population of about 2000 persons. Its hiirbour is formed by the Annapolis IJasin, which is a hirgo inlet of the Bay of Fundy, and tho entrance to it consists of a narrow strait marked by conspicuous headlands, which are a little more than a mile apart. The entrance is called '^ Digby Gut," and for all i)nrj)osos connected with this inquiry the harbour is one of the best delined in America. The David J. Adams w'as, on the morning of the 5th day of May, 188C, as has already been stated, several miles within the Gut. She was not then; for the purjiose of '^shelter," or "repairs," nor to "purchase wood," nor to ^'obtain water." She remained there during the 5th and 6th May, 188G ; she was lying at anchor about half a- mile from the shore, at a locality called " Clement's West," On the morning of the Gth ^lay, 188G, the ca})tain made api>lication to the owners of a ii^hing-weir near where he was lying for bait, and purchased four and a-h;ilf barrels of that article. He also purchased and took on board about two tons of ice. While waiting at anchor for these purposes the name of the vessel's " hailing-place " was kept covered by canvas, and this concealment continued while she afterwards sailed down past Digby. One of the crew re})resented to the persons attending the weir that the vessel belonged to the neighbouring province of New Brunswick. The captain told the owner of the weir, when the Treaty was spoken of by the latier, that the vessel was under British register. The c.iptain said he would wait until the next morning to get more bait from the catch in the weir which was expected that day. At day- break, liowever, on the morning of the 7th ^fay^ 188G, the Government steamer Lansdoicne arrived o(l Digby, and I ''I 222 Appendix, if! in the Dnrid J. Adams got undor way, without Wciiting to t 'I = hi 1 I \ was occasioned by this 'removal to St. John, and hy her iv'turn to Di,i,^hy, occupying as they did but a few hours, and yet this circumstance seems to be relied on as ^'aggravating the seizure," and as depriving it of the character of a seizure made " to (enforce a right or to redress a wrong." Anotiier ground for complaint is tliat in Digby, " the pa))er alleged to be the legal precept for the ca])ture and detention of the vessel was nailed to her ma^t in such a manner as to prevent its contents being read/' and that '' the request of the captain and of the United States' Consul-General to be allowed to detach the writ from the mast, for the purpose of learning its contents, Avas posi- tively refused by the Provincial otFicial in charge, that the United States' Consul-General was not able to learn from the Co' -uander of the Lansdoirne the nature of the com- plaint ,ainst the vessel, and that his respectful application to that effect was fruitless." 1. As to the position of the paper on the mast, it is not a fact that it was nailed to the vessel's mast " in such a manner as to jtrevent its contents being read." It was nailed there for the purpose of being read, and could have been read. 2. As to tlie refusal to allow it to be detached, such refusal was not intended as a discourtesy, but was legitimate and proper. The paper purported to be, and was, a copy of the writ of summons and warrant, whicli wi-re then in the Registry of the Vire-Admiralty Court at Halifax. It was attached to the mast by the otHcer of tlie Court, in accord- ance with the rules and procedure of that Court. The purposes for which it was so attached did not adiiiit of any consent for its removal. 3. As to the desire of the captain and of the United States' Consul-General to ascertain the contents of the paper, the c/iginal was in tlie Registry of the Court, accessible to every person, and the Registry is within eighty yards of the The Canadian Case. 2 2 7 Consiil-Generars office ; all the reasons for the seizure and detention were made, however, to the captain, days before the paper arrived to be placed on the mast, and, before the Consul-Gencral arrived at Digby, these reasons were not only matters of public notoriety, but had been published in the newspapers of the province, and in hundreds of other newspapers circulating throughout Canada and the United States. The captain and the Consul-General did not need, therefore, to take the paper from tin; mast in order to learn the causes of the seizure and detention. 4. As to the application of the Consul-General having been fruitless, the fact has transpired that he had re})ortcd the seizure, and its causes, to his Government, before the application was made. It has been already explained in tlio previous Memorandum of the Undersigned, and in the Keport of the Minister of Marine and Fisheries, that the application was for a specific statement of the charges, ami that it was made to an officer who had neither the legal acquirements nor the authority to state them in a more specitic form than that in which he had already stated them. The Commander of the Laufdoime requested the Consul- General to make his rctpiest to the Minister of Marine and Fisheries, and, if he had done so, the specific statem<.'iit which he had desired could have been furnished in an hour. It is hoped that the explanation already made, and the pre- cautions which have been taken against even the appearance of discourtesy in the future, will, on consideration, be found to be satisfactory. Incidents of the Customs Seizur>\ Mr. Phelps presents the following views with respect to the claim that the Z)ari'(^ J. ^cZa??w, besides violating tlieTreaty and the Statutes relating to *' fishing by foreign vessels," is lialile to be detained for the penalty under the Customs Law : — Q 2 in' 228 Appendix, i -1 1. That this claim indicates the cojisciousncss that the vessel could not be forfeited for the ofFenco against the Treaty and Fishing Laws. This supposition is groundless. It is by no means uncommon in legal proceedings, both in Canada and the Unitcnl States, for such proceedings to be based on more than one charge, although any one of the charges would in itself, if sustained, be sufficient for the purpose of the com- plainant. The success of this litigation, like tlu^t of all liti- gation, must depend not merely on the rights of the parties, but on the proof which may be adduced as to a right having been infringed. In this instance it appears from Mr. Phelps' letter that the facts which are to be made the subject of proof are evidently in dispute, and the Government of Canada could, with propriety, assert both its claims, so that both of them should not be lost by any miscarriage of justice in regard to one of them. This was likewise the proper course to be taken, in view of the fact that an appeal might at any time be made to the Government by the owners of the David J. Adams for remission of the forfeiture incurred in respect of the Fishery Laws. The following is a section of the Canadian Statute relating to fishing by foreign vessels : — ** In cases of seizure under this Act, the Governor in Council may direct a stay of proceedings, and, in cases of condemnation, may relieve from the penalty in whole or in part, and on such terms as are deemed right." — 31 Vict., cap. Gl, sec. 19, It seemed necessary and proper to make at once any claim founded on infraction of the Customs Laws, in view of the possible termination of the proceedings by executive interference under this enactment. It would surely not be expected that the Government of Canada should wait until the termination of the proceedings under the Fishery Acts before asserting its claim to the penalty under the Customs Tlie Canadian Case. 229 sips' t of of so Act. The owners of the ofFonding vessel and nil concerneil were entitled to know as soon as they could be mado aware what the claims of the Government were in relation to the vessel, and they might fairly urge that any which were not disclosed were waived. 2. ]\rr. Ph<.'lp3 remarks that this charge is " not the one on which tlie vesscd was seized," and '' was an after- thought." The vessel was seized by the Commander of the Lansdounie for a violation of the Fishery Laws before tlui Customs authorities had any knowledge that such a vessel had entered into the port, or had attem^jted to leave it, and the Commander was not aware at tliat time whether the Darid J. Adams had made proper entry or not. A few hours afterwards, however, the Collector of Customs at Digby ascertained the facts, and on the facts being made known to the Head of his Department at Ottawa, was imme- diately instructed to take such steps as might be necessary to assert the claim for the penalty whicli had been incurred. The Collector did so. 3. Mr, Phelps asserts that the charge of breach of the Customs Law is not the one which must now be principally relied on for condemnation. It is true that condenmatiun iloes not necessarily follow. The penalty prescribeel is a forfeiture of 400 dollars, on payment of which the owners are entitled to the release of the vessel. If Mr. Phelps means by the expression just quoted that the Customs oifence cannot be relied on in respect to the penalty claimed, and that the vessel cannot be detained until that penalty is paid, it can only be said that in this contention the Canadian Government does not concur. Section 39 of the Customs Act, before quoted, is explicit on that point. 4. It is also urged that the offence was, at nmst, " oidy an accidental and clearly technical breach of a Custom-house |; TS 'I il i MM ^ I. '^ ^U. 230 Appendix. Koi^mlation, by which no hcarm was intended and from wliich no liiirin came, and would in ordinary cases be easily con- doned by an apolo^^y and perhaps payment of costs." "NVliat has already been said under the heading '' The Offence (as to Customs Laws) " presents the contention op])OS(Hl to the offence being considered as " accidental." Tlie master of the David J. Adaws showed by his languag(^ and conduct that what he did he did with design, and with the knowledge that he was violating the laws of the country. He could not have complied with the Customs Law without frustrating the purposes for which he had gone into l)ort. As to the breach being a " technical " one, it must be remembered that with thousands of miles of coast indented, as the coasts of Canada are, by hundreds of harbours and in- lets, it is impossible to enforce the Fishery Law "without a strict enforcement of the Customs Laws. This difficulty was not unforeseen by the framers of the Treaty of 1818, who ])rovided that the fishermen should be '^ under such restric- tions as might be necessary to prevent their taking, drying, or curing fish .... or in any other manner whatever ahudng ilie pricileffes reserved, to iliem." No naval force Avhich could be equip])ed by the Dominion would of itself be sufficient for the enforcement of the Fishery Laws. Foreign fishing-vessels are allowed by the Treaty to enter the harbours and iulets of Canada, but they are alloAved to do so only for specified purposes. Li order to confine them to those purposes it is necessary to insist on the observance of the Customs Laws, which are enforced by officers all along the coast. A strict enforcement of the Customs Laws, and one consistent with the Treaty, would require that, even when c(uuiug into port for the purposes for which such vessels are allowed to enter our waters, a Eeport should be made at the custom-house, but this Uas not been insisted on in all cases, TJie Canadian Case. -31 %vhen the Customs Laws are enforced against those who enter for other tlian legitimate purposes, and who elioose to violate both the Fishery Laws and Customs Laws, the Government is far within its right, and should not be asked to accept au apol "> Canada, was surely a duty incumbent on tlie Government of the United States ratlier than on that of Canada. This j)oint cannot be l)etter expressed than in the Languaf^e reported to have been recently used by ^Ir. Bayard, the United States' Secretary of State, in his reply to the owners of the Oeorfje Cudhing, a vessel recently seized on a similar charge : " Ycni are well aware that questions are now pending between this Government and that of Great Britain in relation to the justification of the rights of American tishing-vessels in the territorial waters of British North America, and we shall relax no eflbrt to arrive at a satisfactory solution of the difficulty. In the nu^autime, it is the duty and manifest interest of all American citizens entering Canadian jurisdic tion to ascertain and obey the Laws and Regulations there in force. For all unlawful depredations of i)roperty or com- mercial rights this Government will expect to procure redress and compensation for the innocent sufferers." Interpretation of the Treaty. Mr. Phelps, after commenting in the language alroatly quoted from his letter on the claim for the Customs penalty, treats, as the only question, whether the vessel is to be for- feited for purchasing bait to be used in lawful fishing. In following his argument on this point, it should be borne in mind, as already stated, that in so far as the fact of the bait having been intended to be used in lawful fishing is material to the case, that is a fact which is not admitted. It is one in respect of which the burden of proof is on the owners of the vessel, and it is one on which the owners of the vessel have not yet obtained an adjudication by the tribunal before which the case has gone. Mr. Phelps admits '^ that if the language of the Treaty of 1818 is to be interpreted literally, rather than according to its spirit and plain intent, a vessel engaged in fishing would r ? I oil Appendix. be prohibited from entering a Canatliiin port for any purpose whatever, except to obtain wood or water, or to repair damages, or to seek slielter." It is claimed on the part of the Government of Canada that this is not only the language of the Treaty of 1818, but " its spirit and plain intent." To establish this contention, it should be sufficient to point to tlio clear unaml)iguous words of the Treaty. To those clear and unambiguous words INIr. Phel|)S seeks to attach a hidden meaning by suggesting that certain " preposterous consequences " might ensue from giving them their ordhiary construction. lie says that with such a construction a vessel might be forfeited for entering a port to " post a letter, to send a telegram, to buy a newspaper, to obtain a physician in case of illness, or a surgeon in case of accident, to land or bring otf a passenger, or even to lend assistance to the inhabitants, t^c." There are probably few Treaties or Statutes tlie literal enforcement of which might not, in certain circumstances, produce consequences worthy of being described as pre- posterous. At most, this argument can only suggest that, in regard to tliis Treaty, as in regard to every enactment, its enforcement sliould not be insisted on "where accidental hardships or " preposterous consequences " are likely to ensue. E(|uity, and a natural sense of justice, would doubtless lead the Government with which the Treaty was made to abstain from its rigid enforcement for inadvertent offences, although the riglit so to enforce it might be beyond question. It is for this reason that, inasmuch as the enforcement of tliis Treaty, to some extent, devolves on the Government of Canada, the Parliament of the Dominion has in one of the sections already (juoted of the Statute relating to fishing by foreign vessels (31 Vict., cap. Gl, sec. 19) intrusted tlie Executive witli power to mitigate the severity of those provisions when an ( The Canadian Case. 2oD 1 appoal to oxeeulive iiiterfcroiici' can lie justifuMl. In relation to every law of a penal character the same power for the same purpose is vested in the Executive. Mr. Phelps will find it (liflicult, however, to discover anj' authority anionc,' the jurists of his own country or of Great Britain, or anionj,' tlio writers on international law, for the position that, a,i,'ainst the ]»lain words of a Treaty or Statute, an interpretation is to be sought which will obviate all chances of hardship and render unnecessary the exercise of the executive power before mentioned. It might fairly be urged against his argument that the Convention of 1818 is less open to an attempt to change its plain meaning than even a statute would be. The latter is a declaration of its will by the supreme authority of the State, the former was a compact deliberately and solemnly made by two ]iarties, each of whom expressed what he was willing to concede, and by what terms he was willing to be bound. If the purposes for which the T'nited States desired that their fishing-vessels should have the right to enter British American waters included other than those exj)ressed, their desire cannot avail them now, nor be a pretext for a special interpretation after they assented to the words, " and for no other purpose whatever." If it was " preitosterous " that their fishermen should be precluded from entering provincial ■waters ^' to post a letter," or for any other of the puri)oses Avhich Mr Phelps mentions, they would probably never have assented to a Treaty framed as this was. Having done so, they cannot now urge that their language was " preposterous," and that its effect must be destroyed by resort to " inter- pretation." But that which Mr. Pludps calls " literal interpretation " is by no means so preposterous as he suggests, when the purpose and object of the Treaty come to be considered. AVhile it was not desired to interfere with ordinary commer- ) i f « ; ! I 1 > : I ! I i •■ • 236 Appendix. cial intorcourse hctweon tlie people of the two countiios, tlio deliberate and declared purpose existed on the part of Groat ]>ritaiii, and the willingness existed on the part of the United States, to secure absolutely, and free from the pos- sibility of encroachment, the fisheries of the British pos- sessions in America to the p(?ople of those possessions, except- ing as to certain localities, in respect of which special provisions were made. To efFect this it was merely necessary that there should be a joint declaration of the right which Avas to be established, but that means should be taken to preserve that right. For this purpose a dis- tinction was necessarily drawn between the United States' vessels engaged in commerce and those engaged in fishing. While the former had free access to our coasts, the latter were placed under a strict prohibition. The purpose was to prevent the fisheries fron\ being poached on, and to preserve them to " the subjects of his Lritannie Majesty in North America, not only for the pursuit of fishing within the waters adjacent to the coast (which can binder the law of nations be done by any country), but as a basis of supplies for the pursuit of fishing in the dc^ep sea. For this purpose it was necessary to keep out foreign fishinj^. vessels, excepting in cases of 'dire necessity, no matter under Avhat pretext they might desire to come in. The fisheries could not be preserved to our people if every one of the United States' fishing-vessels that were accustomed to swarm along our coasts could claim the right to enter our harbours " to post a letter, or send a telegram, or buy a newspaper, to obtain a physician in case of illness, or a surgeon in case of accident, to land or bring off a passenger, or even to lend assistance to the inhabitants in fire, flood, or pesti- lence," or to " buy medicine " or " to purchase a new rope." The slightest acquaintance with the negotiations which led to the Treaty of 1818, and with the state of the Fishery :sm^ The Canadian Case. 1 ■I *) fiuestion preceding,' it, inducos the belief that if the United Slates' negotiators had tjugyested these as purposes for wliieli tlieir vessels should bo allowed to enter our waters, the proposal would have been rejeeted as " i)reposterous," to quote Mr. Phelps' own words. ]>ut Mr. Phelps apjtears to liave overlooked an important part of the case when he suggested that it is a "preposterous" constructtion of the Treaty, which would lead to the purchase of bait being pro. liibited. So fur from such a construction being against '^ its spirit and plain intent," no other meaning wouUl accord with that sjjirit and intent. If we adopt one of the methods contended for by Mr. Phelps of arriving at the true meaning of the Treaty, namely, having reference to the " attending circumstances," &c., we find that so far from its being considered by the framers of the Treaty that a prohi])iliun of the right to obtain bait wouhl be a " preposterous " and an extreme instance, a proposition was made by the United States' negotiators that the proviso should read thus : " Provided, however, that American fishermen shall be permitted to enter such bays and harbours for the purposes only of obtaining shelter, wood, water, and hait" and the insertion of the word " bait " was resisted by the J]ritish negotiators and struck out. After this, how can it be con- tended that any rule of interpretation would be sound which would give to United States' fishermen the very permissi(»n which was sought for on their behalf during the negotiations, successfully resisted by the British Representatives, and deliberately rejected by the framers of the Convention 1 It is a well-known fact that the negotiations ])rcceding the Treaty had reference very largely to the deep-sea fisheries, and that the right to purchase bait in the harbours of the British possessions for the deep-sea fishing was one which the United States' fishermen were intentionally excluded from. Eeferring to the difficulties which subsc- ^ 2 -.8 4ppcnd'L\ r I ^i quontly arose from an cnforccnioiit of the Treaty, an American autlior says : — ** It will busi!on that most of those difFiculties arose from a c]ian<,'o in the charactiir of tlu.' lishcriiis ; cod being caught on the l)anks, were seldom pursued within the tiiree-niile limit, and y(^t it was to cod, and perhaps halibut, that all the oarly negotiations liad referred. ft The mackerel fishing had now sprung up in the Gulf of kSt. Lawrence, and ha 1 proved extremidy proHlallo. This was at that time an inshore lishery." ("Schuyler's American Diplomacy," p. 411 ) In further am[)lification of this argument, the Undersigned would refer to the views set forth in the Memorandum before ni'Mitioned in the letters of Mr. Bayard in Miiy last, and to those presented in the lieport of the Minister of Marine and Fisheries, approved on the 1 1th June ultimo. While believing, however, that INfr. Phel!)S cannot, l>y resort to any such matters, successfully establish a different construction for the Treaty from that which its words present, the Undersigned submits that ]Mr. IMielps is mis- taken as to the right to resort to any matters outside the Treaty itself to modify its plain Avords. Mr. I'helps expresses his contention thus : — " It seems to me clear that the Treaty may be considered in accordance with those ordinary and well-settled rules applicable to all written instruments, which Avithout such salutary assistance must constantly fail of their purpose. 13y these rules the letter often gives way to the intent, or rather is only used to ascertain the intent, and the whole document will be taken together, and will be considered in connection wdth the attending circumstances, the situation of the parties, and the object in view, and thus the literal meaning of an isolated clause is often shown not to be the meaning really understood or intended." The Canadian Case. 239 It iii;iy be readily adniitteil that .such rules uf iiitci'iiri'ta- tion exist, l>iit when arc they t(j bo apidiecl 1 Only ^vll('Il iiiterprctaliitii is necessary — when the words are jijain in their ordinary meaning the task of interpretation does not begin. Vattel says in reference to the " Intisrpretution of Treaties : " — "The iirst general maxim of interpretation is, t}tat U is not alloirnhle to iiiterpn.t ir/iat has no wed 0/ hittipr'tii' tion. When the deed is W(jrded in clear and precise terms, when its meaning is evident and leay attribute to its author. It would be very often dangerous to enter with them into the discussion of these supposed views that are pointed out in the i)iece itself. The following rule is better calculated to foil such cavillers, and will at once cut short all chicanery : // he irlto could and dU'/ht to have explained himself clearhj and full y has not done it, it is the n-orse fov him ; ho cannot be allowed to introduce subsequent restrictions which he has not expressed. This is a maxim of the Roman law : ' I'actionem obscuram iis nocere in (juorum fuit potestate legem apertius conscribere.' The equity of this rule is glaringly obvious, and its necessity is not less evident." (Vattel's *' Inter])retation of Treaties," lib. ii., chap. 17.) Sedgewick, the American writer on the " Construction of vStatutes " (and Treaties are constructed by much the same rules as Statutes), says, at p. 194 : "The rule is, as we shall constantly see, cardinal and universal, but if the Statute is 240 Appendix. ; « : in. Mil f \\\ \ Wi ])lain and unamLiguous, there is no room for construction or interpretiition. The Logiflaturc has spoken ; their inter- pretation is free from douLt, and their will must be obeyed." "It maybe proper," it has been said in Kentucky, "in giving a construction to a Statute, to look to the ett'ects and consequences when its provisions are ambiguous or the legis- lative intention is doubtful. But when tlie law is clear and explicit, and its provisions are suscepti])le of but one inter- pretation, evil can only be avoided by a change of the law itself, to be effected by legislative and not judicial action." " So too," it is said ]>y the Supreme Court of the United States, " where a law is plain and unambiguous, whether it be expressed in general or limited terms, the Legislature should be intended to mean what they have plainly expressed, and consequently no room is left for construction." At the Triljunal of Arbitration at Geneva, held under the Washington I'reaty in 1872, a similar question arose. Counsel for her Majesty's Government presented a supple- mental argument, in which the ordinary rules for the inter- pretation of Treaties were invoked. Mr. Evarts, one of the counsel far the United States,and afterwardsSecretary of State, made a supplemental reply in which the following passage occurs : " At the close of the special argument we find a general presentation of canons for the construction of Treaties, and some general observations as to the light or the controlling reason under which these rules of the Treaty should be construed. These suggestions may be briefly dismissed, it certainly would be a very great reproach to these nations, which had deliberately fixed upon three pro- positions as expressive of the law of nations, in their judg. ment, for the purposes of this trial, that a resort to general instructions for the purpose of interpretaticx. was necessary, l^leven canons of interpretation drawn from Yattel are pre- sented in order, and then several of them, as the case suits, i M TJie Canadian Case. 241 " in are applied as valuable in elucidating this or that poiiic of the rules. But the learned counsel ha.* omitted to bring to your notice the first and most general rule of Vattel, M'hicli, being once understood, would, as we think, dispense with any consideration of these subordinate canons which Vattel has introduced to be used only in case his first general rule does not apply. This first proposition is that ' it is imf aJhnvahh' fa itifi'vpret what his no wed of intcrjirctation.'' " (Washington Treaty Papers, vol. iii., pp. 4 16, 447.) In a letter of Ivlr. Hamilton Fish to the United States' Minister in England on the same sul)j(>ct, datetl the ItJtli April, 1872, the following view was set fortli : — '* Further than this, it appears to me that the principles of English and American law (and they are substantially the same) regarding the construction of Statutes and Treaties, and of written instruments generally, would preclude the seeking of evidence of intent outside the instrument itself. It might be a painful trial on which to enter in seeking the opinions and recollections of parties, to bring into conflict the differing expectations of those who were engaged in the negotiation of an instrument." (Washington Treaty Pa})ers, vol. ii., p. 473.) But even at this ])arrier the ditlieulty in following Mr. Phel[)s' argument, by which he sei'ks to reach the interpreta- tion he desires, does not end. After taking a view of the Treaty which all authorities thus f(irl)id, he says, "Thus regarded, it appears to me clear that the words, ' for no other purpose whatever,' as employed in the Treaty, nu'an for no other purpose inconsistent with the provisions of the Treaty." Taken in that .sense, the words would have no moaning, for no other purpose would be consistent with the Treaty excejjting those mentioned. He proceehermen, with whom they have to compete at such a dis- advantage in the markets of the United States, should be allowed to enter for supplies and bait, even for the pursuit of the dee])-sea fisheries. Before concluding his remarks on this suhject, the Undersigned would refer to a passage in the answer on behalf of the United States to the case of her ^Majesty's Government as presented to the Halifax Fisheries Commission in 1877: "The various incidental and reciprocal advantages of the Treaty, such as the privi- leges of traffic, purchasing bait and other supplies, are not the subject of compensation, because the Treaty of Wash- ington confers no such rights on the inhabitants of the T'"nited States, vlwnuw enjoy thtm merely hy sufera7ice, and 'i-Jio can af an]i lime he deprived of tliem hy the enforcement if v.i'isihKj Lairs, or the re-enadment (f former oimressive ^Sfafufes." Mr. Phelps has made a lengthy citation from the Imperial Act 59 Geo. III., cap. 38, for the purpose of establishing — 1. That the penalty of forfeiture was not incurred by any entry into British ports, unless accompanied by fishing, or preparing to fish, Vt'ithin the prohibited limits. 2. That it was not the intention of Parliament, or its understanding of the Treaty, that any other entry should be regarded as an infraction of the provisions of that Act. As regards the latter point, it seems to be eliectually disposed of by the quotation which Mr. Phelps has made. The Act permits fishermen of the United States to enter The Canadian Cast 24, the Lays ov harbours of liis lU'itannic Majesty's dominions in America for the purposes named in the Treaty, '' and for no other purpose whatever ; " and, after enactin,!,' the penalty of forfeiture in regard to certain oflences, provides a penalty of 200/. against any persons otherwise offending against the Aet. It cannot, therefore, he successfully con- tended that Parliament intended to permit entry into the British American waters for the purchase of V>ait, or for anj' other than the purposes specified in the Treaty. ' As to the first point, it is to be observed that the penalty of forfeiture was expressly pronounced as a})plicable to the oflence of fishing or preparing fish. It may be that for- feiture is incurred by other illegal entry, contrary to the Treaty, and contrary to the Statute. It may also bo con- tended that preparing, within the pi'ohiliited limits, to Ush in any place is the ofi'ence at which the penalty is aimed, oi' it may be that tlie preparing within these waters to fish is evidence of preparing to fish within the prohibited waters, under the Imperial Statute, and especially under the Cana- dian Statute, which places the burden of proof on the defendant. The Undersigned does not propose at this time to oiitrr into any elaborate argument to show the grounds on which the penalty of forfeiture is available, because that (juestidu is one which is more suitable for determination by the Courts to whose decision it has b(;en referred in the very case under consideration. The decision in the case of the DariiJ J. Adams will be soon pronounced, and as the Government of Canada will be l)ound Ijy the ultimate judgment of cumpc.'tent authority on this (piestion, and cannot be expected to ac(|uiesce in the view of the United Stat'"^' Government Mithout such a judgment, any argument of the case in diplomatic form would be premature and futile. Ill order, however, to show that Mr. riiclps is in error E 2 m 244 Appendix. V 1 i 1 "vvlien he assumes that the practical construction hitherto given to the Treaty is in accordance with his views^ it is as well to state that in the year 1815 the Commander of one of his Majesty's ships of war seized four United States fishing-vessels (see Sabine on Fisheries) ; and again, in 1817, the Imperial Government acted on the view that tlu^y had the right to seize foreign vessels encroaching -ai the fishing- grounds. Instructions were issued by Great Britain to seize foreign vessels hshing or at anchor in any of the harbours or creeks in the British Xortli American possessions, or within their maritime jurisdiction, and send them to Halifax for adjudication. Several vessels were seized, and infor- mation was fully communicated to the Government of the United States. This, it will be remembered, was not only before tlie Treaty, but before the Imperial Act above referred to. Tlie foll(jwing were the words of the Admiralty Instruc- tions then issued : " On your meeting with any foreign vessels fishing or at anchor in any of the harbours or creeks in his Majesty's North American Provinces, or within our maritime jurisdiction, you will seize and send such vessel so trespassing to Halifax for adjudication, unless it should clearly appear that they have been obliged to put in tliere in conse(pience of distress, acquainting me with the cause of such seizure, and every other particular, to enable me to give all information to the Lords Commissioners of the Admiralty." Tender these instructions eleven or twelve American fishing-vessels were seized in Nova Scotia on the 8th June, 1817, in conseciuence of their frequenting some of the harbours of that province. In 1818 the fishing-vessels Mahhn and Washinr/ton were seized and condemned for entering and harbouring in Britisli American waters. In 1839 the Java, Imlependunce, Magnolia, and Hart (I TJic Canadian Case. 245 I werc seized and confiscated, the principal charge heing that Ihey wore within Britisli American waters M'ithout legal cause. In 1840 the Papiueau and Mary were seized and sold for purchasing ha it. In the s])iing of 1819 a United States' fishing-vessel named the Cliarlcs was seized and condemned in the Vice- Admiralty Court in New Brunswick for having resorted to a harhour of that province, after warning, ami without necessity. In the year 1871 the United States' fishing-vessel J. II. Nidcerxon was seized for having. purchased halt Avithin three marine miles of the Xova Scotian shore, and condemned hy the Judgment of Sir AVilliam Young, Chief Justice of Xova Scotia, and Jud'^e of the Court of Vice-Admiraltv. The following is a passage from his Judgment; — "The vessel went in, not to ohtain water or men, as the allegation says, hut to purchase or jtrocure hnit (which, as I take it, is a preparing to fish), and it was contended that they had a right to do so, and that no forfeiture accrued on such entering. The nnswer is, that if a privilege to enter our iiarhours for bait was to h(> conceded to American fishermen, it ought to have heen in the Treaty, and it is too important a matter to have heen accident- ally overlooked. We knew, indeed, from the State Papers that it was not overlooked, that it was suggested, and declined. But the Court, as I have already intimated, does not insist upon that as a reason for its Judgment. AVhat may be fairly and justly insisted on is, that beyond the four purposes specified in the Treaty — shelter, repairs, water, and wood - here is another puipose or claim not specified, while tlie Treaty itself declares that no such other purp(jse shall be received to justify an entry. It appears to me an in- evitable conclusion tliat tlie /. //. Niclcersoyi, in entering i *] ,'■ : { 246 Appendix. the Bay of Tngonisli for the purpose of procuring halt while thftre, became liable to forfeiture, and ui)on the true con- stnu'tion of the Treaty and Acts of Parliament M'as lepjally seized." {Vi(/t' Halifax Commission, vol. iii., pp. 3398, A\'a.shington edition.) In view of these seizures and of this decision, it is difll- ctdt to unilerstand the following passages in the letter of i\lr. Phelps:— '^Tlie practical construction given to the Treaty down to the present time has been in entire accord with the con- clusions thus deduced from the Act of Parliament. The P)ritish Government has repeatedly refused to allow inter- ference with American fishing-vessels, unless for illegal fishing, and has given explicit ordei's to the contrary." " Judicial authority upon the question is to the same tdi'ect. That the purchase of bait by American fishermen in the provincial ports has been a common practice is well known, but in no case, so far as I can ascertain, lias the seizure of an American vessel ever been enforced en the ground of the purchase of bait or of any other supplies. On the hearing before the Halifax Fishery Commission in 1877-78, this (piestion was discussed, and no case coidd bo produced of any such condemnation. Vessels shown to have been condemned were in all cases .adjudged guilty either of fishing or preparing to fish Avithin the prohibited limits." Although Mr. Pheljis is under the impression that '' in the hearing l)efore the Halifax Fishery Commission in 1877 this question was discussed, and no case could be produced of any such condemnation," the fact appears in the records of that Commissio)!, as jjublished by the Clovernment of the United States, that on a discussion which there arose, the instances above mentioned were nearly all cited, and the Ju(l<;ment of Sir "William Young in the case of the J. 7/. Niclierson was presented in full, and it now appears among \ The Canadian Case. 247 tlio papors of that Commission (sno vol. iii., Documents ami I'roctjutlings of Halifax Commission, p. 3398, Washington edition). The decision in the case of the -/.//. i\7c/iV'/'t'o// uas subs('([uent to that in the case of the Wliife Fa>r)i mentioned, to the exclusion of all the other cases referred to Ly ^fr. Phelps. Wiiether that decision should ho reaOirme'd or not is a (piestion more suitable fi)r judicial determination than for discussion here. Ii/)/Jif of flie Ddmiiiion Padiamr'nf fo malcn Fis/ior>j Kna.rJmi nts. Mr. Phelps deems it unnecessiiry to point out tliat it is not in the i)0M'er of the Canadian Parliament to alter or enlarge the pi'ovisions of the Act of the Imperial Parliament, or to give to the Treaty either a construction or a legal eflV'ct not M'arranted hy that Act. Ko attempt has ever heen made hy tlie ]\irliaraent of Canada, or liy that of any of the IVjvinces, to give a '' con- struction " to the Treaty, hut the Undersigned submits that the right of the Parliament of Canada, Avith the Poyal Assent given in the manner provided in the Constitution, to pass an Act on this subject to give that Treaty ellect, or to l)rotect the people of Canada from the infringement of the Treaty provisions, is clear beyond (piestion. An Act of that Parliament duly passed, according to constitutional forms, has as much the f'orct} of law in Canada, and binds as fully oUenders Avho may come within its jurisdiction, as any Act of the Imperial J'arliameiit. The ellbrts made on the part of the Government of the United States to deny and refute the validity of Colonial Statutes on this subject have lieen continued for many years, and in every instance have been set at nouglit by the Impevial authorities and by the Judicial Tribunals. In May 1670 this vain contention was complet^-Iy j I 11 !:i ^■ftl' 1 1 I*- 24S Appendix. abandoned ; a Circular Avas issued by the Treasury D<'part- ment at Washington, in which Circular the i)ersons to whom it was sent were uuthoiized and din^cted to inform all masters of fishing- V(,'ssels that the authorities of the Dominion of Canada had resolved to terminate the systeui of granting fishing licences to foreign vessels. The Circular proceeds to state the terms of the Treaty of 1818, in order that United States' fishermen might he in- foruKMl of the limitation thorel)y placed on their privileges. It i)roceeds further to set out at large the Canadian Act of 18G8, relating to fishing by foreign vessels, which has been lieroinbefore referred to. The fishermen of the United States were by that Circular expressly warned of the nature of the Canadian Statute, which it is now once more pretended is without force, but 110 intimation was given to those fisherTiien that these provi- sions were niigatory and would lie resisted by the United States' Government. Lest there should bo any misa})i)ro- hension on that subject, however, on the 9tli June of the same year, less than a month after that Circular, another Circular was issued from the same Department, stating again the terms of the Treaty of 1818, and then containing the following paragraph : " Fishermen of the United States are bound to respect the British Laws for the regulation and preservation of the fisheries to the same extent to which they are applicable to British and Canadian fishermen." The same Circular, noticing the change made in the Canadian Fishery Act of 1868 by the amendment of 1870, makes this observation : " It Avill be observed that the warning formerly given is not required under the amended Act, but that vessels trespassing are lialjlo to seizure without such warnmg. The Canadian Statnfe of 188G. Mr. Phelps is again under an erroneous impression with The Canadian Case. 249 rcf^ard to the Statute introduced at tlie last Session of the Dominion Parliament, He is informed that "since the seizure" the Canadian authorities have pressed, or are i)ressing, through the Canadian Parliament, in much haste, an Act uhich is designed, for the first time in the history of the Legislature, under this Treaty, to make the facts U])on ■which the American vessels have heen seized illegal, and to authorize proceedings against them therefor. The following ohservations are ajipropriatc in ndation to this ])assage of Mr Phelps' letter: — 1. The- Act which he refers to was not passed with haste. It was passed throiigh the two Houses in the usual manner, and with the ol)servancc of all the usual forms. Its jiassage occujued prohahly more time than was occu])ied in tin- passage througli the Congress of the United States of a measure which possesses much the same character, and which will he referred to hereafter. 2. The Act has no hearing on the seizures referred to. 3. It does not make any act illegal which was legal before, hut declares what penalty attaches to the offences which were already prohibited. It may be observed in reference to the charges of " undue haste," and of " legislating for the first time in the history of the legislation und(!r the Treaty," that before the Statute referred to had become Jaw the United States' Congress passed a Statute containing the following section : — "That whenever any foreign country whose vessels have been [)laced on the same footing in the ports of the United States as American vessels (the coastwise trade excepted) shall deny to any vessels of the United States any of the commercial privileges accorded to national vessels in the harbours, ports, or waters of such foreign country, the Presi- dent, on receiving satisfactory information of the continuance ^ 1 250 ^ appendix. ll I of such discriminations ap,';\inst any vessels of llio United ►States, is liereliy autliorized to issue liis Proclaniati(jn, ex- cludinif, on and after sueli time as lie may indicate, from tlie exercise of sucli commercial privilcm's in the ports of the United States as are denied to American vessels in the ports of such foreij^n country, all vessels of such forei<,ni country of a similar character to the vessels of the United States thus discriminated against, and suspending such concessions previously granted to the vessels of such country; and on and after the date named in such Proclamation for it to tnko effect, if the master, officer, or agent of any vessel of such foreign country excluded by said Proclamation from the exercise of any commercial privileges shall do any act pro- hiljited by said I'roclamation in the ports, harbours, or waters of the United States for or on account of such vessel, such vessel and its rigging, tackle, furniture, and boats, and all the goods on board, shall be liable to seizure and to forfeiture to the United States ; and any person opposing any officer of the United States in the enforcement of this Act, or aiding and abetting any other person in such opposition, shall forfctit 800 dollars, and shall be guilty of a mis- demeanour, and, upon conviction, shall be liable to imprison- ment for a term not exceeding two years." — Sec. 17 of Act Xo. 8o of Congress, 188G. This enactment has all the features of hostility, which !Mr. Phelps has stigmatized as "unprecedented in the history of legislation under the Treaty." Enforcement of ilie Acts vithont Notice. Mr. Phelps insists upon what he regards as " obvious grounds of reason and justice " and " upon common principles of comity, that previous notice should have been given of the new stringent restrictions " it was intended to enforce. It has been already shown that no new restrictions have — ., ifflwlBKH-a;!-; psf* W ! .li.«l ! J.W ! .llllli l U.m ' M}JH | The Canadian Case. 2^1 been attcniptdl. Tho case of the Dai'id J. Adama is pro- ceocling iimlcr tlie Statutes wliicli liavo been enforced during' the wliole titno when the Tnnity hail operation. It i.s true tlmt for a sliort time jn'ior to tlie Treaty of Washin^'ton, and when expeetation.s existed of sueh a Treaty liein;:,' arrived at, the; instructions of 1870, wliich are cited by Mr. Phelps, were issued by tho Imperial authorities. It i.s likewise true that under these instructions the; rights of her ^Majesty's suhjects in Canada were not insisteil on in their entirety. These instructions were oljviously applicable to the particular time at which and the partieuhir eircuni- stances under which tiiey were issued by her Majesty's Government. liut it is obviously unfair to invoke; them now uniler wholly dilFerent circumstances as estalilishiuj^f a " jiractiral construction" of the Treaty, or as ailbrding any ground for* claiming that the indulg(.'nce which they extended should lie perpetual. The Fishery Clauses of the Treaty of Washington were annulled by a notice from Mie (lovernmont of the Unit* tl States, and, as has already been urged, it M'ould seem to have been the duty of that Government, rather than of the Government of Canada to have warned its own people of t!ie conseciuences which must ensue. This was done in 1S70, l>y the Circulars from the Treasury Department at "Washington, and might well have been done at this time. Mr. I'helps has been pleased to stigmatize " the action of the Canam i ^> y J % Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. M580 (716) 872-4503 % Q>- h 252 Appendix. ■ i i imposed;" wliile he has directed at hirge the words wliidi indict a penalty for the violation of that Statute. Ho declares it seems impossihle for him tc escape the conclusion that " this and similar seizures were made by the Canadian authorities for the deliberate ])urpose of harassing and em- barrassing the American fishiug-ve:^sels in the pursuit of their lawful employment," and that " the injury is very much aggravated by the motives which appear to have prompted it." He professes to have found the real source of the difficulty in the " irritation that has taken place among a portion of the Canadian people on account of the termination by the UniteJ States' Government of the "Washington Treaty," and in a desire to drive the United States, '' by harassing and annoying their fishermen, into the adoption of a new Treaty, by which Canadian fish sliall be admitted free," and he declares that '• this scheme is likidy to prove as mistaken in policy as it is unjustifiable in principle." He might, perhaps, have more accurately stated the real source of the difficulty, had he suggested that the United States' authorities have long endeavoured, and are still endeavouring, to obtain that which by their solemn Treaty they deliberately renounced, and to deprive the Canadian people of that which by Treaty the Canadian i)eople lawfully acpiired. The people of the British North American Provinces, ever since the year 1818 (with the exception of tliosc' periods in which the Reciprocity Treaty and the Fishery Clauses of the Washington Treaty ])revailed), have, at enormous expense, and with great difficulty, l)een protecting their fisheries against encroachments by fishermen of the United States, carried on under every form and pretext, and aided by such denunciations as Mr. Phelps has thought proper to reproduce on this occasion. They value no less now than ^m ^m The CaJtadian Case. 253 they fovmorly did the riglits which wore secured to tlieni hy tl»e Treaty, and tliey are still indisposed to yield those riglits, either to individual aggression or oflicial demands. The course of the Canailian Government since the rescission of the Fishery Clauses of the Wasliingtou Treaty has been such as hardly to merit the a.s|)ersions w-uch Mr. Phel[)s has used. In order to avoid irritation and to meet a def-ire which the Government represented by ^Ir. Phel})s professed to entertain for the setthnnent of all questions which could re-awaken controversy, they renewed for six months after the expiration of those clauses all the benefits which the United States' fishermen had enjoyed under them, although, during that interval, the Government of the United States enforced against Canadian fishermen the Laws which those Fishery Clauses had suspended. Mr. Bayard, the United States' Secretary of State, has made some recognition of these facts in a li'tter which he is reported to have written recently to the ownia's of the Dacid J. Adams. He says : — " More than one year ago I sought to protect our citizens engaged in fishing from results which might attend any possible misunderstanding between the Governments of Great Britain and the United States as to the measure of their mutual rights and privileges in the territorial waters of British North America. After the termination of the Fishery Articles of the Treaty of Washington, in June last, it seemed to me then, and it seems to me now, very hard that differences of opinion between the two Governments should cause loss to honest citizens, whose line of obedience might be thus rendered vague and uncertain, and their property be brought into jeopardy. Influenced by this feeling, I procured a temporary arrangement which secured our fishermen full enjoyment of all Canadian fisheries, free from molestation, during a period which would permit I 254 Appendix, % discussion of a just international settlement of the ■whole Fisliery question, but other counsels prevailed, and my cirurts further to protect fisliernien from such trouble as you now suffer ^vero unavailing." At the end of the interval of six months the United States' authorities concluded to refrain from any attempt to negotiate for larger fishery rights for their people, and they have continued to enforce their Customs Laws against the fishermen and people of Canada. The least they could have ])een expected to do under these circumstances was to leave to the people of Canada the full and unquestioned enjoyment of the rights secured to them by Treaty. The Government of Canada has simply insisted upon those rights and has presented to the legal tribunals its claim to have them enforced. The insinuations of ulterior motives, the imputations of unfriendly dispositions, and the singularly inaccurate repre- sentation of all the leading features of the questions under discussion, may, it has been assumed, be passed by with little more comment. They are hardly likely to induce her Majesty's Government to sacrifice the rights which they have heretofore helped our people to protect, and they are too familiar to awaken indignation or surprise. The Undersigned respectfully recommends that the substance of this ^femorandum, if approved, be forwarded to the Secretary of State for the Colonies, for the information of her Majesty's Government. (Signed^ Jxo. S. D. Thompson, Minuter of Justice. Ottawa, July 22, 1886. Th: Canadian Case. ^55 my No. 2 0/1SS7. Inclosure 2 in No. 49. Report of a Committee of the IIuNouuAiii.K the Pkivy Council for Canada, aithoved by his Excellency the Governor-General in Counx'il on tue Ist Fecuuauy, 1887. The Committee of the Piivy Council liavo had undt-i consideration a despatch dated 30th December, 188G, from the Riglit Honourable the Secretary of State for thf Colonies, forwarding, for tlic information of the Canadian Government, a note received through the Foreign Cilice from the United k^tates' Minister in London, inclosing a draft of a Memorandum for an arrangement between the British and United States' Governments on the subject of the North American fislu^ries, entitled, a '* Proposal for the settlement of the questions in dispute in relation to th(i fisheries on the north-eastern coasts of British North America," accompanied by a despatch dated Washington, 15^h November, 1886, from ^Ir. Bayard, United States' Secretary of State, containing some observations thereon. Mr. Secretary Stanhope requests your Excellency to obtain Tit the earliest possible moment from your Excellency's advisers their views on ]\Ir. Bayard's proposals, and to report them to her Majesty's Government. The ^Minister of Marine and Fisheries, to whom the said despatch and inclosures have been referred, reports that Mr. Buyard suggests that as the season for taking mackerel has now closed, " a period of comparative serenity maybe ex- pected, of which advantage should be taken in order to adopt measures which will tend to make mure harmonious the relations between Canada and the United States as rcKards the fisheries on the coasts of Canada." n ' V 10' ! k ! \i'^ I iU 256 Appendix. The ^[iuistcr observes that any indication of a disposi- tion on the })art of the United States' Government to make arrangements which might tend to put tlie affairs of the two countries on a basis more free from controversy and mis- understanding than at present exists must be hailed with satisfaction by the Government of Canada. It is to be re- gretted that the hmguage in which Mr. Bayard refers to what has taken place during the past year indicates a dis- position on his part to attribute to unfriendly motives the proceedings of the Canadian Government, and a tendency to misapprehend the character and scope of the measures which have been taken by it in order to enibrce the terms of the Treaty of 1818, and to ensure respect for the municipal laws of the Dominion. The Minister submits, therefore, that he cannot avoid protesting against such expressions in Mr. Jiayard's letter as those in which he alludes to the proceedings of the last few months, as " the administration of a strained arid vexatious construction of the Convention of 1818," as " unjust and unfriendly treatment by the local authorities," as " unwarranted interferences (frequently accompanied by rud \ess and unnecessary demonstration of force) with the rights of United States' fishermen, guaranteed by express Treaty stipulations and secured to them . , . by the. Com- mercial Laws and Regulations of the two countries, and which are demanded by the laws of hospitality to which all friendly civilized nations owe allegiance," and as "con- duct on the part of the Canadian officials which may en- danger the peace of two kindred friendly nations." The Minister has to observe again, what has frequently been stated in the negotiations on this subject, that nothing has been done on the part of the Canadian authorities since the termination of the Treaty of Washingtr in any such spirit as that which Mr. J3ayard condemns, t d that The Canadian Case. 257 all that lias been done with a view to the protection of tin; Canadian li.shcrics has been siinitly for the jnirposo of guarding the rights guaranteed to the people i>f Canada by the Convention of 1818, and to enforce the Statutes of Great Britain and of Canada in relation to the fisheries. It has been more than once pointed out in Reports already submitted by the Minister of ^larine and Fisheries, that such Statutes are clearly within the powers of the respectivt; Parlia'^vuits by which they were passed, and are in con- formity with the Treaty of 1818, especially in view of the passage of the Treaty which provides that the American fishermen shall be under such restrictions as shall be neces- sary to prevent them from abusing the privileges thereby reserved to them. The Minister has further to call the attention of your Excellency to the fact, that there is no foundation whatever for the following statement in the concluding part of Mr. Bayard's letter : — " The numerous seizures made have been of vessels quietly at anchor in established ports of entry, undt-r charges, which up to this day have not been particularized sufficiently to allow of intelligent defence ; not one has been condemned after trial and hearing, but many have been fined, without hearing or judgment, for technical violation of alleged Commercial Regulations, although all commercial privileges have been simultaneously denied to tlieiu." The Minister observes, in relation to this paragraph, that the seizures of which ^Ir. Bayard complains have been made under circumstances which have from time to time been fully reported to your Excellency and communicated to her Majesty's Government, and upon grounds which have been distinctly and unequivocally stated in every case, that, although the nature of the charges has been invariably specified and duly announced, those charges have not in ■TT i lif I I 2,8 Appendix, () any caso been answered ; that ample opportunity lias in every caso been afForclcd for a defence to bo submitted t the Executive authorities, but that no defence has l)een offered lieyond tlie mere denial of the right of the Car^^adiau (lovernmont, that the Courts of the various provinces have boon open to the parties said to have been aggrieved, but that not one of them has resorted to those Courts for redress. To this it must l)e added that tho illegal acts, which are cha- racterized by Mr, Eayard as '' technical violations of alleged Commercial Regulations," involved breaclies in most of the cases not denied by the persons who had committed them of establish(;d Commercial licgulations, which, far from being specially directed or enforced against citizens of the United States, are obligatory upon all vessels (including tliose of Canada herself) which resort to the harbours of the British Noith American coast. With regard to the proposal for a settlement, which accompanies Mr. Bayard's letter, the Minister submits the following observations : — Article 1. The Minister observes that, in referring to this Article, ]\Ir. Bayard states that he is " encouraged in the expectation that tho propositions embodied in the Memo- randum will be acceptable to her Majesty's Government, because, in the month of April, 1866, Mr. Seward, then Secretary of State, sent forward to Mr. Adams, at that time United States' Minister in London, the draft of a Protocol which, in substance, coincides with the 1st Article of tho proposal now submitted. In regard to this statement, it is to be remarked that Article 1 of the Memorandum, although no doubt to some extent resembling the Protocol submitted in 1866 by Mr. Ailams to Lord Clarendon, contains several most important departures from the terms of that Protocol. These depar- tures consist not only in such comparatively unimportant TJic Canadian Case. 259 nltorationa as tho Pul)stitntion in line 1 of the word " csta- blisli " for the word " delinc," witliout any apparent nooos- sity for the cliangc, and in otl/jr minor alterations of the text, l)ut also in such grave changes as that which is in- volved in the interpolation in section 1 of the important passage in which it is stijjulated " that the ])ays and har- bours from which American vessels are in future to bo excluded, save fi»r the puri)0ses for which cntrancs into bays and harbours is permitted by said Article, are hereby agreed to bo taken to 1)C such bays and harb(jurs as are ten, or less than ten, miles in width, and the distance of three marine miles from such bays and harljours shall be measured from a straight line drawn aci'oss the bay or harbour in the ))art nearest the entrance at the first point where the width does not exceed ten miles. This provision would involve a surrender of fishing rights which have always been regarded as the exclusive property of Canada, and would make common lishing-grounds of territorial waters which, by the law of nations, have been invariably regarded both in Great Britain and the United States as belonging to the adjacent country. In the case, for instance, of the lUie des Chaleurs, a iieculiarly well- marked and almost land-locked indentation of the Ciinadian coast, the ten-mile line would be drawn from points in the heart of Canadian territory, and almost seventy miles distant from the natural entrance or mouth of the bay. This would be done in spito of the fact that, both by In)perial legislation and by judicial interpretation, this bay has been declared to form a part of the territory of Canada. (Sec Imperial Statute, 14 & 15 Vict., cap. 63 ; and " Mouat r. McPhee," 5 Sup. Court of Canada Reports, p. Q>Q.) Tiie Convention with Franco in 1839, and similar Con- ventions with other European powers, although cited by Mr. Bayard as sufficient precedents for the adoption of a s 2 if ' 260 Appendix. teii-mil(! limit, do not, the Minister subnutff, carry out liis reai'oniiig. Those Conventions were doubtless piissed with a view to the gcogvuphicul ])eeuli;u'ities of the roiiMts to M'liich they related. They had for their i^bjcct the defini- tion of boundary-linea, which, owing to the conliguration of the coast, perhaps could not readily l)e settled by refer- ence to tho law of nations, and involve other conditions which are inapplicable to tho territ(vrial waters of Canada. Mr. Bayard contends that the- rule which he asks to have set up was adopted by the Uin[»irc of the Coniniissiou appointed under tho Treaty of l.sr>3, in the case of the United States' fishing-schooner ]Va>i/iin'/f<>)i, tliat it was by him ai)plied to the Day of Fundy, and that it is for thix reason ai)plicable to other Canadian l^tiys. The Minister submits, however, that the rule laid ilowii by Mr. liates with regard to the l>ay of Fundy should not be treated as establishing the respective rights of Canada and of the United States as to bays and harbours not included in the terms of the reference, and in relation to which there was no Agreement to abide by the decision of the Umpire and no decision by him. It may reasonably be contended that as one of the headlands of the Bay of Fundy is in the territory of the United States any rules of international law applicable to that bay are not, therefore, ecjually applicable to other bays, the headlands of which are both within the territory of the same Power. As to tho second paragraph of the 1st Article, the Minister suggests that before such an Article is acceded to, and even if tlie objections before stated should be removed, the Article should be so amended as to incorporate the exact language of the Convention of 1818, in which case several alterations should be made. Thus, the words, " and for no other purpose whatever" should be inserted after the men- tion of the purposes for which vessels may enter Canadian TJic Canadian Case 261 waters, and after the W(tr(ls"as may ^x' m ccssary to im-- vent" sliouKl be inserted " their takijiL,', drying, or curing,' fisli thereiii, or in any otlier manner abusing the privih'gcs reservcMl, tl'c." To make the hmguago conform eorrcctly to the Ci inven- tion of 1818 several other verbal alterations, which nei-d not be enumerated here, would lie necessary, in order to prevent imaginary distinetiritain. The Minister cordially agrees with Mr. Bayard in believing that a determination of these limits would, whatever may be the future commercial relations between Canada and the United States, either in respect of the fishing industry or in regard to the interchange of other commodities, be extremely desirable, and he believes that your Excellency's Govern- ti l> I I n i 266 Appendix, ment will be found ready to co-operate with that of the United States in effecting such a settlement. Holding this view, the Minister is of opinion that Mr. Bayard was justified in reverting to the precedent afforded by the negotiations which took place upon this subject between Great Britain and the United States ai'ter the expiration of the Reciprocity Treaty of 1854, and he con- curs with him in believing that the Memorandum commu- nicated by Mr. Adams in 1866 to the Earl of Clarendon affords a valuable indication of the lines upon which a negotiation directed to the same points might now be allowed to proceed. The Minister has already referred to some of the criticisms which were taken at the time by Lord Clarendon to the terms of the Memorandum. ^Mr. Bayard has himself pointed out that its concluding paragraph, to which Lord Clarendon emphatically objected, is not contained in the Memorandum now forwarded by him. Mr. Bayard appears, however, while taking credit for this omission, to have lost sight of the fact that the remaining Articles of the draft Memorandum contain stipulations not less open to objection, and calculated to affect even more disadvantageously the permanent interests of the Dominion in the fisheries adjacent to its coasts. The Minister submits that, in his opinion, there can be no objection on the part of the Canadian Government to the appointment of a Mixed Commission, whose duty it would be to consider and report upon the matters referred to in the three first Articles of the Memorandum com- municated to the Earl of Clarendon by Mr. Adams in 1866. Should a Commission instructed to deal with these sub- jects be appointed at an early date, the Minister is not without hope that the result of its investigations might be reported to the Governments affected without much loss of The Canadian Case. 267 of the time. Pending the termination of the questions which it would discuss, it will, in the opinion of the Minister, bo indispensable that United States' fishing-vessels entering Canadian bays and harbours should govern themselves not (mly according to the terms of the Convention of 1818, but by the regulations to which they, in common with other vessels, are subject while within such waters. The Minister has, however, no doubt that every effort will be made to enforce those Regulations in such a manner as to cause the smallest amount of inconvenience to fishing- vessels entering Canadian ports under stress of weather, or for any other legitimate purpose ; and he believes that any representation upon this subject will receive the attentive consideration of your Excellency's Government. The ^linister, iu conclusion, would remind your Excel- lency that your Government has always been willing to remove any obstacles to the most friendly relations between the people of Canada and of the United States. Your Government has not only been disposed from the first to arrive at such an arrangement as that indicated in the Report with regard to the fisheries, but likewise to enter into such other arrangements as might extend the commercial relations existing between the two countries. The Committee concur in the foregoing, and they submit the same for your Excellency's approval. (Signed) John J. McGee, Clerk Prirj/ Qjiuicil, Canada. Inclosure 1 in No. 56. The Marquis of Lansdowne to Sir II. Holland. Ottawa, January 31, 1887. Sir, — With reference to !Mr. Stanhope's despatch of the 268 ?') -\i Appendix. 22nd November last, transmitting copies of two letters from the Foreign OlHce, inclosing notes from the Secretary of State of the United States respecting the alleged pro- cecidings of the Canadian authorities in the case of the United States' fishing-vessels Pearl N'^hon, Ei'eritt Steele^ I have the honour to forward herewith a copy of an approved Report of a Committee of the Privy Council, embodying a Report of my Minister of Marine and Fisheries on the subject. You will observe from the accompanying Minute of Council that in reply to a telegram from the Secretary of State for the Colonies, dated the 6th November last, copies of Orders in Council api)roved on the 18th of the same month, containing full statements of facts regarding the detention of the above-named vessels were inclosed in my despatches of the 29th November last. I have, &c., (Signed) Lansdowxe. Inclosure 2 in No. 56. Report of a Committee of the Honourable the Privy Council for Canada, appkoved by his Excellency the Governou-Genekal in Council on the 15th January, 1887. The Committee of the Privy Council have had under con- sideration a despatch, dated the 22nd NovemJ)er, 1886, from the Right Honourable tlie Secretary of State for the Colonies, inclosing letters from Mr. Secretary Bayard bearing date the 29th October, and referring to the cases of the schooners Eecritt Steele and Pearl Nelson. i The Canadian Case. 269 The Minister of ^farine and Fisheries, to wliom the des- patch and inclosures were referred, reports that in reply to a teh^gram from the Secretary of State for the Colonies, an Order in Council passed on the 18lh ^^ovemher last, con- taining a full statement of facts regarding the detention of the above-named vessels, was transmitted to ls\x. Stanhoi)e. It will not, therefore, be necessary to repeat this statement in the present Report. The Minister observes, in tlie first place, that the two fishing-schooners Ererift Sfce/c and Pearl Nelson, were not detained for any alleged contravention of the Treaty of 1818, or the Fishery Laws of Canada, but solely for violation of the Customs Law. By this Law all vessels, of whatever character, are required to report to the Collector of Customs immediately upon entering port, and are not to break bulk or land crew or cargo before this is done. The Minister states that the captain of the Evorift St'^-le had on a previous voyage entered the port of Shelburne on the 25th March, 1886, and after remaining for eight hours, had put to sea again without reporting to the Customs. For this previous offence he was, upon entering Shelljurne Harbour on the 10th September last, detr:ined, and the facts were reported to the Minister of Customs at Ottawa. AVitli these facts was coupled the captain's statement that on the occasion of the previous offence he had been misled by the Deputy Harbour-master, from M'hom he understood that he would not be obliged to report unless he remained in harbour for twenty-four hours. The Minister accepted the statement in excuse as satisfactory, and the Ecritt Steele Avas allowed to proceed on her voyage. The Customs Law had been violated. The captain of the Everitt Steele had admitted the violation, and for this the usual penalty could have been legally enforced. It was, 2 70 Appendix. - Vi 1 1 1' It ^\ 1^ ■I however, not enforced, and no detention of the vesoel occurred beyond the time necessary to report the facts to headquarters and obtain tlie decision of the Minister. - The Minister submits that he cannot discern in this trans- action any attempt to interfere with the privileges of United States' fishing-vessels in Canadian waters or any sufficient cause for the protest of Mr. ]3ayard. The ^linister states that in the case of the Pearl Nelson no question was raised as to her being a fishing- vessel, or her enjoyment of any privileges guaranteed by the Treaty of 1818. Her captain was charged with a violation of the Customs Law, and of that alone, by having on that day, before reporting to the Collector of Customs at Arichat, landed ten of his crew. This he admitted upon oath ; when the facts were reported to the Minister of Customs he ordered that the vessel might proceed upon depositing 200 dollars pending a fuller examina- tion. This was done, and the fuller examination resulted in establishing the violation of the Law, and in finding that the penalty was legally enforceable. The ^linister, however, in consideration of the alleged ignorance of the captain as to what constituted an infraction of the Law, ordered the deposit to be returned. In this case there was a clear violation of Canadian law. There v/as no lengthened detention of the vessel, the deposit was ultimately remitted, and the United States' Consul- General at Halifax expressed himself by letter to the Minister as highly pleased at the result. The Minister observes that in this case he is at a loss to discover any well-founded grievance, or any attempted denial of, or interference with, any privileges guaranteed to United States' fishermen by the Treaty of 1818. The Minister further observes that the whole argument and protest of Mr. Bayard appears to proceed upon the The Canadian Case. 271 assumption ihiit these two vessels were subjected to unwar- rantable interference, in that they were called upon to submit to the requirements of Canadian Customs Law, and that this interference was prompted by a desire to curtail or deny tlio privileges of resort to Canadian harbours for the purposes allowed by the Treaty of 1818. It is needless to say that this assumption is entirely in- correct. Canada has a very large extent of sea-coast, with number- less ports, into which foreign vessels are constantly entering for purposes of trade. It becomes necessary in the interests of legitimate commerce that stringent Regulations should bo made, by compulsory conformity to which illicit traffic should be prevented. These Customs Regulations all vessels of all countries are obligeil to obey, and those they do obey with- out in any way considering it a hardship. United States' tishing-vessels come directly from a foreign and not distant country, and it is not in the interests of legitimate Canadian commerce that they should be allowed access to our ports without the same strict supervision as is exercised over all other foreign vessels ; otherwise there would be no guarantee against illicit traffic of largo dimensions, to the injury of honest trade and the serious diminution of the Canadian revenue. United States' tishing-vessels are cheerfully ac- corded the right to enter Canadian ports for the purpose of obtaining shelter, repairs, and procuring wood and water ; but in exercising this right they are not and cannot be inde- pendent of the Customs Laws. They have i;he right to enter for the purposes set forth ; but there is only one legal way in which to enter, and that is by conformity to the Customs Regulations. When Mr. Bayard asserts that Captain Forbes had as much right to be in Shelburno Harbour seeking shelter and water " as he would have had on the high seas, carrying on, f CI m 272 Appendix, H ' under shelter of the flag of the United States, legitimate commerce," he is undoubtedly right ; but when he declares, as he in reality does, that to compel Captain Forbes in Shellnirne Harbour to conform to Canadian Customs Kegula- tions, or to punish him for their violation, is a more unwar- rantable stretch of -power than *' that of a seizure on the high seas of a ship unjustly suspected of being a slaver," he makes a statement wliich carries with it its own refutation. Cus- toms Regulations are made by each country for the protec- tion of its own trade and commerce, and are enforced entirely within its own territorial jurisdiction ; while the seizure of a vessel upon the high seas, except under extraordinary and abnormal circumstances, is an unjustifiable interference with the free right of navigation common to all nations. As to Mr. Bayard's observation that by treatment such as that experienced by the Everitt Steele " the door of shelter is shut to American lishermen as a class," the Minister expresses his belief that ]\Ir. Bayard cannot have considered tlie scope of such an assertion, or the inferences which might reasonably be drawn from it. If a United States' fishing-vessel enters a Canadian port for shelter, repairs, or for wood and water, her cajjtain need have no difficulty in reporting her as having entered for one of these purposes, and the Everift Steele would have sufiered no detention had her captain on the 25th March simply reported his vessel to the Collector. As it was, the vessel was detained for no longer time than was necessary to obtain the decision of the Minister of Customs, and the penalty for which it was liable was not enforced. Surely Mr. Bayard does not wish to be understood as claiming for United States' fishing-vessels total immunity from all Cus- toms Regulations, or as intimating that if they cannot exer- cise their privileges unlawfully they will not exercise them at all. The Canadian Case, Mr. Bayard compliiins that the Pearl Nehon^ altb.oiigh seeking to exercise no commercial privileges, was compelled to pay commercial fees such as are applieahlo to trading- vessels. In reply, the Minister observes tluit the fees spoken of are not "commercial fees," they are Tlarbour- master's dues which all vessels making use of legally con- stituted harbours are by law compelled to pay, and entirely irrespective of any trading that may ])e done by the vessel. The MinivStcr observes that no single case has yet been brought to his notice in which any United States' fishing- vessel has in any way been inteifered M'ith for exercising any rights guaranteed under the Treaty of 1818 to enter Canadian ports for shelter, repairs, wood, or water ; that the Canadian Government would not countenance or permit any such interference, and that in all cases of this class when trouble has arisen it has been duo to a violation of Canadian Cus- toms Law which demands the simple legal entry of the vessel as soon as it comes into port. The Committee, concurring in the above report, recom- mend that your Excellency be moved to transmit a copy thereof to the Right Honourable the Secretary of State lor the Colonies. All which is respectfully submitted for your Excellency's approval. (Signed) J(;hn J. McGee, Clerk Privy Council. I %v M w R" EETALIATION. (! No. I ^/i887. Inclosure in No. 55. The Marquis of Lansdowne to Earl Granville. Government House, Ottawa, May 19, 188G. My Lord, — I have the lionour to inclose herewith a copy of a Bill recently introduced in tlie Dominion House of Commons by my Minister of ^Marine and Fisheries, for the purpose of amending the Act 31 Vict., cap 61, respecting fishing by foreign vessels in the territorial waters of the Dominion. That Act was, as your Lordship is aware, framed with the object of giving effect to the Convention of 1818, by render- ing liable to certain penalties all foreign fishing-vessels entering the territorial waters of the Dominion for any pur- pose not authorized by that Convention. It is provided under the third section of the Act referred to, that the penalty of forfeiture shall attach to any foreign vessel which " has been found fishing or preparing to fish, or to have been fishing " without a licence within the three-mile limit. These words, which follow closely those of section 2 of the Imperial Act of 1819 (59 Geo. III., cap. 38), appear to my Government to be insufficient for the purpose of giving effect ^, Retaliation, ^7S to the intentions of the framors of tlio Convention of 1818, inasmuch as, while the penalty of forfeiture is attached to foreign vessels found fishing or preparing to fisli, or liaving been fishing within tlie threc-niilo limit, it :s not clear that under them the same penalty would attacli to vessels enter- ing the territorial waters in contravention of tho stipulations of tho Convention, for a purpose other than those of shelter- ing, repairing damages, purcliasing wood, and obtaining water, for which purposes alone, under the terms of Article I. of the Convention, and of section 3 of tho Imperial Act of 1819 above referred to, foreign fishing-vessels are permitted to enter the bays and harbours of the Dominion. Your Lordship is no doubt aware that the decisions of the Canadian Courts leave it open to question whether tlie purchase of bait in Canadian waters does or does not con- stitute a preparation to fish within tho meaning of tho Imperial Act of 1819 and the Canadian Statute which it is now sought to amend. The decision of Chief Justice Sir William Young in the Vice- Admiralty Court ofXova Scotia, given in November, 1871, in tlie case of the fishing-schooner Nickerson, was to the effect that the purcliasing of bait constituted such a preparation to fish within Canadian waters. The same point had, however, previously arisen in February, 1871, in the A^ice-Admiralty Court at St. John, New Brunswick, in the case of the American fishing-vessel Wliite FaivTif when Mr. Justice Hazen decided that the purchase of bait within the three-mile limit, was not of itself a proof that the vessel was preparing to fish illegally within that limit. There being, therefore, some doubt whether tho intention of the Convention of 1818 is effectually carried out either by the Imperial or the Canadian Acts referred to, it has been thought desirable by my Government to have recourse to legislation, removing all doubt as to the liability to for- T 2 A \i\ ^ 276 Appendix, i t'i'iture of all foreign fishing- vessels resorting to CanaJiau waters for purposes not permitted by Law or l>y Treaty. As tlu! Law now stands, if it should prove that the piirciiase of bait is not held by the Courts to constitute a preparation to fish illegally, there woulil bo no remedy against foreign fishing-vessels frequenting the waters of the Dominion for purposes not permitted by the Convention of 181(S, except — \. That provided by section 4 of the Act of 1819, namely, a penalty of 200/., recoverable in the Superior Courts from the persons \iolating the provisions of the Act. This penalty, however, only attaches to a refusal to depart from the bay or harbour which the vessel has illegally entered, or to a refusal or neglect to conform to any regulations or directions made under the Act, and as the purpose for which the vessel has entered will in most cases have been accomplished before an order can have been given for her departure, it will be obvious that this penalty has very little practical utility. 2. The common law penalties attaching to a violation of the Imperial Statute above referred to, in respect of illegally entering the bays and harbours of the Dom'uion. If, how- ever, it were sought to enforce these penalties, their enforce- ment personally against the master of the vessel would result ill his having ultimately to take his trial for a misdemeanour, while he would, in the first instance, be required to find bail to a considerable amount, a result which would, in the opinion of my Government, be regarded as more oppressive than the detention of the offending vessel subject to the investigation of her case by the Vice-Admiralty Courts. I have, &c., (Signed) Lansdowne. . V RcinUation, 27; An Act further to Amend the Act nE.sPECTiNo Fi?»niNf; BY FouEFGN Vessels. Whereas it is exi^edient, for the more cfffctual protect inn of tlie iiislioro fisheries of Canatla a^'ainst intnisifni liy foreigners, to further amend the Act intituled "An Act rt'- specting Fishing hy Foreign Ves^^els," passed in the 31st year of her Majesty's n^ign, and chaptered Gl : therefore her Majesty, hy and with the advice and consent of the Senate and House 'f Commons of Caimda, enacts as follows : — 1. The section substituted by the 1st section of the Act 33 Vict., cap. 15, entitled "An Act to amend the Act re- specting Fishing by Foreign Vessels," for the 3rd section of the hereinbefore-recited Act, is hereby repealed, and th# following section substituted in lieu thereof : — "3. Any one of the officers or persons hereinbefore nicn- tioned may bring any ship, vessel, or boat, being within any harbour in Canada, or hovering in British waters within three marine miles of any of the coasts, bays, creeks, or harbours in Canada, into port, and search her cargo, and may also examine the master uj)on oath touching the cargo and voyage ; and if the master or person in command does not truly answer tlie questions put to him in such examination lie shall incur a penalty of 400 dollars ; and if such slnp, vessel, or boat is foreign, or not navigated according to the laws of the United Kingdom or of Canada, and («) has been found fish- ing or preparing to fish, or to have been fishing in British "waters within three marine miles of any of the coasts, bays, creeks, or harljours of Canada, not included within the abovr;- mentioned limits, without a licence, or after the expiration of the term named in the last licence granted to such ship, vessel, or boat under the 1st section of this Act ; or i^S) has entered such waters for any purpose not permitted by Treaty or Convention, or by any Law of the United Kingdom oi' of T r m^m^^m ^W" mmmmmmmmmmmm (I I 278 Appendix. Caiifida for the time being in foicc, such sliip, vessel, or boat and the tackle, rigging, ap])arcl, furniture, stores, and cargo thereof shall be forfeited." ^ 2. The Acts mentioned in the schedule hereto are hereby rci:)ealed . 3. This Act shall be construed as one with the said " Act respecting Fishing by Foreign Vessels " and the amendments thereto. ScnEDULE, Acts of the Legislature of the Province of Nova Srofia. Year, Reign, and Chapter. Title of Act. Extent of Repeal. Revised Statutes, Of the Coast and Deep-Sea Fisheriea , 3rd Series, cap. 91. 29 Vic. (1866), cap, 35. The whole. An Act to amend Chapter Ol of the Revised The whole. SmtutfH, "Of tho Coast aud Doep-Sea j Fisheries" Act of the Legislature of the Province of New Brimsivick. Year, Reign, aud Chapter. Title of Act. Extent of Repeal. 16 Vic. (1853), cap C9. An Act relating to the Coast Fisheries and The whole, for the Prevention of Illicit Trade j Sir L. West to the Earl of Rosebery. (Eeceived June 14.) "Washington, June 4, 1886. INTy Lord, — "With reference to my despatch of the 11th May, ' Her Majesty's nssont was declared to this Bill at Windsor on the 2Gth Nov., 188G. ' boat cargo Retaliation. 279 I have tho lionoiir to inclose to your Lordship herewith tliu text of tlie Bill relating to American shipping whicli has passed Congress. Section 12 refers to reciprocity of tonnage dues, and section 17 is tho retaliatory clause directed against Canada. Official copies of the Act, when approved hy the President, will he forwarded.'^ I have, &c. (Signed) L. S. Sackville West. Inclosure in Xo. G6. Extract from the Bill relating to American SnirpiNG. Section 12. That tlie President he, and hereby is, directed to cause the Governments of foreign countries whicii, at any of their ports, impose on American vessels a tonnage tax or lighthouse dues, or other equivalent tax or taxes, or any other fees, charges, or dues, to bo informed of the provisions of the preceding section, and invited to co-operate with the Government of the United States in abolishing all lighthouse dues, tonnage taxes, or other equivalent tax or taxes on, and also all othir fees, for official services to the vessels of the respective nations employed in the trade between the ports of such foreign country and the ports of the United States. Sect. 17. That whenever any foreign country wliosc vessels have been placed on the same footing in tlie ports of the United States as American vessels (the coastwise trade ex- cepted) shall deny to any vessels in the United States any of the commercial privileges accorrled to national vessels in the harbours, ports, or waters of such foreign country, the 2 Tho Act was approved June 19, 188G. 1 28o Appendix. President, on receiving satisfactory information of the con- tinuance of such discriminations against any vessels of the United States, is liereby authorized to issue his Proclamation excluding, on and after such time as he may indicate, from the exercise of such commercial privileges in the ports of the United States as are denied to American vessels in the ports of such foreign country, all vessels of such foreign country of a similar character to the vessels of the United States thus discriminated against, and suspending such concessions pre- viously granted to the vessels of such country ; and on and after the date named in such Proclamation for it to take effect, if the master, officer, or agent of any vessel of such foreign country excluded by said Proclamation from the exercise of any commercial privileges shall do any act pro- hibited by said Proclamation in the ports, harbours, or waters of the United States for or on account of such vessel, such vessel, and its rigging, tackle, furniture, and boats, and all the goods on board, shall be liable to seizure and forfeiture to the United States ; and any person opposing any officer of the United States in the enforcement of this act, or aiding and abetting any other person in such opposition, shall forfeit 800 dollars, and shall be guilty of a misdemeanour, and, upon conviction, shall be liable to imprisonment for a term not ex- ceeding two years. No. 2 ^/iSS;. No. 59. Sir L. West to the Marquis of Salisbury. (Received March 10.) Washington, February 24, 1887. My Lord, — I have the honour to inclQse to your Lord- ship herewith copies of the retaliatory Bill as passed by Ritaliation. 281 the House of Representatives yesterday by a vote of 252 to 1. This Bill is a substitute for the Senate Bill, and aiithonzes the stopping of cars carrying goods in transit, provided for under Article XXIX. of the Treaty of 1871. This clause, it was objected, would be in violation of the Treaty, and was an evasion unworthy of a civilized country. The Senate Bill, on the contrary, was retorsion — it was retaliation in kind — always the most efficient. The House, however, refused to ; lopt the argument, and adhered to the substitute Bill, which was unanimously carried. I have the honour to inclose a precis which I have made of the debate. I have, &c. (Signed) L. S. Sackville We«t. ^1 Inclosure 1 in No. 59. Extract from the " Coxgressioxal Record " of Feb- ruary 25, 1887. Strike out all after the enacting clause and insert : — " That hereafter, whenever the President shall be satisfied that vessels of the United States are denied, in ports or territorial waters of the British dominions in North America, rights to which such vessels are entitled by Treaty or by the law of nations, or are denied the comity of treatment or the reasonable privileges usually accorded "" ' veen neighbouring and friendly nations, he may, in hii^ .cretion, by Procla- mation, prohibit from entering the ports of the United States, or from exercising such privileges therein as he may, in his discretion, by such Proclamation, define, vessels owned wholly or in part by a subject of her Britannic 1 282 Appendix, Majesty, and coming or arriving from any port or place in tlie JJominion of Canada, or in the Island of Newfoundland, ■whether directly or having touched at any other port, excepting such vessel shall be in distress of navigation and of needed repairs or supplies therefor ; and he may also forbid the entrance or importation, either by land or water, into the United States of any goods, wares, or merchandize from the aforesaid Dominion of Canada or Newfoundland, or any locomotive, car, or other vehicle with any goods that may be therein contained from the Dominion of Canada ; and upon proof that the privileges secured by Article XXIX. of the Treaty concluded between the United States and Great Britain on the 8th day of May, 1871, are denied as to goods, Avares, and merchandize arriving at the ports of British North America, the President may also, by Procla- mation, forbid the exercise of the like privileges as to goods, wares, and merchandize arriving in any of the ports of the United States ; and any person violating or attempting to violate the provisions of any Proclamation issued under this Act, and any person preventing or attempting to prevent any officer of the United States from enforcing such Pro- clamation shall be guilty of a misdemeanour, and upon conviction thereof shall be liable to a fine of not more than 1000 dollars, or imprisonment for a term not exceeding two years, or by both said punishments, in the discretion of the Court ; and if, on and after the date at which such Procla- raatiou takes efTect, the master or other person in charge of any vessel thereby excluded from the ports of the United States, shall do, in the ports, harbours, or waters of the United States, for or on account of such vessel, any act forbidden by such Proclamation aforesaid, such vessel and its rigging, tackle, furniture, and boats, and all the goods on board shall be liable to seizure and forfeiture to the United States ; and any goods, Avares, or merchandize, and if A Retaliation, 283 any car, locomotive, or other vehicle coming into the United States in violation of any Proclamation as aforesaid shall bo seized and forfeited to the United States. '* Sect 2. That whenever, after the issuance of a Procla- mation under this Act, the President is satisfied that the denial of rights and privileges on which his Proclamation was based no longer exists, he may withdraw the Proclama- tion, or so much thereof as ho may deem proper, and reissue the same thereafter when in his judgment the same shall be necessary." \\ Inclosure in No. 71. Circular. The Fisheries. Treasury Department, Bureau of Navigation, Washington, D.C., March 16, 1887. To Collectors of Customs and others. The attention of officers of Customs and others is invited to the provisions of the recent Acts of Congress printed below, one relating " to the importing and landing of mackerel caught during the spawning season," and the other authorizing the " President of the United States to protect the rights of American fishing-vessels, American fishermen, American trading and other vessels, in certain cases," &c. (Signed) C. B. Morton, Commissioner. Approved : (Signed) C. S. Fairciiild, Acting Secretary. ii 284 Appendix. An Act relating to the iMPoiiTiNa and Landing of Mackerel caught during the Spawning Season. Be it enacted by the Senate and House of Representatives of the United States of America in Conf,'ress assembled, that for the period of five years from and after the 1st day of March, 1888, no mackerel, other than what is known as Spanish mackerel, caught between the 1st day of March and the 1st day of June, inclusive, of each year, shall be imported into the United States or landed upon its shores ; provided, however, that nothing in this Act shall be held to apply to mackerel caught with hook and line from boats, and landed in said boats, or in traps and weirs connected with the shore. Sect. 2. That section 43,021 of the Revised Statutes is amended for the period of live years aforesaid, so as to read before the last sentence as follows : " This licence does not grant the right to lisli for mackerel, other than for what is known as Spanish mackerel, between the 1st day of March and the 1st day of June, inclusive, of this year." Or in lieu of the foregoing there shall be inserted so much of said period of time as may remain unexpired under this Act. Sect. 3. 'J'hat the penalty for the violation or attempted violation of this Act shall be forfeiture of licence on the part of the vessel engaged in said violation, if a vessel of this country, and the forfeiture to the United States, according to law, of the mackerel imported or landed, or sought to be imported or landed. Sect. 4. That all Laws in conflict with this Law are hereby repealed. Approved, 28th February, 1887. • I Retaliation. 28^ An Act to al'thouize the President of the United States to photect and defend the ]{hiiit.s of American Fishing-vesselh, American Fishermen, American Trading and other Vessels, in certain CASES, and for other PURroSES. ii Be it enacted by the Senate and House of Representatives of the United States of America in Coii«.nd no settlement havini? con8e(]nently been arrived at, the Convention of the 20th Octo])er, 1818, carae into force a^^'ain at the commencement of the year 1886. Article I. of that Convention is as follows : — " Article I. ** Whereas differences have arisen respecting the liberty claimed by the United States, for the inhabitants thereof to take, dry, and euro fish on certain coasts, bays, harbours, and creeks of his Majesty's dominions in America, it is agreed between the High Contracting Parties that the in- habitants of the said United States shall have for ever, in common with the subjects of his Britannic Majesty, the liberty to take fish of every kind[on that part of the south- ern coast of Newfoundland which extjnds from Cape Ray to the Rameau IslanclsJon the western and northern coast of Newfoundland, fronr the said Cape Bay to the Quirpon Islands, on the shores of the Magdalen Islands, and also on the coasts, bays, harbours, and creeks from Mount Joly, on the southern coast of Labrador, to and through the Straits of Belleisle, and thence northwardly indefinitely along the coast, without prejudice, however, to any of the exclusive rights of the Hudson's Bay Company. And that the American fishermen shall also have liberty, for ever, to dry and cure fish in any of the unsettled bays, harbours, and creeks of the southern part of the coast of Newfoundland hereabove described, and of the coast of Labrador ; but so soon as the same or any portion thereof shall be settled, it shall not be lawful for the said fishermen to dry or cure fish at such portion so settled, without previous agreement for Furl her Comspoudtncc, &c. 291 such purpose with the inhabitants, proprietors, or potssessors ui tho ground. And tlie UaitiMl Status horoby ronounco for ever any lihorty heretofore enjoyed or chiiined hy tlio inlia- bitants thereof, to take, dry, or cure fish on or within three marine nidos of any of the coasts, bays, creeks, or liarbours of liis Biitannic Majesty's dominions in America, not in- cluded within the above-mentioned limits ; provided, how- ever, that the American fisliermen shall be admitted to enter such bays or harbours for the purpose of shelter and of re- pairing damages therein, of purchasing wood and of obtain- ing water, and for no other purpose whatever. But they shall be under such restrictions as may be necessary to prevent their taking, drying, or curing fish therein, or in any other manner whatever abusing the privileges hereby reserved to them." Under those circumstances numerous seizi. . s of American fishing-vessels have subsequently been effected by the Cana- dian authorities for infraction of the terms of the Convention and of their Municipal Law and Customs Regulation. Tho inclosed correspondence will ph^'ce you in full posses- sion of the various points which have consequently arisen in dijdomatic correspondence between the two Governments, and I do not desire to enter upon them in detail in the pre- sent instructions, nor to prescribe any particular mode of treating them it being the wish of her Majesty's Govern- ment that a full and frank discussion of the issues involved may lead to an amicable settlement in such manner as may eeeni most expedient, and having due regard to the interests and wishes of the British Colonies concerned. Her Majesty's Government feel confident that the discus- Bions in this behalf will be conducted in the most friendly and conciliatory spirit, in the earnest endeavour to efTcet a mutually satisfactory arrangement and to remove any causes of complaint which may exist on either side. U 2 mm 2C)2 Appendix. "Whilst I havo jiulgod it advisable thus, in the first placo, to refer to the question of the fisheries of the Atlantic coast, it is not the wish of her Majesty's Government that the discussions of the Plenipotenviaries should necessarily be confined to that point alone, but full liberty is given to you to enter upon the consideration of any questions which may bear upon the issues involved, and to discuss and treat for any equivalents, whether by means of tariff .concessions, or otherwise, which the United States' Plenipotentiaries may be authorized to consid(!r as a means cf settlement. The question of the seal fisheries in the Hehring Sea, the nature of which will be explained in a separate despatcli, has not been specifically included in the terms of reference, but you will understand that if the United States' Pleni- potentiaries should be authorizinl to discuss that subject, it would come within the terms of the reference, and that you have full power and authority to treat .or a settlement of the points involved, in any manner which may seem advis- able, whether by a direct discussion at the present Confer- ence or by a reference to a subsequent Conference to adjust that particular question. If the Government of Newfoundland depute an j^gent to iittend at Washington during the ConlVrence, you will avail yourselves of his advice and assistance in tiny matters con- cerning Newfoundland which may arise in the course of the discussions, I am, t%c. (Signed) Salisbury. ! Further Correspondence ^ &c. 2Q VJ place, coast , at the 'i\y be to you h may eat for IS, or may Inclosiirc in No. 1. Fill Powers to Mr. Chamberlain, Sir L. West, am» Sir C. Tupper to negotiate with ]*i,enipotentiaries OF the United States on the North American Fisheries Conference, October 24, 1887. Victoria R. and I., Victoria, by the Grace of Cdd of the United Kingdom of Great ]>ritain and Ireland, Queen, Defender of the Faith, Em})ress of India, &e., c^'c., &c. To all and singular to whom these presents shall come greeting. Whereas for the purpose of considering and adjusting in a fiiendly spirit with Plenipotentiaries to be appointed on the part of our good friends the U^nited States of America, all or any questions relating to rights of fishery in the seas, adjacent to British North America and Newfoundland which are in dispute l>etween our Government and that of our said good friends, and any other questions which may arise which the respective Plenipotentiaries may be authorized by their Governments to consider and adjust, we have judged it ex- pedient to invest fit persons with full power to conduct on our part the discussions in this behalf : Know ye, therefore, that we, reposing especial trust and confidence in the wisdom, loyalty, diligence, and circum- spection of our right trusty and well-beloved Councillor Joseph Chamberlain, a member of our most Honourable Privy Council, and a Member of Parliament, &c., &c, ; of our trusty and well-beloved the Honourable Sir Lionel Sackville Sackville West, Knight Commander of our most distinguished Order of St. Michael and St. George, our Envoy Extraordinary and Minister Plenipotentiary to our said good friends the United States of America, Ac, clc, and of our trusty and well-beloved Sir Charles Tupper, mgmmmm''mmf^ 294 Appendix. Knight Grand Cross of our most distinguished Order of St. .Afichael and St. George, Companion of our most Honourable Order of the Lath, Minister of Finance of the Dominion of Canada, &c., Si,c. Have named, made, constituted, and appointed, as we do l)y these presents, name, make, constitute, and appoint them our undoubted Plenipotentiaries, giving to them or to any two of them all manner of power and authority to treat, adjust, and conclude with such Plenipotentiaries as may bo vested with similar power and authority on the part of our good friends the United States of America, any Treaties, ( 'onventions, or Agreements that may tend to the attainment of the above-mentioned end, and to sign for us and. in our name everything so agreed upon, and concluded, and to do and transact all such other matters as may appertain to the finishing of the aforesaid work in as ample manner and form, and with equal force and efficiency as we ourselves could do if personally present : Engaging and promising upon our Royal word that what- ever things shall be so transacted and concluded by our said Plenipotentiaries shall be agreed to, acknowledged, and accepted by us in the fullest manner, and that we will never suffer, either in the whole, or in part, any person whatsoever to infringe the same, or act contrary thereto, as far as it lies in our power. In witness whereof we have caused the Great Seal of our United Kingdom of Great Britain and Ireland to be affixed to these presents, which we have signed with our Koyal hand. Given at our Court at Balmoral, the 24th day of October, 1887, and in the fifty-first year of our reign. Further Correspondence, (Hfe. 295 Ko. 2. Her Majesty's PLENiroxEXTiARiES to the Fisheries CONFEREN'CE TO THE MaRQUIS OF SALISBURY. (Eeceived February 27.) "Washington, February 15, 1888. My Lord, — "We have the honour to transmit herewith a Treaty signed this day by tlie Plenipotentiaries of Great liritain and of tlie United States for the settk-nient of tlie Fishery question on the Atlantic coast of ^N'orth America, together with two Protocols establishing a modus mvendi of a temporary character to jtrevent the occurrence of disputes pending the ratification of the Treaty. We have, &c. (Signed) J. Chamberlain. L. S. Sackville West. Charles Tupper. Inclosure 1 in No. 2. Treaty between Great Britain and the United States FOR the Settlement of the Fishery Question on the Atlantic Coast of North America. Signed at Washington, February 15, 1888. Whereas differences have arisen concerning the interpreta- tion of Article I. of the Convention of the 20th October, 1818 ; her Maje>;ty the Queen of the United Kingdom of Great Britain and Ireland and the United States of America, being mutually desirous of removing all causes of misunder- standing in relation thereto, and of promoting friendly inter- course and good neighbourhood between the United States and the possessions of her Majesty in North America, have resolved to concluile a Treaty to that end, and have named as their Plenipotentiaries, that is to say : 296 ^ appendix. It 1 Her Majesty the Queen of the United Kingdom of Great I>rit;iin and Ireland, the Right Honourable Joseph Chamber- lain, M.P. ; the Honourable Sir Lionel Sackville Sackville W'jst, K.C.M.G., her Ihitannic Majesty's Envoy Extra- ordinary and Minister Plenipotentiary to the United States of America; and Sir Charles Tupper, G.C.M.G., C.B., Minister of Finance of the Dominion of Canada: And the President of the United States, Thomas F. IJayard, Secretary of State; William L. Putnam, of Maine , and James B, Angell, of Michigan: Who, having communicated to each other their respective full powers, found in good and due form, have agreed upon the following Articles : — Article I. The High Contracting Parties agree to appoint a Mixed (.'ommission to delimit, in the manner provided in this Treaty, the British waters, bays, creeks and harbours of the coasts of Canada and of Newfoundland, as to which the United States, by Article I. of the Convention of the 20th October, 1818, between Great Britain and the United States, renounced for ever any liberty to take, dry, or cure tish. Article II. The Commission shall consist of two Commissioners to be named by her Britannic Majesty, and of two Commis- sioners to be named by the President of the United States, without delay, after the exchange of ratifications of this Treaty. The Commission shall meet and complete the delimitation as soon as possible thereafter. In case of the death, absence, or incapacity of any Com- missioner, or in the event of any Commissioner omitting or ceasing to act as such, the President of the United States \ \ t Further Corrcsjondtiicc, iSc. 297 or her Britannic Majesty, respectively, shall forthwith name another ])erson to act as Commissioner instead of tlie Com- missioner originally named. Article III. The delimitation referred to in Article I. of this Treaty shall he marked upon Ihitish Admiralty charts hy a series of lines regularly numbered and duly described. The charts, so marked shall, on the termination of the work of the Com- mission, be signed by the Commissioners in quadruplicate, three copies whereof shall be delivered to her Majesty's Government, and one cojiy to the Secretary of State of the United States. The (hlimitation shall be made in the following manner, and shall be accepted by both the High Contracting Parties as apjtlicable for all purposes under Article I. of the Convention of the 20th October, 1818, between Great Britain and the United States. The three marine miles mentioned in Article I. of the Convention of the 20th October, 1818, shall be measured seaward from low water mark ; but at every bay, creek, or harbour, not otherwise specially provided for in this Treaty, such three marine miles shall be measured seaward from a straight line drawn across the bay, creek, or harbour, in the part nearest the entrance at the first point where the width does not exceed ten marine miles. Article IV. At or near the following bays the limits of exclusion under Article I. of the Convention of the 20th October, 1818, at points more than three marine miles from low water mark, shall be established by the following lines, namely : — At the Baie des Chaleurs the line from the light at Birch Point on Miscou Island to Macquereau Point light ; at the ■1^ 29S Appendix, 1 "c Bay of Miramichi, the line from tlie lii,'l)t at Point Escurainac to the light on the eastern point of Tahisintac Gully ; at Eg- mont Bay, in Prince Edward Island, the line from the light at Cape Egmont to the liglit at West Point ; and off St. Ann's Bay, in the Province of Nova Scotia, the line from Cape Smoke to the light at Point Aconi. At Fortune Bay, in Newfoundland, the line from Con- naigre Head to the light on the south-easterly end of Bruiiet Island, thence to Fortune Head ; at Sir Charles Hamilton Sound, the line from the south-east point of Cape Fogo to White Island, thence to the north end of Peckford Island, and from the south end of Peckford Island to the east head- land of Pagged Harhour. At or near the following hiys the limits of exclusion shall he three marine miles seaward from the following lines, namely : — At or near Barrington Bay, in Nova Scotia, the line from the light on Stoddard Island to the light on the south point of Cape Sahle, thence to the light at Baccaro Point ; at Chcdahucto and St. Peter's Bays, the line from Cranberry Island light to Green Island light, thence to Point Rouge ; at Mira Bay, the line from the light on the east point of Scatari Island to the north-easterly point of Cape ^lorien ; and at Placentia Bay, in Newfoundland, the line from Latins Point, on th eastern mainland shore, to the most southerly point of Pea Island, thence by the most southerly point of Merasheen Island to the mainland. Long Island and Bryer Island, at St. Mary's Bay, in Nova Scotia, shall, for the purpose of delimitation, be taken as the coasts of such bay. Article V. Nothing in this Treaty shall be construed to include within the common waters any such interior portions of any bays, creeks, or harbours as cannot be reached from the sea with- ers Further Corrcspojidcncc, c5rV. 299 out passing within the three marine miles mentioned in Article I. of the Convention of 20Lh Uctoher, 1818. Article VI. The Commissioners shall from time to time report to eacli of the High Contracting Parties such lines as they may have agreed upon, numbered, described, and marked as herein provided, with quadruplicate charts thereof; which lines so reported shall forthwith from time to time be simultaneously proclaimed by the High Contracting Parties, and lie l>inding after two months from such proclamation. Article YII. Any disagreement of the Commissioners shall forthwith be referred to an nmpire selected by her I'ritannic Majesty's Minister at Washington and the Secretary of State of the United States ; and his decision shall be final. Article VIII. Each of the High Contracting Parties shall pay its own Commissioners and oflicers. All other expenses jointly in- curred, in connection with the performance of the work, in- cluding compensation to the umpire, shall be paid by the High Contracting Parties in equal moieties. Article IX. Nothing in this Treaty shall interrupt or aflfect the frec^ navigation of the Strait of Canso by fishing-vessels of the United States. Article X. United Slates' fishing-vessels entering the bays or harbours referred to in Article I. of this Treaty shall conform to har- ^oo Appendix. hour rogulrttiona common to tliein and to fishing-vessels of Canada or of NeM'foundland. Tliey need not report, enter, or clear, when putting into such hiys or harhours for shelter or repairing damages, nor when putting into the same, outside the limits of established ports of entry, for the purpose of ]Hirchasing wood or of ob- taining water ; excerpt that any such vessel remaining more than twenty-four hours, exclusive of Sundays and legal holi- days, within any such port, or communicating with the shore therein, may be required to report, enter, or clear ; and no vessel shall be excused hereby from giving due information to boarding officers. They shall not be liable in such bays or harbours for com- pulsory pilotage ; nor, when therein for the purpose of shelter, of repairing damages, of purchasing wood, or of obtaining water, shall they be liable for harbour dues, tonnage dues buoy dues, light dues, or other similar dues ; but this enu- meration shall not permit other charges inconsistent with the enjoyment of the liberties reserved or secured by the Con- vention of 20th October, 1818. Article XI. United States' fishing-vessels entering the ports, bays, and harbours of the eastern and north-eastern coasts of Canada or of the coasts of Newfoundland under stress of weather or other casualty may unload, reload, tranship, or sell, subject to customs laws and regulations, all fish on board, when such unloading, transhipm.ent, or sale is made necessary as inci- dental to repairs, and may replenish outfits, provisions and supplies damaged or lost by disaster ; and in case of death or sickness shall be allowed all needful facilities, including the shipping of crews. Licences to purchase in established ports of entry of the aforesaid coasts of Canada or of Newfoundland, forthehome- i< I into S nor FtirtJur Correspondence, erV. 301 ward voyage, sucli j)ro visions and supplies as are ordinarily sold to trading vossids, isliall })o gruntod to United States' fishing-vessels in such ports, promptly niion aj)plieation and without charge ; and such vessels having obtained licences in the manner aforesaid, shall also ho accorded n])on all occasions sucli facilities for the purchase of casual or needful provisions and suppli(\s as are ordinarily granted to trading vessels ; hut such piovisions or supjilies shall not he obtained by barter, nor purchased for resale or traffic. Article XIT. Fishing-vessels of Canada and Xewfoundland shall have on the Atlantic coasts of the Uiwied States all the priviUiges reserved and secured by this Treaty to United States' fishing- vessels in the aforesaid waters of Canada and Newfound- land. Article XIII. The Secretary of the Treasury of the United States shall make regulations providing for the conspicuous exhiljition by every United States' fishing-vessel of its official ruimber on each bow ; and any such vessel, required by law to have an official number, and failing to comply with such regulations, shall not be entitled to the licences provided for in this Treaty. Such regulations shall be communicated to her Majesty's Government previously to their taking effect. Article XIV. The penalties for unlawfully fisliing in the waters, bays, creeks, and harbours, referred to in Article I. of this Treaty, 302 Appendix, t may extend to forfeiture of the boat or vessel and ap{)mte- iiances, and also of the supplies and car^'o ahoard when the olience was committed ; and for prepariug iu such waters to unlawfully fish therein, penalties shall be fixed by the Court not to exceed those for unlawfully lishint^ ; and for any other violation of the laws of Great Britain, Canada, or Newfound- land relating to the right of lishery in such waters, bays, creeks, or harbours, penalties shall bo fixed by the Court, not exceeding in all three dollars for every ton of the boat or vessel concerned. The boat or vessel may be holden for such penalties and forfeitures. The proceedings shall be summary and as inexpensive as practicable. The trial (except on appeal) shall be at the place of detention, unless the Judge shall on request of the defence, order it to be held at some other place adjudged by him more convenient. Security for costs shall not be required of the defence, except when bail is offered. Reason- able bail shall be accepted. There shall be proper appeals available to the defence only, and the evidence at the trial may be used on appeal. Judgments of forfeiture shall be reviewed by the Governor- General of Canada in Council, or the Governor in Council of Newfoundland, before the same are executed. Article XV. "Whenever the United States shall remove the duty from fish-oil, whale-oil, seal-oil, and fish of all kinds (except fish preserved in oil, being the produce of fisheries carried on by the fishermen of Canada and of Newfoundland, including Labrador, as well as from the usual and necessary casks, barrels, kegs, cans, and other usual and necessary coverings containing the products above mentioned, the like products, being the produce of fisheries carried on by the fishermen of I I FiirtJicr Correspondence, (jfe. 303 the United States, as well as the usual and necessary coverings of the same, as above described, shall be admitted free of duty into the Dominion of Canada and Newfoundland. And upon such removal of duties, and while the aforesaid articles are allowed to be brou^dit into the United States by British subjects, without duty beinj^ reiniposcd thereon, the privilege of entering the ports, bays, and harbours of the aforesaid coasts of Canada and of Ni^wfoundland shall be ae- corded to United States' lishing-vessels by annuidlicences, free of charge, for the following purposes, namely: — 1. The purchase of j>rovisions, bait, ice, seines, lines, and all other supplies and outfits ; 2. Transhipment of catch, for transport by any means of conveyance ; 3. Shipping of crews. Supplies shall not be obtained by barter, but bait may be so obtained. The like privileges shall be continued or given to fishing- vessels of Canada and of Newfoundland on the Atlantic coasts of the United States. Article XVI. This Treaty shall be ratified by her Britannic Majesty, having received the assent of the Parliament of Canada and of the Legislature of Newfoundland ; and by the President of the United States, by and witli the advice and consent of the Senate ; and the ratifications shall be exchanged at Washing- ton as soon as possible. In faith whereof, we, the respective Plenipotentiaries, have signed this Treaty, and have hereunto affixed our seals. Done in duplicate at Washington, this 15th day of Feb- ruary, in the year of our Lord 1888. f (• I 304 Appendix, Inclusurc 2 in N-i. 2. Protocol, datkd Fkhuuauv, IT), 188?^. The Troiity liaving been signed, the British Phinipoton- tiarics desire to state that tlicy liave bten considering tiie position which will he created hy the ininiodiato comrnence- nient of the fishing season before the Treaty can possibly be ratified by the Senate of the United States by the Parliament of Canada, and the Legislature of Newfoundland. In the absence of such ratification the old conditions which have given rise to so much friction and irritation might be revived, and might interfere with tlie unprejudiced con- sideration of tlie Treaty by the Legislative bodies concerned : Under these circumstanciis, and with the further object of affording evidence of their anxious desire to promote good feeling and to remove all possible subjects of controversy, the Britisli Plenipotentiaries are ready to make the follow- ing tempoi'ary arrangement for a jieriod not exceeding two years, in order to afford a modus vivendi pending the rati- fication the Treaty. , • L For a period not exceeding two years from the present date, the privilege of entering the bays and harbours of the Atlantic coasts of Canada and of Newfoundland shall be granted to United States' fishing- vessels by annual licences at a fee of 1|^ dollars per ton — for the following jjurposes : The purchase of bait, ice, seines, lines, and all other supplies and outfits. Transhipment of catch and shipping of crews. 2. If, during the continuance of this arrangement, the United States should remove the duties on fish, fish-oil, whale and seal oil (and their coverings, packages, &c.), the said licences shall be issued free of charge. 3. United States' fishing-vessels entering the bays and harbours of the Atlantic coasts of Canada or of Newfoundland FiirtJicr Correspondence^ &e. 305 tlie -oil, the for any of tlio four jmrpoaes nientioiiod in Article 1 oftliu Convention of the 20lh October, 1818, and not rcniiiinin},' therein more tlian twenty-four hours, ssluiU n(tt be re([uire(l to enter or clear at the custuni-house, j)roviding that they do not coniinuuicate with the shore. 4. Foifi'iture to be exacted oidy for the offences of lishing or preparing to fish in territorial waters. 5. This arrangi ment to take effect as soon as the neces- sary measures can be conii)leted by the Colonial authorities. (Signed) J. Chamukulain. L. S. Sack VILLI-: West. CiiAiiLiiw Turi'EU. AVashington, February 15, 1SS8. Inclosure 3 in No. 2. Protocol, dated Febrl'Auv 15, 1888. The American l*leiii[)otentiaries having received the com- munication of the jhitish rienijxiti'utiaries of this date con- veying their i)lan for the administration to beobseivedby the Governments of Canada and Newfoundland in respect of the fisheries during the period which nuiy be requisite for the consideration by the Senate of the Treaty this day signed, and the enactment of the legislation by the respec- tive Governments therein proposed, desire to express their satisfaction with tliis manifestation of an intention on the part of the British Plenipotentiaries, by the means referred to, to maintain the relations of good neighbourhood between the British possessions in North America and the United States ; and they will convey the communication of the British Plenipotentiaries to the I'resident of the United States, with a recommendation that the same may be by 3o6 Appc7idix, him made known to the Senate, for its information, to- gether \A ilh the Treaty, when the hitter is submitted to that body ior ratification. (Signed) T. F. Eatard. William L. Putnam. James B. An g ell. Washington, February 15, 18S8. (I No. 3. Mr. J. Chamberlain, M.P., to the Marquis of Salisbury. (Received February 27.) Washington, February 16, 1888. ]My Lord, — I have the honour to inform you that the lengthened deliberations of tlie Conference have at last ter- minated in an Agreement accepted by all the rieni])oten- tiaries as a just and honourable settlement of the difficult questions which have arisen in connection with the North Atlantic fisheries. This satisfactory result is largely due to the conciliatory spirit manifested on both sides, and to the strong sense entertained by all the conferrees of the importance of remov- ing all cause of irritation and of promoting good neighbour- hood and friendly intercourse between the United States and Canada and Newfoundland. The main issues involved in the discussion are familiar to your Lordship. The successive abrogation by the L^nited States of the Eeciprocity Treaty of 1854, and recently of the fishery Articles of the Treaty of Washington, had subjected the relations between the two countries to the stipulations of the anterior Convention of 1818, by one of the clauses of which United States' fishermen were expressly precluded from entering the bays and harbours of Canada and New- Further Correspondence, &e. ;o7 foundlancl, except on certain specified portions of the coast, for any other purposes wliatever besides wood, water, shelter, and repairs. The Canadian Government have con- strued strictly this rij^ht of exclusion, with the express objet^t of preventing United States' fisherinen from fishing in Canadian waters, and also from making Canada a base of supplies for their operations in connection with the deep- sea fislieries. They have, however, always been willing to share either or both these advantages Avith the fishermen of the United States, provided that a fair eijuivalent were conceded in the shape of a modi[ication of the American tariti" in favour of Canadian products. The United States' Government have contended that while the Canadian Government were justitied in preventing fishing in their territorial waters, the refusal of ordinary commercial facilities to American fishermen was contrary to the comity of nations, aiul tended to pervert a Treaty of Amity, relating solely to the fisheries, into an instrument of injury to commercial intercourse. The United States' Government have on the present occasion repudiated any desire to share the inshore fisheries of Canada, and the point in dispute has therefore been limited to the question of commercial facilities. In the course of the discussion, it became evident that there existed a substantial agreement on the main facts of the case, and that while on the one hand the United States were ready to recognize the right of Canada to guard the interests of her fishermen in competition with those of the United States, and to withhold any special advantages conferred by the proximity of her poits and harbours to the common fishery-grounds, and not expressly secured to the United States by Treaty, the Canadian Government, on the other hand, were ready to allbrd all possible convenience X 2 3o8 Appendix. and assistance which the claims of huiuanity or the courtesy of nations would justify, provided that these concessions were not abused or construed into the surrender of privileges essential, or, at the least, important to the successful pro- secution of the fishing industry. The Treaty now submitted gives expression to these views. It provides for the full concession of all commercial facilities to fishing-vessels of the IJjiited States, whenever and so long as the products of Canadian fisheries are admitted free into the United States. In the absence of such an arrangement, the Treaty esta- blishes tlie future position of the respective parties and defines their rights. It provides for the delimitation of the exclusive fishing waters of the British Colonies, substanti- ally on the basis of the North Sea Fishery Convention. It establishes a promj^t and economical procedure for dealing with breaches cf the Treaty or of any laws and regulations afiecting the fisheries ; and while expressly excluding American fishermen from ditaining fishing supplies, it pledges the Governments of Canada and Kewfoundland to afford to them every assistance and convenience that can be fairly asked for on grounds of humanity or international courtesy. It also enlarges the conditions under which American fishermen have hitherto enjoyed the rights secured to them by the Convention of 1818. Your Lordship will observe that the Plenipotentiaries have exchanged Protocols on the subject of a modus vivendi for a period of two years, in order to allow ample time for the consideration by the Senate of the United States and by the Legif'latures of Canada and Newfoundland of the j)rincipal instrument. By this arrangement, Unitod States' fishermen will enjoy temporarily the advantages and commercial facilities con- Fitrtlier Correspondence, dfe. ;09 tomplated by tlie Treaty in consideration of a licence issued at a moderate fee by the Goverunients of Canada and Newfoundland. It may be hoped that in this way all possibility of tin- recurrence of the irritatin