cials, he reports that the "David J. Adams" was seized, and is now 1st. For alleged violation of the Treaty of 1818; 3rd. For alleged violation of the Colonial Act of Nova Scotia of 1818; and 4th. For alleged violation of the Act of 1870, and also of 1883both Canadian statutes. Of these allegations there is but one which at present I press upon your consideration, and that is the alleged infraction of the Treaty of 1818. I beg to recall to your attention the correspondence and action of those respectively charged with the administration and government of Great Britain and the United States in the year 1870, when the same international questions were under consideration, and the status of law was not essentially different from what it is at present. This correspondence discloses the intention of the Canadian authorities of that day to prevent encroachment upon their inshore fishing grounds, and their preparations, in the way of a marine police force, very much as we now witness. The statutes of Great Britain and of her Canadian provinces, which are now supposed to be invoked as authority for the action against the schooner "David J. Adams," were then reported as the basis of their proceedings. In his note of 26th May 1870 Mr. (afterwards Sir Edward) Thornton, the British Minister at this capital, conveyed to Mr. Fish, then Secretary of State, copies of the Orders of the Royal Admiralty to the Admiral Wellesley, in command of the naval forces "employed in maintaining order at the fisheries in the neighbourhood of the coasts of Canada." All of these orders directed the protection of Canadian fishermen, and cordial co-operation and concert with the United States force sent on the same service, with respect to American fishermen in those waters. Great caution in the arrest of American vessels charged with violation of the Canadian fishing laws was scrupulously enjoined upon the British authorities, and the extreme importance of the commanding officers of ships selected to protect the fisheries exercising the utmost discretion in paying especial attention to Lord Granville's observation, that no vessel should be seized unless it were evident and could be clearly proved that the offence of fishing had been committed and the vessel captured within three miles of land. This caution was still more explicitly announced when Mr. Thornton, on the 11th of June, 1870, wrote to Mr. Fish: You are, however, quite right in not doubting that Admiral Wellesley, on the receipt of the latter instructions addressed to him on the 5th ultimo, will have modified the directions to the officers under his command, so that they may be in conformity with the views of the Admiralty. In confirmation of this, I have since received a letter from Vice-Admiral Wellesley, dated the 30th ultimo, informing me that he had received instructions to the effect that officers of Her Majesty's ships employed in the protection of the fisheries should not seize any vessel, unless it were evident and could be clearly proved that the offence of fishing had been committed, and the vessel itself captured within three miles of land. This understanding between the two Governments wisely and efficiently guarded against the manifest danger of entrusting the execu tion of powers so important and involving so high and delicate a discretion to any but wise and responsible officials, whose prudence and care should be commensurate with the magnitude and national importance of the interest involved, and I should fail in my duty if I did 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 E. Thornton to this 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 the 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 force. But I trust 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 the offence of fishing has been committed and the vessel itself captured within three miles of land. 304 In regard to the necessity for the instant imposition of such restrictions upon the arrest of vessels, you will, I believe, agree with me, and I will therefore ask you to procure such steps to be taken as shall cause such orders to be forthwith put in force under the authority of Her Majesty's Government. I have, &c., (Sd.) T. F. BAYARD. No. 189.-1886, May 20: Letter from Mr. Bayard to Sir L. S. S. West. DEPARTMENT OF STATE, Washington, 20th May, 1886. MY DEAR MR. WEST,-Since writing you my last note of to-day's date, my attention has been called to a statement that the American schooner "Jennie and Julia," of Eastport Maine, having cleared from that port for Digby, N. S., made due entry at the latter port, and upon attempting to purchase a lot of herring for smoking, was warned that the vessel would be seized if herring were purchased for any purpose whatever, whereupon the vessel left without taking in cargo. If as it is to be inferred from the fact of the regular clearance and entry, the "Jennie and Julia" was documented for a trading voyage, the reported action of the Digby collector should be looked into very sharply. It would certainly not help an amicable adjustment of the present difficulties, if the provincial authorities were to initiate a policy of commercial non-intercourse by refusing to permit exportation of fish in American bottoms. The report is attracting much attention, and I have telegraphed to our Consular Agent at Digby for a statement of the facts. I should be glad to receive from you any information you may have in relation to the collector's action. Very truly, yours, To the Honorable SIR LIONEL S. S. WEST, No. 190.-1886, May 24: Letter from the Earl of Rosebery (British Foreign Secretary) to Sir L. S. S. West. (No. 20. Treaty.) FOREIGN OFFICE, 24th May, 1886. SIR, The American Minister called on me to-day, and said that he had received a telegram from Mr. Bayard late on Saturday night instructing him to ask me if the seizure of American fishing vessels in Canadian waters could not be discontinued, and the vessels already captured restored, of course, without prejudice, and on an undertaking to surrender them if required. Mr. Phelps went on to argue the construction of the Treaty of 1818, and said that though, at a first glance, its provisions might seem to justify the Canadian authorities in the course which they had taken, a general view of its whole scope contradicted that assumption, which, in any case, was inconsistent with the cordial relations existing between the two countries. In reply, I reminded Mr. Phelps that that Treaty was concluded at a time when, after a war and a period of great bitterness, the relations between Great Britain and the United States were not so cordial as they are now. As regarded the construction of the Treaty, I could not presume to argue with so eminent a lawyer as himself; I could not, however, refrain from expressing the opinion that the plain English of the clause seemed to me entirely to support the Canadian view. Nor was it the fault of the Canadians that they had been compelled to resort to the enforcement of the Treaty. I admitted, indeed, that the responsibility did not lie on the American Government. But the Senate had refused to sanction any negotiation on the matter, and had therefore thrown back the Canadians on the provisions of the Treaty of 1818. As regarded the seizure of the vessels which Mr. Phelps had described as having transgressed unwittingly, I could only say but little, as I had received no intelligence beyond what was stated in the newspapers. If, however, they had erred unwittingly it was not our fault, for we had issued a formal warning to American fishermen that they would not be perinitted, under the Treaty of 1818, to do certain things, and we had requested Mr. Bayard to issue a similar notice. He, however, had declined to do so. I could 305 not, therefore, think that the American vessels had erred unwittingly, more especially, as, if I was rightly informed by the newspapers, there were suspicious and furtive circumstances connected with the case of the "David J. Adams," at any rate, which tended to prove that the captain was aware that he was acting illegally. As to the substantial proposition of Mr. Bayard, I begged Mr. Phelps to return the following answer: No one, as he was aware, could be more anxious than I was to maintain the most cordial relations between the two countries. He well knew that I would go more than half way to meet Mr. Bayard in this matter, but it would be difficult to ask the Canadians to suspend their legal action if we had nothing to offer them in the way of a quid pro quo. What I would suggest would be this, that he should telegraph at once to Washington to tell Mr. Bayard that I would do my best to induce the Colonial authorities to suspend their action if some assurance could be given me of an immediate readiness to negotiate on the question. Mr. Phelps promised to do this. I am, &c., (Signed) ROSEBERY. No. 191.-1886, May: Report of the Canadian Minister of Justice. The undersigned having had under consideration the communication from Mr. Bayard, Secretary of State, dated at Washington the 10th May instant, and addressed to Her Majesty's Minister at Wash ington, in reference to the seizure of the fishing vessel "David J. Adams" submits the following observations in relation thereto. Mr. Bayard suggests that "the Treaty of 1818 was between two nations, the United States of America and Great Britain, who, as the contracting parties, can alone apply authoritative interpretation thereto and enforce its provisions by appropriate legislation." As it may be inferred from this statement that the right of the Parliament of Canada to make enactments for the protection of the fisheries of the Dominion, and the power of the Canadian officers to protect those fisheries are questioned, it may be well to state, at the outset, the grounds upon which it is conceived by the undersigned that the jurisdiction in question is clear beyond a doubt. (1.) In the first place the undersigned would ask it to be remembered that the extent of the jurisdiction of the Parliament of Canada is not limited (nor was that of the provinces before the union) by the sea-coast, but extends to three marine miles from the shore, as to all matters over which any legislative authority can in any country be exercised within that space. The legislation which has been adopted on this subject by the Parliament of Canada (and previously to confederation by the provinces) does not extend beyond that limit. It may be assumed that in the absence of any Treaty stipulation to the contrary this right is so well recognised and established by both British and American law, that the grounds on which it is supported need not be stated here at large. The undersigned will merely add. therefore, to this statement of the position, that so far from the right being limited by the Convention of 1818 that Convention expressly recognises the right. After renouncing the liberty " to take, cure, or dry fish on or within three marine miles of any of the coasts, bays, &c., there is a stipulation that while American fishing vessels shall be admitted to enter such bays, &c., for the purposes of shelter, and of repairing damages therein, of purchasing wood and of obtaining water," "they shall be under such restrictions as may be necessary to prevent their taking, curing, or drying fish therein, or in any other manner whatever abusing the privileges reserved to them." (2.) "Appropriate legislation" on this subject was, in the first instance, adopted by the Parliament of the United Kingdom. The Imperial statute, 59 George III., chap. 38, was enacted in the year following the Convention, in order to give that Convention force and effect. That statute declared that except for the purposes before specified it should not be lawful for any person or persons, not being a natural born subject of His Majesty, in any foreign ship, vessel, or boat, nor for any person in any ship, vessel, or boat other than such as shall be navigated according to the laws of the United Kingdom of Great Britain and Ireland, to fish for, or to take, dry, or cure any fish of any kind whatever, within three marine miles of any coasts, bays, creeks, or harbours whatever in any part of His Majesty's dominions in America, not included within the limits specified and described in the first Article of the said Convention, and that if such foreign ship, vessel, or boat, or any persons on board thereof, shall be found fishing, or to have been fishing, or preparing to fish within such distance of such coasts, bays, creeks, or harbours within such distance of His Majesty's dominions in America, out of the said limits as aforesaid, all such ships, vessels, and boats, together with their cargoes, and all guns, ammunition, tackle, apparel, furniture, and stores, shall be forfeited, and shall and may be seized, taken, sued for, prosecuted, recovered, and condemned by such, and the like ways, means and methods, and in the same courts, as ships, vessels, or boats may be forfeited, seized, prosecuted, and condemned for any offence against any laws relating to the Revenue of Customs, or the laws of trade and navigation, under any Act or Acts of the Parliament of Great Britain, or of the United Kingdom of Great Britain and Ireland; provided that nothing contained in this Act shall apply or be construed to apply to the ships or subjects of any Prince, Power, or State in amity with His Majesty, who are entitled by treaty with His Majesty to any privilege of taking, drying, or curing fish on the coasts, bays, creeks, or harbours, or within the limits in this Act described; provided always 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, 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 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 made by His Majesty in Council, under the authority of this Act, and by any regulations which shall be issued by the governor or person exercising the office of governor in any such parts of His Majesty's dominions in America, under or in pursuance of any such Order in Council as aforesaid. 306 And that if any person or persons upon requisition made by the Governor of Newfoundland, or the person exercising the office of governor, or by any governor in person exercising the office of governor in any other part of His Majesty's dominions 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 harbours, or if any person or persons 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 otherwise offending 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 Westminster; 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 prosecute for the same. |