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the rejection of the proposal can only, therefore, be used to indicate that the right to carry merchandise exists 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 1 the following words: "It is, therefore, well understood that the liberty of taking, drying, and curing fish, granted in the preceding part of this Article, shall not be construed to extend to any privilege of carrying on trade with any of His Britannic Majesty's subjects residing within 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 ground."
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 har bours outside the limits assigned to the American fishermen, from which bays and harbours, before and after this proposition was discussed, it was agreed that United States fishing vessels were to be excluded for all purposes other than for shelter and repairs and purchasing wood and obtaining water.
But Mr. Bayard's argument that the rejection of a proposition should lead to an interpretation adverse to the tenor of such proposition suggests strong evidence that United States 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 made the proposition that the words" and bait" be added to the enumeration of objects for which their fishermen might be allowed to enter, and the proposition was rejected. This could only have referred to the deep sea fishing, because the inshore fisheries had already been specifically renounced.
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 that the administration of the laws is being "conducted in a punitive and hostile spirit which can only tend to induce steps of a retaliatory nature," and in conclusion expresses a hope that" ordinary commercial intercourse shall not be interrupted by harsh measures and unfriendly administration."
The undersigned observes that it is not the wish of the Government or the people of Canada to interrupt for a moment the most friendly commercial intercourse. 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 courts of the country, of the plain terms of a Treaty between Great Britain and the United States, and
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 also to call attention to the letter of Mr. Bayard of the 20th instant, likewise addressed to Her Majesty's Minister at Washington, 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 "Lansdowne," under the following circumstances. She was a United States fishing vessel, and entered the 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 Vive-Admiralty Court at Halifax, and the vessel was delivered to the officers of that Court. The paper referred to in Mr. Bayard's letter as having been 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 correct that the officer of the Court in charge declined to allow the document to be 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 "Lansdowne," 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 statement of the charges upon which the vessel would be proceeded against, but referred him to his superior.
While it is to be regretted that this should seem to be discourteous, the officer of the "Lansdowne " can hardly be said to have been pursuing an "extraordinary" course. 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 state with precision, as he was called on to do, the grounds on which the intervention of the Court had been claimed in the proceedings therein. There was not in this instance 310 the slightest difficulty in the United States Consul-General, and those interested in the vessel, obtaining the fullest information; and no information which could have been given by those to whom they applied was withheld. Apart from the general knowledge of the offences which it was claimed the master had committed, and which was furnished at the time of the seizure, the most technical and precise details were readily obtainable at the Registry of the Court, and from the Solicitor for the Crown, and would have been furnished immediately on application to the authority to whom the Commander of the "Lansdowne " requested the United States Consul-General to apply. No such information could have been obtained from the paper attached to the vessel's mast. Instructions have, however, been given to the Commander of the "Lansdowne " and
other officers of the Marine 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 charged, and that a copy thereof shall be sent to the United States Consul-General at Halifax, and to the nearest United States Consular Agent. There can be no objection to the Solicitor for the Crown being instructed likewise to furnish the Consul-General with a copy of the legal process in each case, if it can be supposed that any fuller information will thereby be given.
Mr. 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 the vessel violated the Treaty of 1818, and consequently the statutes which exist for the enforcement of that Treaty, and it is also claimed that she violated the Customs Laws of Canada of 1883. The undersigned recommends that copies of these statutes be furnished for the information of Mr. Bayard.
Mr. Bayard has in the same despatch recalled the 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 of the Royal Admiralty to Vice-Admiral Wellesley, in which that officer was directed to observe great caution in the arrest of American fishermen, and to confine his action to one class of offences against the Treaty. Mr. Bayard, however, appears to have attached unwarranted importance to the correspondence and instructions of 1870, when he refers to them as implying an "understanding between the two Governments.' An understanding which should, in his opinion, at other times, and under other circumstances, govern the conduct of the authorities, whether Imperial or Colonial, 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 under those instructions," it is necessary to recall the fact that in the year 1870 the action of the Imperial Government was probably influenced very largely by the prospect which then existed of an arrangement such as was accomplished in the following year by the Treaty of Washington, and that it may be inferred, in view of the 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 limited construction of the Treaty, instructed their Vice-Admiral in British North America to confine his seizures to the more open and injurious class of offences, which were especially likely to be brought within the cognizance of the Naval Officers of the Imperial service.
The condition of affairs at the present time is entirely different. No circumstances exist which would seem to call for any such restrictive instructions. The Canadian Government, as has been already stated, for six months left its fishing grounds open to American fishermen without any corresponding advantage in return, in order to afford time for the action of Congress in regard to the President's suggestion that a commission should be appointed to consider the subjects involved in the Fishery clauses of the Treaty of Washington. Congress has evinced no desire to carry out that recommendation,
and the undersigned respectfully submits that the adoption of instructions, limiting in any way the enforcement of the laws for the protection of the Fisheries is a step against which it is the duty of the Government of Canada most respectfully to protest.
No. 192.-1886, May 29: Letter from the Earl of Rosebery (British Foreign Secretary) to Sir L. S. S. West.
(No. 21A. Treaty)
FOREIGN OFFICE, May 29 1886. SIR, The American Minister called on me to-day and read me a telegram from Mr. Bayard, of which I enclose a copy.
He 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 correspondence with Lord Kimberley in 1871, in which Lord Kimberley stated that the Imperial Government was the sole interpreter of the British view of Imperial Treaties, and that they were not able to support the Canadian view of the bait clause. Mr. Phelps finally urged that the action of the Canadian Government should be suspended, which would then conduce to a friendly state of matters, which might enable negotiations to be resumed.
I replied to Mr. Phelps that, as regards the strict interpretation of the Treaty of 1818, I was in the unfortunate position, that there were not two opinions in this country on the matter, and that the Canadian view was held by all authorities to be legally correct. If we are now under the provisions of the Treaty of 1818 it was by the action, not of Her Majesty's Government, or of the Canadian Government, but by the wish of the United States. I had offered to endeavour to procure the prolongation of the temporary arrangement of last year, in order to allow an opportunity for negotiating, and that had been refused. A Joint Commission had been refused, and, in fact, as any arrangement, either temporary or permanent, had been rejected by the United States, it was not a matter of option but 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 entirely concurred with his opinion that the British Government were the interpreters of the British view of Imperial Treaties. As regarded the wish expressed by Mr. Phelps that the present action should be suspended, when possibly an opportunity might arrive for negotiation, I said that that amounted to an absolute concession of the Canadian position with no return whatever, and I 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 effect, and certainly would not assist the Imperial Government in their efforts to deal with this question. In the meantime, however, I begged him simply to assure Mr. Bayard that I had received his communication, and that we were still awaiting the Canadian case and the details of the other seizures, that when we had received these, for which we had tele
graphed, I 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 would be decided in a Court of Law, and Mr. Phelps objected that it would be a Dominion Court of Law and not an Imperial Court. I replied that an appeal would lie to the Courts in this country, and Mr. Phelps pointed out that that procedure would be expensive; but I reminded him again that it was not our fault that we had been thrown on the provisions of the Treaty of 1818. I am, &c.,
No. 193.-1886, May 29: Letter from Mr. Bayard to Sir L. S. S. West. DEPARTMENT OF STATE, Washington, 29th May, 1886.
SIR, I have just received an official imprint of House of Commons Bill No. 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 forfeiture of any foreign vessel within any harbour in Canada, or hovering within three marine miles of any of the coasts, bays, 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 draw your attention to the wholly unwarranted proposition of the Canadian authorities, through their local agents, arbitrarily to enforce, according to their own construction, 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 interpretation 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 and by virtue of Treaty stipulation with Great Britain and Statutes in that behalf made and provided.
I have also been furnished with a copy of Circular No. 371, purporting to be from the Customs Department at Ottawa, dated 7th May, 1886, 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 20th October, 1818; and printed copies of a "Warning," purported to be issued by George E. Foster, Minister of Marine and Fisheries. dated at Ottawa, 5th March, 1886, of a similar tenor, 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 assumption 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 this subject, adding that