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back upon the Convention of 1818, the provisions of which she is now enforcing and will enforce in no punitive or hostile spirit, as Mr. Bayard supposes, but solely in protection of her fisheries, and in vindication of the right secured to her by Treaty.
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 the 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 321 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) to the sea coast, but extends for 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 reach beyond that limit. It may be assumed that in the absence of any Treaty stipulation to the contrary this right is so well recognized 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 recognizes it.
After renouncing the liberty to "take, cure or dry fish on or within three marine miles of any of the coasts, bays, creeks or harbors of His Majesty's dominions in America," there is a stipulation that while American fishing vessels shall be admitted to enter such bays, &c., "for the purpose 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 harbors 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 harbors within such parts 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, ammur.ition, 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 Province, [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 harbors, 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 harbors 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 harbors, 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.
"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 parts 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 harbors, 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."
The Acts passed by the provinces now forming Canada, and also by the Parliament of Canada (now noted in the margin) are to the
• Dominion Acts, 31 Vic, Cap. 61. 33 Vic, Cap. 16, now incorporated in revised Statutes of 1886, Cap. 90 Nova Scotia Acts, revised Statutes, 3rd series, C. 94, 29 Vic. (1866) C. 35. New Brunswick Acts, 16 Vic., (1853) C. 69 P. Edward Island Act 6 Vic. (1843) C. 14.
same effect, and may be said to be merely declaratory 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 principles.
Those Legislatures existed, and the Parliament of Canada now exists, by the authority of the Parliament of the United Kingdom of Great Britain and Ireland, which is one of the "nations" referred to by Mr. Bayard as the " contracting parties." 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 officers, whether their authority emanates directly from the Queen or from her Representative the Governor-General.
The jurisdiction thus exercised cannot, therefore, be properly described in the language used by Mr. Bayard as a supposed and therefore questionable delegation of jurisdiction by the Imperial Government of Great Britain. Her Majesty governs in Canada as well as in Great Britain; the officers of Canada are Her officers, 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 contracting parties to the Treaty of 1818, no questions arising under that Treaty can be responsibly dealt with " either by the Parliament or by 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 of 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 Provincial Customs Laws, have been made for forty years without protest or objection on the part of the United 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, no attempt has been made to put any special or novel interpretation on the Convention of 1818. The seizures of the fishing vessels have been made in order to enforce the explicit provisions of the Treaty, the clear and long established provisions of the Imperial Statute and of the Statutes of Canada, expressed 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 in 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 affecting 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 mutually beneficial relations between their respective inhabitants," and that "the independent and yet concurrent action of the two Governments has effected a gradual extension from time to time of the provisions of Article 1 of the Convention of July 3, 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 Mr. 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 affected in any way the right to enforce its provisions according to the plain meaning of the Articles of the Treaty. On the contrary a reference to the 18th Article of the Washington Treaty will show that the contracting parties made the Convention the basis of the further privileges granted by the Treaty, and it does not allege that its provisions are in any way extended or affected by subsequent legislation or Acts of Administration.
Mr. Bayard has referred to the Proclamation of President Jackson, in 1830, creating reciprocal commercial intercourse" on terms of perfect equality of flag" between the United States and the British American Dependencies, and has suggested that these "commercial privileges have since received a large extension, and that in some cases favors have been granted by the United States without equivalent concession" such as "the exemption granted by the Shipping Act of June 26, 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 arrangements 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 conceded that substantial assistance has been given to the development of commercial intercourse between the two countries. But legislation in that direction has not been confined to the Government of the United States, as indeed Mr. Bayard has admitted, in referring to the case of the Imperial Shipping and Navigation Act of 1849.
For upwards of forty years, as has already been stated, Canada has continued to evince her desire for a free exchange of the chief products of the two countries. She has repeatedly urged the desirability of the fuller reciprocity of trade, which was established during the period in which the Treaty of 1854 was in force.
The laws of Canada, with regard to the registry of vessels, tonnage dues, and shipping 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 by 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 the 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 been 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 showing "hostility to commerce under the guise of protection to inshore fisheries," or of "interrupting ordinary commercial intercourse by harsh measures and unfriendly administration," is hardly justified.
The questions which were in controversy between Great Britain. and the United States prior to 1818, related not to shipping and commerce, but to the claims of United States' Fishermen to fish in waters adjacent to the British North American Provinces.
Those questions were definitely settled by the Convention of that year, and although the terms of that Convention have since been twice suspended, first by the Treaty of 1854, and subsequently by that of 1871, and after the lapse of each of these two Treaties the provisions made in 1818 came again into operation, and were carried 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 be " to expand the restrictions and renunciations of that Treaty, which related solely to inshore 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 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. The legislation referred to in no way affects these privileges, nor has the Government of Canada taken any action toward their restriction. In the cases of the recent seizures, which are the immediate subject of Mr. Bayard's letters, the vessel 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 "David J. Adams" was not even possessed of a permit " to touch and