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trade," even if such a document could be supposed to divest her of the character of a fishing vessel.
The undersigned is of opinion that while for the reasons which 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 difficult to prove that the construction which the United States seek 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 fish taken off 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 other of the contracting parties. When the operation of its provisions can be shown to have become manifestly inequitable, the utmost that goodwill 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 thenceforth to enjoy in following their vocation so far as these rights could be affected by facilities for access to the shores or waters of the British Provinces or for intercourse with their people. It is therefore no undue expansion of the scope of that Convention to interpret strictly those of its provisions by which such access is denied, except to vessels requiring it for the purposes specifically described.
Such an undue expansion would, upon the other hand, certainly take place, if, under cover of its provisions, or of any agreements relating to general commercial intercourse which may have since been made, permission were accorded to United States' fishermen to resort habitually to the harbours of the Dominion, not for the sake of seeking safety for their vessels or for avoiding risk to human life, but in order to use these harbours as a general base of operations from which to prosecute and organize with greater advantage to themselves the industry in which they are engaged.
324 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 British 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 applicances, whether intended for the deep sea fisheries or
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 perfect immunity from its provisions.
This must amount to a practical repeal of the Treaty, because it would enable a United States' Collector of Customs by issuing a license originally intended for purposes of domestic customs 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 merchandize." but that their proposition "being resisted by the American negotiators, was abondoned"; 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 show that the proposition mentioned related only to United States vessels visiting those portions of the coasts of Labrador and Newfoundland on which the United States' fishermen had been granted the right to fish 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 merchandize might exist without objection in relation to these 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 Art. 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 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 proposition was discussed, that United States' fishing vessels were to be excluded for all purposes except 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 be held to necessitate an interpretation adverse to the tenor of such proposition, that argument may certainly be held 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 emuneration [enumeration] of the objects for which their fishermen might be allowed to enter and the proviso as first submitted had read: “ provided, however, that American fishermen shall be permitted to enter such bays and harbours for the purpose only of obtaining shelter, wood, water and bait." The addition of the two last words was, however, resisted by the British Plenipotentiaries 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 specifically 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 before 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 compensation 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 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 disturbed by the heat of local interests," and in conclusion, expresses a hope that "ordinary commercial intercourse shall not be interrupted 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 neighbouring 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 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 ViceAdmiralty 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 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 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.
Such conduct on the part of the officer of the "Lansdowne " can hardly be said to have been "extraordinary" under the present cir
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 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.
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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 solicitors 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 for which the vessel may be detained, and that a copy thereof shall be sent to the United States' Consul General at Halifax, and to the nearest United States' Consular Agent, and 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 such 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 that 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 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 from the Lords of the 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 these 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 importance.
It is probable that the action of the Imperial Government was 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