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refusal of the Collector of Customs at Digby, N. S, 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 14 tons register, that she was to all intents and purposes a fishing 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. According to the master's declaration she was there to purchase fresh herring only, and wished to get them direct from the 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 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 by it United States' fishing vessels are allowed to enter Canadian ports for shelter, repairs, wood and water, and " for no other purpose whatever."
The undersigned is of the opinion that it cannot be successfully contended, that a bona fide fishing vessel can, simply by declaring her intention of purchasing fresh fish for other than baiting purposes, evade the provisions of the Treaty of 1818 and obtain privileges not contemplated thereby. If that were admitted, the provision of the Treaty which excludes United States' fishing vessels for all purposes but the four above mentioned, would be rendered null and void and the whole United States' fishing fleet be at once lifted out 318 of the category of fishing vessels, and allowed free use of Canadian ports for baiting, obtaining supplies and transshipping
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 that the class to which she belongs is not to be determined by the simple declaration of her master that he is not at any given time acting in the character of a fisherman.
At the same time, the undersigned begs again to observe that Canada has no desire to interrupt 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,
(Sd.) GEO. E. FOSTER, Minister of Marine and Fisheries.
No. 198.-1886, June 7: Letter from Mr. Bayard (United States Secretary of State) to Sir L. S. S. West (British Minister).
DEPARTMENT OF STATE,
SIR: I regret exceedingly to communicate that report is to-day made to me, accompanied by affidavit, of the refusal of the Collector of Customs of the port of St. Andrews, New Brunswick, to allow
the Master of the American schooner, Annie M. Jordan, of Gloucester, Mass., to enter the said vessel at that port, although properly documented as a fishing vessel with permission to touch and trade at any foreign port or place during her voyage.
The object of such entry was explained by the Master to be the purchase and exportation of "certain merchandize" (possibly fresh fish for food, or bait for deep-sea fishing).
The vessel was threatened with seizure by the Canadian authorities, and her owners allege that they have sustained damage from this refusal of commercial rights.
I earnestly protest against this unwarranted withholding of lawful commercial privileges from an American vessel and her owners, and for the loss and damage consequent thereon the Government of Great Britain will be held liable.
I have, &c.,
T. F. BAYARD.
No. 199.-1886, June 8: Letter from the Marquis of Lansdowne (Governor-General of Canada), to Earl Granville.
QUEBEC, 8th June, 1886.
MY LORD,-In reference to your Lordship's telegrams of the 3rd and 4th inst., in which you have called the attention of my Government to the Customs circular No. 371 and to the "Warning" enclosed therein, I think it desirable to make the following observations in explanation of the telegraphic replies which I have addressed to your Lordship.
In your telegram of the 4th inst., your Lordship pointed out that the terms of the concluding paragraph of the "Warning" in question had the effect of excluding not only vessels belonging to the United States but all foreign vessels from Canadian bays and harbours, and you observed that this was probably not intentional as nothing in the act recited would justify such an exclusion.
I have ascertained that the "Warning." as originally issued from the Department of Fisheries after reciting the 1st article of the Convention of 1818, and sections 2, 3, and 4 of the Canadian Act of 1868, respecting fishing by foreign vessels, contained the following paragraph:
Therefore be it known, that by virtue of the Treaty provisions and Act of Parliament above recited, all foreign vessels or boats are forbidden from fishing or taking fish by any means whatever within three marine miles of any of the coasts, bays, creeks and harbours in Canada, or to enter such bays, harbours and creeks except for the purpose of shelter and of repairing damages therein, of purchasing wood and obtaining water, and for no other purposes whatever; of all of which you will take tice and govern yourself accordingly.
The passage quoted would, as your Lordship has pointed out, have affected all foreign vessels, whether belonging to the United States or not. The mistake was however, detected and the "Warning" issued in a revised form from which the paragraph which I have quoted was omitted and replaced by the words "of all of which you will take notice and govern yourself accord
ingly." I enclose herewith copies of the Warning in its original and in its amended form. It is possible that your Lordship or the American
Minister may have seen the Warning before it had been amended in the manner which I have described. The amended form which merely recites Art. I. of the Convention of 1818 and the Canadian Statute of 1868, appears to me to be entirely free from objection. The latter of these statutes is, as your Lordship is aware, substantially the same as the Imperial Act of 1819 (59 Geo. III., cap. 58), although the provisions relating to hovering are taken from another Imperial Statute (9 Geo. III., cap. 35). The law of the United States as to hovering is, I believe, the same as that embodied in this Statute.
The concluding paragraphs of the Circular No. 371 to which, and not to the warning, your Lordship's telegram of the 4th of June may have been intended to refer, are also, I think, open to objection. After reciting the Dominion Act of 1868, which, like the Imperial Statute of 1819, applies to foreign vessels generally, the Circular proceeds to mention specially certain Acts as violations, not of either of the Statutes in question, but of the Convention of 1818, and declares that if" such vessels or boats," that is, any foreign fishing vessels or boats, are found committing those acts they are to be detained. As, however, the Convention has reference to the fishing rights of the United States and not to those of other Foreign Powers, the passages which I have quoted are, I think, certainly open to the criticism not only that they assume that the Acts described are violations of the Convention, but that they seek to apply whatever penalties may be enforced against parties contravening the Convention to vessels to which those provisions are not properly applicable.
This point has been considered by my Government with every desire to revise the Circular in such a manner as to remove all reasonable objections to it upon these or other grounds, and I have much. pleasure in informing your Lordship that the Circular will be reissued with the following concluding paragraphs in lieu of those referred to above:
Having reference to the above you are requested to 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 enclosed 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 such warning, you will place an officer on board of such vessel and at once telegraph the facts to the Fisheries Department at Ottawa and await instructions.
The effect of these words will be that every foreign fisherman found within the three mile limit will receive a warning which will make him aware of the state of the law, while every fishing vessel belonging to the United States found contravening the existing Canadian Statutes, which, as I have already reminded your Lordship, in these respects follow closely those passed by the Imperial Parliament, will, if not departing within twenty-four hours after receiving such warning, be detained under the conditions described. I trust that the above explanation will be satisfactory to your Lordship.
I have, &c.,
(Sd.) The Right Honourable EARL GRANVILLE, K.G.,
&c., &c., &c.
No. 200.-1886, June 14: Report of a Committee of the Privy Council for Canada, approved by the Governor-General in Council, with annexed Report of the Minister of Marine and Fisheries.
The Committee of the Privy Council have had under consideration a Report from the Minister of Marine and Fisheries upon the communications, under date the 10th and 20th May last, from the Hon. Mr. Bayard, Secretary of State of the United States, to Her Majesty's Minister at Washington, in reference to the seizure of the American fishing vessel "David J. Adams."
The Committee concur in the annexed report, and they advise that your Excellency be moved to transmit a copy thereof, if approved, to the Right Hon. the Secretary of State for the Colonies. All which is respectfully submitted for your Excellency's approval. (Sd.) JOHN J. MCGEE, Clerk, Privy Council for Canada.
[Accompanying Report of the Minister of Marine and Fisheries.]
The undersigned, having had his attention called by your Excellency 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, in reference to the seizure of the American fishing vessel "David J. Adams," begs leave to submit 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 mercantile 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 proofs.
For many years before 1854 the maritime provinces of British North America had complained to Her Majesty's Government of the continuous invasion of their inshore fisheries (sometimes accompanied, it was alleged, with violence) by American fishermen and fishing vessels.
Much irritation naturally ensued, and it was felt to be 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 1854 was the result by which not only were our inshore fisheries opened to the Americans, but provision was made for the free interchange of the principal natural products of both countries, including those of the sea.
Peace was preserved on our waters, and the volume of international trade steadily increased during the existence of this Treaty, and until it was terminated in 1866-not by Great Britain, but by the United States.
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 American fishermen of their accustomed fishing grounds and means of livelihood, she readily acquiesced in the proposal of Her Majesty's Government for the temporary issue of annual licenses to fish, on payment of a moderate fee. Your Excellency is aware of the failure of that scheme. A few licenses were issued at first, but the applications for them soon ceased, and the American fishermen persisted in forcing themselves into our waters without leave or license.
Then came the recurrence, in an aggravated form, of all the troubles which had occurred anterior to the Reciprocity Treaty. There were invasions of our waters, personal conflicts between our fishermen and American crews, the destruction of nets, the seizure and condemnation 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 evidently [eventually] replaced, Canada on several occasions pressed without success, through the British Minister at Washington, for a renewal of the Reciprocity Treaty, or for the negotiation of another on a still wider basis.
When, in 1874, Sir Edward Thornton, then British Minister at Washington, and the late Hon. George Brown, of Toronto, were appointed joint Plenipotentiaries for the purpose of negotiating and concluding a Treaty relating to "Fisheries, Commerce and Navigation," a Provisional Treaty was arranged by them with the United States' Government, but the Senate decided that it was not expedient to ratify it, and the negotiation fell to the ground.
The Treaty of Washington, while it failed to restore the provisions of the Treaty of 1854 for reciprocal free trade (except in fish), at least kept the peace, and there was tranquility along our shores until July, 1885, when it was terminated again by the United States' Government and not by Great Britain.
With a desire to show that she wished to be a good neighbour and in order to prevent loss and disappointment on the part of the United States' fishermen by their sudden 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 people received from the United States none of the corresponding advantages which the Treaty of 1871 had declared to be an equivalent for the benefits secured thereby to the American fishermen.
The President in return for this courtesy promised to recommend to Congress the appointment of a joint commission by the two Governments of the United Kingdom and the United States to consider the Fishery question, with permission also to consider the whole state of the trade relations between the United States and Canada.
This promise was fulfilled by the President, but the Senate rejected his recommendation and refused to sanction the Commission.
Under these circumstances, Canada, having exhausted every effort to procure an amicable arrangement, has been driven again to fall