No. 270.

Mr. Mortimer M. Jackson to Hon. J. C. B. Davis.

No. 301.]

Sir: I have the honor, in answer to the inquiries contained in your dispatch No. 256, in reference to the fisheries, to submit the following report:

FISHERY LAWS.

The existing laws relating to the fisheries consist of the treaty of 1818, between the United States and Great Britain; the imperial act framed June 14, 1819, for the purpose of carrying the provisions of the treaty into effect; the British North American act framed March 29, 1867, giving authority to the Canadian government over the sea-coast and inland fisheries; and the Dominion acts framed respectively May 22, 1868, and May 12, 1870, relating to fishing by foreign vessels.

All these acts, Canadian as well as imperial, purport to be founded upon the treaty of 1818, and designed to enforce its provisions. Some of the provisions of the colonial acts respecting the fisheries are borrowed from imperial statutes relating to trade and navigation, and although enacted to protect the in-shore fisheries, are not strictly applicable to fishing vessels.

SUPPLIES.

In no act is there any prohibition against fishing vessels visiting colonial ports for supplies. The silence of all the acts upon this point, and the practice of more than half a century under imperial laws, framed expressly for the purpose of carrying into effect the provisions of the treaty, justify the conclusion that no such prohibition was contemplated by it. This view of the subject derives additional support from the fact that at the time of the adoption of the treaty the mackerel fishing; as now carried on, was comparatively unknown.

During the intervening years between 1818 and 1870, throughout all the controversies between the United States and Great Britain on the subject of the fisheries, no question until the present had arisen in reference to supplies. They were always readily procured in colonial ports, and the trade being profitable to the people of the colonies, was facilitated by the local authorities.

[Page 429]

The controversies which preceded the adoption of the reciprocity treaty related principally to our right to fish in certain bays, and to the exact limits within which American fishermen, by the convention of 1818, were entitled to fish on the coasts of British North America.

The rights insisted upon by citizens of the United States were practically decided in their favor by the commissioners appointed under the convention of 1853, between the United States and Great Britain, in the case of the schooner Washington. That schooner, while fishing in the Bay of Funday in 1843, ten miles distant from the shore, was seized by the British authorities, taken into Yarmouth, Nova Scotia, and there condemned for a violation of the fishery laws.

In 1853, after the adoption of the reciprocity treaty, the case was brought before the commissioners on a claim of the owners of the schooner for damages; and after a full and careful examination was decided in favor of the claimants, to whom damages were awarded for the illegal seizure and condemnation. Since that time what is termed the “headland” interpretation of the treaty, theretofore at different times insisted upon by Great Britain, and uniformly opposed by the United States, if not actually abandoned, has been held in abeyance, and it is not probable that any questions will hereafter arise in relation to it between the two countries.

In regard to fishing supplies, the practice which has so long prevailed of procuring them in colonial ports, with the full knowledge and consent of both governments, whose citizens have mutually shared in the benefits resulting from such pracitice, must be regarded as a practical construction given to the treaty which concludes all parties.

transshipment in bond.

Since the abrogation of the reciprocity treaty until within a few weeks past, it had been the practice of the colonial authorities to permit the transshipment in bond of American-caught fish. The practice was founded upon no statutory enactment, but was adopted as a commercial regulation, mutually beneficial to our fishermen and the people of the provinces. It afforded facilities to the former in the prosecution of a lawful and useful avocation, and increased the trade and contributed to the prosperity of the latter. While its discontinuance, in itself, violates no established commercial usage between friendly nations, as in the case Of the prohibition of supplies to our fishermen, yet the time of its discontinuance, in the midst of the fishing season, without previous notice, and when much greater and more important bonding privileges were, and still are, extended by the United States to the British colonies, is a just cause of complaint.

FRESH FISH.

While fresh fish, the product of the British North American fisheries, is admitted into the United States duty free, our fishermen are prohibited from procuring ice for fresh fish caught while fishing side by side with British fishermen on the same banks.

PILOTAGE.

To subject fishing vessels coming into colonial ports, as is now the case, to the compulsory regulations respecting pilotage applied to merchant vessels, and at the same time to deny them when in port the ordinary privileges extended to such merchant vessels, is manifestly unjust.

[Page 430]

BURDEN OF PROOF CHANGED.

The Dominion act framed in 1868 reverses, in violation of the principles of the common law, the ordinary modes of proof, and declares, in section ten, that “in case a dispute arises as to whether any seizure has or has not been legally made, or as to whether the person seizing was or was not authorized to seize under the act, the burden of proving the illegality of the seizure shall be upon the owner or claimant.” Under this section an American fishing vessel coming into port in the exercise of a conceded and unrestricted treaty right, either for the purpose of shelter, of repairing damages therein, of purchasing wood, and obtaining water, and unlawfully seized, instead of being presumed to be in port for a lawful purpose, is presumed by the act of seizure itself, however unauthorized, to be guilty of a violation of the fishery laws. Thus the presumption of guilt, which is to subject a fishing vessel to seizure and confiscation, is made, in the first instance, to depend upon the caprice of the seizing officer, and not upon the conduct of the officers and crew of the captured vessel. It is obvious that such a rule of action must be instrumental in inflicting wrong and injury upon innocent and unoffending parties.

STRAIT OF CANSO.

It has been intimated that still further restrictions will be imposed upon our fishermen, and that an attempt will be made to exclude them from the Strait of Canso. This appears to me incredible, in view of established principles of international law and the usage which has so long prevailed.

Wheaton, in his Elements of International Law, says: “Straits are passages communicating from one sea to another. If the navigation of the two seas thus connected is free, the navigation of the channel by which they are connected ought also to be free. Even if such strait be bounded on both sides by the territory of the same sovereign, and is, at the same time, so narrow as to be commanded by cannon-shot from both shores, the exclusive territorial jurisdiction of that sovereign over such strait is controlled by the right of other nations to communicate with the seas thus connected.” And he holds that “the principle on which the right to navigate straits depends is, that they are accessorial to those seas which they unite, and the right of navigating which is not exclusive but common to all nations, the right to navigate the seas drawing after it that of passing the straits.”

The Strait of Canso for more than a century has been open as a public highway to the vessels of all friendly nations. It formerly separated French from English territory, and after the restoration of Cape Breton to England by the capture of Louisburg in 1745, through the aid of troops from Massachusetts, it was kept open to the commerce of the world. Afterward, when Cape Breton, in 1820, ceased to be a separate English colony, and was united to and became a part of Nova Scotia, within whose territorial limits it then became included, the strait still remained open, as a public highway, to the vessels of every nation, and has since continued without interruption, and still continues to be used and enjoyed as a general thoroughfare by American vessels in common with vessels from other countries.

After such a dedication of this strait to maritime and commercial uses by the French, English, and colonial authorities, and after our vessels have pursued their fishing voyages through it for more than a century, our right to navigate it cannot now be questioned.

[Page 431]

vessels required to leave port.

The manner in which the fishery laws are now construed and attempted to be enforced by the Dominion authorities, if acquiesced in would amount to a practical exclusion of our fishing vessels from colonial ports; for, although their right to enter for the purpose of “shelter, repairing damages, purchasing wood and obtaining water,” is guaranteed by solemn treaty, yet, no sooner do they now enter, than, contrary to all former practice, they are required to depart even before it is ascertained for what purpose and under what circumstances they resort thither.

While authority is given to certain officers, both imperial and Canadian, to seize any American fishing vessel “found within three marine miles of any of the coasts, bays, creeks, or harbors in Canada,” which, after examination, “has been found fishing or preparing to fish, or to have been fishing in British waters,” yet nothing in any of the acts respecting the fisheries warrants this summary exclusion of such vessel from port, or prohibits any vessel from entering as well for the purpose of procuring supplies, as for shelter, repairs, wood, and water. On the contrary, the fishery laws themselves, as well as the regulations respecting pilotage, recognize the right of foreign fishing vessels freely to enter the ports of the British North American provinces.

The rigorous measures now for the first time adopted, which materially affect the interests of a large class of American citizens engaged in the prosecution of an important branch of industry, while deriving no sanction from the treaty of 1818, or the usages of nations, are rendered still more objectionable from having been undertaken without notice previously given, either by the Canadian minister of marine and fisheries, by the collectors of colonial customs, or by the vice-admiral in command of her Majesty’s fleet in the British North American waters. In consequence of which, American fishing vessels, on their voyages to the Grand Banks, have been seized in colonial waters, and, in subversion of every principle of right or justice, subjected to confiscation under some previously unknown order. Our fishermen can better endure hardship and peril than wrong and injustice.

Our fisheries furnish a nursery for a vigorous and energetic race of seamen in time of peace, and effectively add to our naval strength in time of war; and the enterprising and intrepid men engaged in them— whose employment is as hazardous to themselves as beneficial to the nation—should be encouraged by the liberality and protected by the power of the republic.

I have the honor to be, sir, your obedient servant,

MORTIMER M. JACKSON, United States Consul.