Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 6, 1880
No. 375.
Mr. Hoppin to Mr. Evarts.
London, April 6, 1880. (Received April 19.)
Sir: I have the honor to inclose herewith the copy of a communication which I received from Lord Salisbury yesterday, in reply to Mr. Welsh’s notes of the 13th of August last, in relation to the damages sustained by certain citizens of the United States, owners of twenty-two fishing vessels, in Fortune Bay, Newfoundland, in the month of January, 1878.
It will be observed that the British Government have returned an unfavorable answer to our claims. I sent you an abstract of Lord Salisbury’s letter by cable last evening.
I have, &c.,
The Marquis of Salisbury to Mr. Hoppin.
Sir: In the note which I had the honor to address to yon on the 12th of February, I explained the reason why a certain time has unavoidably elapsed before Her Majesty’s Government were in a position to reply to Mr. Welsh’s notes of the 13th of August last, in which he preferred, on the part of your government, a claim for $105,305.02 as compensation to some United States fishermen, on account of losses stated to have been sustained by them through certain occurrences which took place at Fortune Bay, Newfoundland, on the 6th of January, 1878. The delay which has arisen has been occasioned by the necessity of instituting a very careful inquiry into the circumstances of the case, to which, in all its bearings, Her Majesty’s Government were anxious to give the fullest consideration, before coming to a decision. Her Majesty’s Government having now completed that inquiry, so far as lies within their power, I beg leave to request you to be so so good as to communicate to your government the following observations on the case.
In considering whether compensation can properly be demanded and paid in this case, regard must be had to the facts as established, and to the intent and effect of the articles of the Treaty of Washington, and the convention of 1818, which are applicable to those facts.
The facts, so far as they are known to Her Majesty’s Government, are disclosed by the affidavits contained in the inclosed printed papers, which, for convenience of reference, have been numbered in consecutive order. Nos. 1 and 2 were received by Her Majesty’s Government from his excellency the governor of Newfoundland. Nos. 3 to 10, inclusive, were attached to the report made by Captain Sulivan, of Her Majesty’s ship Sirius, who was instructed to make an inquiry into the case. These were communicated to Mr. Welsh with my note of the 7th of November, 1878. Nos. 11 to 16, inclusive, are the affidavits of United States fishermen printed in the New York Herald of the 28th of January, 1878, and were received from Her Majesty’s minister at Washington. They have not been received officially from the Government of the United States, but Her Majesty’s Government see no reason to doubt their authenticity. Nos. 17 to 22 were annexed to Mr. Welsh’s note of the 13th of August last.
A careful examination of the above evidence shows that on the day in question a large number of the crews of the United States fishing vessels came on shore and from the beach barred the herrings, the ends of their seines being secured to the shore. That the fishermen of the locality remonstrated against these proceedings, and, upon their remonstrance proving unavailing, removed the nets by force.
Such being the facts, the following two questions arise:
- 1.
- Have United States fishermen the right to use the strand for purposes of actual fishing?
- 2.
- Have they the right to take herrings with a seine at the season of the year in question, or to use a seine at any season of the year for the purpose of barring herrings on the coast of Newfoundland?
The answers to the above questions depend on the interpretation of the treaties.
With regard to the first question, namely, the right to the strand fishery, I would ob serve that article 1 of the convention between Great Britain and the United States of the 20th of October, 1818, secured to citizens of the United States the right in common with British subjects to take fish of every kind on certain specified portions of the coast of Newfoundland, and to use the shore for the purposes of purchasing wood and obtaining water, and for no other purpose whatever.
Articles XVIII and XXXII of the Treaty of Washington superadded to the above-mentioned privileges the right for United States fishermen to take fish of every kind (with certain exceptions not relevant to the present case) on all portions of the coast of that island, and permission to land for the purpose of drying their nets and curing their fish, “provided, that in so doing they do not interfere with the rights of private property or with British fishermen in the peaceable use of any part of the said coast in their occupancy for the same purpose.”
Thus, whilst absolute freedom in the matter of fishing in territorial waters is granted, the right to use the shore for four specified purposes alone is mentioned in the treaty articles from which United States fishermen derive their privileges, namely, to purchase wood, to obtain water, to dry nets, and cure fish.
The citizens of the United States are thus by clear implication absolutely precluded from the use of the shore in the direct act of catching fish. This view was maintained in the strongest manner before the Halifax Commission by the United States agent, who, with reference to the proper interpretation to be placed on the treaty stipulations, used the following language: “No rights to do anything upon the land are conferred upon the citizens of the United States under this treaty, with the single exception of the right to dry nets and cure fish on the shores of the Magdalen Islands, if we did not possess that before. No right to land for the purpose of seining from the shore; no right to the ‘strand fishery’ as it has been called; no right to do anything except water-borne on our vessels, to go within the limits which had been previously forbidden.”
“So far as the herring trade goes, we could not, if we were disposed to, carry it on successfully under the provisions of the treaty, for this herring trade is substantially a seining from the shore, a strand fishing, as it is called, and we have no right anywhere conferred by this treaty to go ashore and seine herring any more than we have to establish fish-traps.”
Her Majesty’s Government, therefore, cannot anticipate that any difference of opinion will be found to exist between the two governments on this point.
The incident now under discussion occurred on that part of the shore of Fortune Bay which is called Tickle Beach, Long Harbour. On this beach is situated the fishing settlement of Mark Bolt, a British fisherman, who in his evidence, taken upon oath, deposed as follows:
“The ground I occupy was granted me for life by government, and for which I have to pay a fee. There are two families on the beach; there were three in winter. Our living is dependent on our fishing off this settlement. If these large American seines are allowed to be hauled, it forces me away from the place.”
John Saunders, another British fisherman of Tickle Beach, deposed that the United States fishermen hauled their seine on the beach immediately in front of his property.
The United States fishermen, therefore, on the occasion in question, not only exceeded the limits of their treaty privileges by fishing from the shore, but they “interfered with the rights of private property and with British fishermen in the peaceable use of that part of the coast in their occupancy for the same purpose,” contrary to the express provisions of Articles XVIII and XXXII of the Treaty of Washington.
Further, they used seines for the purpose of in-barring herring, and this leads me to the consideration of the second question, namely, whether United States fishermen have the right to take herring with a seine at the season of the year in question, or to use a seine at any season of the year for the purpose of barring herring on the coast of Newfoundland.
The in barring of herring is a practice most injurious, and, if continued, calculated in time to destroy the fishery, consequently it has been prohibited by statute since 1862.
In my note to Mr. Welsh, of the 7th of November, 1878, I stated “that British sovereignty, as regards these waters, is limited in its scope by the engagements of the Treaty of Washington, which cannot be modified or affected by any municipal legislation,” and Her Majesty’s Government fully admit that United States fishermen have the right of participation on the Newfoundland inshore fisheries, in common with British subjects, as specified in Article XVIII of that treaty. But it cannot be claimed, consistently with this right of participation in common with the British fishermen, that the United States fishermen have any other, and still less that they have greater, rights than the British fisherman had at the date of the treaty.
If, then, at the date of the signature of the Treaty of Washington, certain restraints were, by the municipal law, imposed upon the British fishermen, the United States fishermen [Page 572] were, by the express terms of the treaty, equally subjected to those restraints, and the obligation to observe in common with the British the then existing local laws and regulations, which is implied by the words “in common,” attached to the United States citizens as soon as they claimed the benefit of the treaty. That such was the view entertained by the Government of the United States during the existence of the reciprocity treaty, under which United States fishermen enjoyed precisely the same rights of fishing as they do now under the Treaty of Washington, is proved conclusively by the circular issued on the 28th of March, 1856, to the collector of customs at Boston, which so thoroughly expressed the views of Her Majesty’s Government on this point that I quote it here in extenso.
Mr. Marcy to Mr. Peaslee. [circular].
“Department of
State,
“Washington,
March 28, 1856.
“Sir: It is understood that there are certain acts of the British North American colonial legislatures, and also, perhaps, executive regulations, intended to prevent the wanton destruction of the fish which frequent the coasts of the colonies, and injuries to the fishing thereon. It is deemed reasonable and desirable that both the United States and British fishermen should pay a like respect to such laws and regulations which are designed to preserve and increase the productiveness of the fisheries on those coasts. Such being the object of these laws and regulations, the observance of them is enforced upon the citizens of the United States in the like manner as they are observed by British subjects. By granting the mutual use of the inshore fisheries, neither party has yielded its right to civic jurisdiction over a marine league along its coasts.
“Its laws are as obligatory upon the citizens or subjects of the other as upon its own. The laws of the British Provinces, not in conflict with the provisions of the Reciprocity Treaty, would be as binding upon the citizens of the United States within that jurisdiction as upon British subjects. Should they be so framed or executed as to make any discrimination in favor of British fishermen, or to impair the rights secured to American fishermen by that treaty, those injuriously affected by them will appeal to this government for redress.
“In presenting complaints of this kind, should there be cause for doing so, they are requested to furnish the Department of State with a copy of the law or regulation which is alleged injuriously to affect their rights or to make an unfair discrimination between the fishermen of the respective countries, or with a statement of any supposed grievance in the execution of such law or regulation, in order that the matter may be arranged by the two governments.
“You will make this direction known to the masters of such fishing vessels as belong to your port, in such manner as you may deem most advisable.
“W. L. MARCY.
“Collector of the Customs, Boston”.
I have the honor to inclose a copy of an act passed by the colonial legislature of Newfoundland, on the 27th March, 1862, for the protection of the herring and salmon fisheries on the coast, and a copy of cap. 102 of the consolidated statutes of Newfoundland, passed in 1872. The first section of the act of 1862 prohibited the taking of herring with a seine between the 20th day of October and the 12th day of April, and further prohibited the use of seines at any time for the purpose of barring herring. These regulations, which were in force at the date of the Treaty of Washington, were not abolished, but confirmed by the subsequent statutes, and are binding under the treaty upon the citizens of the United States in common with British subjects.
The United States fishermen, therefore, in landing for the purpose of fishing at Tickle Beach, in using a seine at a prohibited time, and in barring herring with seines from the shore exceeded their treaty privileges, and were engaged in unlawful acts.
Her Majesty’s Government have no wish to insist on any illiberal construction of the language of the treaty, and would not consider it necessary to make any formal complaint on the subject of a casual infringement of the letter of its stipulations which did not involve any substantial detriment to British interests and to the fishery in general.
An excess on the part of the United States fishermen of the precise limits of the rights secured to them might proceed as much from ignorance as from wilfulness; but the present claim for compensation is based on losses resulting from a collision which was the direct consequence of such excess, and Her Majesty’s Government feel bound to point to the fact that the United States fishermen were the first and real cause of the mischief by overstepping the limits of the privileges secured to them, in a manner gravely prejudicial to the rights of other fishermen.
[Page 573]For the reasons above stated, Her Majesty’s Government are of opinion that, under the circumstances of the case as at present within their knowledge, the claim advanced by the United States fishermen for compensation on account of the losses stated to have been sustained by them on the occasion in question is one which should not be entertained.
Mr. Evarts will not require to be assured that Her Majesty’s Government, while unable to admit the contention of the United States Government on the present occasion, are fully sensible of the evils arising from any difference of opinion between the two governments in regard to the fishery rights of their respective subjects. They have always admitted the incompetence of the colonial or the imperial legislature to limit by subsequent legislation the advantages secured by treaty to the subjects of another power. If it should be the opinion of the Government of the United States that any act of the colonial legislature subsequent in date to the Treaty of Washington has trenched upon the rights enjoyed by the citizens of the United States in virtue of that instrument, Her Majesty’s Government will consider any communication addressed to them in that view, with a cordial and anxious desire to remove all just grounds of complaint.
I have, &c.,
Appendix A.—Collected affidavits of American fishermen submitted to the British Government.
Appendix B.—Statutes of Newfoundland applicable to the fisheries.
Appendix A.
Deposition of Alfred Noel.
Newfoundland, Central District, St. John’s, to wit:
THE examination of Alfred Noel, of St. John’s aforesaid, master mariner, taken upon oath, and who saith:
I am master of the schooner Nautilus of this port, and on the 19th day of December last I was at Long Harbour, in Fortune Bay, in the Nautilus, which was anchored off Woody Island. I had a crew of seven men, and I was there engaged in the herring fishery. There were several American schooners; seven of them were lying off Woody Island, and two French vessels. This island forms the harbour within half-a-mile of the narrows of Long Harbour; and other American schooners and Newfoundland fishing craft were inside Woody Island, which is the inside part of Long Harbour. All the craft there, English and American, were hauling herring in seines and nets, and the Americans were purchasing herring from the English. Every thing went off quietly, and the greatest harmony prevailed until Sunday, the 6th day of January, when about half-past 2 o’clock in the afternoon five seines, belonging to the American schooners, were put into the water by their crews at the beach on the north-east side of Long Harbour. I know two of the captains by name, Dago and Jacobs, belonging to Gloucester, United States, but do not know the names of their schooners. The whole five seines were barred full of herring, when the English crews of the crafts belonging to Fortune Bay ordered them to take their seines up or they would take them up for them; and the Fortune Bay men, finding they would not do as they were requested, then hauled up two of the American seines, but without any damage or injury, and two were at the same time taken up by the Americans; and at the same time a seine belonging to Captain Dago was taken up by the Fortune Bay men, the herring thrown out, and the seine was torn up and destroyed. Before this occurrence on the said Sunday, one of the American schooners had a seine barred with herring on the beach at Long Harbour for seven days, and it was not at any time meddled with by the Fortune Bay men or any one. Some of the Fortune Bay men had nets out in the water on that Sunday, and the same had been there during the week, but none of the Newfoundland fishermen attempted to haul herring on Sunday at any time while I was at Long Harbour. The Americans practice had been until lately to purchase herring from the Newfoundland fishermen in Fortune Bay, but this year and last year the Americans have brought their own seines to haul herring for themselves. The American seines are 30 fathoms deep and 200 fathoms long, whilst those used by our fishermen are 12 to 13 fathoms deep and 120 fathoms long. These American seines are used for barring herring in deep water, such as the Fortune Bay Harbors, viz, Long Harbour, Bay del Nord, and Rencontre. Our fishermen never bar herring, and herring have never been barred in Fortune Bay, to my knowledge, until the Americans brought the large seines I have alluded to into Fortune Bay and used them there to the disadvantage of our fishermen. This mode of barring herring in such harbours as I have mentioned [Page 574] is most destructive and ruinous to the herring fishery in those localities. I do not know the names of the persons who destroyed the seines; there were about eighty vessels from different harbours of Fortune Bay at Long Harbour at the time the seine was destroyed by a great lot of people. I left Long Harbour for St. John’s on the 31st day of January and arrived here on the 4th instant.
Sworn before me at St. John’s aforesaid, this 8th day of February, A. D. 1878.
J. P. for Newfoundland.
Deposition of John Rumsey.
Central District, St. John’s, to wit:
The examination of John Rumsey, of St. John’s, master mariner, taken upon oath, who saith:
On or about the 14th of November last I sailed from St. John’s to Fortune Bay for a cargo of herring. I arrived in Long Harbour, Fortune Bay, about Christmas last. I found about 200 schooners there looking for herring; twelve of the schooners were Americans; my schooner was called the Briton, six hands all told. I got most of my herring between Christmas and the 8th January. Most all the schooners in Long Harbour lay inside of Woody Island. Woody Island is about three miles from the entrance of Long Harbour. On the northern side, rather above the island, there is a fine beach about a mile long. This is the best hauling place in Long Harbour, and most all the herring were taken there. It is only this year and last year that the American schooners have brought down very large seines for catching herring. I have been informed that some of these seines were 250 fathoms long and 35 fathoms deep. The seines which our Newfoundland fishermen use are about 120 fathoms long and from 8 to 13 fathoms deep. In the first week in January there were four or five American schooners who had the beach above mentioned barred for herring. The mode of inbarring for herring is as follows: when a place is selected, generally a smooth beach with deep water outside free from rocks, a party is sent ashore with a long line from one end of the seine; the seine-boat then goes off with the seine, makes, a long sweep, and the other end of the seine is then brought into the beach also; then the crew begin to haul together on both ends of the seine with long seine lines running fore and aft up and down the beach, four or five seines thus barring herring would cover all the hauling ground on this long beach I have spoken of, and would occupy all the best ground for hauling herring in Long Harbour. On the first Sunday in January the beach was barred by four or five large American seines. On that day, after dinner, a large number of people belonging to the crews of the Fortune Bay schooners then in Long Harbour went over to the beach, and I was informed there were 600 or 700 Newfoundland fishermen there. The Americans had barred the herring, and were hauling on their seines on the Sunday morning. The Newfoundland fishermen told the American captains to take up their seines or they would take them up for them. All the American seines were then taken up which were set on a Sunday except one; this one the American captain who owned it refused to take up. The Newfoundland fishermen then hauled it ashore, took the herring out of the seine, and according as they hauled the seine out of the water they tore it up. I saw the seine the next day, Monday, on the beach, and it was completely destroyed; it was an old second-hand seine, and very rotten. I have been for thirteen or fourteen years carrying on the herring fishery in Fortune Bay, and during that time I have never known our Newfoundland fishermen to haul herring on Sunday. If the American fishermen were permitted to bar herring in the way that they were doing at Long Harbour Beach, all the rest of the craft would be deprived of the best place in the harbour to haul herring; and such a mode of fishing for herring is most injurious to the fishery and must in time ruin the herring fishery there. The Americans in hauling their long seines often removed the Newfoundland fishermen’s nets when they came in their way. I have known the Americans last year to have herring barred in for a fortnight. Barring kills a great many herring, and makes those who are barred in very poor. I have seen the bottom covered with dead herring after the seine had been barred for a week. The American schooners heave out their ballast in the channel between Woody Island and the shore, and if not prevented, will soon destroy the anchorage there.
Sworn before me at St. John’s, this 9th day of February, A. D. 1878, having beent first read over and explained.
J. P. for Newfoundland.
Deposition of John Saunders.
The examination of John Saunders, of Tickle Beach, Long Harbour, taken upon oath, and who saith:
In January last there were a great number, close on 100, schooners and boats fishing for herring, both American and Newfoundlanders. The Americans were employing the English to haul their seines for them. There were some English schooners who had seines also. One Sunday, I do not know the date, John Hickey laid out a seine, and was told by the English or Newfoundlanders to take it up, as it was Sunday, which he did. The Americans laid out their seines, assisted by the English employed by them. The Newfoundlanders told them to take them up, as it was not legal their fishing on that day, being Sunday; J. McDonald took his up. Jacobs upset his net into Farrel’s seine, who was employed by him. Farrel was barring for the Americans, and was not allowed by Jacobs to haul his seine until the hard weather came. After Jacobs had upset his seine into Farrel’s he took it up to shoot again, and threatened with the revolver any one who interfered. Then they fold McAulay to take his up, but he didn’t, so the people hauled it in and tore it up.
I don’t know any man concerned in the destruction of the net that I could swear to but one, John Pitman, a servant to Samuel Pardy, who was at “Jack Fountain.”
There was no other reason that I know for destroying nets but for fishing on Sunday, and because they would not take them up when they were told. The Americans never hauled a seine before that day; they always employed the English to use their seines, and bought fish from the English. The only reason that the Americans laid their seines out that day was because there were plenty of herring, and no Englishman would haul them, being Sunday, excepting Hickey, who had been compelled to take his seine up.
Q. Where does Philip Farrel live?—A. In Bay-de-North, and so does Thomas Farrel.
Q. Was any obstruction or hindrance placed in the way of the Americans before or after that Sunday?—A. No.
Q. Did they remain in the harbour until the close of the season; until the herring slacked away were any Americans compelled to leave the coast after this circumstance?—A. No; there was nothing to prevent their remaining, and they remained for some days, until the weather became soft, and there were no more herring in the bay. Most of them left, but one American schooner remained about three weeks after that, when another lot of herring came into the bay, and he filled up and went away the next fair wind. Jim Boy was the captain’s name.
Q. Do you know any American of the name of Dago?—A. Yes; he has part in this seine. The Americans hauled their seine on the beach immediately in front of my property.
Q. Do you know the names of the schooners?—A. No.
Q. Do you know the names of the owners of the seine?—A. Yes; Captain Dago and McAulay.
Q. Do you know anything the Americans did by way of revenge?—A. The Americans, in revenge for the destruction of the net, afterwards drifted their vessels all about the bay or river with their anchors hanging, and so hooked and destroyed many nets, about fifty or sixty, I should think. The name of one of these captains was Smith—but I don’t know the name of his vessel—and the other was Pool. We all believe that this was done in revenge. They were pretending to be at anchor, where there was about 50 fathoms of water, but were drifting all over the bay and hooking the nets; there was no weather to cause them to drift. Our small boats were anchored off the beach. We had never any difficulty with the Americans before this, but were always on good terms with them.
Sworn before me at Tickle Beach, Long Harbour, this 13th day of June, A. D. 1878.
Captain and Senior Officer on the Coast of Newfoundland.
Deposition of Mark Bolt.
The examination of Mark Bolt, of Tickle Beach, Long Harbour, taken upon oath, and who saith:
I am a native of Dorsetshire, England. I have been in this country twenty-one years, and have been fishing all that time. I have lived in this neighborhood fourteen [Page 576] or fifteen years, and at Tickle Beach since last fall. The ground I occupy (150 feet) was granted me for life by government, and for which I have to pay a fee There are two families on the beach; there were three in the winter. Our living is dependent on our fishing off this settlement. If these large American seines are allowed to be hauled it forces me away from the place.
One Sunday in January last John Hickey, Newfoundlander, came first and hove his seine out. Five Newfoundlanders came and told him to take it up, and he did not; then others came and insisted upon it, then he took it up. If he had then refused to take it up it would have been torn up.
Then Jacobs, an American, came and laid his seine out and hauled about 100 barrels of herring in the big American seine, and capsized into Tom Farrel’s seine—a Newfoundland fisherman employed by Jacobs and fishing for him.
Philip Farrel was also fishing for the Americans, being master of McAulay’s seine. The Newfoundlanders then capsized Tom Farrel’s seine of fish, who was only fishing for the Americans. After this Jim Macdonald, another American, threw out his seine. Then the people went and told Macdonald that he was not allowed to fish on Sundays, and he must take his seine up; and he took up his seine, and carried it on board his vessel. Jacobs would not allow his seine to be touched, but drew a revolver. They went to McAulay, an American, who had laid his seine out for barring herring; this American also employed a Newfoundlander to lay his seine out. The Newfoundlanders said it should not be done on a Sabbath day, and they resolved to fear up all the seines they could get hold of. They managed to seize McAulay’s and tore it up. They would have torn up any they could have got at if laid out, whether English or American, because it was Sunday. The Americans do not bar fish. This was the first time I ever knew them to do so; they usually buy the fish from the Newfoundlanders, and also barter flour and pork for them, and I have never known anything to complain of against them previous to this.
Q. Did the American schooners continue to fish after the destruction of McAulay’s seine?—A. Yes.
They (the Americans) continued to fish, and left about the usual time, the 10th March. I do not know any reason for the conduct towards the Americans except that they were fishing on Sunday. I do not know what became of the nets that were torn up; it was left on the beach for some days, and then taken away. I do not know who took it away; the Americans, perhaps, but I don’t know.
The Americans were often set afterwards, but not on Sunday; the Americans did not leave off catching herring after this on other days. The English did not prevent the Americans hauling their seines, but the Americans usually employed the English to haul them, as their crews were not sufficient in number, and are not acquainted with the work. The American crews are employed salting and freezing the fish, while the English employed by them with the American seines are catching them. The seine torn up was being worked by an Englishman for McAulay, the American, namely, Philip Farrel.
Jacobs’ seine was in the water a night and a day. I was not aware that it was illegal to haul or catch herring by or in a seine at that time of the year, nor that barring is prohibited at all seasons, nor that the seine must be shot and forthwith hauled, but have heard some reports to that effect.
The nearest magistrate is at St. Jacques, about 25 or 30 miles from this, and there is no means of communicating with him excepting by a sailing boat.
The seine that was destroyed belonged to men called Dago and McAulay, who, I believe, were each of them captains of schooners, but the names of the vessels I do not know.
Sworn before me at Tickle Beach, Long Harbour, this 13th day of June, A. D. 1878.
Captain and Senior Officer on the Coast of Newfoundland.
Deposition of Richard Hendriken.
The examination of Richard Hendriken, of Hope Cove, Long Harbour, taken upon oath, and who saith:
I have been nine years in Long Harbour. I was here in January last, when the American seine was destroyed. It was destroyed on account of barring herring on Sunday. I was watching their proceedings from the point opposite; they laid their seine out and went to haul it in because the English would not haul it in on Sunday, and the bay was full of fish. The fish would have remained. The Americans generally employ some Englishmen to work with their own crew; they don’t generally lay out their own seines. Captain Dago and Samuel Jacobs would persist in hauling, and [Page 577] hauled once and barred them in Farrel’s net. Farrel was working for him, and had been barring herring for several days—perhaps about a fortnight—by the Americans’ orders. I believe it is illegal to bar herring; it destroys the fish, but we have no power to stop it. It is no good telling a magistrate; the Americans take no notice of them. The nearest magistrate to this place is at Harbour Briton, 25 or 30 miles off. The only thing to let people know what is right and what is wrong is to have a notice board in each harbor, and some heavy fine imposed on law-breakers.
James Tamel is harbor-master.
I don’t know if he is a special constable or not; but Mr. Enburn told me he was to see the Yankees did not heave their ballast over, and that their measures were correct, but they would not listen to him. They hove their ballast overboard, and had tubs 22 inches in depth instead of 16 inches; in these tubs they measured the fish they bought from the Newfoundlanders, and they would not alter them. The fish are sold to the Americans by the barrel. For 100 barrels it is usual to pay for 90, which is considered fair, but a flour barrel cut down to 16 inches in depth is the proper measure; they only cut them to 22 inches or more, and insist on having them filled. The vessels from St. John’s and Halifax always take the proper size tubs, but the Americans constantly overreach us, and choose the most ignorant to deal with, or those who are not so sharp as themselves. They generally otherwise behave well, and we have never had any quarrel with them before, but have always been on good terms. If the natives did not see the laws carried out themselves there might as well be no laws, for there is often no one else to enforce it. It is the only way I know, and it is pretty well understood by both foreigners and natives.
Sworn before me at Tickle Beach, Long Harbour, this 14th day of June, A. D. 1878.
Captain and Senior Officer on the Coast of Newfoundland.
Deposition of Ambrose Pope.
The examination of Ambrose Pope, of Stone Cove, Long Harbour, taken upon oath, and who saith:
I was at Tickle Beach on a Sunday in January last. I don’t know the date. I saw the Newfoundlanders hauling a seine and leave it on the beach; it was torn in hauling it on shore. It was evening when I saw the seine hauled on the beach, and it was laying there when I left the beach.
I don’t know if any was carried away. I don’t know anything more about it. The Americans we thought had no right to haul their seines on Sunday.
Sworn before me at Anderson Cove, this 15th day of June, A. D. 1878.
Captain and Senior Officer on the Coast of Newfoundland.
Deposition of James Tharnell.
The examination of James Tharnell, of Anderson’s Cove, Long Harbour, taken upon oath, and who saith:
I am a special constable for this neighborhood; I did not see anything of the alleged outrage last January, but I heard something about it; I believe some of the men named Pope were on the beach, but which I do not know.
Q. Have you formed any opinion as constable as to the cause of the dispute?—A. Mr. Snellgrove, of the customs, and myself, from what we were informed of the circumstances, were of opinion that the Americans were acting illegally in shooting their seines, but notwithstanding that, nothing would have been said to them for that had it not been on the Sabbath day. The men forbid them hauling seines on the Sabbath day, and told them to take them up or they would take them up for them, and what annoyed them so much was that the Americans drew their revolvers; probably, if it had not been for the threat of the revolvers the seines would only have been taken up, and not torn. They asked him three times to take them up before they did so them selves.
[Page 578]The people were not aware that it was illegal to set the seines that time of the year, and were only prompted to their act by the fact that it was Sunday. We all consider it to be the greatest loss to us for the Americans to bring those large seines to catch herring. The seines will hold 2,000 or 3,000 barrels of herring, and, if the soft weather continues, they are obliged to keep them in the seines for sometimes two or three weeks, until the frost comes, and by this means they deprive the poor fishermen of the bay of their chance of catching any with their small nets, and then, when they have secured a sufficient quantity of their own, they refuse to buy of the natives.
If the Americans had been allowed to secure all the herring in the bay for themselves, which they could have done that day, they would have filled all their vessels, and the neighbouring fishermen would have lost all chance on the following week days. The people believed that they (the Americans) were acting illegally in thus robbing them of their fish. If the natives had not defended themselves by enforcing the law, there was no one else to do it. I was sworn in as a special constable by Mr. Herbert, the magistrate of Harbour-Briton, last October.
On the arrival of the Americans I showed my authority, signed by Mr. Herbert, and they laughed at it, and said it had no stamp, and they didn’t, therefore, recognize it.
I told them the lawful size of a tub—sixteen gallons—and they said they required a brand on it. I have no means of branding tubs; there is no means to brand on the coast, and it is not the custom. I don’t know if it is the custom at St. John’s to brand them. I have cautioned the Americans about throwing ballast out inside Woody Island, where it is very shallow; but they have continually done so notwithstanding up to this. There are now several shallow places there and in the cove, where the Americans have been in the habit of throwing out their ballast, and small vessels now, of twenty-eight to thirty tons, repeatedly ground on this ballast there thrown out by the Americans. I believe there was less thrown out last winter after I spoke to them about it; but I have no power, moral or otherwise, to enforce any rules, and they don’t seem to care much about me.
Sworn before me at Tickle Beach, Long Harbour, this 14th day of June, A. D. 1878.
Captain and Senior Officer on the Coast of Newfoundland.
Deposition of George Snellgrove.
The examination of George Snellgrove, of St. Jacques, Fortune Bay, taken upon oath, and who saith:
I am sub-collector of customs for the district of Fortune Bay. I went to Long Harbour on the 8th January, two days after the dispute between the Americans and Newfoundland fishermen had taken place.
Captains Jacobs and Dago informed me that an American seine had been taken up by the Newfoundland fishermen on the Sunday previous and destroyed; that the seine belonged to Dago and McAulay, and that they had other seines out, but they had taken them up when they found that the other was destroyed. One of these captains said that the fishermen had threatened to take up the seine if they didn’t themselves. Captain Jacobs showed me a revolver, and said that he had threatened them with it. I remonstrated with him for doing so, when he replied that I couldn’t suppose that he was really going to use it; that he only did it to frighten them; he had taken care there were no charges in it. I said to him, “Do you suppose that you would have got off that beach alive if you had used it?” and he said he never intended to use it.
Captain Warren told me that on the fishermen coming to haul in the seine that Captain Dago hailed them to say that they would take the seine in themselves if they waited, and that he (Warren) said to Dago, “It is too late now; you ought to have done it when they told you first; that they are too excited now.”
I then communicated with the natives of the place, who related the circumstances, and gave their reasons that the Americans were fishing illegally, and would have secured the whole of the fish, which they considered part of their property, and that they would have been distressed for the winter. They told me that they had at first told them to take up their seines, and they refused; that Captain Jacobs had threatened them with a revolver, but, notwithstanding this, they had taken up one and destroyed it.
I saw Captain Jacobs several times afterwards, and in the course of conversation with him I said: “If I had been there you would not have been allowed to shoot your seine.” “What!” he said, “could you prevent me?” I said “Yes; I should have [Page 579] seen the law carried out and taken your seine and boat, which you forfeited for breaking the law,” and I told him I would take the tine as well of $200, at which he said: “Do you think I care about paying the fine? I could pay the fine,” by which I understood him to mean that the fine was not worth considering, as the quantity of fish would have more than paid for it.
Q. Was there any one in Long Harbour on the Sunday referred to who could have enforced the law and protected the interests of the fishermen?—A. No.
Q. Is it not illegal shooting seines at all at that time of the year?—A. There is an act to that effect, but it has never been carried out in Fortune Bay, nor are the natives aware of its illegality at that time of the year, nor would they have molested the Americans had it not been Sunday, and which they knew it to be not only the law, but the infallible custom, to desist from fishing on that day.
Q. Has there ever been to your knowledge before quarrelsome disputes or ill-feeling between the Americans and native fishermen?—A. No, never; always on the best terms.
Q. How long did you remain in Long Harbour?—A. I remained till the 12th January.
Q. Did you observe during your stay in Long Harbour whether the three American captains remained and continued to fish or not?—A. I did, and I know that they continued to fish; they were not molested as far as I know.
Q. Was there anything to cause them to leave the harbor, or to cease fishing?—A. No, and they had not left it when I left. There were no further disputes to my knowledge afterwards.
Sub-Collector of Her Majesty’s Customs.
Sworn before me at St. Jacques, Fortune Bay, the 17th day of June, A. D. 1878.
Captain and Senior Officer on the Coast of Newfoundland.
Deposition of Silas Fudge.
The examination of Silas Fudge, of Bellaram, Fortune Bay, taken upon oath, and who saith:
I am mate of my father’s schooner. I witnessed the disturbance at Long Harbour on Sunday, the 6th January last. I am certain that it was on the 6th January it happened.
I saw the seines in the water—two of them American and one English. We told them to take them up.
John Hickey, the Englishman, took his up. McAulay, the American, who owned the other, refused to take his up. There was another seine, which I did not see, in the water, belonging to Captain Jacobs. He had his in the boat at the time. He had shot once and discharged his seine into Thomas Farrell’s, who was working for him, and was going to shoot his seine out again. I saw it in the boat ready for shooting when the crowd came over. They first spoke to McDonald, and asked him if he would take his seine up, and he said, “Yes, if I am forced”; and they then went to Hickey and told him to take his up, and he took it up; then they went to McAulay and asked him to take his up, and he said he would not. They then told him that if he didn’t they would take it up for him. They then went to Jacobs, and told him they would let go the herring out of the seine of Tom Farrel, who was an Englishman. Jacobs then drew a revolver, and threatened to shoot any man who touched his property. The crowd were very excited. I saw them haul McAulay’s seine in and tear it up. That was the end of the row that day. Farrel had, during the previous week, secured herring in the American seine, and then had placed his own round them, and taken up the American’s. This was done before Sunday. It was in this seine of Farrel’s that Jacobs emptied his own seine.
Q. You knew that the American fish were in the Englishman’s seine; why was Farrel’s seine allowed to remain?—A. Because he had not shot it on the Sunday, but on the week day.
Q. Are you aware that it was illegal to use seines to catch herring that time of the year?—A. No; I don’t know.
Q. Did you believe it to be lawful to use seines for herring that time of the year?—A. Yes, I thought so, as far as I could understand. I supposed the Americans thought, with reference to the destruction of the seine, that we did it in envy of them, but it wasn’t; hut it was from regard to the Sabbath, on which day we never fish.
Q. How far from the beach were the American seines shot?—A. Close to the beach; the hauling lines were on the beach.
The Americans remained in the bay after the occurrence for several days; they were [Page 580] never molested or interfered with afterwards; they continued to fish until they left the harbour; they were not compelled to leave the harbour, but I believe they were unsuccessful on account of the bad weather and for want of frost.
Sworn before me at St. Jacques, Fortune Bay, the 17th day of June, A. D. 1878.
Captain and Senior Officer on the Coast of Newfoundland.
Deposition of John Cluett.
The examination of John Cluett, of Balloram, Fortune Bay, taken upon oath, and who saith:
I was in Long Harbour one Sunday in January last.
Q. Did you see anything of the quarrel between the Americans and other fishermen?—A. I did.
Q. Tell me what you know of it.—A. They commenced hauling herring on Sunday, about midday. The first American seine shot was Captain Jacobs’. There were two more American seines shot. There was an Englishman working for the Americans who had a seine moored there for several days, but it was not shot or attempted to be hauled on the Sunday.
The first seine we came to was Captain McDonald’s. They asked him if he was going to take his seine up. He said, “If we are forced to take it up we will”; and we told him if he didn’t take it up we would take it up for him.
The next we came to was a man belonging to Fortune Bay, called John Hickey, an Englishman, and we told him to take up the seine, and he said he would take it up, and he did. The next we came to was Peter McAulay, and we told him the same as the others, and he refused to take it up. Then we went on to Captain Jacobs, and when we got to him he was in his skiff, a little off the shore. He had just hauled herring and shot them into Farrel’s seine, who was working for him. They remonstrated about breaking the law and fishing on Sunday. There was an altercation between us. He said he would defend his seine if they touched it in a threatening way. I don’t know what he said. There was a great crowd, and he was in an awful rage, and I heard that he drew a revolver, but I didn’t see it. He then took his seine on board. Then all the seines were taken up but Farrel’s and McAulay’s. Farrel’s seine was not touched, because it was not laid on that day, and they therefore let it alone, although Jacobs’ fish were in it; but McAulay’s seine was taken up and destroyed, and that is all I know.
Q. Did the American captains remain in the harbour after?—A. Yes; I think about a fortnight, but perhaps more. They continued to fish and haul herring on week-days, but not on Sunday again.
Q. Were they ever molested or interfered with in any way subsequently or not?—A. Not to my knowledge; they remained there as long as they chose, and there was never any more dispute. I don’t know that it is illegal to haul seines that time of the year. I have heard of the law, but I have never seen it carried out; it had nothing to do with this dispute. The only cause of it was on account of its being Sabbath. I never saw herring hauled on a Sunday before, either by Americans or Englishmen.
The Americans, by hauling herring that day when the Englishmen could not, were robbing them of their lawful and just chance of securing their share in them, and, further, had they secured all they had barred they could have, I believe, filled every vessel of theirs in the bay. They would have probably frightened the rest away, and it would have been useless for the English to stay, for the little left for them to take they could not have sold.
The Americans would have a better chance than the English any day on account of the size of their nets, but the English would have had their fair chance the next day, and they thought they were justified, in the absence of any proper authority or power to enforce the law, to defend their rights themselves. There is no power or authority to enforce the law on all parts of the coast, and none nearer to Long Harbour than about 30 or 40 miles.
If there was not a good feeling and mutual understanding between all fishermen, whether foreigners or Englishmen, there would be no law carried, out or upheld at all, but there was always prior to this a very good feeling and a mutual understanding between the Americans and ourselves, and I don’t know anything to prevent the same in future. After the destruction of McAulay’s seine some of the American schooners, one of which was Peter Smith’s, drifted about the harbour among the fishermen’s nets when blowing hard, with their anchors hanging to their bows, and destroyed several [Page 581] nets. I don’t know if this was done out of revenge or not. I don’t think it was done purposely.
Sworn before me at St. Jacques, Fortune Bay, this 17th day of June, A. D., 1878.
Captain and Senior Officer on the Coast of Newfoundland.
Deposition of Charles Dagle.
I, Charles Dagle, master of the American schooner Lizzie and Namari, of Rockport, do on oath depose and say:
That I sailed from Gloucester on the 6th December, 1877, for Fortune Bay, Newfoundland, for a load of herring. The last year (1877) I had sold a seine and boat to parties in Newfoundland, and they were to supply me with herring in payment for the seine and boat. I arrived at Fortune Bay about the 19th December. I was at Long Harbour, Newfoundland, with my vessel on the 6th January. Saw the seines of the American schooners New England and Ontario destroyed by the fishermen of Newfoundland. There is a decided objection to using netted or gill-net herring for freezing purposes, as these herring die in a short time after being taken in gill-nets. When they are seined they can be kept alive on the radius of the seine and taken out alive when the weather is suitable for freezing, while the netted herring, being dead, must be salted or spoil; consequently the seined herring are the best for our purposes, and are what the American vessels want for our market. Knowing this fact, the Newfoundland fishermen had endeavored to obstruct in every way the taking of herring with seines, as they use principally gill-nets; they placed their nets, which are set permanently, so as to hinder the using of seines. On the 6th January, 1878, the herring had come inshore, so that they were inside the gill-nets, thus giving our people an opportunity to seine them without interfering with the gill-nets. On the Americans attempting to put their seines in the water the Newfoundland fishermen threatened to destroy them, and when our fishermen had taken their seines full of herring, the Newfoundlanders came down to the number of 200, seized and destroyed the seines, letting out the fish, and afterwards stole and carried off the remnants of the seines. On account of this violence and the obstructions placed in the way of my men operating the seine, I was unable to procure a cargo, and have returned without a herring. If I had been allowed the privilege guaranteed by the Washington treaty, I could have loaded my vessel and all the American vessels could have loaded. The Newfoundland people are determined that the American fishermen shall not take herring on their shores. The American seines being very large and superior in every respect to the nets of the Newfoundlanders, they cannot compete with them. These seines are the mackerel seines which are used in summer for mackerel and are setting for herring. When they are plentiful we can take from 2,000 to 5,000 barrels. The seines and boats we use cost 1,200 dollars when new, and are too expensive for the generality of Newfoundland fishermen, and they would have no use for seines only during the herring season, while we can use them both summer and winter, and thus make them pay for their great cost.
My loss by these acts of violence, and being deprived of my rights under the Washington treaty, is fully 5,000 dollars, which I claim as indemnity. The netted herring are strangled while caught by the head in the net, and the eyes turn red from suffocation. They will not keep so long as seined herring, which are free to swim inside the seine, and are dipped out alive. The netted herring will not sell in the New York market, while the seined herring preserve their bright appearance and sell readily.
Master of schooner Lizzie and Namari.
Essex, ss:
Gloucester, February 19, 1878.
Personally appeared Charles Dagle, master of schooner Lizzie and Namari, who subscribed and made oath to the foregoing statement.
Before me.
Justice of the Peace.
Deposition of William H. McDonald.
I, William H. McDonald, master of the American schooner William E. McDonald, of Gloucester, do on oath depose and say:
That I have just returned from Newfoundland, where I have been for a load of herring. I was at Long Harbour, Newfoundland, when the seines of the schooners New England and Ontario were destroyed. I had gone on shore and was on the beach at the time. The Newfoundlanders were much excited because of our use of the large seines, which for the first time were used last winter there. The Newfoundland fishermen had sunk large rocks off the beach in order to catch the seines and tear them, and had put their gill-nets where they would obstruct the use of the seines. These means failing, as the herring were close inshore, they took to personal violence, and destroyed one seine completely, and made the others take them up and release the fish: I had a seine, but was not allowed to use it. The nets they placed in the way and kept there only for the purpose of obstructing our operations with seines, as they took no herring there, but let the nets remain till they rotted. I can fully indorse the statement of Captain Dagle in all particulars. My vessel is a first-class Vessel, and with the time and expense, and with the loss of herring, I have sustained a loss of fully 5,000 dollars to myself and owners, and I claim that under the treaty of Washington, I have a right to the herring fisheries and claim indemnity for this severe loss.
Essex, ss:
Personally appeared William H. McDonald and subscribed and made oath to the above statement.
Before me.
Justice of the Peace.
Deposition of James McDonald.
I, James McDonald, master of the American schooner F. A. Smith, of Gloucester, do on oath depose and say:
That the said schooner was chartered by George W. Plumer and others, of Gloucester, for a voyage to Newfoundland for herring. I sailed from Gloucester on the 29th November, 1877, and arrived at Long Harbour, Newfoundland, on or about the 15th December, 1877. I carried a large purse seine, such as is used to take mackerel. The seine will take 4,000 barrels of fish. I employed Newfoundland fishermen to operate the seine. I set my seine twice, but without catching anything, as my seine was torn by rocks that had been left off the beach. On the 6th January the herring made their appearance in great numbers, and the opportunity to take a large haul was improved by my men, and we took at least 1,000 barrels, enough to load my vessel and one other. The Newfoundland fishermen came off in their boats and told me to take my seine up, or they would take it up for me, and that they would cut it up. There were about 200 men engaged in this violence, and my own crew consisting of six men I could not resist, but was obliged to take up my seine. I saw the seines of the schooners New England and Ontario destroyed, and knew that mine also would be destroyed if I did not take it up. My seine was not attached to the shore when they came off, and the attack on me was made in boats. After destroying the other seines they all made for me, and my only safety was to gather up my seine. I lost all my fish, and the Newfoundland fishermen put all the obstructions they could in the way to prevent the use of our seines after that. From my knowledge of the facts I do say that the Newfoundland fishermen are determined to prevent American fishermen from using the shore fisheries. I consider that the loss to the vessel and the charter party at not less than 5,000 dollars, and under the Treaty of Washington I have been deprived of my rights as an American citizen, and full indemnity should be allowed for the outrage. I have read the statement of Captain Dagle, and know it to be true in all its particulars. The effect of this treatment will be to destroy the American fishing for herring at Newfoundland. There are annually about 100 voyages by American vessels made for herring to Newfoundland. The Newfoundland fishermen were taking herring on the same day the outrages before stated occurred.
Essex, ss:
Gloucester, February 20, 1878.
Personally appeared the above-named James McDonald, master of the schooner F. A. Smith, who subscribed and made oath that the foregoing statement is true.
Before me.
Justice of the Peace.
Deposition of Charles H. Nute.
I, Charles H. Nute, master of the American schooner Edward E. Webster, of Gloucester, do on oath depose and say:
That I have just returned from Newfoundland, where I have been for a load of herring. I went for the purpose of co-operating with other American vessels in the use of their seines in taking herring. I was at Long Harbour and saw the destruction of the seines of the American schooners New England and Ontario. I have seen the statement of Captain Dagle, of the American schooner Lizzie and Namari, and substantiate all he has stated. I have returned without a herring for the same reasons. My actual loss in time of vessel and crew, with herring I should have bought had I not been prevented by the inhabitants of Newfoundland, is fully 5,000 dollars; and, owing to being deprived of my rights under the Washington treaty, I hereby claim that amount as indemnity for the wrong done me and the owners of the vessel.
Master Schooner Edward B. Webster.
Essex, ss:
Gloucester, February 20, 1878.
Personally appeared Charles H. Nute, master of schooner Edward E. Webster, who subscribed and made oath that the foregoing statement is true.
Before me.
Justice of the Peace.
Deposition of David Malanson.
I, David Malanson, master of the American schooner Crest of the Wave, of Gloucester, Massachusetts, do on oath depose and say:
That I sailed from Gloucester on the 8th December, 1877 on a voyage to Newfoundland for herring. I arrived at Long Harbour, Newfoundland, on the 23d December, 1877. I was interested in a seine carried by the schooners New England and Ontario. I was at Long Harbour on the 6th January, 1878, and was on the beach when the Newfoundland fishermen destroyed the seine belonging to these vessels. The herring did not strike inshore until that day, and as it is very uncertain how long they will remain, it is imperative, for successful prosecution of the business, to take them when they are inshore. By means of our large purse seines we can inclose the herring and keep them alive a month, if necessary, as we need to have freezing weather when we take them out to freeze them, to keep them fresh until we get them to market. On this occasion the herring were entirely inshore of the Newfoundland gill-nets, and, as the sequel proved, if we did not take them then and there we should lose the season catch. The seines were set in no way interfering or injuring the gill-net fishing, and inclosed and held certainly 2,000 barrels of herring, enough to load four vessels. Over 200 men came down to the beach, seized the seine, let out the fish, pulled the seine on shore, tearing and cutting it to pieces with knives. The crews operating the seines were powerless against so many; and after they had destroyed this seine they went for the other American seines, shouting and gesticulating, saying: “Tear up the damned American seines.” All of the vessels would have been loaded with herring if the Americans could have used their seines.
My loss by this outrage is not less than 5,000 dollars, which has been taken from me despite the provisions of the Washington treaty, and which I claim as indemnity.
The Newfoundland fishermen have for years been in the habit of selling all the herring to American vessels. I have been there eight years, and I have always bought my herring, or engaged the Newfoundlanders to take them for me, paying them in cash. This has been the universal practice of American vessels. This year we carried the large mackerel seines, which we use in summer for taking mackerel. These [Page 584] seines will take from 2,000 to 5,000 barrels at a haul, and the herring are better taken in this way. As most of the Newfoundlanders fish with gill-nets, our manner of seining would take away from them the monopoly of the herring trade, and hence the feeling which produced the outrage on our vessels. It is apparent that they will obstruct any American fishery on their shores, and are not men who would know much about rights or privileges under a treaty. I should say that there are at least 100 cargoes of herring taken from Newfoundland yearly by American vessels, and as things are now it would be useless for American vessels to go there for herring unless they bought the herring from the inhabitants at whatever price they may see fit to ask. This American trade has been a great benefit to Newfoundland, and the change in the manner of taking herring will greatly reduce the amount of money paid them for herring. Only three vessels of eighteen that were there got any herring whatever. Captain Jacobs, of the Moses Adams, held his seine with revolvers, and, being a native of Newfoundland, was allowed to take in the herring he had taken. The feeling was very intense and bitter against the Americans. The Newfoundland fishermen were catching and taking herring with their nets and boats on the same day.
Master Schooner Crest of the Wave.
Essex, ss:
Personally appeared before me David Malanson, and subscribed and made oath to the above statement.
Justice of the Peace.
Deposition of Edward Stapleton.
I, Edward Stapleton, master of the American schooner Hereward, of Gloucester, do, on oath, depose and say:
That I have just arrived from Newfoundland, where I have been for a load of herring. I was at Long Harbor, Newfoundland, when the Newfoundland fishermen destroyed the seines of the American schooners New England and Ontario, and saw the whole transaction. I carried a seine with me, and employed Newfoundland fishermen to operate it for me. The first time they set it for me they put it out in a strong tideway, and utterly destroyed it, and after that I had to depend on the other American seines. This was the understanding among the American captains, that we were to work together and load all our vessels. The setting of the seines on the 6th January did not interfere in any way with their nets or fishing. I think there is a local regulation that does not allow the Newfoundland fishermen to fish on Sundays; but the first seine (a small one) set on that day was one owned and operated by the natives, and they were picking their nets and boating their herring ashore all day. On the arrival of the American fleet the Newfoundlanders put their nets where they would obstruct our seining, but on this day the herring were away inside of their nets, giving us the first chance and only opportunity we had to seine or get herring. Enough were taken, and could have been taken, that day to have loaded the fleet. After that day there was no opportunity to take any. Newfoundland nets were placed where they never took a fish, and placed only for the purpose of preventing our seining. My loss to vessel and owners is not less than 5,000 dollars, and I claim indemnity to that amount. This loss is owing entirely to the hostile acts of the Newfoundland fishermen.
(17.)
Deposition of Charles Dagle.
(See appendix to instruction No. 347 to Mr. Welsh, ante, p. 555.)
(18.)
Deposition of Willard G Poole.
(See appendix as above, ante, p. 555.)
(19.)
Deposition of Michael B. Murray.
(See appendix as above, ante, p. 555.)
[Page 585](20.)
Deposition of Michael B. Murray.
(See appendix as above, ante, p. 556.)
(21.)
Deposition of Peter Smith.
(See appendix as above, ante, p. 556.)
(22.)
Official statement of Newfoundland herring fishery.
APPENDIX B.
(1.)
Anno Vicesimo-Quinto Victoriӕ Reginӕ.
Cap. II.—An act for the protection of the herring and salmon fisheries on the coast of this island, and for other purposes. [Passed March 27, 1862.]
Preamble. Whereas the breed and fry of herrings frequenting the coast of this island and the Labrador are often found to be greatly injured and destroyed by the using of seines and nets of too small size or mesh, and by other unwarrantable practices; and whereas complaints have been preferred to the local government of alleged depredations committed by the fishermen frequenting these coasts upon each other: for remedy whereof,
Be it therefore enacted, by the governor, legislative council, and assembly, in session convened:
- I.
- That no person shall haul, catch, or take herrings in any seine, on or near any part of the coast of this island, or of its dependencies on the coast of Labrador, or in any of the bays, harbors, or any other places therein, at any time between the 20th day of October and the 12th day of April in any year; and no person shall, on or near the coast of this island or of its dependencies aforesaid on the coast of Labrador, or in any of the bays, harbors, or other places therein, at any time, use a seine or other contrivance for the catching and taking of herrings, except by way of shooting, and forthwith tucking and hauling the same: Provided that nothing herein contained shall prevent the taking of herrings by nets set in the usual and customary manner, and not used for in-barring or inclosing or herrings in any cove, inlet, or other place. Herring not to be taken in seines from 20th October until 12th April. Proviso as ta the use of nets.
- II.
- No person shall, at any time between the 20th day of December and the 1st day of April in any year, haul, catch, or take any herring on or near the coast of this island or of its dependencies aforesaid on the Labrador, or in any of the bays, harbours, or any other places therein, in any net having the meshes, mokes, or scales of less than two inches and three-eighths of an inch, at least, from knot to knot, or having any false or double bottom of any description; nor shall any person put any net, though of legal size of mesh, upon or behind any other net not of such size of mesh, for the purpose of catching or taking the fry of such herring passing through any single net of two inches and three-eighths of an inch mesh or scale. Nets of 2 3-8 inch scale to be used from the 20th December until the 1st April. Regulation as to nets with double bottom, &c.
- III.
- No person shall wilfully remove, destroy, or injure any lawful net or seine, the property of another, set or floating on or near the coasts of this island or of its dependencies aforesaid on the Labrador, or in any of the bays, harbours, or other places therein, nor remove, let loose, or take any fish from or out of any such lawful net or seine. No person shall interfere with the nets of others.
- IV.
- No person shall, at any time between the 20th day of April and the 20th day of October, haul, catch, or take any herring or other bait for exportation within one mile of any settlement situate on that part of the coast between Cape Chapeau Rouge and Point Rosey. Herring not to be taken from the 20th April until the 20th October between Cape Chapeau Rouge and Point Rosey.
- V.
- Any person who shall violate any of the provisions of this act shall for every offence forfeit a sum not exceeding ten pounds; and, in addition, all seines, nets, and other contrivances used or employed in, about, or preparatory to the catching, hauling, taking, or in-barring of any herrings, in violation of any of the provisions hereof, shall be liable to forfeiture, and the same may be seized at once by any justice, sub-collector of customs, preventive officer, or constable, on view or by virtue of a warrant issued by such justice, sub-collector, or preventive officer, on oath to be administered by any of them, and detained until the trial of the offender, when they may be declared forfeited and ordered to be sold at public auction. Penalty for violation of this act.
- VI.
- And whereas an act was passed in the twenty-third year of the reign of Her present Majesty, entitled “An act for the protection of the salmon fishery, and for other purposes,” whereby certain nets and seines were forbidden to be used, and certain weirs and other erections and contrivances were prohibited from being erected at certain times and under certain circumstances, in the said act declared: Prohibition foi using salmon nets at certain times, iand against erect ing weirs, and penalty.
- Be it further enacted, That it shall be lawful for any justice, sub-collector, preventive officer, or constable aforesaid, on view, and for any constable or other person by virtue of a warrant to be issued as aforesaid, to seize any net or seine, and to destroy any weir or other erection or contrivance used or erected in contravention of the said recited act, and all such nets and seines shall be forfeited and disposed of in manner provided by the Vth section of this act.
- VII.
- All forfeitures and penalties imposed by this or the said recited act shall be recovered with costs, in a summary manner, before any justice of the peace, for which purpose such justice shall have full power to summon or arrest the offender, and to compel all witnesses, either by summons or warrant, to appear before him on such trial; and upon con viction of such offender, such justice shall issue his warrant to cause such seines, nets, or other contrivances so illegally used, to be sold at public auction, or, where permitted under the preceding section of this act, destroyed; and in default of payment of such penalty as may be imposed, and costs, by the party convicted, such justice shall issue his warrant to any constable or other person to arrest and imprison such convicted offender for a neriod not exceedingtwentv davs. Maimer of recovering penalties, and in default term of imprisonment.
- VIII.
- All penalties and forfeitures under this or the said recited act, and all proceeds thereof, when recovered, shall be paid to the party informing against and prosecuting such offender to conviction. Disposal of penalties and forfeitures.
- IX.
- No conviction or proceeding by any justice or other officer under this act shall be quashed or set aside for want of form, so long as the same shall be substantially in accordance with the true intent and meaning of this act. Convictions not to be quashed foi want of form, &c.
- X.
- Provided always, That nothing m this act contained snail m any way affect or interfere with the rights and privileges granted by treaty to the subjects or citizens of any state or power in amity with Her Majesty. This act not to interfere with rights protected by treaty.
- XI.
- The ninth section of the said recited “act for the protection of the salmon fishery “is hereby repealed. Ninth section -of the Salmon Fishery Act repealed.
(2.)
Title XXVII.—Consolidated Statutes of Newfoundland, 1872.
Cap. CII—Of the Coast Fisheries.
Section.
- 1.
- Herring not to be caught between 20th October and 12th April. Seine, how to be used.
- 2.
- Time for use of and size of net.
- 3.
- Injuries to nets and seines.
- 4.
- Herring not to be hauled for bait between 20th April and 20th October.
- 5.
- Spearing or sweeping with nets and seines for salmon above tidal waters unlawful.
- 6.
- Stake, seine, or weir unlawful.
- 7.
- Mill-dams and other obstructions.
- 8.
- Mesh of salmon net.
- 9.
- Salmon bought or sold in close time forfeited.
- 10.
- Distance between salmon nets.
- 11.
- Time for taking salmon.
- 12.
- Penalties.
- 13.
- Weir, &c., erected contrary to law, may be destroyed.
- 14.
- Forfeitures and penalties, how recovered.
- 15.
- Appropriation of same.
- 16.
- Convictions not to be quashed for want of form.
- 17.
- Governor may appoint superintendent of fishery and fishery wardens.
- 18.
- Reservation of treaty rights.
- 1.
- No person shall haul, catch, or take herrings by, or in a seine or other such contrivance on or near any part of the coast of this colony or of its dependencies, or in any of the bays, harbours, or other places therein, at any time, between the 20th day [Page 587] of October and the 12th day of April an any year, or at any time use a seine or other contrivance for the catching and taking of herrings, except by way of shooting and forthwith hauling the same: Provided that nothing herein contained shall prevent the taking of herrings by nets set in the usual and customary manner, and not used for in-barring or inclosing herrings in a cove, inlet, or other place.
- 2.
- No person shall, at anytime between the 20th day of December and the 1st day of April in any year, use any net to haul, catch, or take herrings on or near the coasts of this colony or of its dependencies, or in any bays, harbours, or other places therein, having the mokes, meshes, or scales of such net less than two inches and three-eighths of an inch at least, or having any false or double bottom of any description; nor shall any person put any net, though of legal size mesh, upon or behind any other net not of such size mesh, for the purpose of catching or taking such herring or herring fry passing a single net of legal size mesh.
- 3.
- No person shall wilfully remove, destroy or injure any lawful net or seine, the property of another, set or floating on or near the coast of this colony or its dependencies, or any of the bays, harbours, or other places therein, or remove, let loose, or take any fish from such seine or net.
- 4.
- No person shall, between the 20th day of April and the 20th day of October in any year, haul, catch, or take herrings or other bait for exportation, within one mile, measured by the shore or across the water, of any settlement situate between Cape Chapeau Rouge and Point Enragée, near Cape Ray; and any person so hauling, catching, or taking, within the said limits, maybe examined on oath by a justice, otficerof customs, or person commissioned for the purpose, as to whether the herrings or other bait are intended for exportation or otherwise, and on refusal to answer or answering untruly, such person shall, on conviction, be subject to the provisions of the twelfth section of this chapter.
- 5.
- No person shall, by spearing or sweeping with nets or seines, take or attempt to take any salmon, grilse, par, or trout, in any bay, river, stream, cove, or watercourse, above where the tide usually rises and falls, or in any pond or lake.
- 6.
- No stake, seine, weir, or other contrivance for taking salmon, except nets set or placed across, shall be set or placed in any river, stream, cove, lake, or watercourse. No net shall extend more than one-third of the distance in a straight line across, and all nets shall be set only on one side of such river, stream, cove, lake, or watercourse.
- 7.
- No person shall construct any mill-dam, weir, rack, frame, train gate, or other erection or barrier in or across any river, stream, cove, lake, or watercourse, so as to obstruct the free passage of salmon, grilse, par, trout, or other fish resorting thereto for the purpose of spawning; and all mill-dams or other erections placed on, over, or across any watercourse, river, or stream, resorted to by fish for the purpose of spawning, shall have a waste-gate opening, or slope sufficient to constitute a proper and sufficient fish way, which shall be kept in repair by the owner. No person shall permit any sawdust or mill rubbish to be cast into any such river, stream, cove, lake, or watercourse.
- 8.
- No person shall use any net for taking salmon, the mokes, meshes, or scales of which are less than four inches and a half inch.
- 9.
- No person shall buy or sell or have in his possession salmon, knowing the same to have been taken contrary to the provisions of this chapter, and every salmon so taken, bought, or sold, shall be declared forfeited to the complainant by am justice.
- 10.
- No net shall be moored or set in any harbour, cove, creek, or estuary, or on or near any part of the coast of this colony, or its dependencies, for the purpose of i aking salmon, nearer to any other net moored or set for a like purpose than one hundred yards for a single net, and three hundred yards for a double net or fleet of nets.
- 11.
- No salmon shall be taken before the 1st day of May or after the 10th day of September in any year: Provided, that if the time limited in this section shall be found to operate injuriously in any part of this island, the governor in council may appoint any otht r time or times, and such time or times shall be as binding on all persons as if specially mentioned herein.
- 12.
- Any person who shall violate any of the provisions of this chapter shall be subject to a penalty not exceeding fifty dollars, and all seines, nets, and other contrivances used contrary to the provisions of this chapter shall be forfeited, and may be seized and detained until the trial of the offender by any justice, sub-collector of customs, preventive officer, fishery warden, or constable, on view, or by virtue of a warrant issued by such justice, sub-collector, or preventive officer, upon complaint made on oath to be administered by either of them, and, upon conviction, the same maybe declared forfeited and ordered to be sold at public auction.
- 13.
- Any justice, sub-collector, preventive officer, fishery warden, or constable, may, on view, destroy any weir, rack, frame, train-gate, or other erection or barrier, used or erected contrary to the provisions of this chapter, or the same may be destroyed by virtue of a warrant issued by any justice, sub-collector, or preventive officer, upon complaint made on oath to be administered by either of them.
- 14.
- All forfeitures and penalties imposed by this chapter shall be recovered, with [Page 588] costs, in a summary manner before any justice, for which purpose such justice may summon or arrest the oifender, and compel witnesses, by summons or warrant, to appear before him; and upon conviction of the oifender, such justice shall cause all seines, nets, and other contrivances illegally used, to be sold by public auction, or, where permitted under the provisions of the preceding sections of this chapter, destroyed; and in default of the payment of any penalty imposed, and costs, such justice shall issue his warrant and cause such offender to be arrested and imprisoned for any period not exceeding twenty days.
- 15.
- All penalties and forfeitures imposed by this chapter, and the proceeds thereof, shall be paid to the party informing against and prosecuting the oifender to conviction.
- 16.
- No proceeding or conviction by any justice or other officer under this chapter shall be quashed or set aside for any informality, provided the same shall be substantially in accordance with the intent and meaning of this chapter.
- 17.
- The governor in council may appoint the collector of revenue for Labrador, or other person, to be superintendent of the fisheries on the coast of this island and its dependencies, and may also appoint fishery wardens, and prescribe their duties for the purposes of this chapter. The compensation for the services of such officers to be provided by the legislature.
- 18.
- Nothing in this chapter shall affect the rights and privileges granted by treaty to the subjects of any State or power in amity with Her Majesty.
Mr. Hoppin to the Marquis of Salisbury.
London, April 6, 1880.
My Lord: I have the honor to acknowledge the receipt of your lordship’s letter of the 3d instant in reply to Mr. Welsh’s communications of the 13th of August last in relation to the claims of United States fishermen for losses occasioned by certain occurrences at Fortune Bay, Newfoundland, in January, 1878; and I have to acquaint your lordship that I shall send a copy of your letter to the honorable the Secretary of State at Washington by the earliest post.
I have, &c.,