No. 174.
Mr. Phelps to Mr. Bayard.

No. 351.]

Sir: I have the honor to transmit to you herewith a copy of a note sent by me to Lord Iddesleigh, Her Majesty’s secretary of state for foreign affairs, under date of September 11, 1886, on the subject of the Canadian fisheries.

And I have, &c.,

[Page 357]
[Inclosure 1 in Mr. Phelps’s No. 351.]

Mr. Phelps to Lord Iddesleigh.

My Lord: I have the honor to acknowledge the receipt of your note of September 1, on the subject of the Canadian fisheries.

I received also on the 16th of August, last, from Lord Rosebery, then foreign secretary, a copy of a note on the same subject, dated July 23, 1886, addressed by his Lordship, through the British minister at Washington, to Mr. Bayard, the Secretary of State of the United States, in reply to a note from Mr. Bayard to the British minister of May 10, and also to mine addressed to Lord Rosebery under date of June 2. The retirement of Lord Rosebery from office immediately after I received his note, prevented a continuance of the discussion with him. And in resuming the subject with your lordship, it may be proper to refer both to Lord Rosebery’s note and to your own. In doing so I repeat in substance considerations expressed to you orally in recent interviews.

My note to Lord Rosebery was confined to the discussion of the case of the David J. Adams, the only seizure in reference to which the details had then been fully made known to me. The points presented in my note, and the arguments in Support of them, need not be repeated.

No answer is attempted in Lord Rosebery’s reply. He declines to discuss the questions involved on the ground that they are “now occupying the attention of the courts of law in the Dominion, and may possibly form the subject of an appeal to the judicial committee of Her Majesty’s privy council in England.”

He adds:

“It is believed that the courts in Canada will deliver judgment in the above cases very shortly, and until the legal proceedings now pending have been brought to a conclusion, Her Majesty’s Government do not feel justified in expressing an opinion upon them, either as to facts or the legality of the action taken by the colonial authorities.”

And your lordship remarks, in your note of August 24, “it is clearly right, according to practice and precedent, that such diplomatic action should be suspended pending the completion of the judicial inquiry.”

This is a proposition to which the United States Government is unable to accede.

The seizures complained of are not the acts of individuals claiming private rights which can be dealt with only by judicial determination, or which depend upon facts that need to be ascertained by judicial inquiry. They are the acts of the authorities of Canada, who profess to be acting, and in legal effect are acting, under the authority of Her Majesty’s Government. In the report of the Canadian minister of marine and fisheries, which is annexed to and adopted as a part of Lord Rosebery’s note, it is said:

“The colonial statutes have received the sanction of the British rovereign who, and not the nation, is actually the party with whom the United States made the convention. The officers who are engaged in enforcing the acts of Canada, or the laws of the Empire, are Her Majesty’s officers, whether their authority emanates directly from the Queen or from her representative, the governor-general.”

The ground upon which the seizures complained of are principally justified is the allegation that the vessels in question were violating the stipulations of the treaty between the United States and Great Britain. This is denied by the United States Government. The facts of the transaction are not seriously in dispute, and, if they were, could be easily ascertained by both Governments without the aid of the judicial tribunals of either, and the question to be determined is the true interpretation of the treaty as understood, and to be administered between the high contracting parties.

The proposition of Her Majesty’s Government amounts to this, that before the United States can obtain consideration of their complaint that the Canadian authorities without justification have seized and are proceeding to confiscate American vessels, the result of the proceedings in the Canadian courts, instituted by the captors as the means of the seizures, must be awaited, and the decision of that tribunal on the international questions involved obtained.

The interpretation of a treaty when it becomes the subject of discussion between two governments is not, I respectfully insist, to be settled by the judicial tribunals of either. That would be placing its construction in the hands of one of the parties to it. It can only be interpreted for such a purpose by the mutual consideration and agreement which were necessary to make it. Questions between individuals arising upon the terms of a treaty may be for the courts to which they resort to adjust.

Questions between nations as to national rights secured by treaty are of a very different character and must be solved in another way.

[Page 358]

The United States Government is no party to the proceedings instituted by the British authorities in Canada. Nor can it consent to become a party. The proceedings themselves are what the United States complain of as unauthorized, as well as unfriendly. It would be inconsistent with the dignity of a sovereign power to become a party to such proceedings, or to seek redress in any way in the courts of another country for what it claims to be the violation of treaty stipulations by the authorities of that country.

Still less could it consent to be made indirectly a party to the suits by being required to await the result of such defense as the individuals whose property is implicated may be able and may think proper to set up.

Litigation of that sort may be indefinitely prolonged. Meanwhile fresh seizures of American vessels upon similar grounds are to be expected, for which redress would in like manner await the decisions of the local tribunals, whose jurisdiction the captors invoke and the United States Government denies.

Nor need it be again pointed out, how different may be the question involved between the Governments from that which these proceedings raise in the Canadian courts. Courts in such cases do not administer treaties. They administer only the statutes that are passed in pursuance of treaties. If a statute contravene the provisions of a treaty, British courts are nevertheless bound by the statute. And if, on the other hand, there is a treaty stipulation which no statute gives the means of enforcing, the court cannot enforce it.

Although the United States Government insists that there is no British or colonial act authorizing the seizures complained of, if the British courts should nevertheless find such authority in any existing statute, the question whether the statute itself or the construction given it is warranted by the treaty would still remain. And also the still higher question, whether if the strict technical reading of the treaty might be thought to warrant such a result, it is one which ought to be enforced between sovereign and friendly nations acting in the spirit of the treaty.

The United States Government must therefore insist that, irrespective of the future result of the Canadian legal proceedings, the authority and propriety of which is the subject of dispute, and without waiting their conclusion, it is to Her Majesty’s Government it must look for redress and satisfaction for the transactions in question, and for such instructions to the colonial authority as will prevent their repetition.

While, as I have observed, Lord Rosebery declines to discuss the question of the legality of these seizures, the able and elaborate report on the subject from the Canadian minister of marine and fisheries, which is made a part of it, attempts in very general terms to sustain their authority. He says:

“It is claimed that the vessel (the David J. Adams) violated the treaty of 1818, and consequently the statutes which exist for the enforcement of the treaty.”

It is not clear from this language whether it is meant to be asserted that if an act, otherwise lawful, is prohibited by a treaty, the commission of the act becomes a violation of a statute which has no reference to it, if the statute was enacted to carry out the treaty, or whether it is intended to say that there was in existence, prior to the seizure of the vessel in question, some statute which did refer to the act complained of and did authorize proceedings or provide a penalty against American fishing vessels for purchasing bait or supplies in a Canadian port to be used in lawful fishing.

The former proposition does not seem to require refutation. If the latter is intended, I have respectfully to request that your lordship will have the kindness to direct a copy of such act to be furnished to me. I have supposed that none such existed, and neither in the report of the Canadian minister, nor in the customs circulars or warnings thereto appended, in which attention, is called to the various legislation on the subject, is any such act pointed out.

The absence of such statute provision either in the act of Parliament (59 Geo. III, c. 38) or in any subsequent colonial act, is not merely a legal objection, though quite a sufficient one, to the validity of the proceedings in question. It affords the most satisfactory evidence that up to the time of the present controversy no such construction has been given to the treaty by the British or by the colonial parliament, as is now sought to be maintained.

No other attempt is made in the report of the Canadian minister to justify the legality of these seizures.

It is apparent from the whole of it that he recognizes the necessity of the proposed enactment of the act of the Canadian Parliament already alluded to in order to sustain them.

This remark is further confirmed by the communication from the Marquis of Lansdowne, governor-general of Canada, to Lord Granville, in reference to that act, annexed by Lord Rosebery to his second note to the British minister of July 23, 1886, a copy of which was sent me by his lordship, in connection with his other note of same date above referred to.

I do not observe upon other points of the minister’s report not bearing upon the points of note to Lord Rosebery. So far as they relate to the communications addressed to [Page 359] the British minister by Mr. Bayard, the Secretary of State will doubtless make such reply as may seem to him to be called for.

In various other instances American vessels have been seized or driven away by the provincial authorities when not engaged or proposing to engage in any illegal employment.

Some of these cases are similar to that of the Adams, the vessels having been taken possession of for purchasing bait or supplies to be used in lawful fishing, or for alleged technical breach of custom-house regulations, where no harm was either intended or committed, and under circumstances in which for a very long time such regulations have been treated as inapplicable.

In other cases, an arbitrary extension of the three-mile limit fixed by the treaty has been announced so as to include within it portions of the high sea, such as the Bay of Fundy, the Bay of Chaleur, and other similar waters, and American fishermen have been prevented from fishing in those places by threats of seizure. I do not propose at this time to discuss the question of the exact location of that line. But only to protest against its extension in the manner attempted by the provincial authorities.

To two recent instances of interference by Canadian officers with American fishermen, of a somewhat different character, I am specially instructed by my Government to ask your lordship’s attention, those of the schooners Thomas F. Bayard and Mascot.

These vessels were proposing to fish in waters in which the right to fish is expressly secured to Americans by the terms of the treaty of 1818; the former in Bonne Bay, on the northwest coast of Newfoundland, and the latter near the shores of the Magdalen Islands.

For this purpose the Bayard attempted to purchase bait in the port of Bonne Bay, having reported at the custom-house and announced its object. The Mascot made a similar attempt at Port Amherst in the Magdalen Islands, and also desired to take on board a pilot. Both vessels were refused permission by the authorities to purchase bait, and the Mascot to take a pilot, arid were notified to leave the ports within twenty-four hours On penalty of seizure. They were therefore compelled to depart, to break up their voyages, and to return home, to their very great loss. I append copies of the affidavits of the masters of these vessels, stating the facts.

Your lordship will observe, upon reference to the treaty, not only that the right to fish in these waters is conferred by it, but that the clause prohibiting entry by American fishermen into Canadian ports, except for certain specified purposes, which is relied on by the Canadian Government in the cases of the Adams and of some other vessels, has no application whatever to the ports from which the Bayard arid the Mascot were excluded. The only prohibition in the treaty having reference to those ports is against curing and drying fish there, without leave of the inhabitants, which the vessels excluded had no intention of doing.

The conduct of the provincial officers toward these vessels was therefore not merely unfriendly and injurious, but in clear and plain violation of the terms of the treaty. And I am instructed to say that reparation for the losses sustained by it to the owners of the vessels will be claimed by the United States Government on their behalf as soon as the amount can be accurately ascertained.

It will be observed that interference with American fishing vessels by Canadian authorities is becoming more and more frequent, and more and more flagrant in its disregard of treaty obligations and of the principles of comity and friendly intercourse. The forbearance and moderation of the United States Government in respect to them appear to have been misunderstood and to have been taken advantage of by the provincial government. The course of the United States has been dictated, not only by an anxious desire to preserve friendly relations, but by the full confidence that the interposition of Her Majesty’s Government would be such as to put a stop to the transactions complained of, and to afford reparation for what has already taken place. The subject has become one of grave importance, and I earnestly solicit the immediate attention of your lordship to the question it involves, and to the views presented in my former note and in those of the Secretary of State.

The proposal in your lordship’s note that a revision of the treaty stipulations bearing upon the subject of the fisheries should be attempted by the Government, upon the basis of mutual concessions is one that under other circumstances would merit and receive serious consideration. Such a revision was desired by the Government of the United States before the present disputes arose, and when there was a reasonable prospect that it might have been carried into effect. Various reasons not within its control now concur to make the present time inopportune for that purpose, and greatly to diminish the hope of a favorable result to such an effort. Not the least of them is the irritation produced in the United States by the course of the Canadian Government, and the belief thereby engendered that a new treaty is attempted to be forced upon the United States Government.

It seems apparent that the questions now presented and the transactions that are the subject of present complaint must be considered and adjusted upon the provisions of the existing treaty, and upon the construction that is to be given to them.

[Page 360]

A just construction of these stipulations, and such as would consist with the dignity, the interests, and the friendly relations of the two countries, ought not to be difficult, and can doubtless be arrived at.

As it appears to me very important to these relations that the collisions between the American fishermen and the Canadian officials should terminate, I suggest to your lordship whether an ad interim construction of the terms of the existing treaty cannot be reached by mutual understanding of the Governments, to be carried out informally by instructions given on both sides, without prejudice to ultimate claims of either, and terminable at the will of either, by which the conduct of the business can be so regulated for the time being as to prevent disputes and injurious proceedings until a more permanent understanding can be had.

Should this suggestion meet with your lordship’s approval, perhaps you may be able to propose an outline for such an arrangement.

I am not prepared nor authorized to present one at this time, but may hereafter be instructed to do so if the effort is thought advisable.

I have, &c.,

[Inclosure 2 in Mr. Phelps’s No. 351.]

Sworn statement of James McDonald, master of the Thomas F. Bayard, dated July 28, 1886, with accompanying notice served on him by N. N. Taylor, officer of customs, dated July 12, 1886.

United States of America,
Commonwealth of Massachusetts:

I, James McDonald, of Gloucester, on my oath do say I am master and part owner of the schooner Thomas F. Bayard, a licensed vessel of the United States; that she sailed with a permit to trade from Gloucester June 22, on a trip for halibut. We fished on the northwest coast of Newfoundland, near Bonne Bay, where, my supply of bait being exhausted, I ran into the port July 12 and reported at the custom house, stating to the collector that my purpose was to buy bait. The collector immediately served me with the notice hereto appended and made part of this affidavit. I had with me a copy of the Canadian Warning of March 5, 1886, which contained the clause 2 of the treaty of 1818. This I showed to the collector and argued that I had the right under the treaty there set out. In substance his reply was that he had an official duty to perform and would not permit me.

Fearing that my vessel would be seized should I remain or should I buy bait or take it, I determined to return to Gloucester, as my trip was broken up by reason of these threats in the notice and the action of the collector in refusing to recognize the rights secured to my vessel by the treaty. I arrived in Gloucester July 26. I say great losses and damages have inured to said vessel, her owner, and crew by reason of being warned off said coast and said Bonne Bay, as will be duly made to appear.


Commonwealth of Massachusetts,
Suffolk ss:

Then personally appeared the above-named James McDonald and made oath that the foregoing statement by him subscribed is true.

Justice of the Peace.
[Inclosure 3 in Mr. Phelps’s No. 351.]

Mr. Taylor to Captain McDonald.

Sir: lam instructed to give you notice that the presence of your vessel in this port is in violation of the articles of the international convension of 1818 between Great Britain and the United States in relation to fishery rights on the coast of Newfoundland, and of the laws in force in this country for the enforcement of the articles [Page 361] of the convention, and that the purchase of bait or ice, or other transaction in connection with fishery operations, within 3 miles of the coasts of this colony, will be in further violation of the terms of said convention and laws.

I am, &c.,

  • N. N. TAYLOR,
    Officer of Custom.
  • Capt. James McDonald,
    Schooner Thomas F. Bayard.
[Inclosure 4 in Mr. Phelps’s No. 351.]

Sworn statement of Alexander McEachern, master of the Mascot, dated July 27, 1886.

State of Massachusetts,
County of Essex:

Gloucester, July 27, 1886.

Be it known that on the 27th day of July, in the year of our Lord 1886, before me, Aaron Parsons, a notary public, duly commissioned and sworn, and dwelling at Gloucester, in the county and State aforesaid, personally appeared Alexander McEachern, master of the schooner called Mascot, of this port, who deposes and says: That on the 10th day of June, 1886 A. D., I went into Port Amherst, Magdalen Islands, for the purpose of buying bait, but as soon as I went ashore I was met by the custom-house officials, who forbid me from so doing, stating they would seize my vessel, and I had no right to enjoy any privileges here except to get wood and water. I informed him that I wanted to take a pilot so I could find a spot where I was informed the fishing was good. He also said if I shipped such pilot or laid in port over twenty-four hours he would seize my vessel.


Before me.