No. 185.
Mr. Bayard to Sir L.
West.
Washington, May 20, 1886.
Sir: Although without reply to the note I had the honor to address to you on the 10th, instant, in relation to the Canadian fisheries and the interpretation of the treaty of 1818 between the United States and Great Britain as to the rights and duties of the American citizens engaged [Page 378] in maritime trade and intercourse with the Provinces of British North America, in view of the unrestrained, and, as it appears to me, unwarranted, irregular, and severe action of Canadian officials toward American vessels in those waters, yet I feel it to be my duty to bring impressively to your attention information more recently received by me from the United States consul-general at Halifax, Nova Scotia, in relation to the seizure and continued detention of the American schooner David J. Adams, already referred to in my previous note, and the apparent disposition of the local officials to use the most extreme and technical reasons for interference with vessels not engaged in or intended for inshore fishing on that coast.
The report received by me yesterday evening alleges such action in relation to the vessel mentioned as renders it difficult to imagine it to be that orderly proceeding and “due process of law “so well known and customarily exercised in Great Britain and the United States, and which dignifies the two Governments, and gives to private rights of property and the liberty of the individual their essential safeguards.
By the information thus derived it would appear that after four several and distinct visitations by boats’ crews from the Lansdowne, in Annapolis Basin, Nova Scotia, the David J. Adams was summarily taken into custody by the Canadian steamer Lansdowne and carried out of the Province of Nova Scotia, across the Bay of Fundy, and into the port of St. John, New Brunswick, and without explanation or hearing, on the following Monday, May 10, taken back again by an armed crew to Digby, in Nova Scotia. That in Digby the paper alleged to be the legal precept for the capture and detention of the vessel was nailed to her mast in such manner as to prevent its contents being read, and the request of the captain of the David J. Adams and of the United States consul-general to be allowed to detach the writ from the mast for the purpose of learning its contents was positively refused by the provincial official in charge. Nor was the United States consul-general able to learn from the commander of the Lansdowne the nature of the complaint against the vessel, and his respectful application to that effect was fruitless.
In so extraordinary, confused, and irresponsible a condition of affairs, it is not possible to ascertain with that accuracy which is needful in matters of such grave importance the precise grounds for this harsh and peremptory arrest and detention of a vessel the property of citizens of a nation with whom relations of peace and amity were supposed to exist.
From the best information, however, which the United States consul-general was enabled to obtain after application to the prosecuting officials, he reports that the David J. Adams was seized and is now held (1) for alleged violation of the treaty of 1818; (2) for alleged violation of the act 59 Geo. III; (3) for alleged violation of the colonial act of Nova Scotia of 1868; and (4) for alleged violation of the act of 1870 and also that of 1883, both Canadian statutes.
Of these allegations there is but one which at present I press upon your immediate consideration, and that is the alleged infraction of the treaty of 1818.
I beg to recall to your attention the correspondence and action of those respectively charged with the administration and government of Great Britain and the United States in the year 1870, when the same international questions were under consideration and the status of law was not essentially different from what it is at present.
[Page 379]This correspondence discloses the intention of the Canadian authorities of that day to prevent encroachment upon their inshore fishing grounds, and their preparations in the way of a marine police force, very much as we now witness. The statutes of Great Britain and of her Canadian Provinces, which are now supposed to be invoked as authority for the action against the schooner David J. Adams, were then reported as the basis of their proceedings.
In his note of May 26, 1870, Mr. (afterwards Sir Edward) Thornton, the British minister at this capital, conveyed to Mr. Fish, then Secretary of State, copies of the orders of the royal Admiralty to Vice-Admiral Wellesley, in command of the naval forces “employed in maintaining order at the fisheries in the neighborhood of the coasts of Canada.”
All of these orders directed the protection of Canadian fishermen and cordial co-operation and concert with the United States force sent on the same service with respect to American fishermen in those waters. Great caution in the arrest of American vessels charged with violation of the Canadian fishing laws was scrupulously enjoined upon the British authorities, and the extreme importance of the commanding officers of ships selected to protect the fisheries exercising the utmost discretion in paying especial attention to Lord Granville’s observation, that no vessel should be seized unless it were evident, and could be clearly proved, that the offense of fishing had been committed, and the vessel captured within three miles of land.
This caution was still more explicitly announced when Mr. Thornton, on the 11th of June, 1870, wrote to Mr. Fish:
You are, however, quite right in not doubting that Admiral Wellesley, on the receipt of the later instructions addressed to him on the 5th ultimo, will have modified the directions to the officers under his command so that they may be in conformity with the views of the Admiralty. In confirmation of this I have since received a letter from Vice-Admiral Wellesley dated the 30th ultimo, informing me that he had received instructions to the effect that officers of Her Majesty’s ships employed in the protection of the fisheries should not seize any vessel unless it were evident, and could be clearly proved, that the offense of fishing had been committed and the vessel itself captured within three miles of land.
This understanding between the two Governments wisely and efficiently guarded against the manifest danger of intrusting the execution of powers so important and involving so high and delicate a discretion to any but wise and responsible officials, whose prudence and care should be commensurate with the magnitude and national importance of the interests involved. And I should fail in my duty if I did not endeavor to impress you with my sense of the absolute and instant necessity that now exists for a restriction of the seizure of American vessels charged with violations of the treaty of 1818 to the conditions announced by Sir Edward Thornton to this Government in June, 1870.
The charges of violating the local laws and commercial regulations of the ports of the British Provinces (to which I am desirous that due and full observance should be paid by citizens of the United States), I do not consider in this note, and I will only take this occasion to ask you to give me full information of the official action of the Canadian authorities in this regard, and what laws and regulations having the force of law, in relation to the protection of their inshore fisheries and preventing encroachments thereon, are now held by them to be in force.
But I trust you will join with me in realizing the urgent and essential importance of restricting all arrests of American fishing vessels for supposed or alleged violations of the convention of 1818 within the limitations and conditions laid down by the authorities of Great Britain in 1870, to wit: That no vessel shall be seized unless it is evident and can [Page 380] be dearly proved that the offense of fishing has been committed and the vessel itself captured within three miles of land.
In regard to the necessity for the instant imposition of such restrictions upon the arrest of vessels, you will, I believe, agree with me, and I will therefore ask you to procure such steps to be taken as shall cause such orders to be forthwith put in force under the authority of Her Majesty’s Government.
I have, &c.,