Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 6, 1886

[Inclosure 1 in Mr. Hardinge’s note of August 2, 1886.]

The Earl of Rosebery to Sir L. West.

Foreign Office, July 23, 1886.

Sir: I have received your dispatch No. 28 (treaty), of the 11th of May last, inclosing a copy of a note addressed to you by Mr. Bayard, in which, whilst expressly referring to the seizure by the Canadian authorities of the American fishing vessels Joseph Story and David J. Adams, he discusses at length the present position of the North American fisheries question.

I have also received a communication upon the same subject from the United States minister at this court, dated the 2d June last, which, although advancing arguments of a somewhat different character, is substantially addressed to the consideration of the same question.

I think it therefore desirable to reply to these two communications together in the present dispatch, of which I shall hand a copy to Mr. Phelps.

The matter is one involving the gravest interests of Canada; and, upon receipt of the communications above mentioned, I lost no time in requesting the secretary of state for the colonies to obtain from the Government of the Dominion an expression of their views thereon. I now inclose a copy of an approved report of the Canadian privy council, in which the case of Canada is so fully set forth that I think it would be desirable, as a preliminary step to the further discussion of the questions involved in this controversy, to communicate a copy of it to Mr. Bayard, as representing the views of the Dominion Government; and I have to request that, in so doing, you will state that Her Majesty’s Government will be glad to be favored with any observations which Mr. Bayard may desire to make thereon.

In regard to those portions of Mr. Phelps’s note of the 2d June, in which he calls in question the competence of the Canadian authorities under existing statutes, whether imperial or colonial, to effect seizures of United States fishing vessels under circumstances such as those which appear to have led to the capture of the David J. Adams, I have to observe that Her Majesty’s Government do not feel themselves at present in a position to discuss that question, which is now occupying the attention of the courts of law in the Dominion, and which may possibly form the subject of an appeal to the judicial committee of Her Majesty’s privy council in England.

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 the facts or the legality of the action taken by the colonial authorities.

I do not, therefore, conceive it to be at present necessary to make any specific reply to Mr. Bayard’s further notes of the 11th and 12th May and 1st, 2d, and 7th June last. But with regard to his note of the 20th’ May, relative to the seizure of the United States fishing vessel Jennie and Julia, I inclose for communication to Mr. Bayard a copy of a report from the Canadian minister of marine and fisheries dealing with this case.

[Page 396]

I cannot, however, close this dispatch without adding that Her Majesty’s Government entirely concur in that passage of the report of the Canadian privy council, in which it is observed that “if the provisions of the convention of 1818 have become inconvient to either contracting party, the utmost that good-will and fair dealing can suggest is that the terms shall be reconsidered.”

It is assuredly from no fault on the part of Her Majesty’s Government that the question has now been relegated to the terms of the convention of 1818. They have not ceased to express their anxiety to commence negotiations, and they are now prepared to enter upon a frank and friendly consideration of the whole question with the most earnest desire to arrive at a settlement consonant alike with the rights and interests of Canada and of the United States.

Where, as in the present case, conflicting interests are brought into antagonism by treaty stipulations the strict interpretation of which has scarcely been called in question, the matter appears to Her Majesty’s Government to be pre-eminently one for friendly negotiation.

I am, &c.

[Inclosure 1 in Earl Rosebery’s instruction of July 23, 1886.]

Report of a committee of the honorable the privy council for Canada, approved by his excellency the governor-general on the 14th June, 1886.

The committee of the privy council have had under consideration a report from the minister of marine and fisheries upon the communications dated 10th and 20th May last from the Hon. Mr. Bayard, Secretary of State of the United States, to Her Majesty’s minister at Washington, in reference to the seizure of the American fishing-vessel David J. Adams.

The committee concur in the annexed report, and they advise that your excellency be moved to transmit a copy thereof to the Eight Hon. the Secretary of State for the Colonies.

All of which is respectfully submitted for your excellency’s approval.

JOHN J. McGEE,
Clerk, Privy Council, Canada.

The undersigned having had his attention called by your excellency to a communication from Mr. Bayard, Secretary of State of the United States, dated the 10th May, and addressed to Her Majesty’s minister at Washington, and to a further communication from Mr. Bayard, dated the 20th May instant, in reference to the seizure of the American fishing vessel David J. Adams, begs leave to submit the following observations thereon:

Your excellences Government fully appreciates and reciprocates Mr. Bayard’s desire that the administration of the laws regulating the commercial interests and the mercantile marine of the two countries might be such as to promote good feeling and mutual advantage.

Canada has given many indisputable proofs of an earnest desire to cultivate and extend her commercial relations with the United States, and it may not be without advantage to recapitulate some of those proofs.

For many years before 1854 the maritime provinces of British North America had complained to Her Majesty’s Government of the continuous invasion of their inshore fisheries (sometimes accompanied, it was alleged, with violence) by American fishermen and fishing vessels.

Much irritation naturally ensued, and it was felt to be expedient by both Governments to put an end to this unseemly state of things by treaty, and at the same time to arrange for enlarged trade relations between the United States and the British North American colonies. The reciprocity treaty of 1854 was the result, by which were not only our inshore fisheries opened to the Americans, but provision was made for the free interchange of the principal natural products of both countries, including those of the sea. Peace was preserved on our waters, and the volume of international trade steadily increased during the existence of this treaty, and until it was terminated in 1866, not by Great Britain, but by the United States.

In the following year Canada (then become a dominion and united to Nova Scotia and New Brunswick) was thrown back on the convention of 1818, and obliged to fit out a marine police to enforce the laws and defend her rights, still desiring, however, to cultivate friendly relations with her great neighbor, and not too suddenly to deprive the American fishermen of their accustomed fishing grounds and means of livelihood. She readily acquiesced in the proposal of Her Majesty’s Government for the temporary [Page 397] issue of annual licenses to fish on payment of a moderate fee. Your excellency is aware of the failure of that scheme. A few licenses were issued at first, hut the applications for them soon ceased, and the American fishermen persisted in forcing themselves into our waters “without leave or license.”

Then came the recurrence, in an aggravated form, of all the troubles which had occurred anterior to the reciprocity treaty. There were invasions of our waters, personal conflicts between our fishermen and American crews, the destruction of nets, the seizure and condemnation of vessels, and intense consequent irritation on both sides.

This was happily put an end to by the Washington treaty of 1871. In the interval between the termination of the first treaty and the ratification of that by which it was eventually replaced, Canada on several occasions pressed, without success, through the British minister at Washington, for a renewal of the reciprocity treaty or for the negotiation of another on a still wider basis.

When in 1874 Sir Edward Thornton, then British minister at Washington, and the late Hon. George Brown, of Toronto, were appointed joint plenipotentiaries for the purpose of negotiating and concluding a treaty relating to fisheries, commerce, and navigation, a provisional treaty was arranged by them with the United States Government, but the Senate decided that it was not expedient to ratify it, and the negotiation fell to the ground.

The treaty of Washington, while it failed to restore the provisions of the treaty of 1854, for reciprocal free trade (except in fish), at least kept the peace, and there was tranquillity along our shores until July, 1885, when it was terminated again by the United States Government and not by Great Britain.

With a desire to show that she wished to be a good neighbor, and in order to prevent loss and disappointment on the part of the United States fishermen by their sudden exclusion from her waters in the middle of the fishing season, Canada continued to allow them, for six months, all the advantages which the rescinded fishery clauses had previously given them, although her people received from the United States none of the corresponding advantages which the treaty of 1871 had declared to be an equivalent for the benefits secured thereby to the American fishermen.

The President, in return for this courtesy, promised to recommend to Congress the appointment of a joint commission of the two Governments of the United Kingdom and the United States to consider the fishery question, with permission also to consider the whole state of trade relations between the United States and Canada.

This promise was fulfilled by the President, but the Senate rejected his recommendation and refused to sanction the commission.

Under these circumstances Canada, having exhausted every effort to procure an amicable arrangement, has been driven again to fall back upon the convention of 1818, the provisions of which she is now enforcing and will enforce, in no punitive or hostile, spirit as Mr. Bayard supposes, but solely in protection of her fisheries, and in vindication of the right secured to her by treaty.

M r. Bayard suggests “that the treaty of 1818 was between two nations—the United States of America and Great Britain—who, as the contracting parties, can alone apply authoritative interpretation thereto, and enforce its provisions by appropriate legislation.”

As it may be inferred from this statement that the right of the Parliament of Canada to make enactments for the protection of the fisheries of the Dominion, and the power of the Canadian officers to protect those fisheries, are questioned, it may be well to state at the outset the grounds upon which it is conceived by the undersigned that the jurisdiction in question is clear beyond a doubt.

1. In the first place the undersigned would ask it to be remembered that the extent of the jurisdiction of the Parliament of Canada is not limited (nor was that of the Provinces before the union) to the sea-coast, but extends for three marine miles from the shore as to all matters over which any legislative authority can in any country be exercised within that space. The legislation which has been adopted on this subject by the Parliament of Cauada (and previously to confederation by the Provinces) does not reach beyond that limit. It may be assumed that, in the absence of any treaty stipulation to the contrary, this right is so well recognized and established by both British and American law, that the grounds on which it is supported need not be stated here at large. The undersigned will merely add, therefore, to this statement of the position, that so far from the right being limited by the convention of 1818 that convention expressly recognizes it.

After renouncing the liberty to “take, cure, or dry fish on or within three marine miles of any of the coasts, bays, creeks, or harbors of His Majesty’s dominions in America,” there is a stipulatioa that while American fishing vessels shall be admitted to, enter such bays, &c., “for the purpose of shelter and of repairing damages therein, of purchasing wood, and of obtaining water, they shall be under such restrictions as may be necessary to prevent their taking, curing, or drying fish therein, or in any other manner whatever abusing the privileges reserved to them.”

[Page 398]

2. Appropriate legislation on this subject was, in the first instance, adopted by the Parliament of the United Kingdom. The imperial statute 59 Geo. III, cap. 38, was enacted in the year following the convention, in order to give that convention force and effect. That statute declared that, except for the purposes before specified, it should “not be lawful for any person or persons, not being a natural-born subject of His Majesty, in any foreign ship, vessel, or boat, nor for any person in any ship, vessel, or boat, other than such as shall be navigated according to the laws of the United Kingdom of Great Britain and Ireland, to fish for, or to take, dry, or cure any fish of any Kind whatever within three marine miles of any coasts, bays, creeks, or harbors whatever, in any part of His Majesty’s dominions in America, not included within the limits specified and described in the first article of the said convention, and that if such foreign ship, vessel, or boat, or any person or persons on board thereof shall be found fishing, or to have been fishing, or preparing to fish within such distance of such coasts, bays, creeks, or harbors within such parts of His Majesty’s dominions in America, out of the said limits as aforesaid, all such ships, vessels, and boats, together with their cargoes, and all guns, ammunition, tackle, apparel, furniture, and stores, shall be forfeited, and shall and may be seized, taken, sued for, prosecuted, recovered, and condemned by such and the like ways, means, and methods, and in the same courts as ships, vessels, or boats may be forfeited, seized, prosecuted, and condemned for any offense against any laws relating to the revenue of customs, or the laws of trade and navigation, under any act or acts of the Parliament of Great Britain or the United Kingdom of Great Britain and Ireland, provided that nothing contained in this act shall apply or be construed to apply to the ships or subjects of any prince, power, or state in amity with His Majesty who are entitled by treaty with His Majesty to any privileges of taking, drying, or curing fish on the coasts, bays, creeks, or harbors or within the limits in this act described. Provided always, that it shall and may be lawful for any fishermen of the said United States to enter into any such bays or harbors of His Britannic Majesty’s dominions in America as are last mentioned, for the purpose of shelter and repairing damages therein, of purchasing wood, and of obtaining water, and for no other purpose whatever, subject nevertheless to such restrictions as may be necessary to prevent such fishermen of the said United States from taking, drying, or curing fish in the said bays or harbors, or in any other manner whatever, abusing the said privileges by the said treaty and this act reserved to them, and as shall, for that purpose, be imposed by any order or orders to be from time to time made by His Majesty in council under the authority of this act, and by any regulations which shall be issued by the governor or person exercising the office of governor in any such parts of His Majesty’s dominions in America, under or in pursuance of any such order in council as aforesaid. And that if any person or persons upon requisition made by the governor of New-foundland, or the person exercising the office of governor, or by any governor in per son exercising the office of governor in any other parts of His Majesty’s dominions in America, as aforesaid, or by any officer or officers acting under such governor or person exercising the office of governor, in the execution of any orders or instructions from His Majesty in council, shall refuse to depart from such bays or harbors, or if any person or persons shall refuse, or neglect, to conform to any regulations or directions which shall be made or given for the execution of any of the purposes of this act, every such person so refusing or otherwise offending against this act shall forfeit the sum of two hundred pounds, to be recovered in the superior court of judicature of the island of Newfoundland, or in the superior court of judicature of the colony or settlement within or near to which such offense shall be committed, or by bill, plaint, or information in any of His Majesty’s courts of record at Westminster, one moiety of such penalty to belong to His Majesty, his heirs, and successors, and the other moiety to such person or persons as shall sue or prosecute for the same.”

The acts passed by the Provinces now forming Canada, and also by the Parliament of Canada (now noted in the margin)* are to the same effect, and may be said to be merely declaratory of the law as established by the imperial statute.

3. The authority of the legislatures of the Provinces, and, after confederation, the authority of the Parliament of Canada, to make enactments to enforce the provisions of the convention, as well as the authority of Canadian officers to enforce those acts, rests on well-known constitutional principles.

Those legislatures existed, and the Parliament of Canada now exists, by the authority of the Parliament of the United Kingdom of Great Britain and Ireland, which is one of the nations referred to by Mr. Bayard as the “contracting parties.” The colonial statutes have received the sanction of the British sovereign, 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 [Page 399] Queen, or from her representative, the governor-general. The jurisdiction thus exercised cannot, therefore, he properly described in the language used by Mr. Bayard as supposed and therefore questionable delegation of jurisdiction by the Imperial Government of Great Britain. Her Majesty governs in Canada as well as in Great Britain; the officers of Canada are her officers; the statutes of Canada are her statutes, passed on the advice of her Parliament sitting in Canada.

It is, therefore, an error to conceive that because the United States and Great Britain were, in the first instance, the contracting parties to the treaty of 1818, no question arising under that treaty can be “responsibly dealt with,” either by the Parliament or by the authorities of the Dominion.

The raising of this objection now is the more remarkable, as the Government of the United States has long been aware of the necessity of reference to the colonial legislatures in matters affecting their interests.

The treaties of 1854 and 1871 expressly provide that, so far as they concerned the fisheries or trade relations with the provinces, they should be subject to ratification by their several legislatures; and seizures of American vessels and goods, followed by condemnation for breach of the provincial customs laws, have been made for forty years without protest or objection on the part of the United States Government.

The undersigned, with regard to this contention of Mr. Bayard, has further to observe that in the proceedings which have recently been taken for the protection of the fisheries, no attempt has been made to put any special or novel interpretation on the, convention of 1818. The seizures of the fishing vessels have been made in order to enforce the explicit provisions of that treaty, the clear and long established provisions of the imperial statute and of the statutes of Canada expressed in almost the same language.

The proceedings which have been taken to carry out the law of the Empire in the present case are the same as those which have been taken from time to time during the period in which the convention has been in force, and the seizures of vessels have been made under process of the imperial court of vice-admiralty established in the provinces of Canada.

Mr. Bayard further observes that since the treaty of 1818, “a series of laws and regulations affecting the trade between the North American provinces and the United States have been respectively adopted by the two countries, and have led to amicable and mutually beneficial relations between their respective inhabitants,” and that “the independent and yet concurrent action of the two Governments has effected a gradual extension from time to time of the provisions of article 1 of the convention of the 3d of July, 1815, providing for reciprocal liberty of commerce between the United States and the territories of Great Britain in Europe, so as gradually to include the colonial possessions of Great Britain in North America and the West Indies within the limits of that treaty.”

The undersigned has not been able to discover, in the instances given by Mr. Bayard, any evidence that the laws and regulations affecting the trade between the British North American Provinces and the United States, or that “the independent and yet concurrent action of the two Governments” have either extended or restricted the terms of the convention of 1818, or affected in any way the right to enforce its provisions according to the plain meaning; of the articles of the treaty; on the contrary, a reference to the eighteenth article of the Washington treaty will show that the contracting parties made the convention the basis of the further privileges granted by the treaty, and it does not allege that its provisions are in any way extended or affected by subsequent legislation or acts of administration.

Mr. Bayard has referred to the proclamation of President Jackson in 1830, creating “reciprocal commercial intercourse on terms of perfect equality of flag” between the United States and the British American dependencies, and has suggested that these “commercial privileges have since received a large extension, and that in some cases ‘favors’ have been granted by the United States without equivalent ‘concession,’ such as the exemption granted by the shipping act of the 26th June, 1884, amounting to one-half of the regular tonnage dues on all vessels from British North America and West Indies entering ports of the United States.”

He has also mentioned under this head “the arrangement for the transit of goods, and the remission by proclamation as to certain British ports and places of the remainder of the tonnage tax on evidence of equal treatment being shown” to United States vessels.

The proclamation of President Jackson in 1830 had no relation to the subject of the fisheries, and merely had the effect of opening United States ports to British vessels on terms similar to those which had already been granted in British ports to vessels of the United States. The object of these “laws and regulations “mentioned by Mr. Bayard was purely of a commercial character, while the sole purpose of the convention of 1818 was to establish and define the rights of the citizens of the two countries in relation to the fisheries on the British North American coast.

[Page 400]

Bearing this distinction in mind, however, it may be conceded that substantial assistance has been given to the development of commercial intercourse between the two countries.

But legislation in that direction has not been confined to the Government of the United States, as indeed Mr. Bayard has admitted in referring to the case of the imperial shipping and navigation act of 1849.

For upwards of forty years, as has already been stated, Canada has continued to evince her desire for a free exchange of the chief products of the two countries. She has repeatedly urged the desirability of the fuller reciprocity of trade which was established during the period in which the treaty of 1854 was in force.

The laws of Canada with regard to the registry of vessels, tonnage dues, and shipping generally, are more liberal than those of the United States. The ports of Canada in inland waters are free to vessels of the United States, which are admitted to the use of her canals on equal terms with Canadian vessels.

Canada allows free registry to ships built in the United States and purchased by British citizens, charges no tonnage or light dues on United States shipping, and extends a standing invitation for a large measure of reciprocity in trade by her tariff legislation.

Whatever relevancy, therefore, the argument may have to the subject under consideration, the undersigned submits that the concessions which Mr. Bayard refers to as “favors” granted by United States can hardly be said not to have been met by equivalent concessions on the part of the Dominion, and inasmuch as the disposition of Canada continues to be the same, as was evinced in the friendly legislation just referred to, it would seem that Mr. Bayard’s charges of showing hostility to commerce under the guise of protection to inshore fisheries,” or of interrupting ordinary commercial intercourse by harsh measures and unfriendly administration, is hardly justified.

The questions which were in controversy between Great Britain and the United States prior to 1818 related not to shipping and commerce, but to the claims of United States fishermen to fish in waters adjacent to the British North American Provinces.

Those questions were definitely settled by the convention of that year, and although the terms of that convention have since been twice suspended, first by the treaty of 1854, and subsequently by that of 1871, after the lapse of each of these two treaties the provisions made in 1818 came again into operation, and were carried out by the Imperial and colonial authorities without the slightest doubt being raised as to their being in full force and vigor.

Mr. Bayard’s contention that the effect of the legislation which has taken place under the convention of 1818, and of executive action thereunder, would be “to expand the restrictions and renunciations of that treaty which related solely to the inshore fishing within the three-mile limit, so as to affect the deep-sea fisheries,” and “to diminish and practically destroy the privileges expressly secured to American fishing vessels to visit these inshore waters for the objects of shelter and repair of damages, and purchasing wood and obtaining water,” appears to the undersigned to be unfounded. The legislation referred to in no way affects those privileges, nor has the Government of Canada taken any action towards their restriction. In the cases of the recent seizures, which are the immediate subject of Mr. Bayard’s letter, the vessels seized had not resorted to Canadian waters for any one of the purposes specified in the convention of 1818 as lawful. They were United States fishing vessels, and, against the plain terms of the convention, had entered Canadian harbors. In doing so the David J. Adams was not even possessed of a permit “to touch and trade,” even if such a document could be supposed to divest her of the character of a fishing vessel.

The undersigned is of opinion that while, for the reasons which he has advanced, there is no evidence to show that the Government of Canada has sought to expand the scope of the convention of 1818 or to increase the extent of its restrictions, it would not be difficulty to prove that the construction which the United States seeks to place on that convention would have the effect of extending very largely the privileges which their citizens enjoy under its terms. The contention that the changes which may from time to time occur in the habits of the fish taken off our coasts, or in the methods of taking them, should be regarded as justifying a periodical revision of the terms of the treaty, or a new interpretation of its provisions, cannot be acceded to. Such changes may from time to time render the conditions of the contract inconvenient to one party or the other, but the validity of the agreement can hardly be said to depend on the convenience or inconvenience which it imposes from time to time on one or other of the contracting parties. When the operation of its provisions can be shown to have become manifestly inequitable, the utmost that good-will and fair dealing can suggest is that the terms should be reconsidered and a new arrangement entered into; but this the Government of the United States does not appear to have considered desirable.

[Page 401]

It is not, however, the case that the convention of 1818 affected only the inshore fisheries of the British Provinces; it was framed with the object of affording a complete and exclusive definition of the rights and liberties which the fishermen of the United States were thenceforward to enjoy in following their vocation, so far as those rights could be affected by facilities for access to the shores or waters of the British Provinces, or for intercourse with their people. It is therefore no undue expansion of the scope of that convention to interpret strictly those of its provisions by which such access is denied, except to vessels requiring it for the purposes specifically described.

Such an undue expansion would, upon the other hand, certainly take place if, under cover of its provisions, or of any agreements relating to general commercial intercourse which may have since been made, permission were accorded to United States fishermen to resort habitually to the harbors of the Dominion, not for the sake of seeking safety for their vessels or of avoiding risk to human life, but in order to use those harbors as a general base of operations from which to prosecute and organize with greater advantage to themselves the industry in which they are engaged.

It was in order to guard against such an abuse of the provisions of the treaty that amongst them was included the stipulation that not only should the inshore fisheries be reserved to British fishermen, but that the United States should renounce the right of their fishermen to enter the bays or harbors excepting for the four specified purposes, which do not include the purchase of bait or other appliances, whether intended for the deep-sea fisheries or not.

The undersigned, therefore, cannot concur in Mr. Bayard’s contention that “to prevent the purchase of bait, or any other supply needed for deep-sea fishing, would be to expand the convention to objects wholly beyond the purview, scope, and intent of the treaty, and to give to it an effect never contemplated.”

Mr. Bayard suggests that the possession by a fishing vessel of a permit to “touch and trade” should give her a right to enter Canadian ports for other than the purposes named in the treaty, or, in other words, should give her perfect immunity from its provisions. This would amount to a practical repeal of the treaty, because it would enable a United States collector of customs, by issuing a license, originally only intended for purposes of domestic customs regulation, to give exemption from the treaty to every United States fishing vessel. The observation that similar vessels under the British flag have the right to enter the ports of the United States for the purchase of supplies loses its force when it is remembered that the convention of 1818 contained no restriction on British vessels, and no renunciation of any privileges in regard to them.

Mr. Bayard states that in the proceedings prior to the treaty of 1818 the British commissioners proposed that United States fishing vessels should be excluded “from-carrying also merchandise,” but that this proposition “being resisted by the American negotiators, was abandoned,” and goes on to say, “this fact would seem clearly to indicate that the business of fishing did not then, and does not now, disqualify vessels from also trading in the regular ports of entry.” A reference to the proceedings alluded to will show that the proposition mentioned related only to United States vessels visiting those portions of the coast of Labrador and Newfoundland on which the United States fishermen had been granted the right to fish, and to land for drying and curing fish, and the rejection of the proposal can, at the utmost, be supposed only to indicate that the liberty to carry merchandise might exist without objection in relation to those coasts, and is no ground for supposing that the right extends to the regular ports of entry, against the express words of the treaty.

The proposition of the British negotiators was to append to Article I the following words: It is, therefore, well understood that the liberty of taking, drying, and curing fish, granted in the preceding part of this article, shall not be construed to extend to any privilege of carrying on trade with any of his Britannic Majesty’s subjects residing within the limits hereinbefore assigned for the use of the fishermen of the United States.”

It was also proposed to limit them to having on board such goods as might “be necessary for the prosecution of the fishery or the support of the fishermen while engaged therein, or in the prosecution of their voyages to and from the fishing grounds.”

To this the American negotiators objected, on the ground that the search for contraband goods, and the liability to seizure for having them in possession, would expose the fishermen to endless vexation, and, in consequence, the proposal was abandoned. It is apparent, therefore, that this proviso in no way referred to the bays or harbors outside of the limits assigned to the American fishermen, from which bays and harbors it was agreed, both before and after this proposition was discussed, that United States fishing vessels were to be excluded for all purposes other than for shelter and repairs, and purchasing wood and obtaining water.

If, however, weight is to be given to Mr. Bayard’s argument that the rejection of a proposition advanced by either side during the course of the negotiations should be held to necessitate an interpretation adverse to the tenor of such proposition, that [Page 402] argument, may certainly be used to prove that American fishing vessels were not intended to have the right to enter Canadian waters for bait to be used even in the prosecution of the deep-sea fisheries. The United States negotiators in 1818 made the proposition that the the words “and bait” be added to the enumeration of the objects for which these fishermen might be allowed to enter, and the proviso as first submitted had read “provided, however, that American fishermen shall be permitted to enter such bays and harbors for the purpose only of obtaining shelter, wood, water, and bait.” The addition of the two last words was, however, resisted by the British plenipotentiaries, and their omission acquiesced in by their American colleagues. It is, moreover, to be observed that this proposition could only have had reference to the deep-sea fishing, because the inshore fisheries had already been specifically renounced by the representatives of the United States.

In addition to this evidence, it must be remembered that the United States Government admitted, in the case submitted by them before the Halifax commission in 1877, that neither the convention of 1818 nor the treaty of Washington conferred any right or privilege of trading on American fishermen. The British case claimed compensation for the privilege which had been given since the ratification of the latter treaty to United States fishing vessels “to transfer cargoes, to outfit vessels, by supplies, obtain ice, engage sailors, procure bait, and traffic generally in British ports and harbors.”

This claim was, however, successfully resisted, and in the United States case it is maintained “that the various incidental and reciprocal advantages of the treaty, such as the privileges of traffic, purchasing bait and other supplies, are not the subject of compensation, because the treaty of Washington confers no such rights on the inhabitants of the United States, who now enjoy them merely by sufferance, and who can at any time be deprived of them by the enforcement of existing laws or the re-enactment of former oppressive statutes. Moreover, the treaty does not provide for any possible compensation for such privileges.”

Now, the existing laws referred to in this extract are the various statutes passed by the imperial and colonial legislatures to give effect to the treaty of 1818, which, it is admitted in the said case, could at any time have been enforced (even during the existence of the Washington treaty), if the Canadian authorities had chosen to do so.

Mr. Bayard on more than one occasion intimates that the interpretation of the treaty and its enforcement are dictated by local and hostile feelings, and that the main question is being “obscured by partisan advocacy and distorted by the heat of local interests,” and, in conclusion, expresses a hope that “ordinary commercial intercourse shall not be interrupted by harsh measures and unfriendly administrations.”

The undersigned desires emphatically to state that it is not the wish of the Government or the people of Canada to interrupt for a moment the most friendly and free commercial intercourse with the neighboring Republic.

The mercantile vessels and the commerce of the United States have at present exactly the same freedom that they have for years passed enjoyed in Canada, and the disposition of the Canadian Government is to extend reciprocal trade with the United States beyond its present limits, nor can it be admitted that the charge of local prejudice or hostile feeling is justified by the calm enforcement, through the legal tribunals of the country, of the plain terms of a treaty between Great Britain and the United States, and of the statutes which have been in operation for nearly seventy years, excepting in intervals during which (until put an end to by the United States Government) special and more liberal provisions existed in relation to the commerce and fisheries of the two countries.

The undersigned has further to call attention to the letter of Mr. Bayard of the 20th May, relating also to the seizure of the David J. Adams in the port of Digby, Nova Scotia.

That vessel was seized, as has been explained on a previous occasion, by the commander of the Canadian steamer Lansdowne, under the following circumstances:

She was a United States fishing vessel, and entered the harbor of Digby for purposes other than those for which entry is permitted by the treaty and by the imperial and Canadian statutes.

As soon as practicable, legal process was obtained from the vice-admiralty court at Halifax, and the vessel was delivered to the officer of that court. The paper referred to in Mr. Bayard’s letter as having been nailed to her mast was doubtless a copy of the warrant which commanded the marshal or his deputy to make the arrest.

The undersigned is informed that there was no intention whatever of so adjusting the paper that its contents could not be read, but it is doubtless correct that the officer of the court in charge declined to allow the document to be removed. Both the United States consul-general and the captain of the David J. Adams were made acquainted with the reasons for the seizure, and the only ground for the statement that a respectful application to ascertain the nature of the complaint was fruitless, was that the commander of the Lansdowne, after the nature of the complaint had been [Page 403] stated to those concerned and was published, and had become notorious to the people of both countries, declined to give the United States consul-general a specific and precise statement of the charges upon which the vessel would be proceeded against, but referred him to his superior.

Such conduct on the part of the officer of the Lansdowne can hardly be said to have been extraordinary under the present circumstances.

The legal proceedings had at that time been commenced in the court of vice-admiralty at Halifax, where the United States consul-general resides, and the officer at Digby could not have stated with precision as he was called upon to do, the grounds on which the intervention of the court had been claimed in the proceedings therein.

There was not, in this instance, the slightest difficulty in the United States consul-general and those interested in the vessel obtaining the fullest information, and no information which could have been given by those to whom they applied was withheld.

Apart from the general knowledge of the offenses which it was claimed the master had committed, and which was furnished at the time of the seizure, the most technical and precise details were readily obtainable at the registry of the court, and from the solicitors of the crown, and would have been furnished immediately on application to the authority to whom the commander of the Lansdowne requested the United States consul-general to apply. No such information could have been obtained from the paper attached to the vessel’s mast.

Instructions have, however, been given to the commander of the Lansdowne and other officers of the marine police, that, in the event of any further seizure, a statement in writing shall be given to the master of the seized vessel of the offenses for which the vessel may be detained, and that a copy thereof shall be sent to the United States consul-general at Halifax, and to the nearest United States consular agent, and there can be no objection to the solicitor for the crown being instructed likewise to furnish the consul-general with a copy of the legal process in each case, if it can be supposed that any fuller information will thereby be given.

Mr. Bayard is correct in his statement of the reasons for which the David J. Adams was seized, and is now held. It is claimed that the vessel violated the treaty of 1818, and consequently the statutes which exist for the enforcement of the treaty, and it is also claimed that she violated the customs laws of Canada of 1883.

The undersigned recommends that copies of those statutes be furnished for the information of Mr. Bayard.

Mr. Bayard has, in the same dispatch, recalled the attention of Her Majesty’s minister to the correspondence and action which took place in the year 1870, when the fishery question was under consideration, and especially to the instructions from the lords of the admiralty to Vice-Admiral Wellesley, in which that officer was directed to observe great caution in the arrest of American fishermen, and to confine his action to one class of offenses against the treaty. Mr. Bayard, however, appears to have attached unwarranted importance to the correspondence and instructions of 1870, when he refers to them as implying “an understanding between the two Governments,” an understanding, which should, in his opinion, at other times, and under other circumstances, govern the conduct of the authorities, whether imperial or colonial, to whom under the laws of the Empire is committed the duty of enforcing the treaty in question.

When, therefore, Mr. Bayard points out 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 specified under those instructions, it is necessary to recall the fact that in the year 1870 the principal cause of complaint on the part of Canadian fishermen was that the American vessels were trespassing on the inshore fishing grounds and interfering with the catch of mackerel in Canadian waters, the purchase of bait being then a matter of secondary importance.

It is probable, too, that the action of the imperial Government was influenced very largely by the prospect which then existed of an arrangement such as was accomplished in the following year by the treaty of Washington, and that it may be inferred, in view of this disposition made apparent on both sides to arrive at such an understanding, that the imperial authorities, without any surrender of imperial or colonial rights, and without acquiescing in any limited construction of the treaty, instructed the vice-admiral to confine his seizures to the more open and injurious class of offenses which were especially likely to be brought within the cognizance of tin-naval officers of the imperial service.

The Canadian Government, as has been already stated, for six month left its fishing grounds open to American fishermen, without any corresponding advantage in return, in order to prevent loss to those fishermen, and to afford time for the action of Congress, on the President’s recommendation that a joint commission should be appointed to consider the whole question relating to the fisheries.

[Page 404]

That recommendation has been rejected by Congress. Canadian fish is by prohibitory duties excluded from the United States market. The American fishermen clamor against the removal of those duties, and, in order to maintain a monopoly of the trade, continue against all law to force themselves into our waters and harbors, and make our shores their base for supplies, especially for bait, which is necessary to the successful prosecution of their business.

They hope by this course to supply the demand for their home market, and thus to make Canada indirectly the means of injuring her own trade.

It is surely, therefore, not unreasonable that Canada should insist on the rights secured to her by treaty. She is simply acting on the defensive, and no trouble can arise between the two countries if American fishermen will only recognize the provisions of the convention of 1818 as obligatory upon them, and until a new arrangement is made, abstain both from fishing in her waters and from visiting her bays and harbors for any purpose save those specified in the treaty.

In conclusion, the undersigned would express the hope that the discussion which has arisen on this question may lead to renewed negotiations between Great Britain and the United States, and may have the result of establishing extended trade relations between the Republic and Canada, and of removing all sources of irritation between the two countries.

GEORGE E. FOSTER,
Minister of Marine and Fisheries.

[Inclosure 2 in Earl Rosebery’s instruction of July 23, 1886.]

Report.

With reference to a dispatch from the British minister at Washington, to his excellency the governor-general, dated the 21st May last, and inclosing a letter from Mr. Secretary Bayard, regarding the refusal of the collector of customs at Digby, Nova Scotia, to allow the United States schooner Jennie and Julia the right of exercising commercial privileges at the said port, the undersigned has the honor to make the following observations:

It appears the Jennie and Julia is a vessel of about 14 tons register, that she was to all intents and purposes a fishing-vessel, and, at the time of her entry into the port of Digby, had fishing gear and apparatus on board, and that the collector fully satisfied himself of these facts. According to the master’s declaration, she was there to purchase fresh herring only, and wished to get them direct from the weir fishermen. The collector acted upon his conviction that she was a fishing vessel, and, as such, debarred by the treaty of 1818 from entering Canadian ports for the purposes of trade. He, therefore, in the exercise of his plain duty, warned her off.

The treaty of 1818 is explicit in its terms, and by it United States fishing vessels are allowed to enter Canadian ports for shelter, repairs, wood, and water, and “for no other purpose whatever.”

The undersigned is of the opinion that it cannot be successfully contended that a bona fide fishing vessel can, by simply declaring her intention of purchasing fresh fish for other than baiting purposes, evade the provisions of the treaty of 1818 and obtain privileges not contemplated thereby. If that were admitted, the provision of the treaty which excludes United States fishing vessels for all purposes but the four above mentioned, would be rendered null and void, and the whole United States fishing fleet be at once lifted out of the category of fishing vessels, and allowed the free use of Canadian ports for baiting, obtaining supplies, and trans-shipping cargoes.

It appears to the undersigned that the question as to whether a vessel is a fishing vessel or a legitimate trader or merchant vessel, is one of fact and to be decided by the character of the vessel and the nature of her outfit, and that the class to which she belongs is not to be determined by the simple declaration of her master that he is not at any given time acting in the character of a fisherman.

At the same time the undersigned begs again to observe that Canada has no desire to interrupt the long-established and legitimate commercial intercourse with the United States, but rather to encourage and maintain it, and that Canadian ports are at present open to the whole merchant navy of the United States on the same liberal conditions as heretofore accorded.

The whole respectfully submitted.

GEORGE E. FOSTER,
Minister of Marine and Fisheries.

Ottawa, June 5, 1886.

[Inclosure 2 in Mr. Hardinge’s note of August 2, 1886.]

The Earl of Rosebery to Sir L. West.

Foreign Office, July 23, 1886.

Sir: I have to acknowledge the receipt of your dispatch No. 46 (treaty), of the 30th May last, inclosing a copy of a note from Mr. Bayard, in which he protests against the provisions of a hill recently introduced into the Canadian Parliament for the purpose of regulating fishing operations by foreign vessels in Canadian waters.

In reply I inclose an extract of a dispatch from the governor-general of Canada, containing observations on the subject.

I have to add that Her Majesty’s Government entirely concur in the views expressed by the Marquis of Lansdowne in this extract, of which you will communicate a copy to Mr. Bayard, together with a copy of the present dispatch.

With regard to Mr. Bayard’s observations in the same note respecting a customs circular and a warning issued by the Canadian authorities, and dated respectively the 7th May and the 5th March last, I have to acquaint you that these documents have now been amended so as to bring them into exact accordance with treaty stipulations; and I inclose, for communication to the United States Government, printed copies of these documents as amended.

I am, &c.

[Inclosure 1 in Earl Rosebery’s second instruction of July 23, 1886.]

The Marquis of Lansdowne to Earl Granville.

[Extract.]

Citadel, Quebec, June 7, 1886.

Her Majesty’s minister at Washington has been good enough to communicate to me, for my information, copy of a note received by him from the Secretary of State of the United States, in which the bill is criticised, not so much on account of its policy, or because its introduction is regarded as inopportune and inconvenient, as upon the ground that any legislation by the Parliament of the Dominion for the purpose of interpreting and giving effect to a contract entered into by the imperial Government is beyond the competence of that Parliament, and “an assumption of jurisdiction entirely unwarranted,” and therefore “wholly denied by the United States.”

Your lordship is no doubt aware that legislation of this kind has been frequently resorted to by the Parliament of the Dominion, for the purpose of enforcing treaties or conventions entered into by the imperial Government. In the present case the legislation proposed was introduced, not with the object of making a change in the terms of the convention of 1818, nor with the intention of representing as breaches of the convention any acts which are not now punishable as breaches of it. What the framers of the bill sought was merely to amend the procedure by which the convention is enforced, and to do this by attaching a particular penalty to a particular breach of the cenvention after that breach had been proved before a competent tribunal. It must be remembered that the convention itself is silent as to the procedure to be taken in enforcing it, and that effect has accordingly been given to its provisions at different times both through the means of acts passed, on the one side, by Congress, and, on the other, by the imperial Parliament, as well as by the legislatures of the British North American Provinces previous to confederation, and since confederation by the Parliament of the Dominion. The right of the Dominion Parliament to legislate for these purposes, and the validity of such legislation as against the citizens of a foreign country has, as far as I am aware, not been seriously called in question. Such legislation, unless it is disallowed by the imperial Government, becomes part of the law of the Empire.

The Government of the United States has long been aware of the necessity of reference to the Dominion Parliament in matters affecting Canadian interests, and has, I believe, never raised any objection to such reference. The treaties of 1854 and 1871, so far as they related to the fisheries or to the commercial relations of the Dominion, were made subject to ratification by her legislature. In the same way the treaty under which fugitive criminals from the United States into Canada are surrendered, is carried into effect by means of a Canadian statute. If a foreigner commits a murder in Canada he is tried, convicted, and executed by virtue of a Canadian and not of an imperial act of Parliament. Seizures of goods and vessels for breaches of the local customs law have in like manner been made for many years past without any protest on the ground that such laws involved an usurpation of power by the colony.

[Page 406]

Mr. Bayard’s statement that the Dominion Government is seeking by its action in this matter to “invade and destroy the commercial rights and privileges secured to citizens of the United States under and by virtue of treaty stipulations with Great Britain” is not warranted by the facts of the case. No attempt has been made either by the authorities intrusted with the enforcement of the existing law or by the Parliament of the Dominion to interfere with vessels engaged in bona fide commercial transactions upon the coast of the Dominion. The two vessels which have been seized are both of them beyond all question fishing vessels and not traders, and therefore liable, subject to the finding of the courts, to any penalties imposed by law for the enforcement of the convention of 1818 on parties violating the terms of that convention.

When, therefore, Mr. Bayard protests against all such proceedings as being “flagrantly violative of reciprocal commercial privileges to which citizens of the United States are lawfully entitled under statutes of Great Britain and the well-defined and publicly-proclaimed authority of both countries,” and when he denies the competence of the fishery department to issue, under the convention of 1818, such a paper as the “warning,” dated the 5th March, 1886, of which a copy has been supplied to your lordship, he is in effect denying to the Dominion the right of taking any steps for the protection of its own rights secured under the convention referred to.

[Inclosure 2 in Earl Rosebery’s second instruction of July 23, 1886.]

Warning.

To all to whom it may concern:

The Government of the United States having by notice terminated Articles XVIII to XXV, both inclusive, and Article XXX, known as the fishery articles of the Washington Treaty, attention is called to the following provision of the convention between the United States and Great Britain, signed at London on the 20th October, 1818:

“Article I. Whereas differences have arisen respecting the liberty claimed by the United States, for the inhabitants thereof, to take, dry, and cure fish, on certain coasts, bays, harbors, and creeks of his Britannic Majesty’s dominions in America, it is agreed between the high contracing parties that the inhabitants of the said United States shall have forever, in common with the subjects of his Britannic Majesty, the liberty to take fish of every kind on that part of the southern coast of Newfoundland which extends from Cape Ray to the Rameau Islands, on the western and northern coast of Newfoundland, from the said Cape Ray to the Quirpon Islands, on the shores of the Magdalen Islands, and also on the coasts, bays, harbors, and creeks from Mount Joly, on the southern coast of Labrador, to and through the straits of Belle Isle, and thence northwardly indefinitely along the coast, without prejudice, however, to any of the exclusive rights of the Hudson’s Bay Company; and that the American fishermen shall also have liberty forever to dry and cure fish in any of the unsettled bays, harbors, and creeks of the southern part of the coast of Newfoundland hereabove described, and of the coast of Labrador; but so soon as the same or any portion thereof, shall be settled, it shall not be lawful for the said fishermen to dry or cure fish at such portion so settled, without previous agreement, for such purpose, with the inhabitants, proprietors, or possessors of the ground.

“And the United States hereby renounce forever any liberty heretofore enjoyed or claimed by the inhabitants thereof, to take, dry, or cure fish on or within three marine miles of any of the coasts, bays, creeks, or harbors of his Britannic Majesty’s dominions in America not included within the above-mentioned limits; provided, however, that the American fishermen shall be admitted to enter such bays or harbors for the purpose of shelter, and of repairing damages therein, of purchasing wood, and of obtaining water, and for no other purpose whatever. But they shall be under such restrictions as may be necessary to prevent their taking, drying, or curing fish therein, or in any manner “whatever abusing the privileges hereby reserved to them.”

Attention is called to the following provisions of the act of Parliament of Canada, cap. 61, of the acts of 1868, entitled “An act respecting fishing by foreign vessels”:

“2. Any commissioned officer of Her Majesty’s navy, serving on board of any vessels of Her Majesty’s navy cruising and being in the waters of Canada for purpose of affording protection to Her Majesty’s subjects engaged in the fisheries, or any commissioned officer of Her Majesty’s navy, fishery officer, or stipendiary magistrate on board of any vessel belonging to or in the service of the Government of Canada, and employed in the service of protecting the fisheries, or any officer of the customs of Canada, sheriff, magistrate, or other person duly commissioned for that purpose, may go on board of any ship, vessel, or boat within any harbor in Canada, or hovering (in British waters) within three marine miles of any of the coasts, bays, creeks, or harbors [Page 407] in Canada, and stay on board so long as she may remain within such place or distance.
“3. If such ship, vessel, or boat be bound elsewhere, and shall continue within such harbor, or so hovering for twenty-four hours after the master shall have been required to depart, any one of such officers or persons as are above mentioned may bring such ship, vessel, or boat into port and search her cargo, and may also examine the master upon oath touching the cargo and voyage; and if the master or person in command shall not truly answer the questions put to him in such examination he shall forfeit $400; and if such ship, vessel, or boat be foreign, or not navigated according to the laws of the United Kingdom, or of Canada, and have been found fishing or preparing to fish, or to have been fishing (in British waters) within three marine miles of any of the coasts, bays, creeks, or harbors of Canada, not included within the above-mentioned limits, without a license, or after the expiration of the period named in the last license granted to such ship, vessel, or boat under the first section of this act, such ship, vessel, or boat, and the tackle, rigging, apparel, furniture, stores, and cargo thereof shall be forfeited.
“4. All goods, ships, vessels, and boats, and the tackle, rigging, apparel, furniture, stores and cargo liable to forfeiture under this act, may be seized and secured by any officers or persons mentioned in the second section of this act; and every person opposing any officer or person in the execution of his duty under this act, or aiding or abetting any other person in any opposition, shall forfeit $800, and shall be guilty of a misdemeanor, and upon conviction, be liable to imprisonment for a term not exceeding two years.”

Of all of which you will take notice and govern yourself accordingly.

GEORGE E. FOSTER,
Minister of Marine and Fisheries.

Department of Fisheries,
Ottawa, March 5, 1886.

[Inclosure 3 in Earl Rosebery’s second instruction of July 23, 1886.]

Customs circular No. 371.

Customs Department,
Ottawa, May 7, 1886.

Sir: The Government of the United States having by notice terminated Articles XVIII to XXV, both inclusive, and Article XXX, known as the fishery articles of the Washington treaty, attention is called to the following provision of the convention between the United States and Great Britain, signed at London on the 20th October, 1818:

“Article I. Whereas differences have arisen respecting the liberty claimed by the United States for the inhabitants thereof to take, dry, and cure fish on certain coasts, bays, harbors, and creeks of his Britannic Majesty’s dominions in America, it is agreed between the high contracting parties that the inhabitants of the said United States shall have forever, in common with the subjects of his Britannic Majesty, the liberty to take fish of every kind on that part of the southern coast of Newfoundland which extends from Cape Ray to the Rameau Islands, on the western and northern coast of Newfoundland, from the said Cape Ray to the Quirpon Islands, on the shores of the Magdalen Islands, and also on the coasts, bays, harbors, and creeks from Mount Joly, on the southern coast of Labrador, to and through the straits of Belle Isle, and thence northwardly indefinitely along the coast, without prejudice, however, to any of the exclusive rights of the Hudson’s Bay Company: and that the American fishermen shall also have liberty forever to dry and cure fish in any of the unsettled bays, harbors, and creeks of the southern part of the coast of Newfoundland, hereabove described, and of the coast of Labrador; but so soon as the same, or any portion thereof, shall be settled, it shall not be lawful for the said fishermen to dry or cure fish at such portion so settled, without previous agreement for such purpose with the inhabitants, proprietors, or possessors of the ground.

“And the United States hereby renounce forever any liberty heretofore enjoyed or claimed by the inhabitants thereof to take, dry, or cure fish on or within three marine miles of any of the coasts, bays, creeks, or harbors of His Britannic Majesty’s dominions in America not included within the above-mentioned limits; provided, however, that the American fishermen shall be admitted to enter such bays or harbors for the purpose of shelter, and of repairing damages therein, of purchasing wood, and of obtaining water, and for no other purpose whatever. But they shall be under such restrictions as may be necessary to prevent their taking, drying, or curing fish therein, or in any manner whatever abusing the privileges hereby reserved to them.”

[Page 408]

Attention is also called to the following provisions of the act of the Parliament of Canada, cap. 61, of the acts of 1868, entitled “An act respecting fishing by foreign vessels”:

“2. Any commissioned officer of Her Majesty’s navy, serving onboard of any vessel of Her Majesty’s navy cruising and being in the waters of Canada for purpose of affording protection to Her Majesty’s subjects engaged in the fisheries, or any commissioned officer of Her Majesty’s navy, fishery officer, or stipendiary magistrate on board of any vessel belonging to or in the service of the Government of Canada, and employed in the service of protecting the fisheries, or any officer of the customs of Canada, sheriff, magistrate, or other person duly commissioned for that purpose, may, go on board of any ship, vessel, or boat within any harbor in Canada, or hovering (in British waters) within three marine miles of any of the coasts, bays, creeks, or harbors in Canada, and stay on board so long as she may remain within such place or distance.
“3. If such ship, vessel, or boat be bound elsewhere, and shall continue within such harbor, or so hovering for twenty-four hours after the master shall have been required to depart, any one of such officers or persons as are above mentioned may bring such ship, vessel, or boat into port and search her cargo, and may also examine the master upon oath touching the cargo and voyage; and if the master or person in command shall not truly answer the questions put to him in such examination, he shall forfeit 400 dollars; and if such ship, vessel, or boat be foreign, or not navigated according to the laws of the United Kingdom or of Canada, and have been found fishing, or preparing to fish, or to have been fishing (in British waters) within three marine miles of any of the coasts, bays, creeks, or harbors of Canada, not included within the above-mentioned limits, without a license, or after the expiration of the period named in the last license granted to such ship, vessel, or boat under the 1st section of this act, such ship, vessel, or boat, and the tackle, rigging, apparel, furniture, stores, and cargo thereof shall be forfeited.
“4. All goods, ships, vessels, and boats, and the tackle, rigging, apparel, furniture, stores; and cargo liable to forfeiture under this act, may be seized and secured by any officers or persons mentioned in the 2d section of this act; and every person opposing any officer or person in the execution of his duty under this act, or aiding or abetting any other person in any opposition, shall forfeit 800 dollars, and shall be guilty of a misdemeanor, and, upon conviction, be liable to imprisonment for a term not exceeding two years.”

Having reference to the above, you are requested to furnish any foreign vessels, boats, or fishermen found within three marine miles of the shore, within your district, with a printed copy of the warning inclosed herewith.

If any fishing vessel or boat of the United States is found fishing, or to have been fishing, or preparing to fish, or if hovering within the three-mile limit, does not depart within twenty-four hours after receiving such warning, you will please place an officer on board of such vessel, and at once telegraph the facts to the Fisheries Department at Ottawa, and await instructions.

J. JOHNSON,
Commissioner of Customs

To the Collector of Customs at——.

[Inclosure 3 in Mr. Hardinge’s note of August 2, 1886.]

The Earl of Rosebery to Sir L. West.

Foreign Office, July 23, 1886.

Sir: I have received your dispatch No. 55, Treaty, of the 15th ultimo, in which you inclose a copy of a note from Mr. Bayard, protesting against a warning alleged to have been given to United States fishing vessels by a Canadian customs official, with the view to prevent them from fishing within lines drawn from headland to headland from Cape Canso to St. Esprit, and from North Cape to East Point of Prince Edward Island.

In reply, I have to request you to acquaint Mr. Bayard that Her Majesty’s Government have ascertained that no instructions to this effect have been issued by the Canadian Government, but that a further report is expected upon the subject.

It appears that the collector at Canso, in conversation with the master of a fishing vessel, expressed the opinion that the headland line ran from Cranberry Island to St. Esprit, but this was wholly unauthorized.

I am, &c.