Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 6, 1886
No. 224.
Sir L.
West to Mr. Bayard.
Sir: With reference to your notes of the 10th of July last protesting against the action of the Canadian authorities with regard to the United States vessel Novelty, and the action of the Canadian cruiser Middle-ton, in preventing United States boats from visiting St. Andrews, New Brunswick, for the purpose of there-purchasing herring for canning, I have the honor to inclose to you herewith by instruction from the Earl of Iddesleigh a copy of a certified report of the Canadian privy council dealing with both questions.
I have, &c.,
Certified copy of a report of a committee of the honorable, the privy council for Canada, approved by his excellency the administrator of the Government on the 20th August, 1886.
The committee of the privy council have had under consideration the dispatch dated 29fch July last, from Her Majesty’s secretary of state for the colonies, inclosing two notes from Mr. Secretary Bayard to the British minister at Washington, and asking that Her Majesty’s Government be furnished with a report upon the cases therein referred to.
The committee respectfully submit the annexed report from the minister of marine and fisheries, to whom the said dispatch and its inclosures were submitted, and they advise that your excellency be moved to transmit a copy thereof, if approved, to Her Majesty’s principal secretary of state for the colonies.
Clerk, Privy Council for Canada.
Ottawa, August 14, 1886.
The undersigned has the honor to submit the following in answer to a dispatch from Lord Granville to the governor-general under date 29th July last inclosing two notes from Mr. Secretary Bayard to the British minister at Washington, and asking that Her Majesty’s Government be furnished with a report upon the cases therein referred to.
In his first communication, dated July 10, Mr. Bayard says:
“I have the honor to inform you that I am in receipt of a report from the consul-general of the United States at Halifax, accompanied by sworn testimony stating that the Novelty, a duly-registered merchant steam vessel of the United States, has been denied the right to take in steam coal, or purchase ice, or trans-ship fish in bond to the United States, at Pictou, Nova Scotia.
“It appears that having reached that port on the 1st instant, and finding the customs office closed on account of a holiday, the master of the Novelty telegraphed to the minister of marine and fisheries at Ottawa, asking if he would be permitted to do any of the three things mentioned above. That he received in reply a telegram reciting, with certain inaccurate and extended application, the language of Article I of the treaty of 1818, the limitations upon the significance of which are impending discussion between the Government of the United States and that of Her Britannic Majesty. That on entering and clearing the Novelty on the following day at the customhouse, the collector stated that his instructions were contained in the telegram the master had received, and that the privilege of coaling being denied, the Novelty was compelled to leave Pictou without being allowed to obtain fuel necessary for her lawful voyage on a dangerous coast.
“Against this treatment I make instant and formal protest as an unwarranted interpretation and application of the treaty by the officers of the Dominion of Canada and the Province of Nova Scotia, as an infraction of the the laws of commercial and maritime intercourse existing between the two countries, and as a violation of hospitality, and for any loss or injury resulting therefrom the Government of Her Britannic Majesty would be held liable.”
With reference to this the undersigned begs to observe that Mr. Bayard’s statement appears to need modification in several important particulars.
In the first place, the Novelty was not a vessel regularly trading between certain ports in the United States and Canada, but was a fishing vessel whose purpose was to carry on the mackerel-seining business in the waters of the Gulf of St. Lawrence, around the coasts of Prince Edward Island and Nova Scotia; that she had on board a full equipment of seines and fishing apparatus and men; that she was a steam vessel and needed coal, not for the purposes of cooking or warming, but to produce motive power for the vessel, and that she wished to pursue her business of fishing in the above-named waters and to send her fares home over Canadian territory, to the end that she might the more uninterruptedly and profitably carry on her business of fishing. That she was a fishing vessel and not a merchant vessel was proved hot only by the facts above mentioned, but also from a telegram over the signature of H. B. Joyce, the captain of the vessel, a copy of which is appended. In his telegram Captain Joyce indicates the character of his vessel by using the words American fishing steamer,” and he signs himself “H. B. Joyce, master fishing steamer Novelty.”
There seems no doubt, therefore, that the Novelty was in character and in purpose a fishing vessel, and as such comes under the provisions of the treaty of 1818, which allows United States fishing vessels to enter Canadian ports “for the purpose of shelter and repairing damages therein, and of purchasing wood and of obtaining water, and for no other purpose whatever.”
The object of the captain was to obtain supplies for the prosecution of his fishing and to trans-ship his cargoes of fish at a Canadian port, both of which are contrary to the letter and spirit of the convention of 1818.
To Mr. Bayard’s statement that, in reply to Captain Joyce’s inquiry of the minister of marine and fisheries, “he received in reply a telegram reciting, with certain inaccurate and extended application, the language of Article I of the treaty of 1818,” the undersigned considers it a sufficient answer to adduce the telegrams themselves.
1.—Inquiry by the captain of the Novelty.
“Pictou, N. S., July 1, 1886.
“Hon. George E.
Foster,
“Minister of Marine and
Fisheries, Ottawa:
“Will the American fishing steamer now at Pictou be permitted to purchase coal or ice or to trans-ship fresh fish in bond to United States markets?
“Please answer.
“H. B. JOYCE,
“Master of Fishing
Steamer Novelty.”
2.—Reply of the Minister of Marine and Fisheries thereto.
“Ottawa, July 1, 1886.
“To H. B. Joyce,
“Master American Fishing Steamer Novelty, Pictou,
N. S.:
“By terms of treaty, 1818, United States fishing vessels are permitted to enter Canadian ports for shelter, repairs, wood, and water, and for no other purpose whatever. That treaty is now in force.
“GEORGE E. FOSTER,
“Minister of
Marine and Fisheries.”
The undersigned fails to observe wherein any “inaccurate or extended application “of the language of the treaty can be found in the above answer, inasmuch as it consists of a de facto citation from the treaty itself, with the added statement, for the information of the captain, that said treaty was at that time in force.
As to the “unwarranted interpretation and application of the treaty,” of which Mr. Bayard speaks, the undersigned has already discussed that phase of the question in his memorandum of June 14, which was adopted by council and has been forwarded to Her Majesty’s Government.
Mr. Bayard’s second note is as follows:
“On the 2nd of June last I had the honor to inform you that dispatches from East-port, in Maine, had been received reporting threats by the customs officials of the Dominion to seize American boats coming into those waters to purchase herring from the Canadian weirs for the purpose of canning the same as sardines, which would be a manifest infraction of the right of purchase and sale of herring caught and sold by Canadians in their own waters in the pursuance of legitimate trade.
“To this note I have not had the honor of a reply.
“To-day Mr. C. A. Boutelle, M. C, from Maine, informs me that American boats visiting St. Andrews, N. B., for the purpose of there purchasing herring from the Canadian weirs for canning had been driven away by the Dominion cruiser Middleton.
“Such inhibition of usual and legitimate commercial contracts and intercourse is assuredly without warrant of law, and I draw your attention to it in order that the commercial rights of the citizens of the United States may not be thus invaded and subjected to unfriendly discrimination.”
With reference to the above, the undersigned observes that so far as his information goes no collector of customs or captains of cruisers have threatened to “seize American boats coming into Canadian waters to purchase herring from Canadian weirs for the purpose of canning them as sardines.”
Collectors of customs have, however, in pursuance of their duties under the customs law of Canada, compelled American vessels coming to purchase herring to enter and clear in conformity to customs law.
With reference to the action of the Dominion cruiser Middleton, the undersigned cannot do better than quote from the official report of the captain of that vessel as to the facts of the case referred to.
In his report of date 9th July, 1886, Captain McLean, of the General Middleton, says:
“At 9 a.m. made sail and drifted with the tide towards the bay. Seeing a large number of boats of various sizes hovering around the fishing weirs, I ordered the boat in waiting and sent Officer Kent in charge, giving him instructions to row down among the boats and see if there were any Americans purchasing fish. On the return of the boat Chief Officer Kent reported the boats mentioned were Americans, there for the purpose of getting herring. I immediately directed the chief officer to return and order the American boats to at once report themselves to the collector of the port and get permits to load fish or leave without further delay. One of the boatmen complied with the request, and obtained a permit to load fish for Eastport. The others were very much disturbed on receiving the above instructions, and sailed away toward the American side of the river and commenced blowing their fog-horns, showing their contempt. Other boats, at a greater distance, seeing our boat approaching, did not wait her arrival, but up sail and left for the American shore.”
The above extract from the report of the chief officer of the General Middleton, goes to show that it was not his object to prevent American boats from trading in sardines, but rather to prevent them from trading without having first conformed to the customs law of Canada.
The whole respectfully submitted.
Minister of Marine and Fisheries.