No. 299.
Mr. Phelps to Mr. Bayard.

No. 393.]

Sir: Referring to your several instructions on the subject of the Canadian fisheries, numbered, respectively, 452, 458, and 459, I have the honor to inform you that on the 27th November I addressed a note to Lord Iddesleigh, Her Majesty’s secretary of state for foreign affairs, inclosing a copy of your instructions, No. 452, relative to the case of the Marion Grimes.

On the 30th November I had an interview with his lordship, in which the subject of the instruction above mentioned was discussed.

On the 2d December I addressed to him another note in pursuance of instruction No. 458, asking that the solicitors for the owners of the fishing vessel David J. Adams may be furnished, for use in the suit concerning that vessel now pending at Halifax, with copies of the original reports mentioned in that instruction, showing the charges upon which the seizure was originally made.

I have this day received from Lord Iddesleigh a note, dated November 30, in reply to mine addressed to him on the 11th of September last, on the subject of the same fisheries, a copy of which has heretofore been transmited to you.

And I have now sent a note to Lord Iddesleigh acknowledging the receipt of his communication, and saying that I should at an early date submit to him some considerations in reply, and meanwhile inclosing to him, in pursuance of his request made at the interview of November 30, a copy of the “Proposal for settlement” transmitted to me in your No. 459, together with a copy of that instruction.

I have the honor to inclose herewith copies of my three notes above referred to, dated November 27, December 2, and December 3, and of Lord Iddesleigh’s note of November 30.

I have, etc.,

E. J. Phelps.
[Page 446]
[Inclosure 1 in No. 393.]

Mr. Phelps to Lord Iddesleigh

My Lord: I have the honor to transmit herewith a copy of an instruction, under date of November 6, 1886, received by me from the Secretary of State of the United States, relative to the case of the United States fishing vessel the Marion Grimes.

The subject is so fully presented in this document, a copy of which I am authorized by the Secretary to place in the hands of you lordship, that I can add nothing to what is therein set forth, except to request your lordship’s early attention to the case, which appears to be a very flagrant violation of the rights secured to American fishermen under the treaty of 1818.

I have, etc.,

E. J. Phelps.
[Inclosure 2 in No. 393.]

Mr. Phelps to Lord Iddesleigh.

My Lord: Referring to the conversation I had the honor to hold with your lordship on the 30th November, relative to the request of my Government that the owners of the David J. Adams may be furnished with a copy of the original reports, stating the charges on which that vessel was seized by the Canadian authorities, I desire now to place before you in writing the grounds upon which this request is preferred.

It will be in the recollection of your lordship, from the previous correspondence relative to the case of the Adams, that the Vessel was first taken possession of for the alleged offense of having purchashed a small quantity of bait within the port of Digby, in Nova Scotia, to be used in lawful fishing. That later on a further charge was made against the vessel of a violation of some custom-house regulation, which it is not claimed, so far as I can learn, was ever before insisted on in a similar case. I think I have made it clear in my note of the 2d of June last, addressed to Lord Rosebery, then foreign secretary, that no act of the English or of the Canadian Parliament existed at the time of this seizure which legally justified it on the ground of the purchase of bait, even if such an act would have been authorized by the treaty of 1818. And it is a natural and strong inference, as I have in that communication pointed out, that the charge of violation of custom-house regulations was an afterthought, brought forward in order to sustain proceedings commenced on a different charge and found untenable.

In the suit that is now going on in the admiralty court at Halifax, for the purpose of condemning the vessel, still further charges have been added. And the Government of Canada seek to avail themselves of a clause in the act of the Canadian Parliament of May 22, 1868, which is in these words: “In case a dispute arises as to whether any seizure has or has not been legally made or as to whether the person seizing was or was not authorized to seize under this act * * * the burden of proving the illegality of the seizure shall be on the owner or claimant.”

I can not quote this provision without saying that it is, in my judgment, in violation of the principles of natural justice, as well as of those of the common law. That a man should be charged by police or executive officers with the commission of an offense and then be condemned upon trial unless he can prove himself to be innocent is a proposition that is incompatible with the fundamental ideas upon which the administration of justice proceeds. But it is sought in the present case to carry the proposition much further, and to hold that the party inculpated must not only prove himself innocent of the offense on which his vessel was seized, but also of all other charges upon which it might have been seized that may be afterward brought forward and set up at the trial.

Conceiving that if the clause I have quoted from the act of 1868 can have effect (if allowed any effect at all) only upon the charge on which the vessel was originally seized, and that seizure for one offense can not be regarded as prima facie evidence of guilt of another, the counsel for the owners of the vessel have applied to the prosecuting officers to be furnished with a copy of the reports made to the Government of Canada in connection with the seizure of the vessel, either by Captain Scott, the seizing officer, or by the collector of customs at Digby, in order that it might be known to the defendant and be shown on trial what the charges are on which the [Page 447] seizure was grounded, and which the defendant is required to disprove. This most reasonable request has been refused by the prosecuting officers.

Under these circumstances I am instructed by my Government to request of Her Majesty’s Government that the solicitors for the owners of the David J. Adams in the suit pending in Halifax may be furnished, for the purposes of the trial thereof, with copies of the reports above mentioned. And I beg to remind your lordship that there is no time to be lost in giving the proper direction if it is to be in season for the trial, which, as I am informed, is being pressed.

I have, etc.,

E. J. Phelps.
[Inclosure 3 in No. 393.]

The Earl of Iddesleigh to Mr. Phelps.

Sir: I have given my careful consideration to the contents of the note of the 11th September last, which you were good enough to address to me in reply to mine of the 1st of the same month, on the subject of the North American fisheries.

The question, as you are aware, has for some time past engaged the serious attention of Her Majesty’s Government and the notes which have been addressed to you in relation to it, both by my predecessor and by myself, have amply evinced the earnest desire of Her Majesty’s Government, to arrive at some equitable settlement of the controversy. It is, therefore, with feelings of disappointment that they do not find in your note under reply any indication of a wish on the part of your Government to enter upon negotiations based on the principle of mutual concessions, but rather a suggestion that some ad interim construction of the terms of the existing treaty should, if possible, be reached, which might for the present remove the chance of disputes } in fact, that Her Majesty’s Government, in order to allay the differences which have arisen, should temporarily abandon the exercise of the treaty rights which they claim and which they conceive to be indisputable. For Her Majesty’s Government are unable to perceive any ambiguity in the terms of Article 1 of the convention of 1818, nor have they as yet been informed in what respects the construction placed upon that instrument by the Government of the United States differs from their own. They would, therefore, be glad to learn in the first place whether the Government of the United States contest that by Article 1 of the convention United States fishermen are prohibited from entering British North American bays or harbors on those parts of the coast referred to in the second part of the article in question for any purposes save those of shelter, repairing damages, purchasing wood, and obtaining water.

Before proceeding to make some observations upon the other points dealt with in your note, I have the honor to state that I do not propose in the present communication to refer to the cases of the schooners Thomas F. Bayard and Mascot, to which you allude.

The privileges manifestly secured to United States fishermen by the convention of 1818 in Newfoundland, Labrador, and the Magdalen Islands are not contested by Her Majesty’s Government, who, whilst determined to uphold the rights of Her Majesty’s North American subjects, as defined in the convention, are no less anxious and resolved to maintain in their full integrity the facilities for prosecuting the fishing industry on certain limited portions of the coast which are expressly granted, to citizens of the United States. The communications on the subject of these two schooners, which I have requested Her Majesty’s minister at Washington to address to Mr. Bayard, can not, I think, have failed to afford to your Government satisfactory assurances in this respect.

Reverting now to your note under reply, I beg to offer the following observations on its contents:

In the first place, you take exception to my predecessor having declined to discuss the case of the David J. Adams, on the ground that it was still sub judice, and you state that your Government are unable to accede to the proposition contained in my note of the 1st of September last, to the effect that it is clearly right, according to practice and precedent, that such diplomatic action should be suspended pending the completion of the judicial inquiry.”

In regard to this point, it is to be remembered that there are three questions calling for investigation in the case of the David J. Adams;

What were the acts committed which led to the seizure of the vessel?
Was her seizure for such acts warranted by any existing laws?
If so, are those laws in derogation of the treaty rights of the United States?

It is evident that the first two questions must be the subject of inquiry before the third can be profitably discussed, and that those two questions can only be satisfactorily [Page 448] disposed of by a judicial inquiry. Far from claiming that the United States Government would be bound by the construction which British tribunals might place on the treaty, I stated in my note of the 1st September that if that decision should be adverse to the views of your Government it would not preclude further discussion between the two Governments and the adjustment of the question by diplomatic action.

I may further remark that the very proposition advanced in my note of the 1st of September last, and to which exception is taken in your reply, has on a previous occasion been distinctly asserted by the Government of the United States under precisely similar circumstances, that is to say, in 1870, in relation to the seizure of American fishing vessels in Canadian waters for alleged violation of the convention of 1818.

In a dispatch of the 29th of October, 1870, to Mr. W. A. Dart, United States consul-general at Montreal (which is printed at page 431 of the volume for that year of the Foreign Relations of the United States, and which formed part of the correspondence referred to by Mr. Bayard in his note to Sir L. West of the 20th of May last), Mr. Fish expressed himself as follows:

“It is the duty of the owners of the vessels to defend their interests before the courts at their own expense, and without special assistance from the Government at this stage of affairs. It is for those tribunals to construe the statutes under which they act. If the construction they adopt shall appear to be in contravention of our treaties with Great Britain, or to be (which can not be anticipated) plainly erroneous in a case admitting of no reasonable doubt, it will then become the duty of the Government—a duty which it will not be slow to discharge—to avail itself of all necessary means for obtaining redress.”

Her Majesty’s Government, therefore, still adhere to their view that any diplomatic discussion as to the legality of the seizure of the David J. Adams would be premature until the case has been judicially decided.

It is further stated in your note that the absence of any statute authorizing proceedings or providing a penalty against American fishing vessels for purchasing bait or supplies in a Canadian port to be used in lawful fishing “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.”

Her Majesty’s Government are quite unable to accede to this view, and I must express my regret that no reply has yet been received from your Government to the arguments on this and all the other points in controversy, which are contained in the able and elaborate report (as you courteously describe it) of the Canadian minister of marine and fisheries, of which my predecessor communicated to you a copy.

In that report reference is made to the argument of Mr. Bayard, drawn from the fact that the proposal of the British negotiators of the convention of 1818, to the effect that American fishing vessels should carry no merchandise, was rejected by the American negotiators; and it is shown that the above proposal had no application to American vessels resorting to the Canadian coasts, but only to those exercising the right of inshore fishing and of landing for the drying and curing of fish on parts of the coasts of Newfoundland and Labrador.

The report, on the other hand, shows that the United States negotiators proposed that the right of “procuring bait” should be added to the enumeration of the four objects for which the United States fishing vessels might be allowed to enter Canadian waters; and that such proposal was rejected by the British negotiators, thus showing that there could be no doubt in the minds of either party at the time that the “procuring of bait” was prohibited by the terms of the article. The report, moreover, recalls the important fact 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; 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.”

This view was confirmed by the ruling of the commissioners. Whilst I have felt myself bound to place the preceding observations before you in reply to the arguments contained in your note, I beg leave to say that Her Majesty’s Government would willingly have left such points of technical detail and construction for the consideration of a commission properly constituted to examine them, as well as to suggest a means for either modifying their application or substituting for them some new arrangement of a mutually satisfactory nature.

I gather, however, from your note that, in the opinion of your Government, although a revision of treaty stipulations on the basis of mutual concessions was desired by the United States before the present disputes arose, yet the present time is inopportune [Page 449] for various reasons, among which you mention the irritation created in the United States by the belief that the action of the Canadian Government has had for its object to force a new treaty on your Government.

Her Majesty’s Government learn with much regret that such an impression should prevail, for every effort has been made by the Canadian Government to promote a friendly negotiation and to obvate the differences which have now arisen. Indeed, it is hardly necessary to remind you that, for six months following the denunciation by your Government of the fishery articles of the treaty of Washington, the North American fisheries were thrown open to citizens of the United States without any equivalent, in the expectation that the American Government would show their willingness to treat the question in a similar spirit of amity and good will.

Her Majesty’s Government can not but express a hope that the whole correspondence may be laid immediately before Congress, as they believe that its perusal would influence public opinion in the United States in favor of negotiating, before the commencement of the next-fishing season, an arrangement based on mutual concessions, and which would therefore (to use the language of your note) “consist with the dignity, the interests, and the friendly relations of the two countries.”

Her Majesty’s Government can not conceive that negotiations commenced with such an object and in such a spirit could fail to be successful; and they trust, therefore, that your Government will endeavor to obtain from Congress, which is about to assemble, the necessary powers to enable them to make to Her Majesty’s Government some definite proposals for the negotiation of a mutually advantageous arrangement.

I have, etc.,

[Inclosure 4 in No. 393.]

Mr. Phelps to Lord Iddesleigh.

My Lord: I have the honor to acknowledge the receipt of your note of the 30th November, on the subject of the Canadian fisheries, and to say that I shall at an early day submit to your lordship some considerations in reply.

Meanwhile, I have the honor to transmit, in pursuance of the desire expressed by your lordship in conversation on November 30, a copy of an outline for a proposed ad interim arrangement between the two governments on this subject which has been proposed by the Secretary of State of the United States.*

And I likewise transmit, in connection with it, a copy of the instruction from the Secretary of State which accompanied it, and which I am authorized to submit to your lordship.

I have, etc.,

E. J. Phelps.
  1. Printed ante., p. 427.)
  2. Printed ante., p. 424.)