No. 306.
Mr. Phelps to Mr. Bayard .

[Extract.]
No. 423.]

Sir: I have the honor to transmit herewith a copy of a note addressed to me by Lord Iddesleigh, secretary of state for foreign affairs, dated December 16, 1886.

Also a copy of a note addressed to me by Sir Julian Pauncefote, acting secretary of foreign affairs during a vacancy in that office, dated January 14, 1887.

Also a copy of a note addressed by me to Lord Salisbury, secretary of state for foreign affairs, dated January 26, 1887.

All on the subject of the Canadian fisheries.

I am to have an interview with Lord Salisbury by appointment tomorrow in reference to the same subject.

I have, etc.,

E. J. Phelps.
[Inclosure 1 in No. 423.]

Lord Iddesleigh to Mr. Phelps .

Sir: I have the honor to acknowledge the receipt of your note of the 27th ultimo relative to the case of the Marion Grimes, stated to have been fined and detained at Shelburne, Nova Scotia, in October last.

As other cases besides that of the Marion Grimes are alluded to in the documents forwarded in your note, it will be desirable to take each case separately, and inform you shortly of the steps which Her Majesty’s Government have taken in regard to them.

In respect to the case of the Marion Grimes, I have already received, through Her Majesty’s secretary of state for the colonies, a copy of a dispatch from the Dominion Government, in which they express their regret at the action taken by Captain Quigley in hauling down the United States flag. I have transmitted a copy of this dispatch to Her Majesty’s minister at Washington, with instructions to communicate it to Mr. Bayard, and I beg leave to now inclose a copy of it for your information.

Her Majesty’s Government cannot doubt that, as respects the incident of the flag, the apology thus spontaneously tendered by the Canadian Government will be accepted by the United States Government in the friendly and conciliatory disposition in which it is offered, whilst as regards the other statements concerning Captain Quigley’s conduct, Her Majesty’s Government do not at present feel themselves in a position to express any opinion.

The Dominion Government have been requested to furnish a full report on the various circumstances alleged, and when this is received I shall have the honor to address a further communication to you upon the subject.

[Page 454]

As concerns the case of the Julia Mien and Shiloh, it will probably suffice to communicate to you the inclosed copies of reports from the Canadian Government relative to these two vessels. These reports have already been sent to Her Majesty’s minister at Washington for communication to Mr. Bayard.

The protest made by the United States Government in the case of the Everett Steele was not received in this country until the 1st ultimo; and although the Canadian Government have been requested by telegraph to furnish a report upon the circumstances alleged, sufficient time has not yet elapsed to enable Her Majesty’s Government to be in possession of the facts as reported by the Dominion Government.

Her Majesty’s Government greatly regret that incidents of the description alluded to should occur, and they can only renew the assurance conveyed to you in my note of the 30th ultimo, that whilst firmly resolved to uphold the undoubted treaty rights of Her Majesty’s North American subjects in regard to the fisheries, they will also equally maintain the undoubted rights of United States fishermen to obtain shelter in Canadian ports, under such restrictions as maybe necessary to prevent their abusing the privileges reserved to then by treaty.

I notice that in Mr. Bayard’s note to you of the 6th ultimo, concerning the case of the Marion Grimes, and also in his note to Sir L. West of the 19th October last, relative to the case of the Everett Steele, an old discussion is revived which Her Majesty’s Government had hoped was finally disposed of by the correspondence which took place on the subject in 1815 and 1816.

I allude to the argument that a right to the common enjoyment of the fisheries by Great Britain and the United States, after the separation of the latter from the mother Country, was recognized by the treaty of 1783, although the exercise of that right was made subject to certain restrictions. I refer to this point merely to observe that the [views of Her Majesty’s Government in relation to it have not been modified in any way since the date of Lord Bathurst’s note of the 30th of October, 1815, to Mr. John Quincy Adams.

I have, etc.

Iddesleigh.
[Inclosure 2 in No. 423.]

Sir J. Pauncefote to Mr. Phelps .

Sir: With reference to my predecessor’s note of the 30th of November last, I have the honor to transmit to you a copy of a report from the Canadian minister of justice upon the seizure of the American fishing vessel Davids J. Adams.

I have forwarded a copy of this report to Her Majesty’s minister at Washington for communication to the United States Government.

I have the honor, etc.,

J. Pauncefote
,
(For the Secretary of State.)
[Inclosure 3 in No. 423.]

Mr. Phelps to the Marquis of Salisbury .

My Lord: Various circumstances have rendered inconvenient an earlier reply to Lord Iddesleigh’s note of November 12, on the subject of the North American fisheries, and the termination of the fishing season has postponed the more immediate necessity of the discussion; but it seems now very important that before the commencement of another season a distinct understanding should be reached between the United States Government and that of Her Majesty relative to the course to be pursued by the Canadian authorities towards American vessels.

It is not without surprise that I have read Lord Iddesleigh’s remark, in the note above mentioned, referring to the treaty of 1818, that Her Majesty’s Government “have not as yet been informed in what respect the construction placed upon that instrument by the Government of the United States differs from their own.”

Had his lordship perused more attentively my note to his predecessor in office, Lord Rosebery, under date of June 2, 1886, to which reference was made in my note to Lord Iddesleigh of September 11, 1886, I think he could not have failed to apprehend distinctly the construction of that treaty for which the United States Government contends and the reasons and arguments upon which it is founded.

[Page 455]

I have again respectfully to refer your lordship to my note to Lord Rosebery of June 2, 1886, for a very full and, I hope, clear exposition of the ground taken by the United States Government on that point. It is unnecessary to repeat it, and I am unable to add to it.

In reply to the observations in my note to Lord Iddesleigh of September 11, 1886,: on the point whether such discussion should be suspended in these cases until the result of the judicial proceedings in respect to them should be made known, a proposition to which, as I stated in that note, the United States Government is unable to accede, his lordship cites in support of it some language of Mr. Fish, when Secretary of State of the United States, addressed to the United States consul-general at Montreal in May, 1870. From the view then expressed by Mr. Fish the United States Government has neither disposition nor occasion to dissent. But it can not regard it as in any way applicable to the present case.

It is true beyond question that when a private vessel is seized for an alleged infraction of the laws of the country in which the seizure takes place, and the fact of the infraction, or the exact legal construction of the local statute claimed to be transgressed, is in dispute, and is in process of determination by the proper tribunal, the Government to which the vessel belongs will not usually interfere in advance of such determination and before acquiring the information on which it depends. And especially when it is not yet informed whether the conduct of the officer making the seizure will not be repudiated by the Government under which he acts, so that interference will be unnecessary. This is all, in effect, that was said by Mr. Fish on that occasion. In language immediately following that quoted by Lord Iddesleigh he remarks as follows (italics being mine):

“The present embarrassment is that while we have reports of several seizures upon grounds as stated by the interested parties, which seem to be in contravention of international law and special treaties relating to the fisheries, these alleged causes of seizure are regarded as pretensions of over zealous officers of the British navy and the colonial vessels which will, as we hope and are bound in courtesy to expect, be repudiated by the courts, before which our vessels are to be brought for adjudication.

But in the present case the facts constituting the alleged infraction by the vessel seized are not in dispute, except some circumstances of alleged aggravation not material to the validity of the seizure. The original ground of the seizure was the purchase by the master of the vessel of a small quantity of bait from an inhabitant of Nova Scotia, to be used in lawful fishing. This purchase is not denied by the owners of the vessel, and the United States Government insists, first, that such an act is not in violation, of the treaty of 1818, and second, that no then existing statute in great Britain or Canada authorized any proceedings against the vessel for such an act, even if it could be regarded as in violation of the terms of the treaty, and no such statute has been as yet produced.

In respect to the charge subsequently brought against the Adams, and upon which many other vessels have been seized, that of a technical violation of the customs act, in omitting to report at the custom-house, though having no business at the port (and in some instances where the vessel seized was not within several miles of the landing), the United States Government claim, while not admitting that the omission to report was even a technical transgression of the act, that even if it were, no harm having been done or intended, the proceedings against the vessels for an inadvertence of that sort were in a high degree harsh, unreasonable, and unfriendly, especially as for many years no such effect has been given to the act in respect to the fishing vessels, and no previous notice of a change in its construction has been promulgated.

It seems apparent, therefore, that the cases in question, as they are to be considered between the two Governments, present no points upon which the decision of the courts of Nova Scotia need be awaited or would be material.

Nor is it any longer open to the United States Government to anticipate that the acts complained of will (as said by Mr. Fish in the dispatch above quoted) be repudiated as the “pretensions of over-zealous officers of the * * * colonial vessels,” because they have been so many times repeated as to constitute a regular system of procedure, have been directed and approved by the Canadian Government, and have been in no wise disapproved or restrained by Her Majesty’s Government, though repeatedly and earnestly protested against on the part of the United States.

It is therefore to Her Majesty’s Government alone that the United States Government can look for consideration and redress. It can not consent to become, directly or indirectly, a party to the proceedings complained of, nor to await their termination before the questions involved between the two Governments shall be dealt with. Those questions appear to the United States Government to stand upon higher grounds, and to be determined, in large part, at least, upon very different considerations from those upon which the courts of Nova Scotia must proceed in the pending litigation.

Lord Iddesleigh, in the note above referred to, proceeds to express regret that no reply has yet been received from the United States Government to the arguments on [Page 456] all the points in controversy contained in the report of the Canadian minister of marine and fisheries, of which Lord Rosebery had sent me a copy.

Inasmuch as Lord Iddesleigh and his predecessor, Lord Rosebery, have declined altogether, on the part of Her Majesty’s Government, to discuss these questions until the cases in which they arise shall have been judicially decided, and as the very elaborate arguments on the subject previously submitted by the United States Government; remain, therefore without reply, it is not easy to perceive why further discussion of it on the part of the United States should be expected. So soon as Her Majesty’s Government consent to enter upon the consideration of the points involved, any suggestions it may advance will receive immediate and respectful attention on the part of the United States. Till then further argument on that side would seem to be neither consistent nor proper.

Still less can the United States Government consent to be drawn, at anytime, into a discussion of the subject with the colonial Government of Canada. The treaty in question, and all the international relations arising out of it, exist only between the Governments of the United States and of Great Britain, and between those Governments only can they be dealt with. If, in entering upon that consideration of the subject which the United States have insisted upon, the arguments contained in the report of the Canadian minister should be advanced by Her Majesty’s Government, I do not conceive that they will be found difficult to answer.

Two suggestions contained in that report are, however, specially noticed by Lord Iddesleigh, as being ‘in reply” to the arguments contained in my note. In quoting the substance of the contentions of the Canadian minister on the particular points referred to, I do not understand his lordship to depart from the conclusion of Her Majesty’s Government he had previously announced, declining to enter upon the discussion of the cases in which the questions arise. He presents the observations of the report only as those of the Canadian minister made in the argument of points upon which Her Majesty’s Government decline at present to enter.

I do not, therefore, feel called upon to make any answer to these suggestions; and more especially as it seems obvious that the subject can not usefully be discussed upon one or two suggestions appertaining to it, and considered by themselves alone. While those mentioned by Lord Iddesleigh have undoubtedly their place in the general argument, it will be seen that they leave quite untouched most of the propositions and reasoning set forth in my note to Lord Rosebery above mentioned. It appears to me that the question can not be satisfactorily treated aside from the cases in which they arise, and that when discussed the whole subject must be gone into in its entirety.

The United States Government is not able to concur in the favorable view taken by Lord Iddesleigh of the efforts of the Canadian Government “to promote a friendly negotiation.” That the conduct of that Government has been directed to obtaining a revision of the existing treaty is not to be doubted; but its efforts have been of such a character as to preclude the prospect of a successful negotiation so long as they continue, and seriously to endanger the friendly relations between the United States and Great Britain.

Aside from the question as to the right of American vessels to purchase bait in Canadian ports, such a construction has been given to the treaty between the United States and Great Britain as amounts virtually to a declaration of almost complete non-intercourse with American vessels. The usual comity between friendly nations has been refused in their case, and in one instance, at least, the ordinary offices of humanity. The treaty of friendship and amity which, in return for very important concessions by the United States to Great Britain, reserved to the American vessels certain specified privileges has been construed to exclude them from all other intercourse common to civilized life and to universal maritime usage among nations not at war, as well as from the right to touch and trade accorded to all other vessels.

And quite aside from any question arising upon construction of the treaty, the provisions of the custom-house acts and regulations have been systematically enforced against American ships for alleged petty and technical violations of legal requirements in a manner so unreasonable, unfriendly, and unjust as to render the privileges accorded by the treaty practically nugatory.

It is not for a moment contended by the United States Government that American vessels should be exempt from those reasonable port and custom-house regulations which are in force in countries which such vessels have occasion to visit. If they choose to violate such requirements, their Government will not attempt to screen them from the just legal consequences.

But what the United States Government complain of in these cases is that existing regulations have been construed with a technical strictness, and enforced with a severity, in cases of inadvertent and accidental violation where no harm was done, which is both unusual and unnecessary, whereby the voyages of vessels have been broken up and heavy penalties incurred. That the liberal and reasonable construction of these laws that had prevailed for many years, and to which the fishermen had [Page 457] become accustomed, was changed without any notice given. And that every opportunity of unnecessary interference with the American fishing vessels, to the prejudice and destruction of their business, has been availed of. Whether in any of these cases, a technical violation of some requirement of law had, upon close and severe construction, taken place, it is not easy to determine. Bat if such rules were generally enforced in such a manner in the ports of the world, no vessel could sail in safety without carrying a solicitor versed in the intricacies of revenue and port regulations.

It is unnecessary to specify the various cases referred to, as the facts in many of them have been already laid before Her Majesty’s Government.

Since the receipt of Lord Iddesleigh’s note the United States Government has learned with grave regret that Her Majesty’s assent has been given to the act of the Parliament of Canada, passed at its late session, entitled “An act further to amend the act respecting fishing by foreign vessels,” which has been the subject of observation in the previous correspondence on the subject between the Governments of the United States and of Great Britain.

By the provisions of this act any foreign ship, vessel, or boat (whether engaged in fishing or not) found within any harbor in Canada, or within 3 marine miles of “any of the coasts, bays, or creeks of Canada,” may be brought into port by any of the officers or persons mentioned in the act, her cargo searched, and her master examined upon oath touching the cargo and voyage under a heavy penalty if the questions asked are not truly answered; and if such ship has entered such waters for any purpose not permitted by treaty or convention or by law of the United Kingdom or of Canada, for the time being in force, such ship, vessel, or boat and the tackle, rigging, apparel, furniture, stores, and cargo thereof shall be forfeited.”

It has been pointed out in my note to Lord Iddesleigh, above mentioned, that the 3-mile limit referred to in this act is claimed by the Canadian Government to include considerable portions of the high seas, such as the Bay of Fundy, the Bay of Chaleur, and similar waters, by drawing the line from headland to headland, and that American fishermen had been excluded from those waters accordingly.

It has been seen also that the term “any purpose not permitted by treaty” is held by that Government to comprehend every possible act of human intercourse, except only the four purposes named in the treaty—shelter, repairs, wood, and water.

Under the provisions of the recent act, therefore, and the Canadian interpretation of the treaty, any American fishing vessel that may venture into a Canadian harbor, or may have occasion to pass through the very extensive waters thus comprehended, may be seized at the discretion of any one of numerous subordinate officers, carried into port, subjected to search and the examination of her master upon oath, her voyage broken up, and the vessel and cargo confiscated, if it shall be determined by the local authorities that she has ever even posted or received a letter or landed a passenger in any part of Her Majesty’s dominions in America.

And it is publicly announced in Canada that a larger fleet of cruisers is being prepared by the authorities, and that greater vigilance will be exerted on their part in the next fishing season than in the last.

It is in the act to which the one above referred to is an amendment that is found the provision to which I drew attention in a note to Lord Iddesleigh of December 2, 1886, by which it is enacted that in case a dispute arises as to whether any seizure has or has not been legally made, the burden of proving the illegality of the seizure shall be upon the owner or claimant.

In his reply to that note of January 11, 1887, his lordship intimates that this provision is intended only to impose upon a person claiming a license the burden of proving it. But a reference to the act shows that such is by no means the restriction of the enactment. It refers in the broadest and clearest terms to any seizure that is made under the provisions of the act, which covers the whole subject of protection against illegal fishing; and it applies not only to the proof of a license to fish, but to all questions of fact whatever, necessary to a determination as to the legality of a seizure or the authority of the person making it.

It is quite unnecessary to point out what grave embarrassments may arise in the relations between the United States and Great Britain under such administration as is reasonably to be expected of the extraordinary provisions of this act and its amendment, upon which it is not important at this time further to comment.

It will be for Her Majesty’s Government to determine how far its sanction and support will be given to further proceedings, such as the United States Government have now repeatedly complained of and have just ground to apprehend may be continued by the Canadian authorities.

It was with the earnest desire of obviating the impending difficulty, and of preventing collisions and dispute until such time as a permanent understanding between the two Governments could be reached, that I suggested, on the part of the United States, in my note to Lord Iddesleigh of September 11, 1886, that an ad interim construction of the terms of the treaty might be agreed on, to be carried out by instructions [Page 458] to be given on both sides without prejudice to the ultimate claims of either, and terminable at the pleasure of either. In an interview I had the honor to have with his lordship, in which this suggestion was discussed, I derived the impression that he regarded it with favor. An outline of such an arrangement was therefore subsequently prepared by the United States Government, which, at the request of Lord Iddesleigh, was submitted to him.

But I observe, with some surprise, that in his note of November 30, last, his lordship refers to that proposal made in my note of 11th September, as a proposition that Her Majesty’s Government “should temporarily abandon the exercise of the treaty rights which they claim and which they conceive to be indisputable.”

In view of the very grave questions that exist as to the extent of those rights, in respect to which the views of the United States Government differ so widely from those insisted upon by Her Majesty’s Government, it does not seem to me an unreasonable proposal that the two Governments, by a temporary and mutual concession, without prejudice, should endeavor to reach some middle ground of ad interim, construction, by which existing friendly relations might be preserved, until some permanent treaty arrangements could be made.

The reasons why a revision of the treaty of 1818 can not now, in the opinion of the United States Government, be hopefully undertaken, and which are set forth in my note to Lord Iddesleigh of September 11, have increased in force since that note was written.

I again respectfully commend the proposal above mentioned to the consideration of Her Majesty’s Government.

I have, etc.,

E. J. Phelps.