No. 316.
Mr. White to Mr. Bayard .

No. 478.]

Sir: Referring to my dispatch numbered 475, of March 26 I have the honor to inclose herewith the copy of a note which I received yesterday from the Marquis of Salisbury, adding a clause to the observations on Article III of your proposal for a modus vivendi, which formed a part of inclosure No. 2 to his lordship’s note of the 24th instant, in reference to the Canadian fisheries.

I have the honor also to inclose herewith four copies of the note in question, corrected as above, and I beg to add that I have marked the newly inserted clause at page No. 10 of the same.

I have, etc.,

Henry White.
[Page 469]
[Inclosure 1 in No. 478.]

The Marquis of Salisbury to Mr. White

Sir: In a note of the 3d December last, addressed to my predecessor, Mr. Phelps was good enough to transmit a copy of a dispatch from Mr. Bayard, dated the 15th of the preceding month, together with an outline of a proposed ad interim arrangement “for the settlement of all questions in dispute in relation to the fisheries on the northeastern coasts of British North America.”

Her Majesty’s Government have given their most careful consideration to that communication, and it has also received the fullest examination at the hands of the Canadian Government, who entirely share the satisfaction felt by Her Majesty’s Government at any indication on the part of that of the United States of a disposition to make arrangements which might tend to put the affairs of the two countries on a basis more free from controversy and misunderstanding than unfortunately exists at present. The Canadian Government, however, deprecate several passages in Mr. Bayard’s dispatch which attribute unfriendly motives to their proceedings, and in which the character and scope of the measures they have taken to enforce the terms of the convention of 1818 are, as they believe, entirely misapprehended.

They insist that nothing has been done on the part of the Canadian authorities since the termination of the Treaty of Washington in any such spirit as that which Mr. Bayard condemns, and that all that has been done with a view to the protection of the Canadian fisheries has been simply for the purpose of guarding the rights guaranteed to the people of Canada by the convention of 1818, and of enforcing the statutes of Great Britain and of Canada in relation to the fisheries. They maintain that such statutes are clearly within the powers of the respective Parliaments by which they were passed, and are in conformity with the convention of 1818, especially in view of the passage of the convention which provides that the American fishermen shall he under such restrictions as shall be necessary to prevent them from abusing the privileges thereby reserved to them.

There is a passage in Mr. Bayard’s dispatch to which they have particularly called the attention of Her Majesty’s Government. It is the following:

“The numerous seizures made have been of vessels quietly at anchor in established ports of entry, under charges which up to this day have not been particularized sufficiently to allow of intelligent defense; not one has been condemned after trial and hearing, but many have been fined, without hearing or judgment, for technical violation of alleged commercial regulations, although all commercial privileges have been simultaneously denied to them.”

In relation to this paragraph the Canadian Government observe that the seizures of which Mr. Bayard complains have been made upon grounds which have been distinctly and unequivocally stated in every case; that, although the nature of the charges has been invariably specified and duly announced, those charges have not in any case been answered; that ample opportunity has in every case been afforded for a defense to be submitted to the executive authorities, but that no defense has been offered beyond the mere denial of the right of the Canadian Government; that the courts of the various provinces have been open to the parties said to have been aggrieved, but that not one of them has resorted to those courts for redress. To this it is added that the illegal acts which are characterized by Mr. Bayard as “technical violations of alleged commercial regulations,” involved breaches, in most of the cases not denied by the persons who had committed them, of established commercial regulations which, far from being specially directed or enforced against citizens of the United States, are obligatory upon all vessels (including those of Canada herself) which resort to the harbors of the British North American coast.

I have thought it right, injustice to the Canadian Government, to embody in this note almost in their own terms their refutation of the charges brought against them by Mr. Bayard; but I would prefer not to dwell on this part of the controversy, but to proceed at once to the consideration of the six articles of Mr. Bayard’s memorandum in which the proposals of your Government are embodied.

Mr. Bayard states that he is”encouraged in the expectation that the propositions embodied in the memorandum will be acceptable to Her Majesty’s Government, because, in the month of April, 1866, Mr. Seward, then Secretary of State, sent forward to Mr. Adams, at that time United States minister in London, the draft of a protocol which, in substance, coincides with the first article of the proposal now submitted.”

Article 1 of the memorandum no doubt to some extent resembles the draft protocol submitted in 1886 by Mr. Adams to Lord Clarendon, of which I inclose a copy for convenience of reference), but it contains some important departures from its terms.

Nevertheless, the article comprises the elements of a possible accord, and if it stood alone I have little doubt that it might be so modeled, with the concurrence of your Government as to present an acceptable basis of negotiation to both parties. But, [Page 470] unfortunately, it is followed by other articles which, in the view of Her Majesty’s Government and that of Canada, would give rise to endless and unprofitable discussion, and which, if retained, would be fatal to the prospect of any satisfactory arrangement, inasmuch as they appear as a whole to be based on the assumption that upon the almost important points in the controversy the views entertained by Her Majesty’s Government and that of Canada are wrong, and those of the United States Government are right, and to imply an admission by Her Majesty’s Government and that of Canada that such assumption is well founded.

I should extend the present note to an undue length were I to attempt to discuss in it each of the articles of Mr. Bayard’s memorandum, and to explain the grounds on which Her Majesty’s Government feel compelled to take exception to them. I have therefore thought it more convenient to do so in the form of a counter-memorandum, which I have the honor to inclose, and in which will be found, in parallel columns, the articles of Mr. Bayard’s memorandum, and the observations of Her Majesty’s Government thereon.

Although, as you will perceive on a perusal of those observations, the proposal of your Government as it now stands is not one which could be accepted by Her Majesty’s Government, still Her Majesty’s Government are glad to think that the fact of such a proposal having been made affords an opportunity which, up to the present time, had not been offered for an amicable comparison of the views entertained by the respective Governments.

The main principle of that proposal is that a mixed commission should be appointed for the purpose of determining the limits of those territorial waters within which, subject to the stipulations of the convention, of 1818, the exclusive right of fishing belongs to Great Britain.

Her Majesty’s Government cordially agree with your Government in believing that a determination of these limits would, whatever may be the future commercial relations between Canada and the United States, either in respect of the fishing industry or in regard to the interchange of other commodities, be extremely desirable, and they will be found ready to co-operate with your Government in effecting such a settlement.

They are of opinion that Mr. Bayard was justified in reverting to the precedent afforded by the negotiations which took place upon this subject between Great Britain and the United States after the expiration of the reciprocity treaty of 1854, and they concur with him in believing that the draft protocol communicated by Mr. Adams in 1866 to the Earl of Clarendon affords a valuable indication of the lines upon which a negotiation directed to the same points might now be allowed to proceed.

Mr. Bayard has himself pointed out that its concluding paragraph, to which Lord Clarendon emphatically objected, is not contained in the first article of the memorandum now forwarded by him; but he appears to have lost sight of the fact that the remaining articles of that memorandum contain stipulations not less open to objection and calculated to affect even more disadvantageously the permanent interests of the Dominion in the fisheries adjacent to its coasts.

There can be no objection on the part of Her Majesty’s Government to the appointment of a mixed commission, whose duty it would be to consider and report upon the matters referred to in the three first articles of the draft protocol communicated to the Earl of Clarendon by Mr. Adams in 1866.

Should a commission instructed to deal with these subjects be appointed at an early date, the result of its investigations might be reported to the Governments affected without much loss of time. Pending the termination of the questions which it would discuss, it would be indispensable that United States fishing vessels entering Canadian bays and harbors should govern themselves not only according to the terms of the convention of 1818, but by the regulations to which they, in common with other vessels, are subject while within such waters.

Her Majesty’s Government, however, have no doubt that every effort will be made to enforce those regulations in such a manner as to cause the smallest amount of inconvenience to fishing vessels entering Canadian ports under stress of weather, or for any other legitimate purpose.

But there is another course which Her Majesty’s Government are inclined to propose, and which, in their opinion, would afford a temporary solution of the controversy equally creditable to both parties.

Her Majesty’s Government have never been informed of the reasons which induced the Government of the United States to denounce the fishery articles of the treaty of Washington, but they have understood that the adoption of that coarse was in a great degree the result of a feeling of disappointment at the Halifax award, under which the United states were called upon to pay the sum of 1, 100,000l being the estimated value of the benefits which would accrue to them, in excess of those which would be derived by Canada and Newfoundland from the operation of the fishery articles of the treaty.

Her Majesty’s Government and the Government of Canada, in proof of their earnest desire to treat the question in a spirit of liberality and friendship, are now willing to [Page 471] revert for the coming fishing season, and, if necessary, for a further term, to the condition of things existing under the treaty of Washington, without any suggestion of pecuniary indemnity.

This is a proposal which, I trust, will commend itself to your Government as being based on that spirit of generosity and good will which should animate two great and kindred nations, whose common origin, language, and institutions constitutors many bonds of amity and concord.

I have, etc,

Salisbury.
[Inclosure 2 in No. 478.]

Draft protocol communicated by Mr. Adams to the Earl of Clarendon in 1866.

Whereas in the first article of the convention between the United States and Great Britain, concluded and signed in London on the 26th October, 1818, it was declared that—

“The United States hereby renounce, for ever, any liberty heretofore enjoyed or claimed by the inhabitants thereof to take, dry, or cure fish on or within 3 marine miles of any of the coasts, bays, creeks, or harbors of His Britannic Majesty’s dominions in America, not included within certain limits heretofore mentioned;”

And whereas differences have arisen in regard to the extent of the above-mentioned renunciation, the Government of the United States and Her Majesty the Queen or Great Britain, being equally desirous of avoiding further misunderstanding, have agreed to appoint, and do hereby authorize the appointment, of a mixed commission for the following purposes, namely:

(1)
To agree upon and define, by a series of lines, the limits which shall separate the exclusive from the common right of fishery, on the coasts and in the seas adjacent, of the British North American colonies, in conformity with the first article of the convention of 1818. The said lines to be regularly numbered, duly described, and also clearly, marked on charts prepared in duplicate for the purpose.
(2)
To agree upon and establish such regulations as may be necessary and proper to secure to the fishermen of the United States the privilege of entering bays and harbors for the purpose of shelter; and of repairing damages therein; of purchasing Wood, and of obtaining water; and to agree upon and establish such restrictions as may be necessary to prevent the abuse of the privilege reserved by said convention to fishermen of the United States.
(3)
To agree upon and recommend the penalties to be adjudged, and such proceedings and jurisdiction as may be necessary to secure a speedy trial and judgment with as little expense as possible, for the violation of rights and the transgression of the limits and restrictions which may be hereby adopted.

Provided, however, that the limits, restrictions, and regulations which may be agreed upon by the said commission shall not be final, nor have any effect, until so jointly confirmed and declared by the United States and Her Majesty the Queen of Great Britain, either by treaty or by laws mutually acknowledged and accepted by the President of the United States, by and with the consent of the Senate, and by Her Majesty the Queen of Great Britain.

Pending a different arrangement on the subject, the United States Government engages to give all proper orders to officers in its employment; and Her Britannic Majesty’s Government engages to instruct the proper colonial or other British officers to abstain from hostile acts against British and United States fishermen respectively.

[Inclosure 3 in No, 478.]

Ad interimarrangement proposed by the United States Government

Article I. Observations on Mr. Bayard’s memorandum.
Whereas, in the first article of the convention between the United States and Great Britain, concluded and signed in London on the 20th October, 1818, it was agreed between the high contracting parties “that the inhabitants of the said United States shall have forever, in common [Page 472] 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 Belleisle, 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, here above 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 was declared that “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 3 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 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 other manner whatever abusing the privileges hereby reserved to them;”and whereas differences have arisen in regard to the extent of the above-mentioned renunciation, the Government of the United States and Her Majesty the Queen of Great Britain, being equally desirous of avoiding further misunderstanding, agree to appoint a mixed commission for the following purposes, namely:
(1)
To agree upon and establish by a series of lines the limits which shall separate the exclusive from the common right of fishing on the coast and in the adjacent waters of the British North American Colonies, in conformity with the first article of the convention of 1818, except that the bays and harbors from which American fishermen are in the future to be excluded, save for the purposes for which entrance into bays and harbors is permitted by said article, are hereby agreed to be taken to be such bays and harbors as are 10 or less than 10 miles in width, and the distance of 3 marine miles from [Page 473] such bays and harbors shall be measured from a straight line drawn across the bay or harbor, in the part nearest the entrance, at the first point where the width does not exceed 10 miles, the said lines to be regularly numbered, duly described, and also clearly marked on charts prepared in duplicate for the purpose.
(2)
To agree upon and establish such regulations as may be necessary and proper to secure to the fishermen of the United States the privilege of entering bays and harbors for the purpose of shelter and of repairing damages therein, of purchasing wood, and of obtaining water, and to agree upon and establish such restrictions as may be necessary to prevent the abuse of the privilege reserved by said convention to the fishermen of the United States.
(3)
To agree upon and recommend the penalties to be adjudged, and such proceedings and jurisdiction as may be necessary to secure a speedy trial and judgment, with as little expense as possible, for the violators of rights and the transgressors of the limits and restrictions which may be hereby adopted:
Provided however. That the limits, restrictions, and regulations which may be agreed upon by the said commission shall not be final, nor have any effect, until so jointly confirmed and declared by the United States and Her Majesty the Queen of Great Britain, either by treaty or by laws mutually acknowledged.

The most important departure in this article from the Protocol of 1866 is the interpolation of the stipulation, “that the-bays and harbors from which American vessels are in future to be excluded, save for the purposes for which entrance into bays and harbors is permitted by said article, are hereby agreed to be taken to be such harbors as are 10, or less than 10, miles in width, and the distance of 3 marine miles from such bays and harbors shall be measured from a straight line drawn across the bay or harbor in the part nearest the entrance at the first point where the width does not exceed 10 miles.”

This provision would involve a surrender of fishing rights which have always been regarded as the exclusive property of Canada, and would make common fishing-grounds of territorial waters which, by the law of nations, have been invariably regarded both in Great Britain and the United States as belonging to the adjacent country: In the case, for instance, of the Baie des Chaleurs, a peculiarly well-marked and almost landlocked indentation of the Canadian coast, the 10-mile line would be drawn from points in the heart of Canadian territory, and almost 70 miles distance from the natural entrance or mouth of the bay. This would be done in spite of the fact that, both by Imperial legislation and by judicial interpretation, this bay has been declared to form a part of the territory of Canada. (See Imperial Statute 14 and 15 Vict., cap. 63; and Mouat v. McPhee, 5 Sup. Court of Canada Reports, p. 66.)

The convention with France in 1839, and similar conventions with other European Powers, form, no precedents for the adoption of a 10-mile limit. Those conventions were doubtless passed with a view to the geographical peculiarities of the coast to which they related. They had for their object the definition of boundary-lines which, owing to the configuration of the coast, perhaps could not readily be settled by reference to the law of nations, and involve other conditions which are inapplicable to the territorial waters of Canada.

This is shown by the fact that in the French convention the whole of the oyster-beds in Granville Bay, otherwise called the Bay of Cancale, the entrance of which exceeds 10 miles in width, were regarded as French, and the enjoyment of them is reserved to the local fishermen.

A reference to the action of the United States Government, and to the admission made by their statesmen in regard to have on the American coasts, strengthens this view; and the case of the English ship Grange shows that the Government of the United States in 1793 claimed Delaware Bay as being within territorial waters.

Mr. Bayard contends that the rule which he asks to have set up was adopted by the umpire of the commission appointed under the convention of 1853 in the case of the United States fishing-schooner Washington that it was by him applied to the Bay of Fundy, and that it is for this reason applicable to other Canadian bays.

It is submitted, however, that as one of the headlands of the Bay of Fundy is in the territory of the United States any rules of international law applicable to that bay are not therefore equally applicable to other bays the headlands of which are both within the territory of the same power.

The second paragraph of the first article does not incorporate the exact language of the convention of 1818. For instance, the words, “and for no other purpose whatever,” should be inserted after the mention of the purposes for which vessels may enter Canadian waters, and after the words, “as may be necessary to prevent,” should be inserted, “their taking, drying, or curing, fish therein, or in any other manner abusing the privileges reserved,” etc.

To make the language conform correctly to the convention of 1818, several other verbal alterations, which need not be enumerated here, would be necessary.

Article II.
Pending a definitive arrangement on the subject, Her Britannic Majesty’s Government agree to instruct the proper colonial and other British officers to abstain from seizing or molesting fishing vessels of, the United States unless they are found within 3 marine miles of any of the coasts, bays, creeks, and harbors of Her Britannic Majesty’s dominions in America, there fishing, or to have been fishing or preparing to fish within those limits, not included within the limits within which, under the treaty of 1818, the fishermen of the United States continue to retain a common right of fishery with Her Britannic Majesty’s subjects.

This article would suspend the operation of the statutes of Great Britain and of Canada, and of the provinces now constituting Canada, not only as to the various offenses connected with fishing, but as to customs, harbors, and shipping, and would give to the fishing vessels of the United States privileges in Canadian ports which are not enjoyed by vessels of any other class or of any other nation. Such vessels would, for example, be free from the duty of reporting at the customs on entering a Canadian harbor, and no safeguard could be adopted to prevent infraction of the customs laws by any vessel asserting the character of a fishing vessel of the United States.

Instead of allowing to such vessels merely the restricted privileges reserved by the convention of 1818, it would give them greater privileges than are enjoyed at the present time by any vessels in any part of the world.

Article III.
For the purpose of executing Article I of the convention of 1818, the Government of the United States and the Government of Her Britannic Majesty hereby agree to send each to the Gulf of St. Lawrence a national vessel, and also one each to cruise during the fishing season on the [Page 474] southern coasts of Nova Scotia, Whenever a fishing vessel of the United States shall be seized for violating the provisions of the aforesaid convention by fishing or preparing to fish within 3 marine miles of any of the coasts, bays, creeks, and harbors of Her Britannic Majesty’s dominions included within the limits within which fishing is by the terms of the said convention renounced, such vessel shall forthwith be reported to the officer in command of one of the said national vessels, who, in conjunction with the officer in command of another of said vessels of different nationality, shall hear and examine into the facts of the case. Should the said commanding officers be of opinion that the charge is not sustained, the vessel shall be released. But if they should be of opinion that the vessel should be subjected to a judicial examination, she shall forthwith be sent for trial before the vice-admiralty court at Halifax. If, however, the said commanding officers should differ in opinion, they shall name some third person to act as umpire between them, and should they be unable to agree upon the name of such third person, they shall each name a person, and it shall be determined by lot which of the two persons so named shall be the umpire.

This article would deprive the courts in Canada of their jurisdiction, and would vest that jurisdiction in a tribunal not bound by legal principles, but clothed with supreme authority to decide on most important rights of the Canadian people.

It would submit such rights to the adjudication of two naval officers, one of them belonging to a foreign country, who, if they should disagree and be unable to choose an umpire, must refer the final decision of the great interests which might be at stake to some person chosen by lot.

If a vessel charged with infraction of Canadian fishing rights should be thought worthy of being subjected to a “judicial examination,” she would be sent to the vice-admiralty court at Halifax, but there would be no redress, no appeal, and no reference to any tribunal if the naval officers should think proper to release her.

It should, however, be observed that the limitation in the second sentence of this article of the violations of the convention which are to render a vessel liable to seizure could not be accepted by Her Majesty’s Government.

For these reasons, the article in the form proposed is inadmissible, but Her Majesty’s Government are not indisposed to agree to the principle of a joint inquiry by the naval officers of the two countries, in the first instance, the vessel to be sent for trial at Halifax if the naval officers do not agree that she should be released. They fear, however, that there would be serious practical difficulties in giving effect to this arrangement, owing to the great length of coast and the delays which must in consequence be frequent in securing the presence at the same time and place of the naval officers of both Powers.

Article IV.
The fishing vessels of the United States shall have in the established ports of entry of Her Britannic Majesty’s dominions in America the same commercial privileges as other vessels of the United States, including the purchase of bait and other supplies; and such privileges shall be exercised subject to the same rules and regulations and payment of the same port charges as are prescribed for other vessels of the United States. This article is also open to grave objection. It proposes to give the United States fishing vessels the same commercial privileges as those to which other vessels of the United States are entitled, although such privileges are expressly renouuced by the convention of 1818 on behalf of fishing vessels, which were thereafter to be denied the right of access to Canadian waters for any purpose whatever, except those of shelter, repairs, and the purchase of wood and water. It has frequently been pointed out that an attempt was made during the negotiations which preceded the convention of 1818, to obtain for the fishermen of the United States the right of obtaining bait in Canadian waters, and that this attempt was successfully resisted. In spite of this fact, it is proposed, under this article, to declare that the convention of 1818 gave that privilege, as well as the privilege of purchasing other supplies in the harbors of the Dominion.
Article V.
The Government of Her Britannic Majesty agree to release all United States fishing vessels now under seizure for failing to report at custom-houses when seeking shelter, repairs, or supplies, and to refund all fines exacted for such failure to report. And the high contracting parties agree to appoint a joint commission to ascertain [Page 475] the amount of damage caused to American fishermen during the year 1886 by seizure and detention in violation of the treaty of 1818, said commission to mate awards therefor to the parties injured.

By this article it is proposed to give retrospective effect to the unjustified interpretation sought to be placed on the convention by the last preceding article.

It is assumed, without discussion, that all United States fishing vessels which have been seized since the expiration of the treaty of Washington have been illegally seized leaving as the only question still open for consideration the amount of the damages for which the Canadian authorities are liable.

Such a proposal appears to Her Majesty’s Government quite inadmissible.

Article VI.
The Government of the United States and the Government of Her Britannic Majesty agree to give concurrent notification and warning of Canadian customs regulations, and the United States agree to admonish its fishermen to comply with them and co-operate in securing their enforcement. This article calls for no remark.