[Inclosure 1 in No. 501, From the Times,
Thursday, April 21, 1887.]
The Canadian fisheries question is not finally settled; in fact, that
much to be desired end seems far off. The further official
correspondence published yesterday shows that diplomacy has moved
without advancing much. Who is responsible? Not, in. the main, either
the Home Government or the Dominion Government. We must do them the
justice to own that they have not been exacting or punctilious. The
former have made overtures of a fair and even generous nature. Their
fault, if any, has been one not unknown in negotiating with astute
diplomatists; they have, perhaps, undervalued the advantage of standing
still and waiting to see whether the other side moves. Last December the
American minister communicated to Lord Iddesleigh a proposal for an ad interim arrangement, the chief feature of
which was the establishment of a mixed commission in order to “separate
the exclusive from the common right of fishing on the coasts and in the
adjacent waters of the British North American colonies;” the vexed
question of the headlands to be settled by laying it down that the bays
and harbors into which entrance is not generally permitted are “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 such bays and harbors, to
be measured from a straight line drawn across the bay or harbor in the
Bart nearest the entrance at the first point where the width does not
exceed 10 miles.” The commissioners would also be empowered to make
regulations to secure the right of entry of fishermen of the United
States into bays and harbors for the purpose of safety and the like, and
also to make arrangements for the speedy trial of offenders. In the mean
time no seizures would take place; vessels of war of this country and
the United States would act as police, and American fishing vessels
would have the same commercial privileges, including the purchase of
bait and other supplies, as other vessels of the United States. This
proposal found no favor in Canada or here. Lord Landsdowne’s advisers
pointed out [Page 476] that it was open
to serious objections. The proposed mode of measuring bays and harbors
and the suggested 3-mile line would involve an abandonment by Canada of
exclusive rights which are indisputably hers; for example, the
land-locked Baie des Chaleurs, which by Imperial statute and judicial
construction has been declared to be part of the territory of Canada,
would be dealt with as if it were part of the open sea. The proposal as
to the provisional position of fishing vessels is equivalent to a
request that Canada should give up one of the express benefits of the
treaty of 1818. Lord Salisbury was equally unsparing in his criticism of
the ad interim proposal. As he pointed out, one
of the suggestions was to “give to fishing vessels of the United States
privileges in Canadian ports which are not enjoyed by vessels of any
other class or any other nation.”
But very wisely too much has not been made of these objections. The
matter has not ended there. The sooner this question is settled the
better for all concerned, and the Government acted properly in allowing
the door to remain open. “Her Majesty’s Government and the Government of
Canada,” said Lord Salisbury in his dispatch of March 24,”in proof of
the earnest desire to treat the question in a spirit of liberality and
friendship, are now willing to 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
indemnity”—that is, give for nothing for a season rights for which,
under the Halifax award, made in accordance with the fishery articles of
the treaty of Washington, the American Government were called upon to
pay £1,100,000. This may be scarcely business; it is generous almost to
the extent of being quixotic, and to do more would be weakness. We are
slow to believe that the American Government will refuse to take
advantage of what can cost them nothing to accept. Besides, too, the
English Government are ready to fall in with Mr. Bayard’s capital
proposal for the appointment of a mixed commission. As to that
suggestion, which was urged in one of a series of valuable letters on
this subject in our columns on February 19 last, Lord Salisbury says:
“There can be no objection on the part of Her Majesty’s Government to
the appointment of a mixed commission, whose business 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.” Some sort of modus Mvendi
could surely be devised by a well-chosen, authoritative commission.
Unfortunately, the longer such a question remains open, the more it
loses its original simplicity and becomes perplexed by side issues. The
more it is discussed the more diplomatists are embarrassed by
propositions to which they or their predecessors stand committed.
Insensibly the controversy becomes embittered, and retaliation is talked
of. We find but too many illustrations of this deterioration in these
dispatches. Perhaps the absence of an equitable temper may be detected
in communications from this side of the Atlantic and from the Dominion.
We, perhaps naturally, are more struck by the acrimony of the attacks by
American diplomatists on the Canadian Government. In the very first
communication from Mr. Phelps to the late Lord Iddesleigh he denounces,
as “a violation of the principles of natural justice as well as those of
the common law,” the seizure of a fishing vessel for in fringing the
treaty of 1818 and certain custom-house regulations. He is particularly
angry with the requirement by Canadian law that “the burden of proving
the illegality shall be on the owner or claimant.”That such provisions
exist in almost all laws against smuggling is wholly overlooked. It is
impossible not to mark the tendency to look at the question as if it
were not one of construction of the treaty of 1818. We find reiterated
complaints that “a treaty of friendship” is “tortured into a means of
offense,” 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.” The House of Representatives took even
higher ground, and the Committee on Foreign Affairs reported that the
conduct of the local authorities in Canada “has been not only in
violation of treaty stipulations and international comity, but, during
the fishing season just passed, has been inhuman,” The Committee of the
Senate on Foreign Relations reported to much the same effect. “It is
recommended,” they said in their report, “that the President of the
United States be invested with the power, and that it be made his duty,
whenever he shall be satisfied that unjust, unfair, or unfriendly
conduct is practiced by the British Government in respect of our
citizens and their property within the ports or waters of British
dominions in North America to deny to the subjects of that Government in
British North America and their property, or to any class of them, such
privileges in the waters and ports of the United States as he may think
proper to name, and to suspend in respect of such vessels or classes of
vessels, or such property or classes of property of the subjects of such
Government the right of entering or being brought within the waters or
ports of the United States.” The result has been the passing of the
retaliatory bill introduced in the Senate, which requires the President,
when satisfied that American fishermen have been deprived of any right,
or unjustly or vexatiously treated, to retaliate. With like
restrictions. This development of the controversy does not bode well for
[Page 477] settlement. Politicians,
if not diplomatists, have lost sight of the originally simple issue, the
meaning of a few words. But we do not despair of the matter being, even
at this stage, amicably arranged, if only no further time is lost.
[Inclosure 2 in No. 501.—From the Times,
Friday, April 22, 1887.]
the canadian fisheries question.
[April 22,
1887]
We regret that by inadvertence it was stated in the Times of yesterday in
a quotation from an official note of the American minister to Lord
rddesleigh, dated December 2, 1886, that Mr. Phelps denounced “the
seizure of a fishing vessel for infringing the treaty of 1818 and
certain custom-house regulations” as “a violation of the principles of
abstract justice, as well as those of the common law.” It appears from
the note in question that this language referred, not to a seizure of a
fishing vessel, but to a provision in the act of the Canadian Parliament
of May 22, 1868, which in legal effect casts upon the person accused of
an offense the burden of proving his innocence.
