No. 317.
Mr. Phelps to Mr. Bayard .

No. 501.]

Sir: I have the honor to inclose herewith two copies of a parliamentary paper* (United States, No. 2, 1887) just issued by the British Government and containing further correspondence on the subject of the fisheries, together with a leading article from the Times of 21st instant in reference thereto, and the correction I caused to be inserted in today’s issue of that newspaper of one of its statements.

I have, etc.,

E. J. Phelps.
[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.

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.

  1. This paper contains the correspondence between the two Governments which has also been published by the Government of the United States.