No. 332.
Sir L. S. Sackville West to Mr. Bayard .

Sir: With reference to your note* of the 20th of May last, I have the honor to transmit to you herewith copy of a report by the minister of justice of the Dominion of Canada upon the seizure of the American fishing vessel David J. Adams, which I am instructed by Her Majesty’s principal secretary of state for foreign affairs to communicate to the United States Government.

I have, etc.,

L. S. Sackville West.
[Inclosure 1.]

The Marquis of Lansdowne to Mr. Stanhope .

Sir: With reference to Earl Granville’s dispatch of the 24th June last, respecting the fisheries question and inclosing copies of two letters from the foreign office and one from the United States minister in London, addressed to the secretary of state [Page 503] for foreign affairs, I have the honor to transmit herewith a copy of an approved minute of the privy council of Canada concurring in a report of the minister of justice dealing with the points raised by Mr. Phelps in his note of the 2d June last on the subject of the seizure of the United States fishing Vessel David J. Adams, near Digby, Nova Scotia.

I have, etc.,

Lansdowne.
[Inclosure 2.]

Certified copy of a report of a committee of the honorable the privy council for Canada, approved by his excellency the administrator of the Government in council on the 2d November, 1886.

The committee of the privy council have had under consideration a dispatch dated 24th June, 1886, from the right honorable the secretary of state for the colonies respecting the fisheries question, and inclosing copies of letters on the subject from the foreign office to the colonial office, and of one from Mr. Phelps to the secretary of state for foreign affairs.

The minister of justice, to whom the dispatch and inclosures were referred, submits a report thereon herewith.

The committee concur in the said report, and advise that your excellency be moved to transmit a copy thereof, if approved, to the right honorable the secretary of state for the colonies.

All of which is submitted for your excellency’s approval.

John J. McGee,
Clerk Privy Council, Canada
[Inclosure 3.]

Report of the Minister of Justice.

To his Excellency the Administrator of the Government in council:

With reference to the dispatch of the 24th June last from the secretary of state for the colonies to your excellency, respecting the fisheries question, and inclosing copies of letters on the subject from the foreign office to the colonial office and of one from Mr. Phelps to the secretary of state for foreign affairs, the undersigned has the honor to report as follows:

The letter of Mr. Phelps seems designed to present to Earl Rosebery the case of the David J. Adams, the fishing vessel seized a short time ago near Digby, in the province of Nova Scotia.

Mr. Phelps intimates that he has received from his Government a copy of the report of the consul-general of the United States at Halifax, giving full details and depositions relating to the seizure, and that that report and the evidence annexed to it, appear fully to sustain the points which he had submitted to Earl Rosebery at an interview which he had had a short time before the date of his letter.

The report of the consul-general and the depositions referred to seem not to have been presented to Earl Rosebery, and their contents can only be inferred from the statements made in Mr. Phelps’s letter.

These statements appear to be based on the assertions made by the persons interested in the vessel by way of defense against the complaint under which she was seized, but can not be regarded as presenting a full or accurate representation of the case. The undersigned submits the facts in regard to this vessel as they are alleged by those on whose testimony the Government of Canada can rely to sustain the seizure and detention.

the offense as to the treaty and fishery laws.

The David J. Adams was a United States fishing vessel. Whether, as alleged in her behalf, her occupation was deep-sea fishing or not, and whether, as suggested, she had not been engaged, nor was intended to be engaged, in fishing in any limit prescribed by the treaty of 1818 or not, are questions which do not, in the opinion of the undersigned, affect the validity of the seizure, and of the proceedings subsequent thereto, for reasons which will be hereafter stated, but in so far as they may be deemed [Page 504] material to the defense they are questions of fact, which remain to be proved in the vice-admiralty court at Halifax, in which the proceedings for the vessel’s condemnation are pending, and in respect of which proof is now being taken, and inasmuch as the trial has not been concluded (much less a decision reached), it is perhaps premature for Mr. Phelps to claim the restoration of the vessel, and to assert a right to damages for her detention, on the assumption of the supposed facts before referred to.

It is alleged in the evidence on behalf of the prosecution that the David J. Adams, being a United States fishing vessel, on the morning of the 5th of May, 1886, was in what is called the Annapolis Basin, which is a harbor on the northwest coast of Nova Scotia. She was several miles within the basin, and the excuse suggested (that the captain and crew may have been there through a misapprehension as to the locality) by the words of Mr. Phelps’s letter, “Digby is a small fishing settlement, and its harbor not defined,” is unworthy of much consideration.

Digby is not a fishing settlement, although some of the people on the neighboring shores engage in fishing. It is a town with a population of about 2,000 persons. Its harbor is formed by the Annapolis Basin, which is a large inlet of the Bay of Fundy, and the entrance to it consists of a narrow strait marked by conspicuous headlands, which are little more than a mile apart. The entrance is called “Digby Gut,” and for all purposes connected with this inquiry the harbor is one of the best defined in America.

The David J. Adams was, on the morning of the 5th day of May, 1886, as has already been stated, several miles within the Gut. She was not there for the purpose of “shelter,” or “repairs,” nor to “purchase wood,” nor to obtain water. She remained there during the 5th and the 6th of May, 1886; she was lying at anchor about half a mile from the shore, at a locality called “Clements West.”

On the morning of the 6th of May, 1886, the captain made application to the owners of a fishing weir near where he was laying for bait, and purchased 4½ barrels of that article. He also purchased and took on board about two tons of ice. While waiting at anchor for these purposes the name of the vessel’s “hailing place” was kept covered by canvas, and this concealment continued while she afterwards sailed down past Digby.

One of the crew represented to the persons attending the weir that the vessel belonged to the neighboring province of New Brunswick. The captain told the owner of the weir, when the treaty was spoken of by the latter, that the vessel was under British register. The captain said he would wait until the next morning to get more bait from the catch in the weir which was expected that day. At daybreak, however, on the morning of the 7th of May, 1886, the Government steamer Lansdowne arrived off Digby, and the David J. Adams got under way without waiting to take in the additional supply of bait, and sailed down the basin towards the Gut.

Before she had passed Digby she was boarded by the first officer of the Lansdowne, and to him the captain made the following statement: That he had come to that place to see his people, as he had formerly belonged there; that he had no fresh bait on board, and that he was from the “Banks,” and bound for Eastport, Me. The officer of the Lansdowne told him he had no business there, and asked him if he knew the law. His reply was, “Yes.”

A few hours afterwards, and while the David J. Adams was still inside the Gut, the officer of the Lansdowne, ascertaining that the statements of the captain were untrue, and that bait had been purchased by him within the harbor on the previous day, returned to the David J. Adams, charged the captain with the offense, and received for his reply the assertion that the charge was false, and that the person who gave the information was a “liar.”

The officer looked into the hold of the vessel and found the herring which had been purchased the day before, and which, of course, was perfectly fresh but the captain declared that this “bait” was ten days old.

The officer of the Lansdowne returned to his ship, reported the facts, and went again to the Adams, accompanied by another officer, who also looked at the bait. Both returned to the Lansdowne, and then conveyed the Adams the direction that she should come to Digby and anchor near the Lansdowne. This was, in fact, the seizure.

These are the circumstances by which the seizure was, in the opinion of Mr. Phelps, “much aggravated,” and which make it seem very apparent to him that the seizure “was not made for the purpose of enforcing any right or redressing any wrong.”

The fact that the seizure was preceded by visitations and searches was due to the statements of the master and the reluctance of the officers of the Lansdowne to enforce the law until they had ascertained to a demonstration that the offense had been committed and that the captain’s statements were untrue.

the offense as to customs laws.

The David J. Adams, as already stated, was in harbor upwards of forty-eight hours, and when seized was proceeding to sea without having been reported at any customs-house. [Page 505] Her business was not such as to make it her interest to attract the attention of the Canadian authorities, and it is not difficult, therefore, to conjecture the reason why she was not so reported, or to see that the reason put forward, that Digby is hut “a small fishing settlement and its harbor not defined,” is a disingenuous one. In going to the weir to purchase bait the vessel passed the custom-house at Digby almost within hailing distance. When at the weir she was within 1 or 2 miles another custom-house (at Clementsport), and within about 15 miles of another (at Annapolis). The master has not asserted that he did not know the law on this subject, as it is established that he knew the law in relation to the restriction on foreign fishing vessels.

The provisions of the customs act of Canada on this subject are not essentially different from those of his own country. The captain and crew were ashore during the 5th and 6th Of May, 1886. The following provisions of the customs act of Canada apply:

“The master of every vessel coming from any port or place out of Canada, or coastwise, and entering any port in Canada, whether laden or in ballast, shall go without delay, when such vessel is anchored or moored, to the custom-house for the port or place of entry where he arrives, and there make a report in writing to the collector or other proper officer of the arrival and voyage of such vessel, stating her name, country, and tonnage, the port of registry, the name of the master, the country of the owners, the number and names of the passengers, if any, the number of the crew, and whether the vessel is laden or in ballast, and, if laden, the marks and numbers of every package and parcel of goods on board, and where the same was laden, and the particulars of any goods stored loose, and where and to whom consigned, and where any and what goods, if any, have been laden or unladen, or bulk has been broken during the voyage, what part of the cargo, and the number and names of the passengers which are intended to be landed at that port, and what and whom at any other port in Canada, and what part of the cargo, if any, is intended to be exported in the same vessel, and what surplus stores remain on board as far as any of such particulars are or can be known to him.”(46 Vic, cap. 12, sec. 25.)

“The master shall at the time of making his report, if required by the officer of customs, produce to him the bills of lading of the cargo, or true copies thereof, and shall make and subscribe an affidavit, referring to his report, and declaring that all the statements made in the report are true, and shall further answer all such questions concerning the vessel and cargo, and the crew, and the voyage, as are demanded of him by such officer, and shall, if required, make the substance of any such answer part of his report.”(46 Vic, cap. 12, sec. 28.)

“If any goods are unladen from any vessel before such report is made, or if the master fails to make such report, or makes an untrue report, or does not truly answer the questions demanded of him, as provided in the next preceding section, he shall incur a penalty of $400, and the vessel may be detained until such penalty is paid.”(46 Vic, cap. 12, see. 28.)

proceedings following the seizure.

These have been made the subject of complaint by Mr. Phelps, although the explanations which were given in the previous memorandum of the undersigned (in reference to the letters of Mr. Bayard to Her Majesty’s minister at Washington), and in the report on the same subject of the minister of marine and fisheries, laid before his excellency the governor-general on the 14th of June ultimo, coupled with a disavowal, by the Canadian Government, of any intention that the proceedings in such cases should be unnecessarily harsh or pursued in a punitive spirit, might have been expected to be sufficient. After the seizure was made, the commander of the Lansdowne took the David J. Adams across the Bay of Fundy to St. John, a distance of about 40 miles. He appears to have had the impression that, as his duties would not permit him to remain at Digby, the vessel would not be secure from rescue, which has in several cases occurred after the seizure of fishing vessels. He believed she would be more secure in the harbor of St. John, and that the legal proceedings, which in due course would follow, could be taken there. He was immediately directed, however, to return with the vessel to Digby, as it seemed more in order, and more in compliance with the statutes relating to the subject, that she should be detained in the place of seizure, and that the legal proceeding should be taken in the vice-admiralty court of the province where the offense was committed. It does not seem to be claimed by the United States authorities that any damage to the vessel, or that any injury or inconvenience to any one concerned, was occasioned by this removal to St. John and by her return to Digby, occupying as they did but a few hours, and yet this circumstance seems to be relied on as “aggravating the seizure,” and as depriving it of the character of a seizure made “to enforce a right or to redress a wrong.”

[Page 506]

Another ground of complaint is that in Digby, “the paper alleged to be the legal precept for the capture and detention of the vessel was nailed to her mast in such a manner as to prevent its contents being read,” and that “the request of the captain, and of the United States consul-general, to be allowed to detach the writ from the mast, for the purpose of learning” its contents, was positively refused by the provincial official in charge: that the United States consul-general was not able to learn from the commander of the Lansdowne the nature of the complaint against the vessel, and that his respectful application to that effect was fruitless.”

(1)
As to the position of the paper on the mast. It is not a fact that it was nailed to the vessel’s mast “in such a manner as to prevent its contents being read.” It was nailed there for the purpose of being read and could have been read.
(2)
As to the refusal to allow it to be detached, such refusal was not intended as a discourtesy, but was legitimate and proper. The paper purported to be, and was, a copy of the writ of summons and warrant, which were then in the registry of the vice-admiralty court at Halifax. It was attached to the mast by the officer of the court, in accordance with the rules and procedure of that court. The purposes for which it was so attached did not admit of any consent for its removal.
(3)
As to the desire of the captain and of the United States consul-general to ascertain the contents of the paper, the original was in the registry of the court, accessible to every person, and the registry is within 80 yards of the consul-general’s office. All the reasons for the seizure and detention were made, however, to the captain, days before the paper arrived to be placed on the mast, and, before the consul-general arrived at Digby; these reasons were not only matters of public notoriety, but had been published in the newspapers of the province and in hundreds of other newspapers circulating throughout Canada and the United States. The captain and the consul-general did not need, therefore, to take the paper from the mast in order to learn the causes of the seizure and detention.
(4)
As to the application of the consul-general having been fruitless, the fact has transpired that he had reported the seizure and its causes to his Government before the application was made. It has been already explained in the previous memorandum of the undersigned, and in the report of the minister of marine and fisheries, that the application was for a specific statement of the charges, and that it was made to an officer who had neither the legal acquirements nor the authority to state them in a more specific form than that in which he had already stated them. The commander of the Lansdowne requested the consul-general to make his request to the minister of the marine and fisheries, and, if he had done so, the specific statement which he had desired could have been furnished in an hour. It is hoped that the explanation already made, and the precautions which have been taken against even the appearance of discourtesy in the future, will, on consideration, be found to be satisfactory.

incidents of the customs seizure.

Mr. Phelps presents the following views with respect to the claim that the David J. Adams, besides violating the treaty and the statutes relating to “fishing by foreign vessels,” is liable to be detained for the penalty under the customs law.

(1) That this claim indicates the consciousness that the vessel could not be forfeited for the offense against the treaty and fishing laws. This supposition is groundless. It is by no means uncommon in legal proceedings, both in Canada and the United States, for such proceedings to be based on more than one charge, although any one of the charges would in itself, if sustained, be sufficient for the purpose of the complainant. The success of this litigation, like that of all litigation, must depend not merely on the rights of the parties but on the proof which may be adduced as to a right having been infringed. In this instance it appears from Mr. Phelps’s letter that the facts which are to be made the subject of proof are evidently in dispute, and the Government of Canada could, with propriety, assert both its claims, so that both of them should not be lost by any miscarriage of justice in regard to one of them. This was likewise the proper cause* to be taken in view of the fact than an appeal might at any time be made to the Government by the owners of the David J. Adams for the remission of the forfeiture incurred in respect of the fishery laws. The following is a section of the Canadian statute relating to fishing by foreign vessels:

“In cases of seizure under this act, the governor in council may direct a stay of proceedings, and in cases of condemnation may relieve from the penalty in whole or in part, and on such terms as are deemed right.”(31 Vic, cap. 61, sec. 19.)

It seems necessary and proper to make at once any claim founded on infraction of the customs laws, in view of the possible termination of the proceedings by executive interference under this enactment. It would surely not be expected that the Government of Canada should wait until the termination of the proceedings under the fishery acts before asserting its claim to the penalty under the customs act. The [Page 507] owners of the offending vessel and all concerned were entitled to know as soon as they could he made aware what the claims of the Government were in relation to the vessel, and they might fairly urge that any which were not disclosed were waived.

(2) Mr. Phelps remarks that this charge is “not the one on which the vessel was seized” and “was an after-thought.” The vessel was seized by the commander of the Zandsdowne for a violation of the fishery laws before the customs authorities had any knowledge that such a vessel had entered into the port, or had attempted to leave it, and the commander was not aware at that time whether the David J. Adams had made proper entry or not. A few hours afterwards, however, the collector of customs at Digby ascertained the facts, and on the facts being made known to the head of his department at Ottawa, was immediately instructed to take such steps as might be necessary to assert the claim for the penalty which had been incurred. The collector did so.

(3) Mr. Phelps asserts that the charge of breach of the customs law is not the one which must now be principally relied on for condemnation. It is true that condemnation does not necessarily follow. The penalty prescribed is a forfeiture of $400, on payment of which the owners are entitled to the release of the vessel. If Mr. Phelps means by the expression just quoted that the customs offense cannot be relied on in respect to the penalty claimed, and that the vessel cannot be detained until that penalty is paid, it can only be said that in this contention the Canadian Government does not concur. Section 39 of the customs act, before quoted, is explicit on that point.

(4) It is also urged that the offense was, at most, “only an accidental and clearly technical breach of a custom-house regulation, by which no harm was intended, and from which no harm came, and would in ordinary cases be easily condoned by an apology, and perhaps payment of costs.” What has already been said under the heading “the offense as to the customs laws” presents the contention opposed to the offense being considered as accidental.” The master of the David J. Adams showed by his language and conduct that what he did he did with design, and with the knowledge that he was violating the laws of the country. He could not have complied with the customs law without frustrating the purposes for which he had gone into port.

As to the breach being a “technical” one, it must “be remembered that with thousands of miles of coast indented, as the coasts of Canada are, by hundreds of harbors and inlets, it is impossible to enforce the fishery law without a strict enforcement of the customs laws. This difficulty was not unforeseen by the framers of the treaty of 1818, who provided that the fishermen should be under such restrictions as might be necessary to prevent their taking, drying, or curing fish * * * or in any other manner whatever abusing the privilege reserved to them.” No naval force which could be equipped by the Dominion would of itself be sufficient for the enforcement of the fishery laws.

Foreign fishing vessels are allowed by the treaty to enter the harbors and inlets of Canada, but they are allowed to do so only for specified purposes. In order to confine them to those purposes it is necessary to insist on the observance of the customs laws, which are enforced by officers all along the coast. A strict enforcement of the customs laws, and one consistent with the treaty, would require that, even when coming into port for the purposes for which such vessels are allowed to enter our waters, a report should be made at the custom-house, but this has not been insisted on in all cases; when the customs laws are enforced against those who enter for other than legitimate purposes, and who choose to violate both the fishery laws and customs laws, the Government is far within its right, and should not be asked to accept an apology and payment of costs. It may be observed here, as affecting Mr. Phelps’s demands for restoration and damages, that the apology and costs have never been tendered, and that Mr. Phelps seems to be of opinion that they are not called for.

(5) Mr. Phelps is informed by the consul-general at Halifax that it is “conceded by the customs authorities there that foreign fishing vessels have for forty years been accustomed to go in and out of the bay at pleasure, and have never been required to send ashore and report when they had no business with the port and made no landing, and that no seizure had ever before been made or claim against them for so doing.” Nothing of this kind is or could be conceded by the customs authorities there or elsewhere in Canada.

The bay referred to, the Annapolis Basin, is like all the other harbors of Canada, except that it is unusually well defined and land-locked and furnished with customs-houses. Neither there nor anywhere else have foreign fishing vessels been accustomed to go in and out at pleasure without reporting. If they had been so permitted the fishery laws could not have been enforced, and there would have been no protection against illicit trading. While the reciprocity treaty of 1854 and the fishery clauses of the Washington treaty were in force, the convention of 1818 being, of course, suspended, considerable laxity was allowed to the United States fishing vessels, much greater than the terms of those treaties entitled them to, but the consul-general [Page 508] is greatly mistaken when he supposes that at other times the customs laws were not enforced, and that seizures of foreign fishing vessels were not made for omitting to report. Abundant evidence on this point can he-had.

In 1839 Mr. Vail, the Acting Secretary of State (United States) reported that most of the seizures, which then were considered numerous, were for alleged violation of the customs laws (Papers relating to the Treaty of Washington, vol. vi, p. 283, Washington edition). From a letter of the United States consul at Charlottetown, dated August 19, 1870, to the United States consul-general at Montreal, it appears that it was the practice of the United States fishermen at that time to make regular entry at the port to which they resorted. The consul said, “Here the fishermen enter and clear, and take out permits to land their mackerel from the collector, and as their mackerel is a free article in this island, there can be no illicit trade.”

In the year 1870, two United States fishing vessels, the H. W. Lewis and the Granada, were seized on like charges in Canadian waters.

What Mr. Phelps styles “a custom-house regulation” is an act of the Parliament of Canada, and has for many years been in force in all the provinces of the Dominion. It is one which the Government can not at all alter or repeal, and which its officers are not at liberty to disregard.

(6) It is suggested, though not asserted, in the letter of Mr. Phelps, that the penalty can not reasonably be insisted on, because a new rule has been suddenly adopted without notice. The rule, as before observed, is not a new one, nor is its enforcement a novelty. As the Government of the United States choose to put an end to the arrangement under which the fishermen of that country were accustomed to frequent Canadian waters with so much freedom, the obligation of giving notice to those fishermen that their rights were thereafter, by the action of their own Government, to be greatly restricted, and that they must not infringe the laws of Canada, was surely a duty incumbent on the Government of the United States rather than on that of Canada. This point can not be better expressed than in the language reported to have been recently used by Mr. Bayard, the United States Secretary of State, in his reply to the owners of the George Cushing, a vessel recently seized on a similar charge: “You are well aware that questions are now pending between this Government and that of Great Britain in relation to the justification of the rights of American fishing vessels in the territorial waters of British North America, and we shall relax no effort to arrive at a satisfactory solution of the difficulty. In the mean time it is the duty and manifest interest of all American citizens entering Canadian jurisdiction to ascertain and obey the laws and regulations there in force. For all unlawful depredations of property or commercial rights this Government will expect to procure redress and compensation for the innocent sufferers.”

interpretation of the treaty.

Mr. Phelps, after commenting in the language already quoted from his letter on the claim for the customs penalty, treats, as the only question, whether the vessel is to be forfeited for purchasing bait to be used in lawful fishing. In following his argument on this point, it should be borne in mind, as already stated, that in so far as the fact of the bait having been intended to be used in lawful fishing is material to the case, that is a fact which is not admitted. It is one in respect of which the burden of proof is on the owners of the vessel, and it is one on which the owners of the vessel have not yet obtained an adjudication by the tribunal before which the case has gone.

Mr. Phelps admits “that if the language of the treaty of 1818 is to be interpreted literally, rather than according to its spirit and plain intent, a vessel engaged in fishing would be prohibited from entering a Canadian port for any purpose whatever, except to obtain wood or water, or to repair damages, or to seek shelter.”

It is claimed on the part of the Government of Canada that this is not only the language of the treaty of 1818, but “its spirit and plain intent.” To establish this contention it should be sufficient to point to the clear, unambiguous words of the treaty. To those clear and unambiguous words Mr. Phelps seeks to attach a hidden meaning by suggesting that certain “preposterous consequences” might ensue from giving them their ordinary construction. He says that with such a construction a vessel might be forfeited for entering a port “to post a letter, to send a telegram, to buy a newspaper, to obtain a physician in case of illness, or a surgeon in case of accident, to land or bring off a passenger, or even to lend assistance to the inhabitants, etc.”

There are probably few treaties or statutes, the literal enforcement of which might not in certain circumstances produce consequences worthy of being described as preposterous.

At most, this argument can only suggest that, in regard to this treaty, as in regard to every enactment, its enforcement should not be insisted on where accidental hardships or “preposterous consequences” are likely to ensue. Equity and a natural [Page 509] sense of justice would doubtless lead the Government with which the treaty was made to abstain from its rigid enforcement for inadvertent offenses, although the right so to enforce it might be beyond question. It is for this reason that, inasmuch as the enforcement of this treaty to some extent devolves on the Government of Canada, the Parliament of the Dominion has in one of the sections already quoted of the statute relating to fishing by foreign vessels (31 Vic, cap. 61, sec. 19) intrusted the executive with power to mitigate the severity of those provisions when an appeal to executive interference can be justified. In relation to every law of a penal character the same power for the same purpose is vested in the executive. Mr. Phelps will find it difficult, however, to discover any authority among the jurists of his own country or of Great Britain, or among the writers on international law, for the position that, against the plain words of a treaty or statute, an interpretation is to be sought which will obviate all chances of hardship and render unnecessary the exercise of the executive power before mentioned.

It might fairly be urged against his argument that the convention of 1818 is less open to an attempt to change its plain meaning than even a statute would be. The latter is a declaration of its will by the supreme authority of the state, the former was a compact deliberately and solemnly made by two parties, each of whom expressed what he was willing to concede, and by what terms it was willing to be bound. If the purposes for which the United States desired that their fishing vessels should have the right to enter British American waters included other than those expressed, their desire can not avail them now, nor be a pretext for a special interpretation after they assented to the words “and for, no other purpose whatever.” If it was “preposterous” that their fishermen should be precluded from entering provincial waters “to post a letter” or for any other of the purposes which Mr. Phelps mentions, they would probably never have assented to a treaty framed as this was. Having done so they can not now urge that their language was “preposterous,” and that its effect must be destroyed by resort to “interpretation.”

But that which Mr. Phelps calls “literal interpretation” is by no means so preposterous as he suggests, when the purpose and object of the treaty come to he considered. While it was not desired to interfere with ordinary commercial intercourse between the people of the two countries, the deliberate and declared purpose existed on the part of Great Britain, and the willingness existed on the part of the United States, to secure absolutely and free from the possibility of encroachment the fisheries of the British possessions in America to the people of those possessions, excepting as to certain localities, in respect of which special provisions were made. To effect this it was merely necessary that there should be a joint declaration of the right which was to be established, but that means should be taken to preserve that right. For this purpose a distinction was necessarily drawn between the United States vessels engaged in commerce and those engaged in fishing. While the former had free access to our coasts, the latter were placed under a strict prohibition.

The purpose was to prevent the fisheries from being poached on, and to preserve them to “the subjects of his Britannic Majesty in North America, not only for the pursuit of fishing within the waters adjacent to the coast (which can under the law of nations be done by any country), but as a basis of supplies for the pursuit of fishing in the deep sea.” For this purpose it was necessary to keep out foreign fishing vessels, excepting in case of dire necessity, no matter under what pretext they might desire to come in. The fisheries could not be preserved to our people if every one of the United States fishing vessels that were accustomed to swarm along our coasts could claim the right to enter our harbors “to post a letter, or send a telegram, or buy a newspaper, to obtain a physician in case of illness or a surgeon in case of accident, to land or bring off a passenger, or even to lend assistance to the inhabitants in fire, flood, or pestilence,” or to “buy medicine,” or to “purchase a new rope.”

The slightest acquaintance with the negotiations which led to the treaty of 1818, and with the state of the fishery question preceding it, induces the belief that if the United States negotiators had suggested these as purposes for which their vessels should be allowed to enter our waters, the proposal would have been rejected as “preposterous,” to quote Mr. Phelps’s own words. But Mr. Phelps appears to have overlooked an important part of the case when he suggested that it is a “preposterous” construction of the treaty, which would lead to the purchase of bait being prohibited. So far from such a construction being against “its spirit and plain intent,” no other meaning would accord with that spirit and intent. If we adopt one of the methods contended for by Mr. Phelps of arriving at the true meaning of the treaty, namely, having reference to the “attending circumstances,” etc., we find that so far from its being considered by the framers of the treaty that a prohibition of the right to obtain bait would be a “preposterous” and an extreme instance, a proposition was made by the United States negotiators that the proviso should read thus: Provided, however, That American fishermen shall be permitted to enter such bays and harbors for the purpose only of obtaining shelter, wood, water, and bait, and the insertion of the word “bait” was resisted by the British negotiators and struck out. After [Page 510] this, how can it he contended that any rule of interpretation would be sound which would give to United States fishermen the very permission which was sought for on their behalf during the negotiations successfully resisted by the British representatives and deliberately rejected by the framers of the convention?

It is a well-known fact that the negotiations preceding the treaty had reference very largely to the deep-sea fisheries, and that the right to purchase bait in the harbors of the British possessions for the deep-sea fishing was one which the United States fishermen were intentionally excluded from. Referring to the difficulties which subsequently arose from an enforcement of the treaty, an American author says:

“It will be seen that most of those difficulties arose from a change in the character of the fisheries; cod being caught on the banks, were seldom pursued within the 3-mile limit, and yet it was to cod, and perhaps halibut, that all the early negotiations had referred.

“The mackerel fishing had now sprung up in the Gulf of St. Lawrence, and had proved extremely profitable. This was at that time an inshore fishery.” (Schuyler’s American Diplomacy, page 411.)

In further amplification of this argument, the undersigned would refer to the views set forth in the memorandum before mentioned in the letters of Mr. Bayard in May last, and to those presented in the report of the minister of marine and fisheries, approved on the 14th June ultimo.

While believing, however, that Mr. Phelps can not, by resort to any such matters, successfully establish a different construction for the treaty from that which its words present, the undersigned submits that Mr. Phelps is mistaken as to the right to resort to any matters outside the treaty itself to modify its plain words. Mr. Phelps expresses his contention thus: “It seems to me clear that the treaty may be considered in accordance with those ordinary and well settled rules, applicable to all written instruments, which without such salutary assistance must constantly fail of their purpose. By these rules the letter often gives way to the intent, or rather is only used to ascertain the intent, and the whole document will be taken together and will be considered in connection with the attending circumstances, the situation of the parties, and the object in view, and thus the literal meaning of an isolated clause is often shown not to be the meaning really understood or intended. “It may be readily admitted that such rules of interpretation exist, but when are they to be applied? Only when interpretation is necessary—when the words are plain in their ordinary meaning, the task of interpretation does not begin. Vattel says in reference to the “interpretation of treaties:”

“The first general maxim of interpretation is, that it is not allowable to interpret what has no need of interpretation. When the deed is worded in clear and precise terms, when its meaning is evident and leads to no absurd conclusion, there can be no reason for refusing to admit the meaning which such deed naturally presents. Togo elsewhere in search of conjectures in order to restrict or extend it is but an attempt to elude it.

"Those cavilers who dispute the sense of a clear and determined article are accustomed to seek their frivolous subterfuges in the pretended intentions and views which they attribute to its author. It would be very often dangerous to enter with them into the discussion of these supposed views that are pointed out in the piece itself. The following rule is better calculated to foil such cavilers, and will at once cut short all chicanery: If he who could and ought to have explained himself clearly and fully has not done it, it is the worse for him; he cannot be allowed to introduce subsequent restrictions which he has not expressed. This is a maxim of the Roman law, ‘Pactionem obscuram us usure [? iis nocere] in quorum fuitpotesiate legem apertius conscribere’ The equity of this rule is glaringly obvious, and its necessity is not less evident.” (Vatte’s Interpretation of Treaties, lib. ii, chap. 17.)

Sedgwick, the American writer on the “Construction of Statutes” (and treaties are construed by much the same rules as statutes), says, at page 194: “The rule is, as we shall constantly see, cardinal and universal; but if the statute is plain and unambiguous, there is no room for construction or interpretation. The legislature has spoken; their interpretation is free from doubt, and their will must be obeyed. ‘It may be proper,’ it has been said in Kentucky, ‘in giving a construction to a statute, to look to the effects and consequences when its provisions are ambiguous or the legislative intention is doubtful. But when the law is clear and explicit and its provisions are susceptible of but one interpretation, if evil, can only be avoided by a change of the law itself, to be effected by legislative and not judicial action, ‘so, too,’ it is said by the Supreme Court of the United States, where a law is plain and unambiguous, whether it be expressed in general or limited terms, the legislature-should be intended to mean what they have plainly expressed, and consequently no room is left for construction.”

At the tribunal of arbitration at Genoa,* held under the Washington treaty in 1872, [Page 511] a similar question arose. Counsel for Her Majesty’s Government presented a supplemental argument, in which the ordinary rules for the interpretation of treaties were invoked. Mr. Evarts, one of the counsel for the United States and afterwards Secretary of State, made a supplemental reply, in which the following passage occurs: “At the close of the special argument we find a general presentation of canons for the construction of treaties and some general observations as to the light or the controlling reason under which these rules of the treaty should be construed. These suggestions may be briefly dismissed. It certainly would be a very great reproach to these nations which had deliberately fixed upon three propositions as expressive of the law of nation, in their judgment, for the purposes of this trial, that a resort to general instructions for the purpose of interpretation was necessary. Eleven canons of interpretation drawn from Vattel are presented in order, and then several of thorn, as the case suits, are applied as valuable in elucidating this or that point of the rules. But the learned counsel has omitted to bring to your notice the first and most general rule of Vattel, which being once understood would, as we think, dispense with any consideration of these subordinate canons which Vattel has introduced to be used only in case his first general rule does not apply. This first proposition is that ‘it is not allowable to interpret what has no need of interpretation.’” (Washington Treaty Papers, vol. iii, pp. 446–7.)

In a letter of Mr. Hamilton Fish to the United States minister in England on the same subject, dated April 16, 1872, the following view was set forth: “Further than this, it appears to me that the principles of English and American law (and they are substantially the same) regarding the construction of statutes and treaties, and of written instruments generally, would preclude the seeking of evidence of intent outside the instrument itself. It might be a painful trial on which to enter, in seeking the opinions and recollections of parties, to bring into conflict the different expectations of those who were engaged in the negotiation of an instrument.” (Washington Treaty Papers, vol. ii, p. 473.)

But even at this barrier the difficulty in following Mr. Phelps’s argument, by which he seeks to reach the interpretation he desires, does not end. After taking a view of the treaty which all authorities thus forbid, he says: “Thus regarded, it appears to me clear that the words ‘for no other purpose whatever,’ as employed in the treaty, mean for no other purpose inconsistent with the provisions of the treaty.”Taken In that sense the words would have no meaning, for no other purpose would be consistent with the treaty, excepting those mentioned. He proceeds,” or prejudicial to the interests of the provinces or their inhabitants.” If the United States authorities are the judges as to what is prejudicial to those interests, the treaty will have very little value; if the provinces are to be the judges, it is most prejudicial to their interests that United States fishermen should be permitted to come into their harbors on any pretext, and it is fatal to their fishery interests that these fishermen, with whom they have to compete at such a disadvantage in the markets of the United States, should be allowed to enter for supplies and bait even for the pursuit of the deep-sea fisheries. Before concluding his remarks on this subject, the undersigned would refer to a passage in the answer on behalf of the United States to the case of Her Majesty’s Government as presented to the Halifax Fisheries Commission in 1877: “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 by the enforcement of existing laws or the re-enforcement of former oppressive statutes.”

Mr. Phelps has made a lengthy citation from the imperial act, 59 George III, cap. 38, for the purpose of establishing—

1st.
That the penalty of forfeiture was not incurred by any entry into British ports, unless accompanied by fishing, or preparing to fish, within the prohibited limits.
2d.
That it was not the intention of Parliament, or its understanding of the treaty, that any other entry should be regarded as an infraction of the provisions of that act.

As regards the latter point, it seems to be effectually disposed of by the quotation which Mr. Phelps has made. The act permits fishermen of the United States to enter into the hays or harbors of His Britannic Majesty’s dominions in America for the purposes named in the treaty, “and for no other purpose whatever,” and after enacting the penalty of forfeiture in regard to certain offenses, provides a penalty of £200 sterling against any person otherwise offending against the act. It can not, therefore, be successfully contended that Parliament intended to permit entry into the British American waters for the purchase of bait, or for any other than the purposes specified in the treaty.

As to the first point, it is to be observed that the penalty of forfeiture was expressly pronounced as applicable to the offense of fishing or preparing to fish. It may be that forfeiture is incurred by other illegal entry, contrary to the treaty and contrary to the statute. It may also be contended that preparing, within the prohibited limits, to fish in any place is the offense at which the penalty, is aimed, or it may be that the [Page 512] preparing within these waters to fish is evidence of preparing to fish within the prohibited waters under the imperial statute, and especially under the Canadian statute, which places the burden of proof on the defendant.

The undersigned does not propose at this time to enter into any elaborate argument to show the grounds on which the penalty of forfeiture is available, because that question is one which is more suitable for determination by the courts, to whose decision it has been referred in the very case under consideration.

The decision in the case of the David J. Adams will be soon pronounced, and as the Government of Canada will be bound by the ultimate judgment of competent authority on this question, and can not be expected to acquiesce in the view of the United States Government without such a judgment, any argument of the case in diplomatic form would be premature and futile.

In order, however, to show that Mr. Phelps is in error when he assumes that the practical construction hitherto given to the treaty is in accordance with his views, it it as well to state that in the year 1815 the commander of one of Her Majesty’s ships of war seized four United States fishing vessels (see Sabine on Fisheries), and again in 1817 the Imperial Government acted on the view that they had the right to seizo foreign vessels encroaching on the fishing grounds. Instructions were issued by Great Britain to seize foreign vessels fishing or at anchor in any of the harbors or creeks in the British North American possessions, or within their maritime jurisdiction, and send them to Halifax for adjudication. Several vessels were seized and information was fully communicated to the Government of the United States. This, it will be remembered, was not only before the treaty, but before the imperial act above referred to.

The following were the words of the Admiralty instructions then issued:

"On your meeting with any foreign vessels, fishing or at anchor in any of the harbors or creeks in His Majesty’s North American provinces, or. within our maritime jurisdiction, you will seize and send such vessels so trespassing to Halifax for adjudication, unless it should clearly appear that they have been obliged to put in there in consequence of distress, acquainting me with the cause of such seizure and every other particular, to enable mo to give all information to the lords commissioners of the Admiralty.”

Under these instructions eleven or twelve American fishing vessels were seized in Nova Scotia on June 8, 1817, in consequence of their frequenting some of the harbors of that province.

In 1818 the fishing vessels Mabby and Washington were seized and condemned for entering and harboring in British American waters.

In 1835 the Java, Independence, Magnolia, and Mart were seized and confiscated, the principal charge being that they were within British American waters without legal cause.

In 1840 the Papineau and Mary were seized and sold for purchasing bait.

In the spring of 1819 a United States fishing vessel named the Charles was seized and condemned in the vice-admiralty court in New Brunswick for having resorted to a harbor of that province after warning and without necessity.

In the year 1871 the United States fishing vessel J. H. Nickerson was seized for having purchased bait within 3 marine miles of Nova Scotian shore, and condemned by the judgment of Sir William Young, chief justice of Nova Scotia and judge of the court of vice-admiralty. The following is a passage from his judgment:

“The vessel went in, not to obtain water or men, as the allegation says, but to purchase or procure bait (which, as I take it, is a preparing to fish), and it was contended that they had a right to do so, and that no forfeiture accrued on such entering. The answer is, that if a privilege to enter our harbors for bait was to be conceded to American fishermen it ought to have been in the treaty, and it is too important a matter to have been accidentally overlooked. We know, indeed, from the state papers that it was not overlooked; that it was suggested and declined. But the court, as I have already intimated, does not insist upon that as a reason for its judgment. What may be fairly and justly insisted on is, that beyond the four purposes specified in the treaty—shelter, repairs, water, and wood—here is another purpose or claim not specified, while the treaty itself declares that no such other purpose shall be received to justify an entry. It appears to me an inevitable conclusion that the J. H. Nickerson), in entering the Bay of Ingonish for the purpose of procuring bait while there, became liable to forfeiture, and upon the true construction of the treaty and acts of Parliament was legally seized.” (Vide Halifax Com., vol. iii, p. 3398, Washington edition.)

In view of these seizures and of this decision it is difficult to understand the following passages in the letter of Mr. Phelps:

“The practical construction given to the treaty, down to the present time, has been in entire accord with the conclusions thus deduced from the act of Parliament. The British Government has repeatedly refused to allow interference with American fishing vessels, unless for illegal fishing, and has given explicit orders to the contrary.”

[Page 513]

“Judicial authority upon the question is to the same effect. That the purchase of bait by American fishermen in the provincial ports has been a common practice is well known, but in no case, so far as I can ascertain, has a seizure of an American vessel ever been enforced on the ground of the purchase of bait or of any other supplies. On the hearing before the Halifax Fishery Commission in 1877–’78, this question was discussed and no case could be produced of any such condemnation. Vessels shown to have been condemned were in all cases adjudged guilty, either of fishing or preparing to fish within the prohibited limits.”

Although Mr. Phelps is under the impression that “in the hearing before the Halifax Fishery Commission in 1877 this question was discussed and no case could be produced of any such condemnation,” the fact appears in the records of that Commission, as published by the Government of the United States, that on a discussion which there arose, the instances above mentioned were nearly all cited, and the judgment of Sir William Young in the case of the J. H. Nickerson was presented in full, and it now appears among the papers of that Commission. (See vol. iii, Documents and Proceedings of Halifax Commission, page 3398, Washington edition.) The decision in the case of the J. H. Nickerson was subsequent to that in the case of the White Fawn mentioned, to the exclusion of all the other cases referred to by Mr. Phelps. Whether that decision should be reaffirmed or not is a question more suitable for judicial determination than for discussion here.

right of the dominion parliament to make fishery enactments.

Mr. Phelps deems it unnecessary to point out that it is not in the power of the Canadian Parliament to alter or enlarge the provisions of the act of the Imperial Parliament, or to give to the treaty either a construction or a legal effect not warranted by that act.

No attempt has ever been made by the Parliament of Canada, or by that of any of the provinces to give a “construction” to the treaty, but the undersigned submits that the right of the Parliament of Canada, with the royal assent given in the manner provided in the constitution, to pass an act on this subject to give that treaty effect, or to protect the people of Canada from the infringement of the treaty provisions, is clear beyond question. An act of that parliament, duly passed according to constitutional forms, has as much the force of law in Canada, and binds as fully offenders who may come within its jurisdiction, as any act of the Imperial Parliament.

The efforts made on the part of the Government of the United States to deny and refute the validity of colonial statutes on this subject have been continued for many years, and in every instance have been set at naught by the Imperial authorities and by the judicial tribunes.

In May, 1870, this vain contention was completely abandoned, a circular was issued by the Treasury Department at Washington, in which circular the persons to whom it was sent were authorized and directed to inform all masters of fishing vessels that the authorities of the Dominion of Canada had resolved to terminate the system of granting fishing licenses to foreign vessels.

The circular proceeds to state the terms of the treaty of 1818 in order that United States fishermen might be informed of the limitation thereby placed on their privileges. It proceeds further to set out at large the Canadian act of 1888, relating to fishing by foreign vessels, which has been hereinbefore referred to.

The fishermen of the United States were by that circular expressly warned of the nature of the Canadian statute, which it is now once more pretended is without force, hut no intimation was given to those fishermen that these provisions were nugatory and would be resisted by the United States Government. Lest there should be any misapprehension on that subject, however, on June 9 of the same year, less than a month after that circular, another circular was issued from the same Department stating again the terms of the treaty of 1818, and then containing the following paragraph:”Fishermen of the United States are bound to respect the British laws for the regulation and preservation of the fisheries to the same extent to which they are applicable to British and Canadian fishermen.” The same circular, noticing the change made in the Canadian fishery act of 1868 by the amendment of 1870, makes his observation: “It will be observed that the warning formerly given is not required under the amended act, but that vessels trespassing are liable to seizure without such warning.”

the canadian statute of 1886.

Mr. Phelps is again under an erroneous impression with regard to the statute introduced at the last session of the Dominion Parliament.

He is informed that “since the seizure” the Canadian authorities have pressed, or are pressing, through the Canadian Parliament in much haste, an act which is designed, for the first time in the history of the legislature under this treaty, to make the facts [Page 514] upon which the American vessels have been seized illegal, and to authorize proceedings against them therefor.

The following observations are appropriate in relation to this passage of Mr. Phelps’s letter:

(1)
The act which he refers to was not passed in haste. It was passed through the two houses in the usual manner, and with the observance of all the usual forms. Its passage occupied probably more time than was occupied in the passage through the Congress of the United States of a measure which possesses much the same character, and which will be referred to hereafter.
(2)
The act has no bearing on the seizures referred to.
(3)
It does not make any act illegal which was legal before, but declares what penalty attaches to the offenses which were already prohibited. It may be observed in reference to the charges of “undue haste,” and of “legislating for the first time in the history of the legislation under the treaty,” that before the statute referred to had become law the United States Congress passed a statute containing the following section:

“That whenever any foreign country whose vessels have been placed on the same footing in the ports of United States as American vessels (the coastwise trade excepted) shall deny to any vessel of the United States any of the commercial privileges accorded to national vessels in the harbors, ports, or waters of such foreign country, the President, on receiving satisfactory information of the continuance of such discriminations against any vessel of the United States, is hereby authorized to issue his proclamation, excluding, on and after such time as he may indicate, from the exercise of such commercial privileges in the ports of the United States as are denied to American vessels in the ports of each foreign country, all vessels of such foreign country of a similar character to the vessels of the United States thus discriminated against, and suspending such concessions previously granted to the vessels of such country; and on and after the date named in such proclamation for it to take effect, if the master, officer, or agent of any vessel of such foreign country excluded by said proclamation from the exercise of any commercial privileges shall do any act prohibited by said proclamation in the ports, harbors, or waters of the United States for or on account of such, vessel, such vessel and its rigging, tackle, furniture, and boats, and all the goods on board, shall be liable to seizure and to forfeiture to the United States; and any person opposing any officer of the United States in the enforcement of this act, or aiding and abetting any other person in such opposition, shall forfeit $800 and shall be guilty of a misdemeanor, and, upon conviction, shall be liable to imprisonment for a term not exceeding two years.” (Sec. 17 of act No. 85 of Congress, 1886.)

This enactment has all the features of hostility which Mr. Phelps has stigmatized as “unprecedented in the history of legislation under the treaty.”

enforcement of the acts without notice.

Mr. Phelps insists upon what he regards as “obvious grounds of reason and justice” and “upon common principles of comity, that previous notice should have been given of the new stringent restrictions” it was intended to enforce.

It has already been shown that no new restrictions have been attempted. The case of the David J. Adams is proceeding under the statutes which have been enforced during the whole time when the treaty had operation.

It is true that for a short time prior to the treaty of Washington, and when expectations existed of such a treaty being arrived at, the instructions of 1870, which are cited by Mr. Phelps, were issued by the Imperial authorities. It is likewise true that under these instructions the rights of Her Majesty’s subjects in Canada were not insisted on in their entirety. These instructions were obviously applicable to the particular time at which and the particular circumstances under which they were issued by Her Majesty’s Government.

But it is obviously unfair to invoke them now under wholly different circumstances as establishing a “practical construction” of the treaty, or as affording any ground for claiming that the indulgence which they extended should be perpetual.

The fishery clauses of the treaty of Washington were annulled by a notice from the Government of the United States, and, as has already been urged, it would seem to have been the duty of that Government, rather than of the Government of Canada, to have warned its own people of the consequences which must ensue. This was done in 1870 by the circulars from the Treasury Department at Washington, and might well have been done at this time.

Mr. Phelps has been pleased to stigmatize “the action of the Canadian authority in seizing and still detaining the David J. Adams” as not only unfriendly and discourteous, but altogether unwarrantable.

He proceeds to state that that vessel “had violated no existing law,” although his letter cites the statute which she had directly and plainly violated; and he states that she “had incurred no penalty that any known statute imposed”; while he has [Page 515] directed at large the words which inflict a penalty for the violation of that statute. He declares it seems impossible for him to escape the conculsion that “this and similar seizures were made by the Canadian authorities for the deliberate purpose of harassing and embarrassing the American fishing vessels in the pursuit of their lawful employment,” and that the injury is very much aggravated by the motives which appear to have prompted it.

He professes to have found the real source of the difficulty in the “irritation that has taken place among a portion of the Canadian people, on account of the termination by the United States Government of the Washington treaty,” and in a desire to drive the United States “by harassing and annoying their fishermen into the adoption of a new treaty, by which Canadian fish shall he admitted free,” and he declares that “this scheme is likely to prove as mistaken in policy as it is unjustifiable in principle.”

He might, perhaps, have more accurately stated the real source of the difficulty, had he suggested that the United States authorities have long endeavored, and are still endeavoring, to obtain that which by their solemn treaty they deliberately renounced, and to deprive the Canadian people of that which by treaty the Canadian people lawfully acquired.

The people of the British North American Provinces ever since the year 1818 (with the exception of those periods in which the reciprocity treaty and the fishery clauses of the Washington treaty prevailed), have, at enormous expense, and with great difficulty, been protecting their fisheries against encroachments by fishermen of the United States, carried on under every form and pretext, and aided by such denunciations as Mr. Phelps has thought proper to reproduce on this occasion. They value no less now than they formerly did the rights which were secured to them by the treaty, and they are still indisposed to yield those rights, either to individual aggression or official demands.

The course of the Canadian Government, since the rescision of the fishery clauses of the Washington treaty, has been such as hardly to merit the aspersions which Mr. Phelps has used. In order to avoid irritation and to meet a desire which the Government represented by Mr. Phelps professed to entertain for the settlement of all questions which could reawaken controversy, they canceled for six months after the expiration of those clauses all the benefits which the United States fishermen had enjoyed under them, although, during that interval, the Government of the United States enforced against Canadian fishermen the laws which those fishery clauses had suspended.

Mr. Bayard, the United States Secretary of State, has made some recognition of these facts in a letter which he is reported to have written recently to the owners of the David J. Adams. He says:

“More than one year ago I sought to protect our citizens engaged in fishing from results which might attend any possible misunderstanding between the Governments of Great Britain and the United States as to the measure of their mutual rights and privileges in the territorial waters of British North America. After the termination of the fishery articles of the treaty of Washington, in June last, it seemed to me then, and seems to me now, very hard that differences of opinion between the two Governments should cause loss to honest citizens, whose line of obedience might be thus rendered vague and uncertain, and their property be brought into jeopardy. Influenced by this feeling, I procured a temporary arrangement which secured our fishermen full enjoyment of all Canadian fisheries, free from molestation, during a period which would permit discussion of a just international settlement of the whole fishery question; but other counsels prevailed, and my efforts further to protect fishermen from such trouble as you now suffer were unavailing.”

At the end of the interval of six months the United States authorities concluded to refrain from any attempt to negotiate for larger fishery rights for their people, and they have continued to enforce their customs laws against the fishermen and people of Canada.

The least they could have been expected to do under these circumstances was to leave to the people of Canada the full and unquestioned enjoyment of the rights secured to them by treaty. The Government of Canada has simply insisted upon those rights and has presented to the legal tribunals its claim to have them enforced.

The insinuations of ulterior motives, the imputations of unfriendly dispositions, and the singularly inaccurate representation of all the leading features of the questions under discussion, may, it has been assumed, he passed by with little more comment. They are hardly likely to induce Her Majesty’s Government to sacrifice the rights which they have heretofore helped our people to protect, and they are too familiar to awaken indignation or surprise.

The undersigned respectfully recommends that the substance of this memorandum, if approved, be forwarded to the secretary of state for the colonies, for the information of Her Majesty’s Government.

Jno. S. D. Thompson,
Minister of Justice.