Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 3, 1906, (In two parts), Part I

The Earl of Elgin to Governor Sir W. MacGregor.

Downing Street, September 20, 1906.

No. 30.]

Sir: I have the honor to acknowledge the receipt of your telegram of the 15th instant, in which your ministers complain of the action of His Majesty’s Government in the matter of the proposed fishery modus vivendi with the United States Government.

2. Your ministers submit that any arrangement involving the suspension of the foreign fishing vessels act, 1906, is an interference with the internal affairs of the colony, which violates the pledge given by the late Lord Salisbury in the House of Lords in 1891, to the effect that the colony had been given unlimited power with respect to its internal affairs.

3. In the speech referred to, Lord Salisbury drew a clear and precise distinction between the internal affairs of the colony and matters of international and outside interest, and insisted strongly on the right of the Imperial Government to intervene in questions touching the relations of the empire with foreign states. I am compelled, therefore, to infer that your ministers regard the enforcement of the provisions of the foreign fishing vessels act, 1906, on United States fishermen as a matter of purely local concern.

4. I am at a loss to discover the grounds on which they hold that view, and I regret that I am unable to record my assent to it. It will be within your recollection that when you informed me, in February last, of the intention of your ministers to propose to the colonial legislature additional legislation to prevent British subjects resident in the colony from fishing for American vessels, and suggested that such legislation would be regarded by His Majesty’s Government as a matter of local concern, I replied that I held the contrary view and that His Majesty’s Government, as responsible for the proper carrying out of the provisions of Article I of the convention of 1818, were closely and directly interested in any legislation intended to define the conditions on which the rights of the inhabitants of the United States under that article were to be exercised.

5. Your ministers state that the act of 1906 was passed after consultation with His Majesty’s Government. This remark appears to me to require qualification. The only provisions of the act with which His Majesty’s Government have identified themselves are those which exempt vessels exercising treaty rights of fishery from the application of section 3 and the first part of section 1 of the act of 1905. It is true that all the other amendments of the act of 1905 drawm up by your ministers were submitted to His Majesty’s Government, and that in order to remove certain obvious objections to your ministers’ proposals His Majesty’s Government suggested some alterations which were eventually embodied in the act of 1906. But His Majesty’s Government was careful at the same time to explain that its action in suggesting these alterations was not to be understood as in any way prejudicing the consideration of the act when passed or as in any way identifying His Majesty’s Government with the policy of your ministers, which they did not approve and which they did not believe to be in the interests even of the colony itself.

6. The act as passed provided that it should not be brought into operation until approved and confirmed by His Majesty in council. In the circumstances which I have described it was at least uncertain whether His Majesty’s Government would be prepared to take upon themselves the responsibility of bringing the act into operation, and when the reply of the United States Government to the British memorandum was received and it became necessary, owing to the great divergence of view between the two governments which it disclosed, to arrange a modus vivendi, it was clearly out of the question to complicate the situation, which it was the object of the modus vivendi to relieve, by imposing on United States fishermen the additional restrictions contemplated by the act.

7. It would be a source of great regret to me if in this or any other matter His Majesty’s Government should fail either in respect for the constitutional rights of the colony or in courtesy toward your ministers. As to the right of His Majesty’s Government to allow the act to remain in suspense there can, I submit, be no doubt, and the decision to do so was communicated to you at the same time as to the United States ambassador.

8. I asked in my telegram of August 8 whether your ministers had any suggestions to make as to the nature of the proposed modus vivendi. By your telegram of August 19 your ministers informed me that they could not consent to any relaxation of the laws of the colony in favor of United States fishermen, and that they strongly deprecated any provisional arrangement with the United States Government, and urged that the act of 1906 should be brought into force at once. In your telegram of August 22 your ministers again urged that the act of 1906 should be brought into force and again deprecated any provisional arrangement. The question of the payment of light dues, they added, might remain in abeyance, but they could not acquiesce in any evasion of the customs and fishery laws. His Majesty’s Government were thus left to their own unaided devices to discover and arrange, in the very short time remaining before the commencement of the fishery, a basis for a modus vivendi with the United States Government, but the proposals which they made to the United States Government on the 3d instant included no concessions which your ministers were not prepared to make, apart from the suspension of the act of 1906, and that, as I have already pointed out, was entirely within the discretion of His Majesty’s Government. It was not until some days after these proposals had been submitted to the United States Government that your ministers evinced any readiness to consider a modus vivendi. They then informed me that provided the act of 1906 was brought into force they were prepared to give way on practically all the questions in dispute. This intimation unfortunately came too late, and while I regret that the proposals made to the United States Government do not commend themselves to your ministers, I can not but feel that in the circumstances no blame can fairly be imputed to His Majesty’s Government.

I have, etc.,

Elgin.