Papers Relating to the Foreign Relations of the United States, 1920, Volume I

711.428/599

Senator Wesley L. Jones to the Secretary of State

Washington, June 22, 1920.

Sir: I have the honor to reply to your communication of March 24 last, regarding a proposed treaty between the United States on the one hand and Great Britain on the other which would grant to vessels belonging to subjects of His Majesty, the King, preferential privileges in ports of the United States with freedom from port dues or charges, now the exclusive prerogatives of vessels of the United States.

Such treaty would extend to subjects of His Majesty the privilege not only of clearing from ports of the United States to the deep sea fisheries vessels owned by them under the British flag, but of entering such vessels at ports of the United States when returning thereto direct from the fisheries, and of landing and marketing their catches or fares in the United States free from any payment of duties: privileges which they do not enjoy now except as a temporary liberty granted as a war measure, which liberty undoubtedly should be terminated immediately.

In exchange for these valuable privileges which it is proposed to secure to subjects of His Majesty for a period of at least seventeen years, fishing vessels of the United States are to be accorded what are presumably like privileges in the ports of the Dominion of Canada, privileges which in part are now available as a “right” under the Treaty of 1818. In addition, United States vessels are to be accorded the very questionable benefits resultant from being permitted to sell in Canadian markets, free from the payment of duties, their fares so landed.

The treaty also proposes mutual protection by the two countries of halibut and lobsters, We are in full accord with the desirability of a convention which, while preserving the rights of both countries, would result in the conservation of these species, and believe that a treaty considering only those subjects should be signed and sent to the Senate for ratification. We may therefore dismiss that phase of the subject from further consideration at this time.

We would seriously oppose such treaty as proposed for exchange of port privileges, deeming it inimical to the interests of the United States. The hearings upon which it is predicated were inadequate, with no fair opportunity for presentation by citizens of the United States of evidence necessary to be considered if their interests are to be safeguarded. Further, the proposed treaty does not take into consideration the necessity of retaining through markets control of the sea fisheries, to insure that this valuable food supply shall be produced by American citizens operating American vessels secure in exclusive enjoyment of natural rights heretofore conserved to such citizens by law.

The Treaty of 1888 and the Modus Vivendi under which its provisions were made effective, notwithstanding the refusal of the Senate to ratify, are viewed in different light by the Department from that in which they appear to us or to Canadian authorities on fishery matters who have recorded their opinions on the subject. The Department sees in that instrument only “a privilege intended to be secured to American fishermen” with “no reciprocal privileges to Canadians,” such as it now seeks to provide for them through the terms of the proposed treaty. The facts do not justify such belief.

The Treaty of 1888 was denied ratification by the Senate because, as admitted by Canadian authorities on the fisheries, it “was even more advantageous to Canada than the previous ones” which had in each case been terminated at the instance of the United States; notwithstanding which the treaty you now propose would go much further than that treaty in giving to subjects of His Majesty advantage over Americans in the fisheries.

In July, 1917, the Canadian Fisherman, in referring to efforts on the part of Canada which culminated in the treaty provisions you now propose, confirms the opinions we have herein outlined and emphasizes Canada’s great need of, and efforts by treaty to procure, the freedom of United States markets as requisite to expanding her fisheries beyond the very limited demands of her home markets.

This authority, certainly free from bias in favor of the United States, points the fact that after restricting American fishermen to their rights under the Treaty of 1818 Canada commenced in 1886 seizure and interference with American vessels, with all the irritation incident thereto. Such method forced opening of negotiations and the resultant discredited Treaty of 1888. It is also pointed out that the Modus was offered by the British Plenipotentiaries to, among other things. “enable its advantages to be anticipated in considerable measure.”

Still further evidence that the Modus was decidedly more beneficial to Canada than to the United States is the fact that when the two years covered by its provisions had expired, and with the treaty still unratified by the United States, Canada in 1890 and again in 1891, by special Acts of Parliament, authorized renewal of the Modus Vivendi and in 1892 gave power to the Governor in Council to renew the arrangement from year to year, by order.

The number of American vessels which have availed themselves of full privileges at Canadian ports under the Modus Vivendi on the Atlantic Coast, or, under the authority of Orders in Council, at the ports of British Columbia, are not material to the consideration of the proposed treaty unless there be also available for consideration the history of experiences of American fishermen when attempting to make use of these privileges, which indicate the discrimination against American vessels at the Canadian ports calculated to bring about a desertion of American for Canadian registry. Such facts were neither permitted to be placed in the records of the hearings¹⁰ by the American–Canadian Fisheries Conference nor taken into consideration by the American Commissioners, notwithstanding that, fully verified by investigations made through its own officials, they are a part of the records of the United States Bureau of Fisheries.

Had there been no restraint on the testimony of those Americans interested in an American development of the fisheries, there could and doubtless would have been written into the record of hearings in New England evidence which will yet be introduced if the treaty should be signed and come before the Senate from which can be drawn no other conclusion than that the benefits from the Modus were so vastly greater to Canada than the United States that Canadian public opinion would demand a continuation of the privileges thereunder to American fishing vessels, with extension of like privileges to motor vessels, and that too without fee of any kind, if the alternative were the discontinuation of American operations within Canada. The prosperity of many Canadian communities is dependent upon American operations. There is available uncontrovertible evidence in support of these conclusions. In that connection we would direct attention to a letter dated February 26, 1917, from the Secretary of Commerce, Honorable William C. Bedfield, to Honorable Frank L. Polk, then Counsellor for the State Department,¹¹ which further confirms the conclusions that the Modus is of minor importance as compared with the necessity of protecting the Alaskan fisheries from conditions such as the proposed treaty would establish for a period of years; also that there is little danger that the Modus would be withdrawn.

We will not attempt to cover in full detail ad seriatum [and seriatim?] the statements contained in your letter. They are in the main based upon a misconception of conditions in the fisheries which adversely affect the interests of the United States, facts explanatory of which do not appear in the transcript of the Conference hearings except as they were forced into the record occasionally over the discrediting protest from the head of the American delegation. I will however attempt to correct a few of these impressions treated by you.

You state with regard to shipments in bond through Canada that “in the absence of this privilege in recent years, the American halibut vessels would have to go to Seattle and make a round trip of from 1,000 to 1,200 miles farther than is now required to discharge their catch at Prince Rupert;” also that the withdrawal of this privilege “would result in the transfer to Canadian registry of a great many American vessels now operating out of Prince Rupert.” This is a Canadian claim and it is not in accordance with the facts nor any proper deduction therefrom, as may be determined from any careful reading of the files of either of the State or the Commerce Departments on the subject “The fish bonding measure” approved by the Administration in 1917 as being necessary for the preservation to the United States of the full benefit from the Alaskan fisheries.

Not since the halibut banks off Alaska were discovered and fished has it been necessary for fishing vessels to make the long trip to Seattle in order to sell their fares, for American dealers established their buying stations at Alaskan ports, purchasing the trips of the fishermen and shipping the fish to market via commercial carriers serving Alaska. The diverting of the American fish to Canadian ports has resulted from Orders in Council which in their interpretation gave to Canadian buyers at Prince Rupert an unfair advantage over their American competitors that has resulted in a control by Canada of the product of the Alaskan sea fisheries prejudicial to the interests of the American consumer. That such control exists at the present time is demonstrated by your quotation of the landings of halibut in Canada upon the Pacific.

With regard to the probable transfer of American vessels to Canadian registry as you suggest: there is not the slightest evidence that such result would follow cessation of opportunity to ship fish in bond when landed at Prince Rupert. In fact, the files of the Department contain many proofs to the contrary, together with copies of the Canadian Order in Council under which such opportunity was established, the preamble of which contains the stated opinion of the then Canadian Minister of Naval Service (who now heads the Canadian delegation on the American–Canadian Fisheries Conference) that if such opportunity were established by Order in Council it would result in many of the American fishing vessels changing from American to Canadian registry and permanently operating out of Prince Rupert.

Such transfer of the fleet as predicted by the Canadian Minister had already begun, and many additional applications for transfer were made, when the President in protection of American interests in 1917 estopped further transfers, acting through the medium of the Shipping Board. It is not strange that these facts have not been directed to the attention of the State Department, for the attitude of the Conferees toward American witnesses during the hearings upon the Pacific Coast was antagonistic and discrediting to such a notorious extent as to be made the subject of adverse editorial comment by the press of Alaska.

With regard to nets: it is doubtless true that nets and other fishery appliances made from cotton are largely purchased in the United States, but that does not apply to linen nets and twine which when imported from Britain (which supplies linen to the fisheries) cost very much more in the United States than Canadian vessels are required to pay in Canada.

Concerning the landings of fares by Canadian vessels in American ports: it is entirely unlikely that while seeking and before obtaining treaty privileges covering a long term of years Canada would encourage or permit its fishery vessels to make such undue use of a purely temporary privilege of so landing their fares as would furnish conclusive argument that to make such temporary privilege permanent, as under a treaty, would result in shutting out American operations at American ports. It may be pointed out further that during and since the war other avenues of employment have been very attractive, but that with a return to pre-war, normal conditions under a seventeen-year treaty it is altogether likely that Canadian operations in the sea fisheries would displace operations by United States citizens on both Atlantic and Pacific.

It should not be forgotten that the proposed treaty would open ports of the Great Lakes and the Gulf to foreign operations, and, as well, the ports of California. If these ports are opened by treaty to subjects of His British Majesty, are they to be denied, if demanded, to citizens of Japan? On the Pacific Coast it was with the greatest difficulty that the Japanese were eliminated finally from the deep sea fisheries off Alaska, and at the present time there are protests against the Japanese operations from California ports, notwithstanding such operations may be justified by reasons of the Order of the Secretary of Commerce issued February 21, 1918, which remains yet in effect.

Concerning your exceptions, taken to our understanding of the requirements from American vessels on entrance from foreign ports on the Pacific: licensing of vessels for the cod and mackerel fisheries is only applicable to the North Atlantic. At other points, and particularly upon the Pacific Coast, vessels engaged in the fisheries operate under enrollment and license, as is required for the coasting trades. When proceeding foreign, such vessels must either take out a register or, as is usually done, clear upon a permit issued by the Collector of Customs. On returning from such foreign port the vessel must enter at the Customs and surrender the permit. Failure to comply with such requirement would subject the vessel to forfeiture if found within the three-mile limit with foreign merchandise of a certain value on board.

As may be inferred from previous statements herein, we cannot concur in your statement that these matters “received the most careful consideration at the hands of the American–Canadian Fisheries Conference” or that “the fishing interests on both Atlantic and Pacific Coasts were given ample opportunity to express their views.” Neither do the statements in the hearings, partial though they were, support the statement that “Through the provisions of this treaty, the Government will …¹² promote the development of the American fisheries.”

We are given to understand that the American-Canadian Fisheries Conference had its inception in an arrangement between the British Ambassador and the then Secretary of Commerce, Honorable William C. Redfield. Prior to such arrangement both Commerce and State Departments had concurred in very desirable legislation necessary to the preservation of United States fishery interests upon the Pacific. Subsequent thereto, notwithstanding the conditions remained unchanged, it was set forth by the Secretary of Commerce that the contemplated inquiry to be conducted by the joint commission would make it unnecessary to press the legislation.

Before the Conference was called the Secretary of Commerce further stated that it was the purpose to adjust the international fisheries relations from the “Continental” standpoint, which was explained as having the meaning “without regard to whether the benefits accrued to the United States or Canada,” That policy was made apparent throughout the hearings, with little consideration given to anything in opposition thereto. We had that which Canada desired and all efforts appeared to be directed toward justifying that her desires be granted.

Statements contrary to the facts were put into the records which had the effect, coming as they did from the responsible representatives of the Government, of influencing public acquiescence with the purpose of the Conference. In example thereof please note the following; taken from the hearings upon the Atlantic Coast where effort was being made to procure sentiment favorable to permitting the Canadian vessels to enter at American ports from and to clear for the sea fisheries:

We quote from the printed hearings as follows:

(Page 21) “Mr. Found: Every Canadian fishing vessel that goes North is required to enter at Ketchikan and is cleared immediately for the high sea.”

(Page 65) “Chief Justice Hazen: It would appear that on the Pacific Coast the law to some extent has been disregarded, because the Canadian vessels reporting at Ketchikan, Alaska, are given a clearance and can then go out and get a supply of fish and take it down to an American port or to a Canadian port.”

(Page 66) “Secretary Redfield: I think it is correct to say, as Mr. Chief Justice Hazen has pointed out, that the custom on the Pacific Coast both with American and Canadian vessels is the direct reverse of that which prevails on the Atlantic Coast.”

Such statements, made in January, 1918, show a lamentable lack of knowledge regarding the actual facts. There were but two Customs Districts on the North Pacific from which fishing vessels may clear, viz., District 30 (Seattle) and District 31 (Alaska). Positive statements from the Collectors of Customs of both these districts are to the effect that, except under the temporary authority of the Secretary of Commerce which had not been issued at the time the statements quoted were made, no Canadian vessels were entered from or cleared for the sea fisheries. If they proceeded to sea instead of the port to which cleared it was through understanding with the Canadian authorities.

At Prince Rupert, in an effort to show that Canadian fishing vessels were at a disadvantage in comparison with American vessels in being required to pay tonnage tax when entering at Ketchikan, Secretary Redfield quoted a statute having no bearing thereon to support his view that American vessels were not required to pay a similar tonnage tax when entering at Ketchikan from Prince Rupert and reprimanded an American witness for claiming that such tax was collected from American vessels. On reaching Ketchikan no member of the Conference made effort to ascertain the practice with regard to the collection of tonnage tax from American vessels, but the Deputy Collector of Customs at that port, on being asked the question by an American witness, verified that tonnage tax was collected alike from American as well as Canadian fishing vessels entering from Prince Rupert.

Subsequent to the hearings at Ketchikan, Alaska, a local paper in commenting upon the manner in which they were conducted said:

“It looks as though the Secretary had the question settled and his convictions anchored long before he left Washington, and that he came here for the sole purpose of looking for evidence that would discredit any representations we had made. …¹³ He acted for all the world like a criminal lawyer interrogating a witness whose testimony he wants to discredit before the court and jury. His questions were put in a way that left no doubt in the minds of any interested party that he had already made up his own mind on the subject and was looking for backing.”

In Seattle The Honorable Secretary justified his statement that the differences between Canada and the United States over fisheries had not been all one-sided by pointing out that on one occasion the United States had been fined upwards of five million dollars “for our own misdoings.” Later on being asked if he referred to the “Halifax Award” he admitted such to be the case. Any student of fisheries questions is fully aware that the “Halifax Award” under which the United States paid $5,500,000 for alleged benefits received in excess of those presumed to have been received by Canada under the Treaty of 1873 [1871]¹⁴ was a most unrighteous award and that the only benefit to the United States was the taking in the Gulf of St. Lawrence of mackerel valued at $598,429. It may be noted that this statement by The Honorable Secretary has since been expunged from the record. Its effect when made was to cause unknowing listeners to believe the United States had been in the wrong in these matters.

On the Atlantic Coast, Mr. Millett,¹⁵ one of the best posted of men on Atlantic fisheries questions and a witness at the Hague tribunal, made protest against the methods adopted by the Conference and said that no time had been given for preparation of the American side of the question, and added: “This enumerates six questions or points. Now our existence depends on this thing.”

Mr. Redfield: “Well, what is your point?”

Mr. Millett: “If you will allow me to continue just a second I will point it out to you. We are required or asked to discuss these six questions. Now I have not seen any chance to discuss these questions in any way, shape or manner. You have taken the matter up in a general way all the way through, and the minute a man gets up and says something he knows something about he is immediately squelched.”

It may be further pointed out that witnesses for the American side whose testimony appears to have been given the greatest credence by the commission as being favorable to further arrangement with Canada, of the character suggested in the treaty as proposed, were representatives of companies who are heavily interested in British incorporated fishery operations in the British possessions and who have transferred many of their fishing vessels from American to British registry, I am informed.

In the three years prior to 1917 the loss to the New England fleet through transfers of registry was practically thirty-six per cent. If the proposed treaty should ever be ratified it is beyond peradventure that within five years thereafter neither upon the North Atlantic nor the Pacific will there be a vessel in the sea fisheries under the American flag. What is required for our fisheries is some truly protective legislation rather than a treaty, and certainly a treaty based upon so one-sided a consideration of the subject as that accorded by the American–Canadian Fisheries Conference should not be further considered. If there must be treaty considerations, let them be had only after full opportunity to present all pertinent facts before an unbiased and representative tribunal of investigation.

Very respectfully yours,

W. L. Jones

10. American–Canadian Fisheries Conference, Hearings at Washington, D.C., January 21–25, Boston, Mass., January 31, February 1, Gloucester, Mass., February 2, St. John, N.B., February 5–6, 1918.
11. Not found in Department files.
12. Omission indicated in Senator Jones’ letter.
13. Omission indicated in Senator Jones’ letter.
14. Malloy, Treaties, vol. i, p. 700.
15. Arthur L. Millett, of the Massachusetts Fish and Game Commission.