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trial and hearing, but many have been fined without hearing or judgment, for technical violations of alleged commercial regulations, although all commercial privileges have been simultaneously denied to them. In no instance has any resistance been offered to Canadian authority, even when exercised with useless and irritating provocation.
It is trusted that the agreement now proposed may be readily accepted by Her Majesty's Ministry.
Should the Earl of Iddesleigh express a desire to posses the text of this despatch, in view of its intimate relation to the subject-matter of the Memorandum and as evidencing the sincere and cordial disposition which prompts this proposal, you will give his Lordship
I am, Sir, your obedient servant, EDWARD J. PHELPS, Esq.,
&c. &c. &c.
No. 221.-1886, November 27: Letter from Mr. Phelps to the Earl of Iddesleigh.
T. F. BAYARD.
LEGATION OF THE UNITED STATES,
MY LORD, I have the honour to transmit herewith a copy of an instruction, under date of November 6, 1886, received by me from the Secretary of State of the United States, relative to the case of the United States fishing vessel, the "Marion Grimes."
The Right Honourable
The subject is so fully presented in this document, a copy of which I am authorized by the Secretary to place in the hands of your Lordship, that I can add nothing to what is therein set forth, except to request your Lordship's early attention to the case, which appears to be a very flagrant violation of the rights secured to American fishermen under the treaty of 1818.
I have the honour to be, with the highest consideration, My Lord, Your most obedient humble servant,
E. J. PHELPS.
The EARL OF IDDESLEIGH, G. C. B.,
&c &c &c
No. 222.-1886, November 30: Letter from the Earl of Iddesleigh (British Foreign Secretary) to Mr. Phelps.
FOREIGN OFFICE, November 30, 1886.
SIR: I have given my careful consideration to the contents of the note of the 11th September last, which you were good enough to address to me in reply to mine of the 1st of the same month, on the subject of the North American fisheries.
The question, as you are aware, has for some time past engaged the serious attention of Her Majesty's Government and the notes
which have been addressed to you in relation to it, both by my predecessor and by myself, have amply evinced the earnest desire of Her Majesty's Government to arrive at some equitable settlement of the controversy. It is, therefore, with feelings of disappointment that they do not find in your note under reply any indication of a wish on the part of your Government to enter upon negotiations based on the principle of mutual concessions, but rather a suggestion that some ad interim construction of the terms of the existing Treaty should, if possible, be reached, which might for the present remove the chance of disputes; in fact, that Her Majesty's Government, in order to allay the differences which have arisen, should temporarily abandon the exercise of the Treaty rights which they claim and which they conceive to be indisputable. For Her Majesty's Government are unable to perceive any ambiguity in the terms of Article I of the Convention of 1818; nor have they as yet been informed in what respects the construction placed upon that instrument by the Government of the United States differs from their own.
They would, therefore, be glad to learn in the first place whether the Government of the United States contest that by Article I of the Convention United States fishermen are prohibited from entering British North American bays or harbours on those parts of the coast referred to in the second part of the Article in question for any purposes save those of shelter, repairing damages, purchasing wood
and obtaining water.
Before proceeding to make some observations upon the other points dealt with in your note, I have the honour to state that I do not propose in the present communication to refer to the cases of the schooners Thomas F. Bayard and Mascot, to which you allude.
The privileges manifestly secured to United States fishermen by the Convention of 1818 in Newfoundland, Labrador, and the Magdalen Islands are not contested by Her Majesty's Government, who, whilst determined to uphold the rights of Her Majesty's North American subjects, as defined in the Convention, are no less anxious and resolved to maintain in their full integrity the facilities for prosecuting the fishing industry on certain limited portions of the coast which are expressly granted to citizens of the United States. The communications on the subject of these two schooners, which I have requested Her Majesty's Minister at Washington to address to Mr. Bayard, cannot, I think, have failed to afford to your Government satisfactory assurances in this respect.
Reverting now to your note under reply, I beg to offer the following observations on its contents:
In the first place, you take exception to my predecessor having declined to discuss the case of the David J. Adams on the ground that it was still sub judice, and you state that your Government are unable to accede to the proposition contained in my note of the 1st September last, to the effect that "it is clearly right, according to practice and precedent, that such diplomatic action should be suspended pending the completion of the judicial inquiry.”
In regard to this point, it is to be remembered that there are three questions calling for investigation in the case of the David J. Adams: (1) What were the acts committed which led to the seizure of the
(2) Was her seizure for such acts warranted by any existing laws? (3) If so, are those laws in derogation of the Treaty rights of the United States?
It is evident that the first two questions must be the subject of inquiry before the third can be profitably discussed, and that those two questions can only be satisfactorily disposed of by a judicial inquiry. Far from claiming that the United States Government would be bound by the construction which the British Tribunals might place on the Treaty, I stated in my note of the 1st September that if that decision should be adverse to the views of your Government it would not preclude further discussion between the two Governments and the adjustment of the question by diplomatic action.
I may further remark that the very proposition advanced in my note of the 1st of September last, and to which exception is taken in your reply, has on a previous occasion been distinctly asserted by the Government of the United States under precisely similar circumstances, that is to say, in 1870, in relation to the seizure of American fishing vessels in Canadian waters for alleged violation of the Convention of 1818.
In a despatch of the 29th of October, 1870, to Mr. W. A. Dart, United States Consul-General at Montreal (which is printed at page 431 of the volume for that year of the Foreign Relations of the United States, and which formed part of the correspondence referred to by Mr. Bayard in his note to Sir L. West of the 20th of May last), Mr. Fish expressed himself as follows:
It is the duty of the owners of the vessels to defend their interests before the Courts at their own expense, and without special assistance from the Government at this stage of affairs. It is for those Tribunals to construe the Statutes under which they act. If the construction they adopt shall appear to be in contravention of our Treaties with Great Britain, or to be (which cannot be anticipated) plainly erroneous in a case admitting of no reasonable doubt, it will then become the duty of the Government -a duty which it will not be slow to discharge to avail itself of all necessary means for obtaining redress.
Her Majesty's Government, therefore, still adhere to their view that any diplomatic discussion as to the legality of the seizure of the David J. Adams would be premature until the case has been judicially decided.
It is further stated in your note that "the absence of any Statute authorising proceedings or providing a penalty against American fishing vessels for purchasing bait or supplies in a Canadian port to be used in lawful fishing" affords "the most satisfactory evidence that up to the time of the present controversy no such construction has been given to the Treaty by the British or by the Colonial Parliament as is now sought to be maintained."
Her Majesty's Government are quite unable to accede to this view, and I must express my regret that no reply has yet been received from your Government to the arguments on this and all the other points in controversy which are contained in the able and elaborate Report (as you courteously describe it) of the Canadian Minister of Marine and Fisheries, of which my predecessor communicated to you a copy.
In that Report reference is made to the argument of Mr. Bayard, drawn from the fact that the proposal of the British negotiators of the Convention of 1818, to the effect that American fishing vessels
should carry no merchandise, was rejected by the American negotiators; and it is shown that the above proposal had no application to American vessels resorting to the Canadian coasts, but only to those exercising the right of inshore fishing and of landing for the drying and curing of fish on parts of the coasts of Newfoundland and Labrador. The Report, on the other hand, shows that the United States negotiators proposed that the right of "procuring bait" should be added to the enumeration of the four objects for which the United States fishing vessels might be allowed to enter Canadian waters; and that such proposal was rejected by the British negotiators, thus showing that there could be no doubt in the minds of either party at the time that the "procuring of bait" was prohibited by the terms of the Article.
The Report, moreover, recalls the important fact that the United States Government admitted, in the case submitted by them before the Halifax Commission in 1877, that neither the Convention of 1818 nor the Treaty of Washington conferred any right or privilege of trading on American fishermen; that 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.” This view was confirmed by the ruling of the Commissioners. Whilst I have felt myself bound to place the preceding observations before you in reply to the arguments obtained in your note. I beg leave to say that Her Majesty's Government would willingly have left such points of technical detail and construction for the consideration of a Commission properly constituted to examine them, as well as to suggest a means for either modifying their application or substituting for them some new arrangement of a mutually satisfactory nature.
I gather, however, from your note that, in the opinion of your Government, although a revision of Treaty stipulations on the basis of mutual concessions was desired by the United States before the present disputes arose, yet the present time is inopportune for various reasons, among which you mention the irritation created in the United States by the belief that the action of the Canadian Government has had for its object to force a new Treaty on your Government.
Her Majesty's Government learn with much regret that such an impression should prevail, for every effort has been made by the Canadian Government to promote a friendly negotiation, and to obviate the differences which have now arisen. Indeed, it is hardly necessary to remind you that, for six months following the denunciation by your Government of the Fishery Articles of the Treaty of Washington, the North American fisheries were thrown open to citizens of the United States without any equivalent, in the expectation that the American Government would show their willingness to treat the question in a similar spirit of amity and good will.
Her Majesty's Government cannot but express a hope that the whole correspondence may be laid immediately before Congress, as they believe that its perusal would influence public opinion in the Unted States in favour of negotiating, before the commencement of
the next fishing season, an arrangement based on mutual concessions, and which would therefore (to use the language of your note) "consist with the dignity, the interests, and the friendly relations of the two countries."
Her Majesty's Government cannot conceive that negotiations commenced with such an object and in such a spirit could fail to be successful; and they trust, therefore, that your Government will endeavour to obtain from Congress, which is about to assemble, the necessary powers to enable them to make to Her Majesty's Government some definite proposals for the negotiation of a mutually advantageous arrangement.
I have, etc.,
No. 223.-1886, December 2: Letter from Mr. Phelps (United States Minister at London) to Lord Idilesleigh (British Foreign Secretary.
LEGATION OF THE UNITED STATES.
MY LORD: Referring to the conversation I had the honour to hold with your Lordship on the 20th November, relative to the request of my Government that the owners of the David J. Adams may be furnished with a copy of the original reports, stating the charges on which that vessel was seized by the Canadian authorities, I desire now to place before you in writing the grounds upon which this request is preferred.
It will be in the recollection of your Lordship, from the previous correspondence relative to the case of the Adams, that the vessel was first taken possession of for the alleged offence of having purchased a small quantity of bait within the port of Digby, in Nova Scotia, to be used in lawful fishing. That later on a further charge was made against the vessel of a violation of some Custom-House regulation, which it is not claimed, so far as I can learn, was ever before insisted on in a similar case. I think I have made it clear in my note of the 2d of June last, addressed to Lord Rosebery, then Foreign Secretary, that no Act of the English or of the Canadian Parliament existed at the time of this seizure which legally justified it on the ground of the purchase of bait, even if such an Act would have been authorized by the Treaty of 1818. And it is a natural and strong influence, as I have in that communication pointed out, that the charge of violation of Custom-House regulations was an afterthought, brought forward in order to sustain proceedings commenced on a different charge and found untenable.
362 In the suit that is now going on in the Admiralty Court at Halifax for the purpose of condemning the vessel, still further charges have been added. And the Government of Canada seek to avail themselves of a clause in the Act of the Canadian Parliament of May 22, 1868, which is in these words: "In case a dispute arises as to whether any seizure has or has not been legally made or as to whether the person seizing was or was not authorised to seize under this Act the burden of proving the illegality of the seizure shall be on the owner or claimant."
I cannot quote this provision without saying that it is, in my judgment, in violation of the principles of natural justice, as well as of