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therefore subsequently prepared by the United States Government, which, at the request of Lord Iddesleigh, was submitted to him.

But I observe, with some surprise, that in his note of November 30, last, his Lordship refers to that proposal made in my note of 11th September, as a proposition that Her Majesty's Government "should temporarily abandon the exercise of the Treaty rights which they claim and which they conceive to be indisputable."

In view of the very grave questions that exist as to the extent of those rights, in respect to which the views of the United States Government differ so widely from those insisted upon by Her Majesty's Government, it does not seem to me an unreasonable proposal that the two Governments, by a temporary and mutual concession, without prejudice, should endeavour to reach some middle ground of ad interim construction, by which existing friendly relations might be preserved, until some permanent Treaty arrangements could be made.

The reasons why a revision of the Treaty of 1818 can not now, in the opinion of the United States Government, be hopefully undertaken, and which are set forth in my note to Lord Iddesleigh of September 11, have increased in force since that note was written. I again respectfully commend the proposal above mentioned to the consideration of Her Majesty's Government.


I have, etc.,


No. 232.-1887, January 28: Letter from Sir L. S. S. West to
Mr. Bayard.

WASHINGTON, January 28, 1887.

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, &c.,


No. 233.-1887, February 1: Report of a Committee of the Privy Council for Canada, approved by His Excellency the Governor General in Council.

The Committee of the Privy Council have had under consideration a despatch dated 30th December, 1886, from the Right Honourable the Secretary of State for the Colonies, forwarding, for the information of the Canadian Government, a note received through the Foreign Office from the United States' Minister in London, enclosing a draft of a Memorandum for an arrangement between the British and United States' Governments on the subject of the North American Fisheries, entitled a "proposal for the settlement of the question in dispute in relation to the fisheries on the north-eastern coasts of British North America," accompanied by a despatch dated Washington, 15th November, 1886, from Mr. Bayard, United States' Secretary

of State, containing some observations thereon. Mr. Secretary Stanhope requests your Excellency to obtain, at the earliest possible moment, from your Excellency's advisers their views on Mr. Bayard's proposals and to report them to Her Majesty's Government.

The Minister of Marine and Fisheries, to whom the despatch and enclosures have been referred, reports that Mr. Bayard suggests that as the season for taking mackerel has now closed, "a period of comparative serenity may be expected, of which advantage should be taken in order to adopt measures which will tend to make more harmonious the relations between Canada and the United States as regards the fisheries on the coasts of Canada."

The Minister observes that while any indication of a disposition on the part of the United States' Government to make arrangements which might tend to put the affairs of the two countries on a basis more free from controversy and misunderstanding than at present exists, must be hailed with satisfaction by the Government of Canada, it is to be regretted that the language in which Mr. Bayard refers to what has taken place during the past year indicates a disposition on his part to attribute to unfriendly motives the proceedings of the Canadian Government and a tendency to misapprehend the character and scope of the measures which have been taken by it in order to enforce the terms of the Treaty of 1818, and to ensure respect for the municipal laws of the Dominion.

The Minister submits therefore that he cannot avoid protesting against such expressions in Mr. Bayard's letter as those in which he alludes to the proceedings of the last few months as "the administration of a strained and vexatious construction of the Convention of 1818," as "unjust and unfriendly treatment by the local authorities," as" unwarranted interferences (frequently accompanied by rudeness and unnecessary demonstration of force)" with the rights of the United States' fishermen guaranteed by express treaty stipulations and secured to them by the commercial laws and regulations of the two countries, and which are demanded by the laws of hospitality to which all friendly civilised nations owe allegiance," and as" conduct on the part of the Canadian officials which may endanger the peace of two kindred friendly nations."

The Minister has to observe again what has frequently been stated in the negotiations on this subject that nothing has been done on the part of the Canadian authorities since the termination of the Treaty of Washington in any such spirit as that which Mr. Bayard condemns, and that all that has been done with a view to the protection of the Canadian Fisheries has been simply for the purpose of guarding the rights guaranteed to the people of Canada by the Convention of 1818, and to enforce the Statutes of Great Britain and of Canada in relation to the fisheries.

It has been more than once pointed out, in reports already submitted by the Minister of Marine and Fisheries that such Statutes are clearly within the powers of the respective Parliaments by which they were passed, and are in conformity with the Treaty of 1818, especially in view of that passage of the Treaty which provides that the American fishermen shall be under such restrictions as shall be necessary to prevent them from abusing the privileges thereby reserved to them.

92909-S. Doc. 870, 61-3, vol 4


The Minister has further to call the attention of your Excellency to the fact that there is no foundation whatever for the following statement in the concluding part of Mr. Bayard's letter:


The numerous seizures made have been of vessels quietly at anchor in established ports of entry, under charges which up to this day have not been particularised sufficiently to allow of intelligent defence. Not one has been condemned after trial and hearing, but many have been fined without hearing or judgment for technical violation of alleged commercial regulations, although all commercial privileges have been simultaneously denied to them.

The Minister observes in relation to this paragraph that the seizures of which Mr. Bayard complains have been made under circumstances which have from time to time been fully reported to your Excellency and communicated to Her Majesty's Government, and upon grounds which have been distinctly and unequivocally stated in every case; that, although the nature of the charges has been invariably specified and duly announced, those charges have not in any case been answered; that ample opportunity has in every case been afforded for a defence to be submitted to the executive authorities, but that no defence has been offered, beyond the mere denial of the right of the Canadian Government; that the courts of the various provinces have been open to the parties said to have been aggrieved, but that not one of them has resorted to these courts for redress. To this it must be added, that the illegal acts which are characterised by Mr. Bayard as "technical violations of alleged commercial regulations," involved breaches, in most of the cases not denied by the persons who had committed them, of established commercial regulations, which, far from being specially directed or enforced against citizens of the United States, are obligatory upon all vessels (including those of Canada herself) which resort to the harbours of the British North American coast.

With regard to the proposal for a settlement which accompanies Mr. Bayard's letter, the minister submits the following observations:

ARTICLE I. The minister observes that, in referring to this article Mr. Bayard states that he is "encouraged in the expectation that the propositions embodied in the memorandum will be acceptable to Her Majesty's Government, because, in the month of April, 1866, Mr. Seward, then Secretary of State, sent forward to Mr. Adams, at that time United States' Minister in London, the draft of a Protocol, which, in substance, coincides with the first article of the proposal," now submitted. In regard to this statement, it is to be remarked that Article 1 of the Memorandum, although, no doubt, to some extent resembling the Protocol submitted, in 1866, by Mr. Adams to Lord Clarendon, contains several most important departures from the terms of that Protocol. These departures consist not only in such comparatively unimportant alterations as the substitution in line 1 of the word "establish" for the word "define," without any apparent necessity for the change, and in other minor alterations in the text, but also in such grave changes as that which is involved in the interpolation in section 1 of the important passage, in which it is stipulated: "that the bays and harbours from which American vessels are in future to be excluded save for the purposes for which entrance into bays and harbours is permitted by said Article, are hereby agreed to be taken to be such bays and harbours as are ten

or less than ten miles in width, and the distance of three marine miles from such bays and harbours shall be measured from a straight line drawn across the bay or harbour in the part nearest the entrance at the first point where the width does not exceed ten miles."

This provision would involve a surrender of fishing rights which have always been regarded as the exclusive property of Canada, and would make common fishing grounds of territorial waters which by the law of nations have been invariably regarded both in Great Britain and the United States as belonging to the adjacent country. In the case, for instance, of the Baie des Chaleurs, a peculiarly well marked and almost landlocked indentation of the Canadian coast, the ten mile line would be drawn from points in the heart of Canadian territory, and almost seventy miles distant from the natural entrance or mouth of the bay. This would be done in spite of the fact that, both by Imperial legislation and by judicial interpretation, this bay has been declared to form a part of the territory of Canada. See Imperial Stat., 14 and 15 Vic., cap. 63, and Mowat vs. McPhee, 5 Sup. Court of Canada reports, p. 66.

The Convention with France in 1839 and similar Conventions with other European powers, although cited by Mr. Bayard as sufficient precedents for the adoption of a ten-mile limit, do not, the Minister submits, carry out his reasoning.

Those Conventions were doubtless framed with a view to the geographical peculiarities of the coasts to which they related. They had for their object the definition of boundary lines, which, owing to the configuration of the coast, perhaps could not readily be settled by reference to the law of nations and involve other conditions which are inapplicable to the territorial waters of Canada.

Mr. Bayard contends that the rule which he asks to have set up was adopted by the umpire of the Commission appointed under the Treaty of 1854, in the case of the United States' fishing schooner "Washington," that it was by him applied to the Bay of Fundy and that it is for this reason applicable to other Canadian bays.

The Minister submits, however, that the rule laid down by Mr. Bates with regard to the Bay of Fundy should not be treated as establishing the respective rights of Canada and of the United States as to bays and harbours not included in the terms of the reference, and in relation to which there was no agreement to abide by the decision of the umpire and no decision by him.

It may reasonably be contended that as one of the headlands of the Bay of Fundy is in the territory of the United States any rules of international law applicable to that bay are not therefore equally applicable to other bays, the headlands of which are both within the territory of the same power.

As to the second paragraph of the first article the Minister suggests that before such an article is acceded to, and even if the objections before stated should be removed, the article should be so amended as to incorporate the exact language of the Convention of 1818, in which case several alterations should be made. Thus the words "and for no other purpose whatever" should be inserted after the mention of the purposes for which vessels may enter Canadian waters, and after the words "as may be necessary to prevent" should be inserted "their taking drying or curing fish therein, or in any other manner abusing the privileges reserved &c."


To make the language conform correctly to the Convention of 1818, several other verbal alterations which need not be enumerated here, would be necessary in order to prevent imaginary distinctions being drawn hereafter between the Convention of 1818 and any agreement of later date which may be arrived at. The Minister moreover suggests that inasmuch as Mr. Bayard has from time to time denied the force and authority of the customs, harbour shipping and police laws of Canada, it may be well in order to remove the possibility of misunderstanding on the part of his Government, to insert a proviso expressly recognising the validity of such enactments.

The proviso in Article I, in which it is stipulated that any arrangement which may be arrived at by the Commission shall not go into effect until it has been confirmed by Great Britain and the United States should provide for confirmation by the Parliament of Canada.

2. The Minister submits that Article II of the proposed arrangement, is, in his opinion, entirely inadmissible. It would suspend the operations of the Statutes of Great Britain and Canada, and of the Provinces now constituting Canada, not only as to the various offences connected with fishing, but as to customs, harbours, and shipping, and would give to the fishing vessels of the United States privileges in Canadian ports, which are not enjoyed by vessels of any other class, or of any other nation; such vessels would for example, be free from, the duty of reporting at the customs on entering a Canadian harbour, and no safeguard could be adopted to prevent infraction of the custom laws by any vessel asserting the character of a fishing vessel of the United States.

Instead of allowing to such vessels merely the restricted privileges reserved by the Convention of 1818, it would give them greater privileges than are enjoyed at the present time by any vessels in any part of the world.


It must, moreover, be borne in mind that should no definitive arrangement," such as is looked forward to in the proposal, be arrived at, these extraordinary concessions, although applied for pending such a definitive arrangement, might remain in operation for an indefinite period, and that the article would be taken for all time to come as indicating the true interpretation of the Convention of 1818, although the interpretation placed upon that Convention by the article is as a matter of fact diametrically opposed to the construction which has heretofore been insisted upon by successive Canadian Governments.

The Minister further considers it his duty to point out that the article is beyond the powers of the Imperial Government, which cannot thus suspend or repeal Canadian laws.

3. As to Article III the Minister submits that it is entirely inadmissible. It proposes that Her Majesty's Courts in Canada shall, without any show of reason, be deprived of their jurisdiction, and would vest that jurisdiction in a tribunal not bound by legal principles, but clothed with supreme authority to decide on most important rights of the Canadian people.

It would be a disagreeable novelty to the people of Her Majesty's Canadian Dominions to find that any of their rights or the rights of their country as a whole, were to be submitted to the adjudication of two naval officers, one of them belonging to a foreign country, who,

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