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if they should disagree and be unable to choose an umpire must refer the final decision of the great interests which might be at stake, to some person chosen by lot.
If a vessel charged with infraction of our fishing rights should, by this extraordinary tribunal, be thought worthy of being subjected to a "Judicial Examination "she would be sent to the Vice-Admiralty Court at Halifax, but there would be no redress, no appeal and no reference to any tribunal if the naval officers should think proper to release her.
4. Article IV is also open to grave objection. It proposes to give the United States' fishing vessels the same commercial privileges as those to which other vessels of the United States are entitled, although such privileges are expressly renounced by the Treaty of 1818, on behalf of fishing vessels, which were thereafter to be denied the right of access to Canadian waters except for shelter, repairs and the purchase of wood and water. It has already been pointed out, in previous reports on this subject, that an attempt was made, during the negotiations which preceded the Convention of 1818, to obtain for the fishermen of the United States the right of obtaining bait in Canadian waters, and that this attempt was successfully resisted. Your Excellency will observe that, in spite of this fact, it is proposed, under the article now referred to, to declare that the Convention of 1818 gave that privilege, as well as the privileges of purchasing other supplies, in the harbours of the Dominion.
5. To this novel and unjustified interpretation of the Convention Mr. Bayard proposes to give retrospective effect by the next article of the proposal, in which it is assumed, without discussion, that all United States' fishing vessels which have been seized since the expiration of the Treaty of Washington have been illegally seized, leaving as the only question still open for consideration, the amount of the damages for which the Canadian authorities are liable.
The Minister submits that the serious consideration of such a proposal would imply a disregard of justice as well as of the interests of Canada, and he is unwilling to believe that it will be entertained, either by your Excellency's advisers, or by the Imperial Government.
From the above enumeration of some of the principal objections to which the proposals contained in Mr. Bayard's memorandum, are open, it will be evident to your Excellency that those proposals as a whole will not be acceptable to the Government of Canada. The conditions which Mr. Bayard has sought to attach to the appointment of a mixed Commission involve in every case the assumption that upon the most important points in the controversy which has arisen in regard to the fisheries on the eastern coast of British North America, Canada has been in the wrong and the United States in the right. The reports which have already been submitted to your Excellency and communicated to Her Majesty's Government upon this subject have been sufficient to show that the position which has been taken up by the Canadian Government is one perfectly justifiable, with reference to the rights expressly reserved to British subjects by treaty, and that the legislation, by which it has been, and is now being sought to enforce those rights, is entirely in accordance with treaty stipulations, and is within the competence of the Colonial Legislature.
It is not to be expected that after having earnestly insisted 404 upon the necessity of a strict maintenance of these treaty rights, and upon the respect due by foreign vessels, while in Canadian waters, to the municipal legislation by which all vessels resorting to those waters are governed, in the absence moreover of any decision of a legal tribunal, to show that there has been any straining of the law in those cases in which it has been put in operation, the Canadian Government will suddenly and without the justification supplied by any new facts or arguments withdraw from a position taken up deliberately, and by doing so, in effect, plead guilty to the whole of the charges of oppression, inhumanity, and bad faith which, in language wholly unwarranted by the circumstances of the case, have been made against it by the public men of the United States.
Such a surrender on the part of Canada would involve the abandonment of a valuable portion of the national inheritance of the Canadian people, who would certainly visit with just reprobation those who were guilty of so serious a neglect of the trust committed to their charge.
The Minister, while, however, objecting thus strongly to the proposal as it now stands, considers that the fact of such a proposal having been made may be regarded as affording an opportunity which has, up to the present time, not been offered for an amicable comparison of the views entertained by your Excellency's Government and that of the United States, and he desires to point out that Mr. Bayard's proposal, though quite inadmissible, in so far as the conditions attached to it are concerned, appears to be, in itself, one which deserves respectful examination by your Excellency's advisers. The main principle of that proposal is that a mixed Commission should be appointed for the purpose of determining the limits of those territorial waters within which, subject to the stipulations of the Treaty of 1818, the exclusive right of fishing belongs to Great Britain.
The Minister cordially agrees with Mr. Bayard in believing that a determination of those limits would, whatever might be the future commercial relations between Canada and the United States, either in respect of the fishing industry, or in regard to the interchange of other commodities, be extremely desirable, and he believes that your Excellency's Government will be found ready to co-operate wi that of the United States in effecting such a settlement.
Holding this view the Minister is of opinion that Mr. Bayard was justified in reverting to the precedent afforded by the negotiations which took place upon this subject between Great Britain and the United States after the expiration of the Reciprocity Treaty of 1854, and he concurs with him in believing that the memorandum communicated by Mr. Adams in 1866 to the Earl of Clarendon affords a valuable indication of the lines upon which a negotiation directed to the same points might now be allowed to proceed.
The Minister has already referred to some of the criticisms which were taken at the time by Lord Clarendon to the terms of the memorandum. Mr. Bayard has himself pointed out that its concluding paragraph, to which Lord Clarendon emphatically objected, is not contained in the memorandum now forwarded by him. Mr. Bayard, appears, however, while taking credit for this omission, to have lost sight of the fact that the remaining articles of the draft memorandum contain stipulations not less open to objection and calculated to affect
even more disadvantageously the permanent interests of the Dominion in the fisheries adjacent to its coasts.
The Minister submits that in his opinion, there can be no objection on the part of the Canadian Government to the appointment of a mixed Commission, whose duty it would be to consider and report on the matters referred to in the first three articles of the memorandum communicated to the Earl of Clarendon by Mr. Adams, in 1866.
Should a Commission instructed to deal with these subjects be appointed at an early date, the Minister is not without hope that the result of its investigations might be reported to the Governments affected without much loss of time. Pending the determination of the questions which it would discuss, it will, in the opinion of the Minister, be indispensable that United States fishing vessels entering Canadian bays and harbours should govern themselves not only according to the terms of the Convention of 1818, but by the regulations to which they in common with other vessels are subject while within such waters.
The Minister has, however, no doubt that every effort will be made to enforce those regulations in such a manner as to cause the smallest amount of inconvenience to fishing vessels entering Canadian ports under stress of weather or for any other legitimate purpose, and he believes that any representation upon this subject will receive the attentive consideration of your Excellency's Government.
The Minister in conclusion would remind your Excellency that your Government has always been willing to remove any obstacles to the most friendly relations between the people of Canada and the United States.
Your Government has not only been disposed from the first to arrive at such an arrangement as that indicated in the Report, with regard to the Fisheries, but likewise to enter into such other arrangements as might extend the commercial relations existing between the two countries.
The Committee concur in the foregoing and they submit the same for your Excellency's approval.
JOHN J. MCGEE.
Clerk, Privy Council.
No. 234.-1887, February 5: Extract from Letter Mr. Daniel
The treaty of 1818 secured to our fishermen what, up to that time, they did not have as a treaty right, which was admission to Canadian bays or harbours "for the purpose of shelter, and of repairing damages therein, of purchasing wood, and of obtaining water, and for no other purpose whatever." As colonists we had those rights, but as colonists we lost them by just rebellion. They should not be called commercial rights, for they were simply rights of humanity, decency, good neighborhood, and international kindness to one another. To refuse a fishing vessel such hospitality would be an
act of barbarism fit only for savages. It would be as contemptible and odious as for a Government, conducting a naval war to fire, in these days, on a hospital-ship, attested by her colour and flag, and filled exclusively with the sick, wounded, or dying, their surgeons and nurses. Such hospital vessels are now, by the common consent of civilized nations, as I am told, even more perfectly and completely neutralized than are hospitals and tents on land over which floats the yellow flag. It is impossible not to recognize how justly my colleague, Mr. Bayard, has portrayed the inhumanity and brutality with which certain Canadian officials treated defenseless American fishermen during the last summer, even those who had gone out of their way to rescue Canadian sailors, and, having entered a Canadian bay to safely land those they had saved, attempted to procure food to sustain their own lives.
It is true that we complain of and denounce, as in violation of the treaty of 1818, the "restrictions" enforced by Canadian statutes and officials under the pretence of preventing our fishermen from “taking, drying, or curing fish," in the prohibited Canadian bays or harbors, but those "restrictions" are not complained of or denounced because restricting commercial privileges. The complaint and denunciation are because the "restrictions" violate the fishing rights secured to our fishermen by the treaties.
I am advised, and concede, that up to President Jackson's proclamation of October 5, 1830, set forth on page 817 of the fourth volume of the United States Statutes at Large, this Government had not even commercial privileges for its vessels in Canadian ports. We had such privileges as colonists; we lost them as colonists; we regained them in 1830 by an arrangement of legislation finally concerted with Great Britain, which was the result of an international understanding, that was in effect a treaty, although not technically a treaty negotiated by the President, ratified by the Senate, signed by the parties, and the ratifications formally exchanged by them. That must be so, for British colonial policy, after the treaty of peace in 1783, which secured the independence of the thirteen American States, notoriously excluded all foreign vessels from trading with British colonies on this continent. The treaty of 1794 was careful to declare that it should not, as to commercial privileges, "extend to the admission of vessels of the United States into the sea-ports, harbours, bays, or creeks of His Majesty's said territories" on the continent of America. The events which preceded the war of 1812 and that war, confirmed and enforced the exclusion. After the Treaty of Ghent we endeavored, by retaliatory laws, to counteract and change that policy. The fishery treaty of 1818 was concluded in October of that year, and, in April of the same year, Congress enacted a law which was described in the official documents of the day as enforcing a policy of non-intercourse by British vessels between ourselves and ports closed by British laws against our vessels. On May 15, 1820, Congress invigorated that law of 1818 by a new enactment, against every vessel, owned in whole or in part by British subjects, if coming or arriving by sea from any place in Lower Canada, or New Brunswick, or Nova Scotia, or the Islands of Newfoundland, St. John's, or Cape Breton, or from any British possession on this Continent. We forbade, under pain of forfeiture, the entry, or attempted entry, of any such vessel into our ports. We interdicted the importation
into the United States from any of the foregoing British dependencies, of any articles not produced therein. We excluded the importation by anybody of all articles excepting the produce of each colony respectively imported by itself.
In 1823 Congress suspended the provisions of the laws of 1818 and 1820 in respect to certain British colonial ports, and authorized importation of colonial produce in certain British vessels coming directly therefrom, but only on the one condition that similar produce might be imported in our vessels to our country on equal terms, and that the British vessels thus admitted into our ports be navigated by a master and at least three-fourths of the mariners British subjects. The law of 1818 said not a word about American vessels, or any other vessel excepting British vessels, but, as I have noted, the law of 1820 prohibited the importation of any merchandise from a British colony on this continent unless it was the growth of the colony where laden, and was brought directly to us. Nothing is said therein of exportation from us of merchandise in vessels not British.
The reason of the change in 1823 in our policy was that in 1822 England changed her policy, and permitted American-built vessels, lawfully navigated, to import certain goods directly to the West Indies. Hence we declared that the law of 1823 should remain in force so long only as the enumerated British colonial ports were open to our vessels by the British law of June 24, 1822, but if closed the President was empowered to revive our laws of 1818 and 1820. The British ports were closed to us by an act of Parliament on July 5, 1825, and the President thereupon, on March 17, 1827, proclaimed ours closed as before.
My distinguished predecessor in this Department, Mr. Gallatin. was in that year the American Minister at London, and the following extract from his note to our Department of State, dated September 11, 1827, exhibits the situation as seen by him:
Mr. Huskisson said it was the intention of the British Government to consider the intercourse of the British colonies as being exclusively under its control, and any relaxation from the colonial system as an indulgence, to be granted on such terms as might suit the policy of Great Britain at the time it was granted. I said every question of RIGHT had on this occasion been waived on the part of the United States, the only object of the present inquiry being to ascertain whether, as a matter of mutual convenience, the intercourse might not be opened in a manner satisfactory to both countries. He (Mr. H.) said that it had appeared as if America had entertained the opinion that the British West Indies could not exist without her supplies, and that she might, therefore, compel Great Britain to open the intercourse on any terms she pleased. I disclaimed any such belief or intention on the part of the United States. But it appeared to me, and I intimated it, indeed, to Mr. Huskisson, that he was acting rather under the influence of irritated feelings on account of past events, than with a view to the mutual interests of both parties.
The irritation in England appears to have resulted from the insertion in our law of 1823 of the word "elsewhere" in the second section, and the incident is so suggestive of watchfulness at present that I add herewith a statement of the history of that legislation made in the Senate by Senator Smith, of Maryland, a few years afaterwards:
During the Session of 1822 Congress was informed that an act was pending in Parliament for the opening of the colonial ports to the commerce of the United States. In consequence, an act was passed authorizing the President (then Mr. Monroe), in case the act of Parliament was satisfactory to him, to open the ports of the United States to British vessels by his proclamation. The