fax, that it was conceded by the customs authorities at Digby that foreign fishing vessels had for forty years been accustomed to go in and out of the bay at pleasure without being required to report when they had no business with the shore. He admitted, however, that, while the treaties of 1854 and 1871 were in force, and the prohibitions of the convention of 1818 were thus suspended, " considerable laxity," much greater than the treaties entitled them to, was allowed to United States fishing vessels; but he declared that at other times the customs laws were enforced. In this relation he cited the statement of Mr. Vail, Acting Secretary of State in 1839, that numerous seizures had been made for alleged violations of the customs laws and to certain incidents and correspondence in 1870.

a

With regard to the bait question, as affected by the interpretation of the convention of 1818, Mr. Thompson maintained that by the "clear and unambiguous" words of that convention American vessels were prohibited from entering a Canadian port for any but the four specified purposes, and that there probably were few treaties or statutes the literal enforcement of which might not in certain circumstances produce consequences such as Mr. Phelps had described as "preposterous." This argument, said Mr. Thompson, could at most only suggest that the enforcement of a treaty or statute should not be insisted on where accidental hardships were likely to ensue. Equity and a natural sense of justice would lead a government to refrain from enforcing its rights under such circumstances. It was with a view to such circumstances that provision was made in the law for the intervention of the executive, nor could any authority be found for the position that against the plain words of a treaty or statute an interpretation was to be sought that would obviate all chances of hardship and render unnecessary the exercise of executive interference. In this relation Mr. Thompson contended that it was the purpose of the parties to the convention to prevent the fisheries from being poached on, and to preserve them to British subjects not only for the pursuit of fishing in territorial waters, but also as a base of supplies for the pursuit of fishing in the deep sea. It was, declared Mr. Thompson, a well-known fact that the negotiations preceding the convention had reference very largely to the deep-sea fisheries, and that the right to purchase bait in the harbors of the British possessions for the deep-sea fishing was one which the United States fishermen were intentionally excluded from." On the point that the early negotiations related largely to the deep-sea fisheries, he cited Schuyler's American Diplomacy, 411; on the rules as to the interpretation of treaties, Vattel, lib. II., cap. 17; Sedgwick on the Construction of Statutes, 194; Papers relating to the Treaty of Washington, II. 473;

a Papers relating to the Treaty of Washington, VI. 283.

III. 446, 447. To Mr. Phelps's suggestion that the words "for no other purpose whatever" meant "for no other purpose inconsistent with the provisions of the treaty," Mr. Thompson replied that the words taken in that sense would have no meaning, since no other purpose than those mentioned would be consistent with the treaty; and he also referred to the passage in the case of the United States before the Halifax Commission in 1877, in which it was stated that the privileges of traffic and of purchasing bait and other supplies were not the subject of compensation under the treaty of Washington, because that treaty conferred "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 by the enforcement of existing laws or the reenforcement of former oppressive statutes."

66

66

With regard to the practical construction of the treaty and of the imperial act of 59 George III, cap. 38, Mr. Thompson argued that the British authorities had not acted on the theory that they permitted the purchase in territorial waters of bait to be used outside. In this relation he referred to the seizure and condemnation of the vessels Mabby and Washington, in 1818," for entering and harboring in British-American waters;" of the Jara, Independence, Magnolia, and Hart, in 1835, "the principal charge being that they were within British-American waters without legal cause; " of the Papineau and Mary, in 1840, " for purchasing bait; " of the Charles, in New Brunswick, in 1819," for having resorted to a harbor of that province after warning and without necessity;" and of the J. II. Nickerson, in Nova Scotia, in 1871, “ for having purchased bait within three marine miles of the Nova Scotian shore." Mr. Thompson added that the decision in the case of the J. II. Nickerson was subsequent to that in the case of the White Fawn, which was cited by Mr. Phelps. He also denied that the Parliament of Canada had endeavored to alter or enlarge the provisions of the act of the Imperial Parliament, or to give to the convention of 1818 an unwarranted construction; and he maintained the right of the Parliament of Canada in accordance with constitutional forms to legislate for the enforcement of the treaty. He referred to the circulars of the Treasury Department of the United States of May and June, 1870, as having "completely abandoned " the "vain contention" that the colonial statutes were invalid. Mr. Thompson also denied that the Canadian statute of 1886 had been passed in haste, or that it made illegal any act which was legal before. The act, he said, declared what penalty should attach to effenses which were already prohibited, and, he observed, that before the act was passed the Congress of the United States had adopted a statute authorizing the President by proclamation to exclude under

a See proceedings of the Halifax Commission, III. 3398.

penalties the vessels of any foreign country from the exercise in the ports of the United States of such commercial privileges as were denied to American vessels in the ports of such foreign country."

Sir L. West, Brit. min., to Mr. Bayard, Sec. of State, Jan. 28, 1887, For. Rel. 1887, 502, enclosing report of Mr. Thompson, Canadian Minister of Justice, of July 22, 1886.

April 25, 1888, the British minister at Washington communicated to the Department of State a copy of a minute of the Canadian privy council, concurring in a recommendation of the minister of justice. who advised that the proceedings against the David J. Adams and Ella M. Doughty, for violation of the fishery statutes, be discontinued on the understanding that the owners would give an undertaking which would prevent the discontinuance from being made the basis of a claim for damages or expenses. The reason given in the minute for the discontinuance was "that these proceedings were taken for the purpose of asserting and establishing the right of Canada, under the convention of 1818, to prevent the purchase of bait and other fishing supplies in Canadian ports by United States fishing vessels and to prevent such vessels from entering such ports for the shipping of crews;" and that "as the result of the negotiations lately concluded at Washington had been to show that no further difference of opinion between the two Governments on the points was to be apprehended," it appeared to be "unnecessary that a judicial decision should be sought to affirm the right above mentioned."

Sir L. West, British min., to Mr. Bayard, Sec. of State, April 25, 1888.
For. Rel. 1888, I. 802.

Case of the "Everett Steele."

"The Everett Steele, a fishing vessel of Gloucester, Mass., in the United States, of which Charles E. Forbes, an American citizen, was master, was about to enter, on the 10th of September, 1886, the harbor of Shelburne, Nova Scotia, to procure water and for shelter during repairs. She was hailed, when entering the harbor, by the Canadian cutter Terror, by whose captain, Quigley, her papers were taken and retained. Captain Forbes, on arriving off the town, anchored and went with Captain Quigley to the custom-house, who asked him whether he reported whenever he had come in. Captain Forbes answered that he had reported always, with the exception of a visit on the 25th of March, when he was driven into the lower harbor for shelter by a storm and where he remained only eight hours. The collector did not consider that this made the vessel liable, but Captain Quigley refused to discharge her; said he would keep her until he heard from Ottawa, put her in charge of policemen, and detained her until the next day,

a Section 17 of act No. 85, 1886.

when at noon she was discharged by the collector; but a calm having come on she could not get to sea, and by the delay her bait was spoiled and the expected profits of her trip lost.

"It is scarcely necessary for me to remind you, in presenting this case to the consideration of your Government, that when the northeastern coast of America was wrested from France in a large measure by the valor and enterprise of New England fishermen, they enjoyed, in common with other British subjects, the control of the fisheries with which that coast was enriched, and that by the treaty of peace of 1783, which, as was said by an eminent English judge when treating an analogous question, was a treaty of separation,' this right was expressly affirmed.

"It is true that by the treaty of 1818, the United States renounced a portion of its rights in these fisheries, retaining, however, the old prerogatives of visiting the bays and harbors of the British northeastern possessions for the purpose of obtaining wood, water, and shelter, and for objects incidental to those other rights of territoriality so retained and confirmed. What is the nature of these incidental prerogatives, it is not, in considering this case, necessary to discuss. It is enough to say that Captain Forbes entered the harbor of Shelburne to obtain shelter and water, and that he had as much right to be there under the treaty of 1818, confirming in this respect the ancient privileges of American fishermen on those coasts, as he would have had on the high seas, carrying on, under shelter of the flag of the United States, legitimate commerce. The Government which you so honorably represent has, with its usual candor and magnanimity, conceded that when a merchant vessel of the United States is stopped in time of peace by a British cruiser on the groundless suspicion of being a slave trader, damages are to be paid to this Government not merely to redress the injury suffered, but as an apology for the insult offered to the flag of the United States. But the case now presented to you is a much stronger one than that of a seizure on the high seas of a ship unjustly suspected of being a slaver. When a vessel is seized on the high seas on such a suspicion, its seizure is not on waters where its rights, based on prior and continuous ownership, are guaranteed by the sovereign making the seizure. If in such case the property of the owners is injured, it is, however wrongful the act, a case of rare occurrence, on seas comparatively unfrequented, with consequences not very far-reaching; and if a blow is struck at a system of which such vessel is unjustly supposed to be a part, such system is one which the civilized world execrates. But seizures of the character of that which I now present to you have no such features. They are made in waters not only conquered and owned by American fishermen, but for the very purpose for which they were being used by Captain Forbes,

guaranteed to them by two successive treaties between the United States and Great Britain.

"These fishermen also, I may be permitted to remind you, were engaged in no nefarious trade. They pursue one of the most useful and meritorious of industries. They gather from the seas, without detriment to others, a food which is nutritious and cheap, for the use of an immense population. They belong to a stock of men which contributed before the Revolution most essentially to British victories on the northeastern Atlantic, and it may not be out of place to say they have shown since that Revolution, when serving in the Navy of the United States, that they have lost none of their ancient valor, hardihood, and devotion to their flag.

"The indemnity which the United States has claimed, and which Great Britain has conceded, for the visitation and search of isolated merchantmen seized on remote African seas on unfounded suspicion of being slavers, it can not do otherwise now than claim, with a gravity which the importance of the issue demands, for its fishermen seized on waters in which they have as much right to traverse for shelter as have the vessels by which they are molested. This shelter, it is important to observe, they will as a class be debarred from if annoyances such as I now submit to you are permitted to be inflicted on them by minor officials of the British provinces.

"Fishermen, as you are aware, have been considered, from the usefulness of their occupation, from their simplicity, from the perils to which they are exposed, and from the small quantity of provisions and protective implements they are able to carry with them, the wards of civilized nations; and it is one of the peculiar glories of Great Britain that she has taken the position--a position now generally accepted that even in time of war they are not to be the subjects of capture by hostile cruisers. Yet, in defiance of this immunity thus generously awarded by humanity and the laws of nations, the very shelter which they own in these seas, and which is ratified to them by two successive treaties, is to be denied to them, not, I am confident, by the act of the wise, humane, and magnanimous Government you represent, but by deputies of deputies permitted to pursue, not uninfluenced by local rivalry, these methods of annoyance in fishing waters which our fishermen have as much right to visit on lawful errands as those officials have themselves. For let it be remembered that by annoyances and expulsions such as these the door of shelter is shut to American fishermen as a class.

"If a single refusal of that shelter, such as the present, is sustained, it is a refusal of shelter to all fishermen pursuing their tasks on those Inhospitable coasts. Fishermen have not funds enough nor outfit

H. Doc. 551-54