enough, nor, I may add, recklessness enough to put into harbors where, perfect as is their title, they meet with such treatment as that suffered by Captain Forbes. "To sanction such treatment, therefore, is to sanction the refusal to the United States fishermen as a body of that shelter to which they are entitled by ancient right, by the law of nations, and by solemn treaty. Nor is this all. That treaty is a part of a system of mutual concessions. As was stated by a most eminent English judge in the case of Sutton v. Sutton (1 Myl. & R. 675), which I have already noticed, it was the principle of the treaty of peace, and of the treaties which followed between Great Britain and the United States, that the 'subjects of the two parts of the divided Empire should, notwithstanding the separation, be protected in the mutual enjoyment' of the rights those treaties affirmed. If, as I can not permit myself to believe, Great Britain should refuse to citizens of the United States the enjoyment of the plainest and most undeniable of these rights, the consequences would be so serious that they can not be contemplated by this Government but with the greavest concern." Mr. Bayard, Sec. of State, to Sir L. West, British min., Oct. 19, 1886, On October 20, 1886, Mr. Bayard addressed to the British minister "The committee of the privy council have had under consideration a dispatch, dated November 22, 1886, from the Secretary of State for the colonies, inclosing letters from Mr. Secretary Bayard, bearing date 19th October, and referring to the cases of the schooners Pearl Nelson and Everett Steele. "The minister of marine and fisheries, to whom the dispatch and inclosures were referred, reports that in reply to a telegram from the Secretary of State for the colonies, an order in council, passed on the 18th November last, containing a full statement of facts regarding the detention of the above-named vessels, was transmitted to Mr. Stanhope; it will not therefore be necessary to repeat this statement in the present report. "The minister observes in the first place that the two fishing schooners Everett Steele and Pearl Nelson were not detained for any alleged contravention of the treaty of 1818 or the fishery laws of Canada, but solely for the violation of the customs law. By this law all vessels of whatever character are required to report to the collector of customs immediately upon entering port, and are not to break bulk or land crew or cargo before this is done. "The minister states that the captain of the Everett Steele had on a previous voyage entered the port of Shelburne on the 25th March, 1886, and after remaining for eight hours had put to sea again without reporting to the customs. For this previous offense he was, upon entering Shelburne Harbor on the 10th September last, detained and the facts were reported to the minister of customs at Ottawa. With these facts was coupled the captain's statement that on the occasion of the previous offense he had been misled by the deputy harbormaster, from whom he understood that he would not be obliged to report unless he remained in harbor for twenty-four hours. The minister accepted the statement in excuse and the Everett Steele was allowed to proceed on her voyage. "The customs laws had been violated; the captain of the Everett Steele admitted the violation, and for this the usual penalty could have been legally enforced. It was, however, not enforced, and no detention of the vessel occurred beyond the time necessary to report the facts to headquarters and obtained the decision of the minister. "The minister submits that he can not discern in this transaction any attempt to interfere with the privileges of United States fishing vessels in Canadian waters or any sufficient case for the protest of Mr. Bayard. The minister states that in the case of the Pearl Nelson no question was raised as to her being a fishing vessel or her enjoyment of any privileges guaranteed by the treaty of 1818. Her captain was charged with a violation of the customs law, and of that alone, by having, on the day before reporting to the collector of customs at Arichat, landed ten of his crew. "This he admitted upon oath. When the facts were reported to the minister of customs he ordered that the vessel might proceed upon depositing $200, pending a fuller examination. This was done, and the fuller examination resulted in establishing the violation of the law and in finding that the penalty was legally enforceable. The minister, however, in consideration of the alleged ignorance of the captain as to what constituted an infraction of the law, ordered the deposit to be refunded. In this case there was a clear violation of Canadian law; there was no lengthened detention of the vessel; the deposit was ultimately remitted, and the United States consul-general at Halifax expressed himself by letter to the minister as highly pleased at the result. "The minister observes that in this case he is at a loss to discover any well-founded grievance or any attempted denial of or interference with any privileges guaranteed to United States fishermen by the treaty of 1818. "The minister further observes that the whole argument and protest of Mr. Bayard appears to proceed upon the assumption that these two vessels were subjected to unwarrantable interference in that they were called upon to submit to the requirements of Canadian customs law, and that this interference was prompted by a desire to curtail or deny the privileges of resort to Canadian harbors for the purposes allowed by the treaty of 1818. "It is needless to say that this assumption is entirely incorrect. Canada has a very large extent of seacoast with numberless ports, into which foreign vessels are constantly entering for purposes of trade. It becomes necessary in the interests of legitimate commerce that stringent regulations should be made by compulsory conformity to which illicit traffic should be prevented. These customs regulations all vessels of all countries are obliged to obey, and these they do obey, without in any way considering it a hardship. United States fishing vessels come directly from a foreign and not distant country, and it is not in the interests of legitimate Canadian commerce that they should be allowed access to our ports without the same strict supervision as is exercised over all other foreign vessels, otherwise there would be no guaranty against illicit traffic of large dimensions to the injury of honest trade and the serious diminution of the Canadian revenue. United States fishing vessels are cheerfully accorded the right to enter Canadian ports for the purpose of obtaining shelter, repairs, and procuring wood and water; but in exercising this right they are not, and can not be, independent of the customs laws. They have the right to enter for the purposes set forth, but there is only one legal way in which to enter, and that is by conformity to the customs regulations. When Mr. Bayard asserts that Captain Forbes had as much right to be in Shelburne Harbor seeking shelter and water ‘as he would have had on the high seas carrying on under shelter of the flag of the United States legitimate commerce,' he is undoubtedly right, but when he declares, as he does in reality, that to compel Captain Forbes, in Shelburne Harbor, to conform to Canadian customs regulations, or to punish him for their violation, is a more unwarrantable stretch of power than that of seizure on the high seas of a ship unjustly suspected of being a slaver,' he makes a statement which carries with it its own refutation. "Customs regulations are made by each country for the protection of its own trade and commerce, and are enforced entirely within its own territorial jurisdiction, while the seizure of a vessel upon the high seas, except under extraordinary and abnormal circumstances, is an unjustifiable interference with the free right of navigation common to all nations. "As to Mr. Bayard's observation that by treatment such as that experienced by the Everett Steele, the door of shelter is shut to American fishermen as a class,' the minister expresses his belief that Mr. Bayard can not have considered the scope of such an assertion or the inferences which might reasonably be drawn from it. "If a United States fishing vessel enters a Canadian port for shelter, repairs, or for wood and water, her captain need have no difficulty in reporting her as having entered for one of those purposes, and the Everett Steele would have suffered no detention had her captain, on the 25th March, simply reported his vessel to the collector. As it was, the vessel was detained for no longer time than was necessary to obtain the decision of the minister of customs, and the penalty for which it was liable was not enforced. Surely Mr. Bayard does not wish to be understood as claiming for United States fishing vessels total immunity from all customs regulations, or as intimating that if they can not exercise their privileges unlawfully they will not exercise them at all. "Mr. Bayard complains that the Pearl Nelson, although seeking to exercise no commercial privileges, was compelled to pay commercial fees, such as are applicable to trading vessels. In reply the minister observes that the fees spoken of are not commercial fees;' they are harbormaster's dues, which all vessels making use of legally constituted harbors are, by law, compelled to pay, and entirely irrespective of any trading that may be done by the vessel. "The minister observes that no single case has yet been brought to his notice in which any United States fishing vessel has in any way been interfered with for exercising any rights guaranteed under the treaty of 1818 to enter Canadian ports for shelter, repairs, wood, or water; that the Canadian government would not countenance or permit any such interference, and that in all cases of this class when trouble has arisen it has been due to a violation of Canadian customs law, which demands the simple legal entry of the vessel as soon as it comes into port." Approved report of a committee of the privy council of Canada, embodying See also a dispatch of Lord Lansdowne, governor-general of Canada, to rion Grimes." "On October 7, 1886, the United States fishing vessel, the Marion Grimes, of Gloucester, Mass., Alexander Landry, a Case of the "Ma- citizen of the United States, being her captain, arrived shortly before midnight, under stress of weather, at the outer harbor of Shelburne, Nova Scotia. The night was stormy, with a strong head-wind against her, and her sole object was temporary shelter. She remained at the spot where she anchored, which was about seven miles from the port of Shelburne, no one leaving her until 6 o'clock the next morning, when she hoisted sail in order to put to sea. She had scarcely started, however, before she was arrested and boarded by a boat's crew from the Canadian cruiser Terror. Captain Landry was compelled to proceed to Shelburne, about seven miles distant, to report to the collector. When the report was made, Captain Landry was informed that he was fined $400 for not reporting on the previous night. He answered that the custom-house was not open during the time that he was in the outer harbor. He further insisted that it was obvious from the storm that caused him to take shelter in that harbor, from the shortness of his stay, and from the circumstances that his equipments were exclusively for deep-sea fishing, and that he had made no effort whatever to approach the shore, that his object was exclusively to find shelter. The fine, however, being imposed principally through the urgency of Captain Quigley, commanding the Terror, Captain Landry was informed that he was to be detained at the port of Shelburne until a deposit to meet the fine was made. He consulted Mr. White, the United States consular agent at Shelburne, who at once telegraphed the facts to Mr. Phelan, United States consul-general at Halifax, it being of great importance to Captain Landry, and to those interested in his venture, that he should proceed on his voyage at once. Mr. Phelan then telegraphed to the assistant commissioner of customs at Ottawa that it was impossible for Captain Landry to have reported while he was in the outer harbor on the 8th instant, and asking that the deposit required to release the vessel be reduced. He was told in reply that the minister declined to reduce the deposit, but that it might be made at Halifax. Mr. Phelan at once deposited at Halifax the $400, and telegraphed to Captain Landry that he was at liberty to go to sea. On the evening of October 11 Mr. Phelan received a telegram from Captain Landry, who had already been kept four days in the port, stating that the custom-house officers and Captain Quigley' refused to let him go to sea. Mr. Phelan the next morning called on the collector at Halifax to ascertain if an order had issued to release the vessel, and was informed that the order had been given, but that the collector and captain of the cruiser refused to obey it, for the reason that the captain of the seized vessel hoisted the American flag while she was in custody of Canadian officials.' Mr. Phelan at once telegraphed this state of facts to the assistant commissioner at Ottawa, and received in reply, under date of August 12, the announcement that collector has been instructed to release the Grimes from customs seizure. This department has nothing to do with other charges.' On the same day a dispatch from the commissioner of customs at Ottawa was sent to the collector of customs at Halifax reciting the order to release the Grimes, and saying this [the customs] department has nothing to do with other charges. It is department of marine.' 6 |