Mr. Gallatin wrote to the Secretary of State on the 25th of December, the day following the signature of the treaty, as follows (extract from letter of Mr. Gallatin to Secretary of State, 25th December, 1814, p. 58): On the subject of the fisheries within the jurisdiction of Great Britain, we have certainly done all that could be done. If, according to the construction of the Treaty of 1783, which we assumed, the right was not abrogated by the war, it remaius entire, since we most explicitly refused to renounce it, either directly or indirectly. In that case it is only an unsettled subject of differences between the two countries. If the right must be considered as abrogated by the war, we cannot regain it without an equivalent. We had none to give but the recognition of their right to navigate the Mississippi, and we offered it. On this last supposition, this right is also lost to them; and in a general point of view, we have certainly lost nothing. Mr. Russell, who gave rise to all this correspondence, wrote from Paris on the 11th of February, 1815, in the following terms to the Secretary of State (extract from letter to Mr. Russell of the Secretary of State, 11th February, 1815, p. 66): I could not believe that the independence of the United States was derived from the Treaty of 1783; that the recognition of that independence by Great Britain gave to this treaty any peculiar character, or that such character, supposing it existed, would necessarily render this treaty absolutely inseparable in its provisions, and make it one entire and indivisible whole, equally imperishable in all its parts, by any chance which might occur in the relations between the contracting parties. The independence of the United States rests upon those fundamental principles set forth and acted on by the American Congress, in the Declaration of July, 1776, and not on any British grant in the Treaty of 1783, and its era is dated accordingly. The Treaty of 1783 was merely a treaty of peace, and therefore subject to the same rules of construction as other compacts of this nature. The recognition of the independence of the United States could not well have given it a peculiar character, and excepted it from the operation of these rules. Such a recognition, expressed or implied, is always indispensable on the part of every nation with whom we form a treaty whatsoever. (Idem, p. 69:) It is from this view of the subject that I have been constrained to believe that there was nothing in the Treaty of 1783 which could not essentially distinguish it from ordinary treaties, or rescue it on account of any peculiarity of character from the jura belli, or from the operation of those events on which the continuance or termination of such treaties depends. I know not, indeed, any treaty nor any article of a treaty, whatever may have been the subject to which it related, of the terms in which it was expressed, that has survived a war between the parties, without being specially renewed, by reference or recital in the succeeding treaty of peace. I cannot, indeed, conceive the possiblity of such a treaty, or of such an article; for, however clear and strong the stipulations for perpetuity might be, these stipulations themselves would follow the fate of ordinary unexecuted engagements, and require, after a war, the declared assent of the parties for their revival. (Idem, p. 75 :) I have in this view of the subject been led to conclude that the treaty of 1783, in relation to the fishing liberty, is abrogated by the war, and that this liberty is totally destitute of support from prescription, and, consequently, that we are left without any title to it whatso ever. (Idem, p. 77:) Considering, therefore, the fishing liberty to be entirely at an end, without a new stipulation for its revival and believing that we are entirely free to discuss the terms and conditions of such a stipulation, I did not object to the article proposed by us because any article on the subject was unnecessary or contrary to our instructions, but I objected specially to that article because, by conceding in it to Great Britain the free navigation of the Mississippi, we not only directly violated our instructions, but we offered, in my estimation, a price much above its value and which could not justly be given. (Idem, p. 87 :) I have always been willing to make any sacrifice for the fishing privilege which its nature or comparative importance could justify, but I conscientiously believe that the free navigation of the Mississippi and the access to it, which we expressly offered, were pregnant with too much mischief to be offered directly, under our construction of the treaty, or, indirectly, as they were in fact offered, as a new equivalent for the liberty of taking and drying fish within British jurisdiction. Mr. Russel was supported by Henry Clay in these views. Our learned friend, Mr. Dana, mentioned the circumstances under which England was carrying on the negotiations at Ghent. She was engaged in a continental war with the most illustrious warrior of modern times, and the Americans were more or less exacting according to her embarrassments. We have this described at p. 233 of Mr. J. Q. Adams's Correspondence, as follows: Subsequently, however, the overthrow of Napoleon having left us to contend single-handed with the undivided power of Great Britain, our government thought proper to change the terms offered to the British Government, and accordingly sent additional instructions to Ghent, directing our commissioners to make a peace if practicable, upon the simple condition that each party should be placed in the same situation in which the war found them. At the commencement of the war, the British had a right, by treaty, not only to navigate the Mississippi, but to trade with all our Western Indians. Of course our commissioners were instructed to consent to the continuance of this right, if no better terms could be procured. Under these instructions a proposition relative to the Mississippi and the fisheries, similar to that which had been rejected, was again presented, adopted, and sent to the British commissioners. But it did not restore the right to navigate the Mississippi in as full s manner as the British Government desired, and on that account, we presume, was rejected. The following dates will explain the meaning of the paragraph referring to Napoleon. The mission to Ghent had met before the disasters to French arms, which resulted in the abdication of Napoleon on the 4th of April, 1814. Napoleon was conveyed to Elba in May following. With the slow communications of the time, the Americans learned only in June of the victories of England, which seem to have given a certain tone of firmness to her negotiations at Ghent. The treaty was signed on the 24th December, 1814. On the 1st March, 1815, Napoleon escaped from Elba and landed at Frejus. Americans regretted having precipitated their negotiations, and not being in a position to avail themselves of the renewal of war on the Continent to insist on better terms, many expressed their grief in unmeasured tones; but it was too late. Each of the contracting parties persisting in their views, the subject of the fisheries was excluded from the Treaty of Ghent; but the United States soon learned that England was right, and they had to resort to the ultima ratio of another war to enforce their opinions, not only against Great Britain, but also against the universal sense of other nations. We read in the same book, page 240, that in the summer of 1815, British armed cruisers warned off all American fishing vessels on the coast of Nova Scotia to a distance of sixty miles from the shores, and thereby, says our writer, the British Government proved significantly what they had meant by their side of the argument. On this, the Americans solicited and obtained the Convention of 1818. The first article of that treaty explains the circumstances under which it was come to: Whereas differences have arisen respecting the liberty claimed by the United States for the inhabitants thereof, to take, dry, and cure fish on certain coasts, bays, harbors, and creeks of His Britannic Majesty's dominions in America, it is agreed, between the High Contracting Parties, that the inhabitants of the said United States shall have, forever, in common with the subjects of His Britannic Majesty, the liberty to take fish of every kind on that part of the southern coast of Newfoundland, which extends from Cape Ray to the Rameau Islands, on the western and northern coast of Newfoundland, from the said Cape Ray to the Quirpon Islands, on the shore of Magdalen Islands, and also on the coasts, bays, harbors, and creeks, from Mount Joly, on the southern coast of Labrador, to and through the Straits of Belle Isles, and hence northwardly indefinitely along the coast, without prejudice however to any of the exclusive rights of the Hudson Bay Company; and that the American fishermen shall also have liberty, forever, to dry and cure fish in any of the unsettled bays. harbors, and creeks of the southern coast of Newfoundland, here above described, and of the coast of Labrador; but so soon as the same or any portion thereof, shall be settled, it shall not be lawful for the said fishermen to dry or cure fish at such portion so settled without previous agreement for such purpose with the inhabitants, proprietors, or possessors of the ground. And the United States hereby renounce forever any liberty heretofore enjoyed or claimed by the inhabitants thereof, to take, dry or cure fish on or within three marine miles of any of the coasts, bays, creeks, or harbors of His Britannic Majesty's dominions in America not included within the above mentioned limits. Provided, however, that the American fishermen shall be admitted to enter such bays or harbors, for the purpose of shelter, and of reparing damages therein, of purchasing wood and of obtaining water, and for no other purpose whatever. But they shall be under such restrictions as shall be necessary to prevent their taking, drying, or curing fish therein, or in any other manner whatever abusing the privileges hereby reserved to them. The difference between this convention and the Treaty of 1783 consists in the exclusion of the Americans from the shore and bay fisheries which they enjoyed under the Treaty of 1783. This was more than sufficient to mark the abandonment by the Americans of the position assumed at Ghent, that war had not abrogated their fishing liberties under that treaty. It is, in fact, owing to that important difference that I have at this moment the honor of addressing myself to this distinguished tribunal. Six years after the adoption of this convention, in 1824, differences grew out of the three-miles limit, though it does not appear to have arisen from the headland question, or fishing in bays. Mr. Brent (as quoted at p. 8 of the United States Brief) speaks of American citizens who have been interrupted "during the present season in their accustomed and lawful employment of taking and curing fish in the Bay of Fundy and upon the Grand Banks, by the British armed brig Dotterel, &c. Mr. Addington answers (p. 8 and 9 of United States Brief), that the complainants are not entitled to reparation for the loss they have sustained, having rendered themselves obnoxious, having been taken, some Aagrante delicto, and others under such circumstances that they could have no other intention than that of pursuing their avocations as fishermen within the lines laid down by treaty as forming boundaries within which pursuit was interdicted to them. The United States Brief, which is now confessed to have been inspired by a misapprehension of the facts, states (p. 9) that the claim to exclude the American fishermen from the great bays, such as Fundy and Chaleurs, and also from a distance of three miles, determined by a line drawn from headland to headland across their mouths, was not attempted to be enforced until the years 1838 and 1839, when several of the American fishing-vessels were seized by the British cruisers for fishing in the large bays. This admission, coupled with the complaint of 1824, makes it evident that indisputable portions of the convention had been violated since American vessels had been seized in Two-Islands Harbor, Grand Manan. This was, even with the present American interpretation of the Convention of 1818, as to headlands, an evident trespass on prohibited grounds; and the rescue of the vessels seized by the fishermen of Eastport, and other similar instances should not be mentioned otherwise than as acts of piracy, which a powerful nation may disregard for peace sake, but will resent when treasured injury explodes on other occasions. It has been the policy of certain American statesmen to lay the blame of most of their fisheries difficulties on the shoulders of colonists, in order to obtain their easy settlement at the hands of a distant, and (quoad lucrum) disinterested, imperial and supreme power. From a natural connection between causes and effects our maritime provinces, most in proximity to the United States, had to bear the brunt of a triangular duel, the chief part of which fell to Nova Scotia, who showed herself equal to the occasion. It can be shown that what was styled as almost barbarian legislation on the part of the Nova Scotia Parliament, exists at this very hour in the legislation of the United States. And it is not a reproach that I am casting here against the United States. They have done like other nations who made effectual provisions against the violators of their customs, trade, or navigation laws, and they could not do less or otherwise than the legislature of Nova Scotia. The customs statute of the Dominion, 31 V., c. 6 (1867), contains similar provisions to those of the fishing act of the same session, ch. 61, ss. 10, 12, 15, and lays upon the owner and claimant of goods seized by customs officers the burden of proving the illegality of the seizure; it obliges the claimant of any vessel, goods, or thing seized, in pursuance of any law relating to the customs, or to trade or navigation, to give security to answer for costs. Other parts provide for all the things contained in the Nova Scotia statute, so much animadverted upon, as being contrary to common-law principles, but which are applicable to British subjects as well as to foreigners. The imperial act, 3 & 4 Will., 4, c. 59, ss. 67, 69, 70, 71, consolidated former acts, dating as far back as when the thirteen revolted colonies were a part of the empire, contains similar provisions as our Dominion acts concerning customs and fisheries, and as the Nova Scotia statute of 1836. I had intended to cite some words of the American law on the subject, but the volume is not at hand. I supplement the omission by 1 Gallison, p. 191; 2 Gallison, p. 505; 3 Greenleaf, sec. 404, and note 2, p. 360; 5 Wheaton, sec. 407, p. 461, and sec. 411, p. 463. Mr. DANA. Mr. Doutre, do you not consider that to the same effect as if the judge says that the government must make out a prima facie case? Mr. DOUTRE. I have only read a small portion of the decision; but the seizure constitutes a prima facie case. Mr. DANA. O, no. Mr. DOUTRE. Seizure was made for open violation of the law, and it is for the claimant to show that he did not violate the law. Mr. DANA. The decision is that the government must make out a prima facie case. Mr. DOUTRE. It is impossible for me to satisfy your mind on that point; the report is very long, and if you read it you will be convinced that I am right. Mr. DANA. It says the government are obliged by statute to prove a prima facie case. Mr. DOUTRE. These cases are all of a similar character. I admit that the ordinary rules of evidence are here reversed. The reason is that the maintenance of the ordinary rules concerning evidence would work great mischief if applied to such matters as these. Mr. FOSTER. This is a judgment based on suspicion, in the opinion of the court, and not on the opinion of the boarding officer. Mr. DOUTRE. The boarding officer makes the seizure, and reports that he has made it, and unless the defendant comes and shows that the seizure has been illegally made, the court ratifies the seizure, and condemns the goods or ships seized. Mr. DANA. Are you speaking of war now? Mr. DOUTRE. No; of profound peace. Mr. DANA. This was in time of war, and in the very case you cite it is said that the acts must be established by the government which has to make out a prima facie case. Mr. DOUTRE. I will take the law of the United States on this point as establishing my view. I will now give the reasons why such legisla tion has been adopted in England, in the United States, and in Canada, in an extract taken from a judgment rendered by the distinguished chief justice of Nova Scotia, Sir William Young, in December, 1870, In re schooner Minnie, court of vice-admiralty: It must be recollected that custom-house laws are framed to defeat the infinitely varied, unscrupulous, and ingenious devices to defraud the revenue of the country. In no other system is the party accused obliged to prove his innocence-the weight of proof is on him, reversing one of the first principles of criminal law. Why have the legislatures of Great Britain, of the United States, and of the Dominion alike, sanctioned this departure from the more humane, and, as it would seem at the first blush, the more reasonable rule? From a necessity, demonstrated by experience-the necessity of protecting the fair trader and counterworking and punishing the smuggler. Mr. DANA. That is a British decision which you have read? The provisions of the Nova Scotia statute were intended to apply to a class of cases belonging to something similar to customs regulations, and are inseparable from them, and if ever our American friends desire to enforce on their coasts the three-mile limit, which their answer and brief recognize as resting on the unwritten law of nations, they will have to extend to this matter their customs law above cited, as did the legislature of Nova Scotia. The learned Agent of the United States went very far from any dis. puted point to gain sympathy, by a reference to what, in the United States answer to the case, is called an inhospitable statute. He says: A Nova Scotia statute of 1836, after providing for the forfeiture of the vessel found fishing, or preparing to fish, or to have been fishing within three miles of the coast, bays, creeks, or harbors, and providing that the master, or person in command, should not truly answer the questions put to him in such examination by the boarding officer, he should forfeit the sum of one hundred pounds, goes on to provide that if any goods shipped on the vessel were seized for any cause of forfeiture under this act, and any dispute arises whether they have been lawfully seized, the proof touching the illegality of the seizure shall be on the owner or claimant of the goods, ship, or vessel, but not on the officer or person who shall seize and stop the same. These are the very expressions which the learned Agent for the United States employed when he animadverted on that statute. He also states that he is not aware whether a statute similar to this one, which existed in Nova Scotia in 1868, has been repealed. In 1867, however, Nova Scotia, New Brunswick, and the two Canadas were confederated together, and the matters relating to the fisheries and customs were then transferred to the Dominion of Canada, which has ever since exercised the sole power of legislation over those subjects. The best answer that can be given to Mr. Foster and his colleagues on this point may be quoted from high authority. The Agent for the United States, about the period of his arrival here to attend to his duties before this Commis. sion, published in the "American Law Review," a journal which speaks with quasi-judicial authority in Massachusetts, an article on the Franconia, having a prominent bearing on this case now before the Commission. I only mention this fact in order to show the high character of the Review. This journal, alarmed at the views proclaimed by Presi dent Grant, published a very able article on the subject, the writer being an eminent and able lawyer; and this article deals with the ques tion of preparing to fish, as well as with the question of trade, both of which have been discussed by my learned friend, the Agent for the United States. In dealing with the claim of the right on the part of American fishermen to lie at anchor, clean and pack fish, and purchase bait, prepare to fish and transship cargoes, the writer says Mr. DANA. Will you have the kindness to state by whom these views are set forth ? Mr. DOUTRE. I am not quite sure of the name. |