Rosebery of the 2nd of the preceding June. With regard to the allegations of fact made in behalf of the vessel, Mr. Thompson observed that they remained to be proved in the vice-admiralty court at Halifax, and that, as the trial had not been concluded, it was perhaps premature for Mr. Phelps to claim the restoration of the vessel and assert a right to damages for her detention. The vessel, said Mr. Thompson, was on May 5, 1886, at a point several miles within Annapolis Basin, and the suggestion that her captain was under a misapprehension as to the locality could not be sustained. Mr. Phelps, declared Mr. Thompson, was in error in speaking of Digby as "a small fishing settlement, and its harbor not defined." Although some of the people on the neighboring shores engaged in fishing, it was a town with a population of 2,000 inhabitants, and the wellknown harbor of Annapolis Basin was entered through a narrow strait called "Digby Gut," marked by conspicuous headlands. During the 5th and 6th of May the vessel lay within the harbor at anchor, about half a mile from shore, and on the second day she purchased and took on board from a near-by fishing weir four and a half barrels of bait. She also obtained two tons of ice. The name of her home port was kept covered by canvas, and the owner of the fishing weir was told that she was under British register. Other circumstances were also stated by Mr. Thompson contradictory of the allegations made on behalf of the vessel. With regard to her failure to report, Mr. Thompson declared that the vessel, in going to the weir to purchase bait, passed almost within hailing distance of the custom-house at Digby, and that when she was at the weir she was within one or two miles of another custom-house. The captain and crew were also ashore during the 5th and 6th of May. In this relation Mr. Thompson quoted the provisions of the customs act of Canada, which were not, he declared, essentially different from those of the United States; and, after discussing other incidents of the seizure and denying the allegations of harsh or improper action on the part of the Canadian authorities, he repelled the inference of Mr. Phelps that the joining of a charge of violation of the customs law with the charge of violation of the statutes in relation to fishing by foreign vessels, indicated a consciousness that the vessel could not be forfeited on the latter charge. With thousands of miles of coast indented, as were the coasts of Canada, by hundreds of harbors and inlets, it was, said Mr. Thompson, impossible to enforce the fishery law without a strict enforcement of the customs law. The convention of 1818 provided that the American fishermen should be "under such restrictions as might be necessary to prevent their taking, drying, or curing fish . . . or in any other manner whatever abusing the privilege reserved to them." He denied the statement made by Mr. Phelps, on the authority of the United States consul-general at Hali 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. 66 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 earl 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." a 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. H. 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. H. 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 assed 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, 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 30 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, |