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in fishing in the waters of the United States. But, as the joint resolution of Congress had repealed the act of March 1, 1873, for the execution of the fishing articles, it was stated that the arrangement in no way affected the question of exemption from customs duties, as to which the abrogation of the fishing articles remained complete. It was added, however, that, as part of the arrangement, the President would bring the whole question of the fisheries before Congress at its next session and recommend the appointment of a joint commission to consider the matter, in the interest of maintaining good neighborhood and friendly intercourse between the two countries, thus affording a prospect of negotiation for the development and extension of trade between the United States and British North America." Copies of the memoranda and exchanged notes on which the agreement rested were appended to the notice, and reference was also made to the President's proclamation of January 31, 1885, giving warning of the termination of the fishery articles."

In his annual message of December 8, 1885, President Cleveland recommended that provision should be made for the appointment of a joint commission, such as was referred to in the arrangement. This recommendation was voted upon adversely by the Senate on April 13, 1886. Negotiations were then instituted with a view to reach a joint interpretation of the convention of 1818, but they were unsuccessful, and President Cleveland, in his annual message of December 6, 1886, declared that, while he was desirous that mutually beneficial and friendly relations should exist between the American people and the inhabitants of Canada, the action of the Canadian officials during the past season toward American fishermen had been "such as to seriously threaten their continuance." He added, however, that, although he was disappointed in his efforts to secure a satisfactory settlement of the fishery question, negotiations were still pending, with reasonable hope that before the close of Congress an announcement might be made that an acceptable conclusion had been reached.

For. Rel. 1885, 460 469; message of President Cleveland of Jan. 12, 1886, S. Ex. Doc. 32, 49 Cong. 1 sess.

↳ See resolution of Senator Frye, Jan. 18, 1886, adverse to the appointment of a joint commission, S. Mis. Doc. 37, 49 Cong. 1 sess; also, resolution reported by Mr. Frye from the Committee on Foreign Relations, Feb. 3, 1886, S. Mis. Doc. 59, 49 Cong. 1 sess.

The message of July 24, 1886, gives seizures and détentions which had then taken place, S. Ex. Doc. 217, 49 Cong. 1 sess. See the message of Dec. 8, 1886, II. Ex. Doc. 19, 49 Cong. 2 sess., with a suggestion that a commission be authorized by law to take perpetuating proofs of losses sustained by American fishermen by reason of the action of the Canadian officials during the season then just past. See, also, letter of Mr. Manning. Secretary of the Treasury, to the Speaker of the House, on the fisheries question, H. Ex. Doc, 78, 49 Cong. 2 sess.

The principal questions at issue between the two Governments are disclosed in the correspondence which immediately follows."

Case of the "David

5. CONTROVERSIES OF 1886-1888.

§ 167.

"On the 6th instant I received from the consul-general of the United States at Halifax a statement of the seizure of an American schooner, the Joseph Story, of Bayard's note of Gloucester, Mass., by the authorities at Baddeck. May 10, 1886. Cape Breton, and her discharge after a detention of

J. Adams;" Mr.

twenty-four hours.

"On Saturday, the 8th instant, I received a telegram from the same official, announcing the seizure of the American schooner David J. Adams, of Gloucester, Mass., in the Annapolis Basin, Nova Scotia, and that the vessel had been placed in the custody of an officer of the Canadian steamer Lansdowne, and sent to St. John, New Brunswick. for trial.

"As both of these seizures took place in closely landlocked harbors. no invasion of the territorial waters of the British provinces, with the view of fishing there, could well be imagined; and yet the arrests appear to have been based upon the act or intent of fishing within waters as to which, under the provisions of the treaty of 1818 between Great Britain and the United States of America, the liberty of the inhabitants of the United States to fish has been renounced.

"It would be superfluous for me to dwell upon the desire which, I am sure, controls those respectively charged with the administration of the Governments of Great Britain and of the United States to prevent occurrences tending to create exasperation, or unneighborly feeling, or collision between the inhabitants of the two countries; but, animated with this sentiment, the time seems opportune for me to submit some views for your consideration, which I confidently hope will lead to such administration of the laws regulating the commercial interests and the mercantile marine of the two countries as may promote good feeling and mutual advantage, and prevent hostility to commerce under the guise of protection to inshore fisheries.

"The treaty of 1818 is between two nations, the United States of America and Great Britain, who, as the contracting parties, can alone apply authoritative interpretation thereto, or enforce its provisions by appropriate legislation.

a See, also, the following Canadian documents: Correspondence relative to the Fisheries Question, 1885-1887, presented to the Canadian Parliament, May 3, 1887; Annual Report of the Department of Fisheries, Dominion of Canada, for the year 1886; Special Report on the Fisheries Protection Service of Canada. 1886.

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"The discussion prior to the conclusion of the treaty of Washington in 1871 was productive of a substantial agreement between the two countries as to the existence and limit of the three marine miles within the line of which, upon the regions defined in the treaty of 1818, it should not be lawful for American fishermen to take, dry, or cure fish. There is no hesitancy upon the part of the Government of the United States to proclaim such inhibition and warn their citizens against the infraction of the treaty in that regard, so that such inshore fishing cannot lawfully be enjoyed by an American vessel being within three marine miles of the land.

"But since the date of the treaty of 1818, a series of laws and regulations importantly affecting the trade between the North American provinces of Great Britain and the United States have been, respectively, adopted by the two countries, and have led to amicable and mutually beneficial relations between their respective inhabitants.

This independent and yet concurrent action by the two Governments has effected a gradual extension, from time to time, of the provisions of Article I. of the convention of July 3, 1815, providing for reciprocal liberty of commerce between the United States and the territories of Great Britain in Europe, so as gradually to include the colonial possessions of Great Britain in North America and the West Indies within the results of that treaty.

"President Jackson's proclamation of October 5, 1830, created a reciprocal commercial intercourse, on terms of perfect equality of flag, between this country and the British American dependencies, by repealing the navigation acts of April 18, 1818, May 15, 1820, and March 1, 1823, and admitting British vessels and their cargoes to an entry in the ports of the United States from the islands, provinces, and colonies of Great Britain on or near the American continent, and north or east of the United States.' These commercial privileges have since received a large extension in the interests of propinquity, and in some cases favors have been granted by the United States without equivalent concession. Of the latter class is the exemption granted by the shipping act of June 26, 1884, amounting to one-half of the regular tonnage dues on all vessels from the British North American and West Indian possessions entering ports of the United States. Of the reciprocal class are the arrangements for transit of goods, and the remission, by proclamation, as to certain British ports and places of the remainder of the tonnage tax, on evidence of equal treatment being shown to our vessels.

"On the other side, British and colonial legislation, as notably in the case of the imperial shipping and navigation act of June 26, 1849, has contributed its share toward building up an intimate intercourse and beneficial traffic between the two countries founded on mutual interest and convenience.

“These arrangements, so far as the United States are concerned, depend upon municipal statute and upon the discretionary powers of the Executive thereunder.

"The seizure of the vessels I have mentioned, and certain published warnings purporting to have been issued by the colonial authorities, would appear to have been made under a supposed delegation of jurisdiction by the Imperial Government of Great Britain, and to be intended to include authority to interpret and enforce the provisions of the treaty of 1818, to which, as I have remarked, the United States and Great Britain are the contracting parties, who can alone deal responsibly with questions arising thereunder.

"The effect of this colonial legislation and Executive interpretation. if executed according to the letter, would be not only to expand the restrictions and renunciations of the treaty of 1818, which related solely to inshore fishery within the three-mile limit, so as to affect the deep-sea fisheries, the right to which remained unquestioned and unimpaired for the enjoyment of the citizens of the United States, but further to diminish and practically to destroy the privileges expressly secured to American fishing vessels to visit those inshore waters for the objects of shelter, repair of damages, and purchasing wood, and obtaining water.

"Since 1818, certain important changes have taken place in fishing in the regions in question, which have materially modified the condi tions under which the business of inshore fishing is conducted and which must have great weight in any present administration of the treaty.

"Drying and curing fish, for which a use of the adjacent shore, was at one time requisite, is now no longer followed, and modern invention of processes of artificial freezing, and the employment of vessels of a larger size, permit the catch and direct transportation of fish to the markets of the United States without recourse to the shores contiguous to the fishing grounds.

"The mode of taking fish inshore has also been wholly changed, and from the highest authority on such subjects I learn that bait is no longer needed for such fishing, that purse-seines have been substituted for the other methods of taking mackerel, and that by their employment these fish are now readily caught in deeper waters entirely exterior to the three-mile line.

"As it is admitted that the deep-sea fishing was not under consideration in the negotiation of the treaty of 1818, nor was affectes! thereby, and as the use of bait for inshore fishing has passed wholly into disuse, the reasons which may have formerly existed for refusing to permit American fishermen to catch or procure bait within the line of a marine league from the shore, lest they should also use it in the

same inhibited waters for the purpose of catching other fish, no longer exist.

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For it will, I believe, be conceded as a fact that bait is no longer needed to catch herring or mackerel, which are the objects of inshore fishing, but is used, and only used, in deep-sea fishing, and, therefore, to prevent the purchase of bait or any other supply needed in deep-sea fishing, under color of executing the provisions of the treaty of 1818, would be to expand that convention to objects wholly beyond its purview, scope, and intent, and give to it an effect never contemplated by either party, and accompanied by results unjust and injurious to the citizens of the United States.

"As, therefore, there is no longer any inducement for American fishermen to dry and cure fish on the interdicted coasts of the Canadian provinces, and as bait is no longer used or needed by them for the prosecution of inshore fishing] in order to take fish in the inshore waters to which the treaty of 1818 alone relates, I ask you to consider the results of excluding American vessels, duly possessed of permits from their own Government to touch and trade at Canadian ports as well as to engage in deep-sea fishing, from exercising freely the same customary and reasonable rights and privileges of trade in the ports of the British colonies as are freely allowed to British vessels in all the ports of the United States under the laws and regulations to which I have adverted.

"Among these customary rights and privileges may be enumerated the purchase of ship-supplies of every nature, making repairs, the shipment of crews in whole or part, and the purchase of ice and bait for use in deep-sea fishing.

Concurrently, these usual rational and convenient privileges are freely extended to and are fully enjoyed by the Canadian merchant marine of all occupations, including fishermen in the ports of the United States.

The question therefore arises whether such a construction is admissible as would convert the treaty of 1818 from being an instrumentality for the protection of the inshore fisheries along the described parts of the British American coast into a pretext or means of obstructing the business of deep-sea fishing by citizens of the United States, and of interrupting and destroying the commercial intercourse that since the treaty of 1818, and independent of any reaty whatever, has grown up and now exists under the concurrent and friendly laws and mercantile regulations of the respective countries.

"I may recall to your attention the fact that a proposition to exclude the vessels of the United States engaged in fishing from carrying also merchandise was made by the British negotiators of the

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