statutes relating to the subject, that she should be detained in the place of seizure, and that the legal proceedings should be taken in the Vice-Admiralty Court of the Province where the offence was committed. It does not seem to be claimed by the United States' authorities that any damage to the vessel, or that any injury or inconvenience to any one concerned was occasioned by this removal to Saint John, and by her return to Digby, occupying as they did but a few hours, and yet this circumstance seems to be relied on as aggravating" the seizure," and as depriving it of the character of a seizure made" to enforce a right or to redress a wrong."

Another ground of complaint is that in Digby "the paper alleged to be the legal precept for the capture and detention of the vessel was nailed to her mast in such a manner as to prevent its contents being read, and the request of the captain and of the United States' Consul General to be allowed to detach the writ from the mast, for the purpose of learning its contents, was positively refused by the provincial official in charge; that the United States' Consul General was not able to learn from the Commander of the Lansdowne' the nature of the complaint against the vessel, and that his respectful application to that effect was fruitless."

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1. As to the position of the paper on the mast. It is not a fact that it was nailed to the vessel's mast "in such a manner as to prevent its contents being read." It was nailed there for the purpose of being read, and could have been read.

2. As to the refusal to allow it to be detached. Such refusal was not intended as a discourtesy, but was legitimate and proper. The paper purported to be, and was, a copy of the writ of summons and warrant which were then in the Registry of the Vice-Admiralty Court at Halifax. It was attached to the mast by the officer of the Court, in accordance with the rules and procedure of that Court. The purposes for which it was so attached did not admit of any consent for its removal.

3. As to the desire of the captain and of the United States' Consul General to ascertain the contents of the paper. The original was in the Registry of the Court, accessible to every person, and the Registry is within eighty yards of the Consul General's Office. All the reasons for the seizure were made known to the captain days before the paper arrived to be placed on the mast, and before the Consul General arrived at Digby. These reasons were not only matters of public notoriety, but had been published in the newspapers of the province, and in hundreds of other newspapers circulating throughout Canada and the United States. The captain and the Consul General did not need, therefore, to take the paper from the mast in order to learn the causes of the seizure and detention.

4. As to the application of the Consul General having been fruitless. The fact has transpired that he had reported the seizure and its causes to his Government before the application was made. It has been already explained in the previous memorandum of the undersigned, and in the report of the Minister of Marine and Fisheries, that the application was for a specific statement of the charges, and that it was made to an officer who had neither the legal acquirements nor the authority t state them in a more specific form than that in which he had already stated them. The Commander of the "Lans

downe" requested the Consul General to make his request to the Minister of Marine and Fisheries, and if he had done so the specific statement which he desired could have been furnished in an hour.

It is hoped that the explanation already made, and the precautions which have been taken against even the appearance of discourtesy in the future, will, on consideration, be found to be satisfactory.

INCIDENTS OF THE CUSTOMS SEIZURE.

Mr. Phelps presents the following views with respect to the claim that the "David J. Adams" besides violating the treaty and the statutes relating to "fishing by foreign vessels," is liable to be detained for the penalty under the Customs laws.

1. That this claim indicates the consciousness that the vessel could not be forfeited for the offence against the Treaty and Fishery Laws. This supposition is groundless. It is by no means uncommon, in legal proceedings, both in Canada and the United States, for such proceedings to be based on more than one charge, although any one of the charges would, in itself, if sustained, be sufficient for the purpose of th ecomplainant. The success of this litigation, like that of all litigation, must depend not merely on the rights of the parties but on the proof which may be adduced as to a right having been infringed. In this instance it appears, from Mr. Phelps' letter, that the facts which are to be made the subject of proof are widely in dispute, and the Government of Canada could, with propriety, assert both its claims so that both of them should not be fost by any miscarriage of justice in regard to one of them. This was, likewise, the proper course to be taken in view of the fact that an appeal might, at any time, be made to the Government by the owners of the "David J. Adams" for remission of the forfeiture incurred in respect of the fishery laws. The following is a section of the Canadian statute relating to fishing by foreign vessels:

In cases of seizure under this Act the Governor in Council may direct a stay of proceedings, and in cases of condemnation, may relieve from the penalty, in whole or in part, and on such terms as are deemed right.—31 V., c. 61, s. 19.

It seemed necessary and proper to make at once any claim founded on infraction of the Customs laws, in view of the possible termination of the proceedings by executive interference under this enactment. It would surely not be expected that the Government of Canada should wait until the termination of the proceedings under the Fishery Acts before asserting its claim to the penalty under the Customs Act. The owners of the offending vessel, and all concerned, were entitled to know, as soon as they could be made aware, what the claims of the Government were in relation to the vessel, and they might fairly urge that any which were not disclosed were waived.

2. Mr. Phelps remarks that this charge is "not the one on which the vessel was seized," and "was an afterthought." The vessel was seized by the commander of the "Lansdowne " for a violation of the fishery laws before the Customs authorities had any knowledge that such a vessel had come into the port, or had attempted to leave it, and the commander was not aware at that time whether the "David J. Adams" had made proper entry or not. A few hours afterwards, however, the Collector of Customs at Digby ascertained the facts, and on the facts being made known to the head of his department at

Ottawa, was immediately instructed to take such steps as might be necessary to assert the claim for the penalty which had been incurred. The Collector did so.

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3. Mr. Phelps asserts that the charge of breach of the Customs law is not the one "which must now be principally relied on for condemnation." It is true that condemnation does not necessarily follow. The penalty prescribed is a forfeiture of four hundred dollars, on payment of which the owners are entitled to the release of the vessel.

If Mr. Phelps means by the expression just quoted, that the Customs' offence cannot be relied on, in respect to the penalty claimed, and that the vessel cannot be detained until that penalty is paid, it can only be said that in this contention the Canadian Government does not concur. Section 29 of the Customs' Act, before quoted, is explicit on that point.

4. It is also urged that the offence was at most "only an accidental and clearly technical breach of a Customs House regulation, by which no harm was intended and from which no harm came, and would in ordinary cases be easily condoned by an apology, and, perhaps, payment of costs." What has already been said under the heading," the Offence (as to Custom laws)," presents the contention opposed to the offence being considered as "accidental." The master of the "David J. Adams" showed by his language and conduct that what he did, he did with design and with the knowledge that he was violating the laws of the country. He could not have complied with the Customs law without frustrating the purposes for which he had gone into port.

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As to the breach being a "technical" one, it must be remembered that with thousands of miles of coast, indented as the coasts of Canada are, by hundreds of harbours and inlets, it is impossible to enforce the fishery law without a strict enforcement of the Customs laws. This difficulty was not unforeseen by the framers of te Treaty of 1818, who provided that the 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 privileges reserved to them." No naval force which could be equipped by the Dominion would of itself be sufficient for the enforcement of the fishery laws. Foreign fishing vessels are allowed by the treaty to enter the harbours and inlets of Canada, but they are allowed to do so only for specified purposes. In order to confine them to those purposes it is necessary to insist on the observance of the customs laws, which are enforced by officers all along the coast. A strict enforcement of the customs laws, and one consistent with the Treaty, would require that, even when coming into port for the purposes for which such vessels are allowed to enter our waters, a report should be made at the Customs House, but this has not been insisted on in all cases. When the customs laws are enforced against those who enter for other than legitimate purposes, and who choose to violate both the fishery laws and customs laws, the Government is far within its right, and should not be asked to accept an apology and payment of costs. It may be observed here, as affecting Mr. Phelps' demand for restoration and damages, that the apology and costs have never been tendered, and that Mr. Phelps seems to be of opinion that they are not called for.

5. Mr. Phelps is informed by the Consul General at Halifax that it is "conceded by the Customs authorities there that foreign fishing vessels have for forty years been accustomed to go in and out of the bay at pleasure, and have never been required to send ashore and report when they had no business with the port, and made no landing, and that no seizure had ever before been made, or claim against them for so doing." Nothing of this kind is, or could be conceded by the customs authorities there, or elsewhere in Canada. The bay referred to, the Annapolis Basin, is like all the other harbours of Canada, except that it is unusually well defined and land locked, and furnished with customs houses. Neither there, nor anywhere else, have foreign fishing vessels been accustomed to go in and out at pleasure without reporting. If they had been so permitted the fishery laws could not have been enforced, and there would have been no protection against illicit trading while the Reciprocity Treaty of 1854 and the fishery clauses of the Washington Treaty were in force, the Convention of 1818 being of course suspended, considerable laxity was allowed to United States' fishing vessels,-much greater than the terms of those Treaties entitled them to, but the Consul General is greatly mistaken when he supposes that at other times the Customs laws were not enforced, and that seizures of foreign fishing vessels were not made for omitting to report. Abundant evidence on this point can be had.

In 1839 Mr. Vail, the acting Secretary of State (United States) reported that most of the seizures (which then were considered numerous) were for alleged violations of the customs laws (Papers relating to the Treaty of Washington, vol. 6, p. 283, Washington Edition.) From a letter of the United States' Consul at Charlottetown, dated 19th August, 1870, to the United States' Consul General at Montreal, it appears that it was the practice of the United States' fishermen at that time to make regular entry at the port to which they resorted. The Consul said "Here the fishermen enter and clear, and take out permits to land their mackerel from the Collector, and as their mackerel is a free article in this island, there can be no illicit trade."

In the year 1870, two United States' fishing vessels, the "H. W. Lewis" and the "Granada " were seized on like charges in Canadian waters.

What Mr. Phelps styles "a Custom House regulation " is an Act of the Parliament of Canada, and has for many years been in force in all the provinces of the Dominion. It is one which the Government cannot at all alter or repeal, and which its officers are not at liberty to disregard.

6. It is suggested, though not asserted, in the letter of Mr. Phelps, that the penalty cannot reasonably be insisted on, because a new rule has been suddenly adopted without notice. The rule, as before observed, is not a new one, nor is its enforcement a novelty. As the Government of the United States choose to put an end to the arrangements under which the fishermen of that country were accustomed to frequent Canadian waters with so much freedom, the obligation of giving notice to those fishermen, that their rights were thereafter, by the action of their own Government, to be greatly restricted, and that they must not infringe the laws of Canada, was surely a duty incumbent on the Government of the United States, rather than on that of Canada. This point cannot be better expressed than in the lan

335 guage reported to have been recently used by Mr. Bayard, the United States' Secretary of State, in his reply to the owners of the "George Cushing," a vessel recently seized on a similar charge. "You are well aware that questions are now pending between this Government and that of Great Britain in relation to the justification of the rights of American fishing vessels in the territorial waters of British North America, and we shall relax no effort to arrive at a satisfactory solution of the difficulty. In the meantime it is the duty and manifest interest of all American citizens, entering Canadian jurisdiction to ascertain and obey the laws and regulations there in force. For all unlawful depredations of property or commercial rights this Government will expect to procure redress and compensation for the innocent sufferers."

INTERPRETATION OF THE TREATY.

Mr. Phelps after commenting in the language already quoted from his letter, on the claim for the Customs penalty, treats, as the only real question in the case, the question whether the vessel is to be forfeited for purchasing bait to be used in lawful fishing. In following his argument on this point, it should be borne in mind, as already stated, that, in so far as the fact of the bait having been intended to be used in lawful fishing is material to the case, that is a fact which is not admitted. It is one in respect of which the burden of proof is on the owners of the vessel, and it is one on which the owners have not yet obtained an adjudication by the tribunal before which the case has gone.

Mr. Phelps admits "that if the language of the Treaty of 1818 is to be interpreted literally, rather than according to its spirit and plain intent, a vessel engaged in fishing would be prohibited from entering a Canadian port for any purpose whatever, except to obtain wood or water, or to repair damages, or to seek shelter."

It is claimed on the part of the Government of Canada that this is not only the language of the Treaty of 1818, but " its spirit and plain intent." To establish this contention, it should be sufficient to point to the clear, unambiguous words of the Treaty. To those clear and unambiguous words Mr. Phelps seeks to attach a hidden meaning, by suggesting that certain "preposterous consequences" might ensue from giving them their ordinary construction. He says that with such a construction a vessel might be forfeited for entering a port to post a letter, to send a telegram, to buy a newspaper, to obtain a physician in case of illness, or a surgeon in case of accident, to land or bring off a passenger, or even to lend assistance to the inhabitants, &c.

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There are probably few treaties or statutes, the literal enforcement of which might not in certain circumstances produce consequences worthy of being described as preposterous.

At most this argument can only suggest that in regard to this Treaty as in regard to every enactment its enforcement should not be insisted on where accidental hardships or "preposterous consequences" are likely to ensue. Equity, and a sense of natural justice, would doubtless lead the Government with which the Treaty was made to abstain from its rigid enforcement for inadvertent offences, although the right so to enforce it might be beyond question. It is 92909-S. Doc. 870, 61--3, vol 4——46