No. 203.-1886, July 7: Letter from Sir L. S. S. West to the Earl of Rosebery. No. 64 Treaty. WASHINGTON 7. July 1886. MY LORD; In the absence of instructions from your Lordship on the present phase of the Fisheries question, and in view of the tenour of Mr. Bayard's notes on the detention of American fishing vessels by the Canadian authorities, I have avoided all conversation with him on the subject. These notes are written in order to establish the contention that the operation of the Treaty of 1818 is virtually suspended by the spirit of subsequent commercial legislation on both sides, and that the action taken by the Canadian authorities under it is therefore unjustifiable. It must be borne in mind, however, that the commercial legislation upon which so much stress has been laid by the opponents in the Senate to the appointment of a Commission may be said to have auspiciously culminated in the reciprocity of 1854, which, together with the policy which it inaugurated, was nevertheless denounced by the United States Government, and that all endeavours on the part of the Dominion Government to renew it have failed. The freedom of intercourse, therefore, which, in so far as the fisheries are concerned, may be said to have been repudiated by Congress by the denunciation of the instruments which established it, can scarcely now be claimed as a right, in view of the repeated declarations both in Congress and outside that the fishing interests were content to abide by a Treaty which expressly denies it. It was preferred to return to the Treaty of 1818 sooner than to admit the prin ciple of "free fish and free fishing," for it was argued that, since the fish had left the Canadian shores, American fishing vessels had no reason for resorting to Canadian waters, and the right of free intercourse for inshore fishing operations was therefore no longer of any value. In dealing with the situation thus created by the Senate for the sole purpose of thwarting the policy of the present Administration, two points at once present themselves which are of importance in the event of any proposal being made on either side for negotiation. 1. The probable refusal of the Dominion Government to suspend action under the Treaty of 1818 pending negotiation. 2. The probable refusal of the Senate to sanction any agreement come to between Her Majesty's Government and President Cleveland's present Cabinet. Mr. Bayard is fully aware of the difficult position in which he has been placed, and it is therefore very likely that he is endeavouring to conciliate the Senate in view of possible negotiation by writing notes in the sense of the speeches of the Maine Senators, and in order thus to be enabled to give satisfactory assur ances of the disposition of that body to agree to an arrangement which could scarcely be reached without some such understanding, for he is aware that Her Majesty's Government would not be disposed to enter into engagements which the Senate might again refuse to allow the President to carry out. He feels also that Her Majesty's Government can only look to the United States Government and not to the circumstances in which he has been placed, and he is evidently now seeking means of escape from his dilemma. That such is the case appears from a letter which he has addressed to the owner of the schooner "D. J. Adams," copies of which, as published in the newspapers, I have the honour to enclose. as well as copies of an article from the New York Herald, commenting thereon. The allusion to "the mistake in not having taken his advice" is significant of the difficulty he now finds in securing a clear and comprehensive "declaration" of an agreement. I have the honour to be with the highest respect, my Lord, L. S. SACKVILLE WEST. 329 No. 204.-1886, July 10: Letter from Mr. Bayard (United DEPARTMENT OF STATE, S'8. I have the honour to inform you that I am is receipt of a Report from the Consul General of the United States, at Halifax, accompanied by sworn testimony stating that the "Novelty," a duly registered merchant steam vessel of the United States, has been denied the right to take in steam coal, or purchase ice, or tranship fish in bond to the United States, at Pictou, N. S. It appears that, having reached that port on the 1st inst., and finding the Customs Office closed on account of a holiday, the master of the "Novelty" telegraphed to the Minister of Marine and Fisheries, at Ottawa, asking if he would be permitted to do any of the three things mentioned above. That he received in reply a telegram reciting with certain inaccurate and extended application, the language of Art. I, of the Treaty of 1818, the limitations upon the significance of which are in pending discussion between the Government of the United States and that of Her Britannic Majesty. That on entering and clearing the "Novelty" on the following day at the Custom House, the collector stated that his instructions were contained in the telegram the master had received; and that, the privilege of coaling being denied, the "Novelty" was compelled to leave Pictou without being allowed to obtain fuel necessary for her lawful voyage on a dangerous coast. Against this treatment I make instant and formal protest as an unwarranted interpretation and application of the Treaty by the officers of the Dominion of Canada and the Province of Nova Scotia, as an infraction of the laws of commercial and maritime intercourse existing between the two countries, and as a violation of hospitality, and for any loss or injury resulting therefrom the Government of Her Britannic Majesty will be held liable. I have, &c., (Sd.) T. F. BAYARD. &c., &c., &c. The Honourable Sir L. S. WEST, K.C.M.G. No. 205.-1886, July 10: Letter from Mr. Bayard United States Secretary of State, to Sir L. S. S. West (British Minister). DEPARTMENT OF STATE, SIR, On the 2nd of June last, I had the honour to inform you that despatches from Eastport, in Maine, had been received, reporting threats by the Customs officials of the Dominion to seize American boats coming into those waters to purchase herring from the Canadian weirs for the purpose of canning the same as sardines, which would be a manifest infraction of the right of purchase and sale of herring caught and sold by Canadians in their own waters in the pursuance of legitimate trade. To this note I have not had the honour of a reply. To-day Mr. C. A. Boutwell, M. P., [M. C.] from Maine, informs me that American boats visiting St. Andrews, N. B., for the purpose of there purchasing herring from the Canadian weirs for canning had been driven away by the Dominion cruiser "Middleton." Such inhibition of usual and legitimate commercial contracts and intercourse is assuredly without warrant of law, and I draw your attention to it in order that the commercial rights of citizens of the United States may not be thus invaded and subjected to unfriendly discrimination. I am, &c., The Hon. SIR L. S. WEST, K.C.M.G. (Sd.) T. F. BAYARD. &c., &c., &c. 330 No. 206.-1886, July 16: Letter from Mr. Bayard (United States Secretary of State) to Hon. C. Hardinge (British Chargé d'Affaires at Washington). WASHINGTON, 16th July, 1886. SIR, I have just received through the Hon. C. A. Boutelle, M. C., the affidavit of Stephen R. Balkam, alleging his expulsion from the harbour of St. Andrews, N. B., by Captain Kent of the Dominion cruiser "Middleton," and the refusal to permit him to purchase fish, caught and sold by Canadians, for the purpose of canning as sardines. The action of Captain Kent seems to be a gross violation of ordinary commercial privileges against an American citizen, proposing to transact his customary and lawful trade and not prepared, or intending, in any way to fish or violate any local law, or regulation, or treaty stipulation. I trust instant instructions to prevent the recurrence of such unfriendly treatment of American citizens may be given to the offending officials at St. Andrew's and reparation be made to Mr. Balkam. I have, &c., The Hon. C. HARDINGE (Sd.) T. F. BAYARD. No. 207.-1886, July 16: Telegram from Mr. Bayard (United States Secretary of State) to Mr. Phelps (United States Minister at London). [Translation of Cypher Telegram Received at the Legation, July 16, 1886.] PHELPS, Minister, London. You will state to Lord Rosebery that realizing fully any embarrassment or delays attendant upon pending changes of British Administration, it is our duty to call upon Imperial Government to put a stop to the unjust, arbitrary and vexatious action of Canadian authorities towards our citizens engaged in open sea fishing and trading but not violating or contemplating violation of any Law or Treaty. Our readiness long since expressed to endeavour to come to a just and fair joint interpretation of Treaty rights and commercial privileges is ill met by persistent and unfriendly action of Canadian authorities which is rapidly producing a most injurious and exasperating effect. I am without reply from British Minister, who is now absent. Bayard. No. 208.-1886, July 22: Report of the Canadian Minister of Justice. To his Excellency the Administrator of the Government in Council. DEPARTMENT OF JUSTICE, Ottawa, 22nd July, 1886. With reference to the despatch of the 24th June last, from the Secretary of State for the Colonies to your Excellency respecting the Fisheries Question, and enclosing copies of letters on the subject from the Foreign Office to the Colonial Office, and of one from Mr. Phelps to the Secretary of State for Foreign Affairs, the undersigned has the honour to report as follows: The letter of Mr. Phelps seems designed to present to Earl Rosebery the case of the "David J. Adams," the fishing vessel seized a short time ago near Digby, in the province of Nova Scotia. Mr. Phelps intimates that he has received from his Government a copy of the report of the Consul General of the United States at Halifax, giving full details and depositions relating to the seizure, and that that report, and the evidence annexed to it, appear fully to sustain the points which he had submitted to Earl Rosebery at an interview which he had had a short time before the date of his letter. The report of the Consul General and the depositions referred to seem not to have been presented to Earl Roseberry, and their contents can only be inferred from the statements made in Mr. Phelps' letter. These statements appear to be based on the assertions made by the 331 persons interested in the vessel by way of defence against the complaint under which she was seized, but cannot be regarded as presenting a full or accurate representation of the case. The undersigned submits the facts in regard to this vessel, as they are alleged by those on whose testimony the Government of Canada can rely to sustain the seizure and detention. The Offence as to the Treaty and Fishery Laws. The "David J. Adams" was a United States' fishing vessel, whether, as alleged in her behalf, her occupation was deep sea fishing or not, and whether, as suggested, she had not been engaged, nor was intended to be engaged, in fishing in any limit proscribed by the Treaty of 1818 or not, are questions which do not, in the opinion of the undersigned, affect the validity of the seizure and of the proceedings subsequent thereto, for reasons which will be hereafter stated; but in so far as they may be deemed material to the defence, they are questions of fact which remain to be proved in the Vice-Admiralty Court of Halifax, in which the proceedings for the vessel's condemnation are pending, and in respect of which proof is now being taken, and inasmuch as the trial has not been concluded (much less a decision reached) it is perhaps premature for Mr. Phelps to claim the restoration of the vessel, and to assert a right to damages for her detention, on the assumption of the supposed facts above referred to. It is alleged in the evidence on behalf of the prosecution that the "David J. Adams," being a United States' fishing vessel, on the morning of the 5th of May, 1886, was in what is called the "Annapolis Basin," which is a harbour on the north-west coast of Nova Scotia. She was several miles within the Basin, and the excuse suggested (that the captain and crew may have been there through a misapprehension as to the locality) by the words of Mr. Phelps' letter, "Digby is a small fishing settlement and its harbour not defined," is unworthy of much consideration. Digby is not a fishing settlement, although some of the people on the neighbouring shores engage in fishing. It is a town, with a population of about two thousand persons. Its harbour is formed by the Annapolis Basin, which is a large inlet of the Bay of Fundy, and the entrance to it consists of a narrow strait marked by conspicuous headlands which are little more than a mile apart. The entrance is called "Digby Gut" and for all purposes connected with this enquiry, the harbour is one of the best defined in America. The David J. Adams" was, on the morning of the 5th day of May, 1886, as has already been stated, several miles within the Gut. She was not there for the purpose of "shelter" or "repairs" nor to "purchase wood" nor "to obtain water." She remained there during the 5th and on the 6th May, 1886, she was lying at anchor about half a mile from the shore, at a locality called "Clements West." On the morning of the 6th May, 1886, the captain made application to the owners of a fishing weir, near where he was laying for bait, and purchased four and a-half barrels of that article. He also purchased and took on board, about two tons of ice. While waiting at anchor for these purposes the name of the vessel's "hailing place" was kept covered by canvas, and this concealment continued while she afterwards sailed down past Digby. One of the crew represented to the persons attending the weir that the vessel belonged to the neighbouring province of New Brunswick. The captain told the owner of the weir, when the Treaty was spoken of by the latter, that the vessel was under British register. |