her being driven by stress of weather to find shelter in the harbour of Shelburne, N. S.

She was deeply laden, and was off the harbour of Shelburne when she sought shelter in a storm, and cast anchor just inside the harbour's entrance.

She was at once boarded by an officer of the Canadian cutter "Terror" who placed two men on board.

When the storm ceased, the "Rattler" weighed anchor to proceed on her way home, when the two men placed on board by the "Terror" discharged their pistols as a signal, and an officer from the "Terror" again boarded the "Rattler" and threatened to seize the vessel unless the captain reported at the Custom House.

The vessel was then detained until the Captain reported at the Custom House, after which she was permitted to sail.

The hospitality which all civilised nations prescribe has thus been violated, and the stipulations of a treaty grossly infracted.

A fishing vessel denied all the usual commercial privileges in a port has been compelled strictly to perform commercial obligations. In the interests of amity I ask that this conduct may be properly rebuked by the Government of Her Majesty.

I have, etc.

The Honourable CHARLES HARDINGE,

(Sd.)

T. F. BAYARD.

dc., &c., &c.

No. 212.-1886, August 14: Report of the Canadian Minister of Marine and Fisheries.

OTTAWA, 14th August, 1886.

The undersigned has the honor to submit the following, in answer to a despatch from Lord Granville to the Governor General under date 27th July last, enclosing two notes from Mr. Secretary Bayard to the British Minister at Washington, and asking that Her Majesty's Government be furnished with a report upon the cases therein re ferred to.

In his first communication, dated 10th July, Mr. Bayard says:

I have the honor to inform you that I am in 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, Nova Scotia.

It appears, that having reached that port on the 1st instant, 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 Article 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 Customs 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 Picton without being allowed to obtain fuel necessary for her lawful voyage on a dangerous coast.

314

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.

With reference to this, the undersigned begs to observe that Mr. Bayard's statement appears to need modification in several impor tant particulars. In the first place, the "Novelty" was not a vessel regularly trading between certain ports in the United States and Canada, but was a fishing vessel, whose purpose was to carry on the mackerel seining business in the waters of the Gulf of St. Lawrence, around the coast of Prince Edward Island and Nova Scotia; that she had on board a full equipment of seines and fishing apparatus and men; that she was a steam vessel and needed coal, not for pur poses of cooking or warming, but to produce motive power for the vessel, and that she wished to pursue her business of fishing in the above-named waters, and to send her fares home over Canadian Territory, to the end that she might the more uninterruptedly and profitably carry on her business of fishing. That she was a fishing vessel and not a merchant vessel, is proved not only by the facts above-mentioned, but also from a telegram over the signature of H. B. Joyce, the Captain of the vessel, a copy of which is appended. In his telegram, Captain Joyce indicates the character of his vessel by using the words "American fishing steamer," and he signs himself "H. B. Joyce, Master fishing steamer, 'Novelty.""

There seems, no doubt therefore, that the "Novelty" was in character, and in purpose, a fishing vessel, and as such comes under the provision of the Treaty of 1818, which allows United States fishing vessels to enter Canadian ports "for the purpose of shelter and repairing damages therein, and of purchasing wood and of obtaining water, and for no other purpose whatever."

The object of the Captain was to obtain supplies for the prosecution of his fishing, and to tranship his cargoes of fish at a Canadian port, both of which are contrary to the letter and spirit of the Convention of 1818.

To Mr. Bayard's statement, that in reply to Captain Joyce's inquiry of the Minister of Marine and Fisheries, he received in reply a telegram reciting with certain inaccurate and extended applica tion, the language of Art. I of the Treaty of 1818, the undersigned considers it a sufficient answer to adduce the telegrams themselves. 1st. Enquiry by the Captain of the "Novelty":

Hon. George E. Foster, Minister of Marine and Fisheries, Ottawa.

PICTOU, N. S., 1st July, 1886. Will the American fishing steamer now at Pictou be permitted to purchase coal or ice, or to tranship fresh fish, in bond, to the United States' markets? Please answer.

2nd. Reply of the Minister of Marine and Fisheries thereto :

To H. B. Joyce, Master American Steamer "Novelty," Pictou, N. S.

OTTAWA, 1st July, 1886.

By terms of Treaty 1818, United States' fishing vessels are permitted to enter Canadian ports for shelter, repairs, wood and water, and for no other purpose whatever. That Treaty is now in force. (Sd.) GEO. E. FOSTER, Minister of Marine and Fisheries.

The undersigned fails to observe wherein any "inaccurate or extended application "of the language of the Treaty can be found in the above answer, inasmuch as it consists of a de facto citation from the Treaty itself with the added statement for the information of the Captain, that said Treaty was at that time in force. As to the "unwarranted interpretation and application of the Treaty," of which Mr. Bayard speaks, the undersigned has already discussed that phase of the question in his memorandum of 14th June, which was adopted by Council, and has been forwarded to Her Majesty's Government. Mr. Bayard's second note is as follows:

On the 2nd of June last I had the honor 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 honor of a reply.

To-day Mr. C. A. Boutelle, 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 cruizer" Middleton."

345

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 the citizens of the United States may not be thus invaded and subjected to unfriendly discrimination.

With reference to the above the undersigned observes that so far as his information goes, no collectors of Customs or captains of cruisers have threatened to " seize American boats coming into Canadian waters to purchase herring from Canadian weirs for the purpose of canning them as sardines."

Collectors of Customs have however, in pursuance of their duties. under the Customs Law of Canada, compelled American vessels coming to purchase herring to enter and clear in conformity to Customs Law.

With reference to the action of the Dominion cruiser "Middleton," the undersigned cannot do better than quote from the official report of the Captain of that vessel as to the facts of the case referred to. In his report of date 9th July, 1886, Captain McLean of the "General Middleton " says:

At 9 a. m. made sail and drifted with the tide towards the bay. Seeing a large number of boats of various sizes hovering around the fishing weirs, I ordered the boat in waiting and sent Officer Kent in charge, giving him instructions to row among the boats and see if there were any Americans purchasing fish. On the return of the boat, Chief Officer Kent reported the boats men92909°-S. Doc. 870, 61-3, vol 4- -47

tioned were Americans there for the purpose of getting herring. I immediately directed the Chief Officer to return and order the American boats to at once report themselves to the collector of the port and get permits to load fish or leave without further delay. One of the boatmen complied with the request and obtained a permit to load fish for Eastport; the others were very much disturbed on receiving the above instructions and sailed away towards the American side of the river and commenced blowing their fog horns, showing their contempt. Other boats at a greater distance seeing our boat approaching did not wait her arrival but up sail and left for the American shore.

The above extract from the report of the Chief Officer of the "General Middleton " goes to show that it was not his object to prevent American boats from trading in sardines, but rather to prevent them from so trading without having first conformed to the Customs Law of Canada.

The whole respect fully submitted.

No. 213.-1886, September 11th: Letter from Mr. Phelps to the Earl of Iddesleigh (British Foreign Secretary).

LEGATION OF THE UNITED STATES, London, September 11, 1886. MY LORD: I have the honour to acknowledge the receipt of your note of September 1, on the subject of the Canadian fisheries.

I received also on the 16th of August, last, from Lord Rosebery, then Foreign Secretary, a copy of a note on the same subject, dated July 23, 1886, addressed by his Lordship, through the British Minister at Washington, to Mr. Bayard, the Secretary of State of the United States, in reply to a note from Mr. Bayard to the British. Minister of May 10, and also to mine addressed to Lord Rosebery under date of June 2. The retirement of Lord Rosebery from office immediately after I received his note, prevented a continuance of the discussion with him. And in resuming the subject with your Lordship, it may be proper to refer both to Lord Rosebery's note and to your own. In doing so I repeat in substance considerations expressed to you orally in recent interviews.

My note to Lord Rosebery was confined to the discussion of the case of the David J. Adams, the only seizure in reference to which the details had then been fully made known to me. The points presented in my note, and the arguments in support of them need not be repeated.

No answer is attempted in Lord Rosebery's reply. He declines to discuss the questions involved on the ground that they are "now occupying the attention of the Courts of Law in the Dominion, and may possibly form the subject of an appeal to the Judicial Committee of Her Majesty's Privy Council in England."

He adds:

It is believed that the Courts in Canada will deliver judgment in the above cases very shortly, and until the legal proceedings now pending have been brought to a conclusion, Her Majesty's Government do not feel justified in expressing an opinion upon them, either as to facts or the legality of the action taken by the Colonial authorities.

346

And your Lordship remarks, in your note of August 24, "It is clearly right, according to practice and precedent, that such diplomatic action should be suspended pending the completion of the judicial inquiry."

This is a proposition to which the United States' Government is unable to accede.

The seizures complained of are not the acts of individuals claiming private rights which can be dealt with only by judicial determination, or which depend upon facts that need to be ascertained by judicial inquiry. They are the acts of the authorities of Canada, who profess to be acting, and in legal effect are acting, under the authority of Her Majesty's Government. In the Report of the Canadian Minister of Marine and Fisheries, which is annexed to and adopted as a part of Lord Rosebery's note, it is said:

The Colonial Statutes have received the sanction of the British Sovereign, who, and not the nation, is actually the party with whom the United States made the Convention. The officers who are engaged in enforcing the Acts of Canada, or the laws of the Empire, are Her Majesty's officers, whether their authority emanates directly from the Queen or from her Representative the Governor-General.

The ground upon which the seizures complained of are principally justified is the allegation that the vessels in question were violating the stipulations of the Treaty between the United States and Great Britain. This is denied by the United States' Government. The facts of the transaction are not seriously in dispute, and, if they were could be easily ascertained by both Governments without the aid of the judicial Tribunals of either. And the question to be determined is the true interpretation of the Treaty as understood, and to be administered between the High Contracting Parties.

The proposition of Her Majesty's Government amounts to this, that before the United States can obtain consideration of their complaint that the Canadian authorities without justification have seized and are proceeding to confiscate American vessels, the result of the proceedings in the Canadian Courts, instituted by the captors as the means of the seizures, must be awaited, and the decision of that Tribunal on the international questions involved obtained.

The interpretation of a Treaty when it becomes the subject of discussion between two Governments is not, I respectfully insist, to be settled by the judicial Tribunals of either. That would be placing its construction in the hands of one of the parties to it. It can only be interpreted for such a purpose by the mutual consideration and agreement which were necessary to make it. Questions between individuals arising upon the terms of a Treaty may be for the Courts. to which they resort to adjust. Questions between nations as to national rights secured by Treaty are of a very different character and must be solved in another way.

The United States' Government is no party to the proceedings instituted by the British authorities in Canada, nor can it consent to become a party. The proceedings themselves are what the United States complain of as unauthorized, as well as unfriendly. It would be inconsistent with the dignity of a Sovereign Power to become a party to such proceedings, or to seek redress in any way in the Courts of another country for what it claims to be the violation of Treaty stipulations by the authorities of that country.